■Mi&^'S.'H'^'': '■'
 
 iiU^t 
 
 T 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 GIFT OF
 
 i 
 
 I
 
 IJ
 
 PRACTICAL TREATISE 
 
 LAW OF PARTNERSHIP: 
 
 APPENDIX OF PRECEDENTS. 
 
 By NIEL GOW, Esd. 
 
 OF LINCOLN S INN, BARRISTER AT LAW. 
 
 THIRD AMERICAN, FROM THE LAST LONDON EDITION: 
 
 WITH CONSIDERABLE ALTERATIONS AND ADDITIONS ; AND 
 NOTES AND REFERENCES TO AMERICAN DECISIONS. 
 
 By EDWARD D. INGRAHAM, Esq. 
 
 PHILADELPHIA: 
 
 ROBERT H. SMALL, LAW BOOKSELLER, MINOR STREET. 
 
 1837.
 
 Entered according to Act of Congress, in the year 1831, by Robert H. Small, 
 in the Clerk's Office of the District Court for the Eastern District of 
 Pennsylvania. 
 
 T 
 
 PmtADELPHIA : 
 
 PRINTED BY WILLIAM S. MARTIEN, 
 
 GEORGE STREET.
 
 
 CONTENTS 
 
 CHAPTER I. 
 
 
 
 Page. 
 
 Of the contract of partnership _ _ _ _ - 
 
 1 
 
 
 CHAPTER H. 
 
 
 Sect. 1. 
 
 The interest of partners in stock in trade - 
 
 31 
 
 
 in real property - 
 
 32 
 
 Sect. 2. 
 
 Of acts by which one partner may bind the firm - 
 
 36 
 
 
 One partner binding the firm by bill or note 
 
 38 
 
 
 by simple contracts - 
 
 50 
 
 
 by a guarantee - 
 
 56 
 
 
 by deed - - - 
 
 58 
 
 
 by a release 
 
 60 
 
 
 by a receipt 
 
 62 
 
 
 in legal proceedings - 
 
 63 
 
 
 by a submission to ar- 
 
 
 
 bitration 
 
 66 
 
 
 in bankruptcy - 
 
 68 
 
 Sect. 3. 
 
 Legal remedies between partners - - - 
 
 69 
 
 Sect. 4. 
 
 Equitable remedies between partners 
 CHAPTER IH. 
 
 93 
 
 Sect. 1. 
 
 Legal remedies for partners against strangers 
 
 116 
 
 Sect. 2. 
 
 Equitable remedies for partners against strangers 
 
 142 
 
 CHAPTER IV. 
 
 Sect. 1. Legal remedies against partners ... 145 
 
 Sect. 2. Equitable remedies against partners - - - 211 
 
 Sect. 3. Proceedingsagainstpartnersatthesuitofthecrown 214 
 
 CHAPTER V. 
 
 Sect. 1. The causes of the dissolution of a partnership - 218 
 Sect. 2. The consequences of the dissolution of a partnership 230 
 
 Sect. 3, The consequences of a dissolution by bankruptcy 256 
 
 Sect. 4. The consequences of a dissolution by death - 348
 
 iv CONTENTS. 
 
 APPENDIX. 
 
 Page 
 
 No. 1. Deed of partnership between three persons as auc- 
 tioneers and surveyors, of whom two had previ- 
 ously been engaged^in the same business, and the 
 third had acted as clerk to one of them, with ordi- 
 nary clauses - - - - - - " ^'^ 
 
 No. 2. Deed of copartnership between six persons as mer- 
 chants, with some special clauses - - - 381 
 
 No. 3. Deed pool for continuing or renewing a partner- 
 ship for a further term 391 
 
 No. 4. Deed of release and assignment from a retiring to a 
 
 continuing partner, ------ 392 
 
 No. 5. Deed of dissolution of a partnership between two 
 persons, where one of them continues to carry 
 on the business ------ 394 
 
 No. 6. Report of the case of Natush v. Irving{l) - - 398 
 
 (1) The case of Natush v. Irving, and the remarks of the Lord 
 Chancellor upon it, not appearing elsewhere in print, is preserved in 
 the Appendix.
 
 A TABLE OF THE CASES CITED. 
 
 Abbot V. Smith, 17. 79. 106. 166. 209. 
 
 Abel V. Sutton, 50. 251. 
 
 AheU, Ex parte, 313. 
 
 Acerro v. Petroni, 140. 194. 
 
 Ackerman, Ex parte, 298. 310. 
 
 Adam, Ex parte, 289. 
 
 Adams, Ex parte, 291. 293. 321. 
 
 Addis V. Knight, 337. 
 
 Addison v. Overend, 137. 
 
 Adley v. Whitstable Company, 93, 94. 
 97.213. 
 
 Agacu, Ex parte, 42. 108. 
 
 Akhurst v. Jackson, 71. 107. 302. 
 
 Albrecht v. Sussman, 121. 
 
 Alcock, Ex parte, 3J0. 
 
 Alder v. Fouracre, 34. 232. 349. 
 
 Alderson v. Clay, 140. 191. 
 
 V. Pope, 25. 66. 159. 
 
 Aldritt V. Kittridge, 342. 
 
 Alexander, Ex parte, 125. 129. 
 
 Allan V. Hartley, 257. 
 
 Allen V. Downes, 261. 
 
 V. Kilbree, 309. 
 
 Amory v. Merryvveather, 85. 
 
 Anderson v. Maltby, 26. 237. 
 
 V. Martindale, 126. 131. 170. 
 
 Andrews v. Ellison, 81. 
 
 Annand v. Honiwood, 32. 348. 
 
 Ansell V. Waterhouse, 79. 86. 183. 
 
 Antrarn v. Chase, 60. 67. 
 
 Apsey, Ex parte, 286. 
 
 Arden v. Sharp, 43. 46. 
 
 Arton V. Booth, 60, 61. 
 
 Atkins, Ex parte, 292. 
 
 Atkins V, Tredgold, 64. 196. 
 
 Atkinson, Ex parte, 288. 
 
 V. Elliott, 334. 
 
 Attorney-General v. Burges, 161. 184. 
 214. 
 
 V. Governors of Found- 
 ling Hospital, 94. 213. 
 
 V. Stannyforth, 214. 
 
 Atvvood V. Rattenbury, 132. 140, 
 
 ■ V. Small, 79. 
 
 Aubert v. Maze, 5. 82. 84, 85. 
 Ayliffv. Scromshire, 188. 
 
 Backhurst v. Clinkard, 204. 
 Baglchole, Ex parte, 121. 
 Bailey v. Vincent, 353. 
 Baker v. Charlton, 48. 
 Baldney v. Ritchie, 178. 
 Baldwin v. Lawrence, 98. 212. 
 Ball V. Dunsterville, 59. 
 
 Ball V. Storie, 368. 
 
 Ballam v. Price, 210. 
 
 Balmain v. Shore, 35. 220. 349, 350. 
 
 Bamford, Ex parte, 258. 
 
 Banks, Ex parte, 286. 
 
 V. Scott, 356. 
 
 Barber v. Backhouse, 44. 
 
 V. Barber, 102. 
 
 Barclay, Ex parte, 314. 
 
 V. Gooch, 82. 
 
 V. Lucas, 124. 
 
 Barfoot v. Goodall, 249. 
 
 Baring's Case, 361. 
 
 Baring v. Dix, 226. 
 
 Barker v. Goodair, 144. 205. 208 228. 
 
 299. 308, 309. 
 Barnard v. Gostling, 162. 
 Barnardiston v. Chapman, 91. 136. 
 Barned, Ex parte, 173. 299. 311. 
 Barough v. White, 195. 
 Barret v. Gore, 199. 
 Barron, Ex parte, 294. 346. 
 Barrow, Ex parte, 274. 278. 
 Barton v. Hanson, 150. 
 
 V. Williams, 51. 53. 92. 
 
 Barwis, Ex parte, 261. 
 Basarro, Ex parte, 310. 
 Bate, In re, 296. 369. 
 Batson, Ex parte, 281. 317. 
 Baudier, Ex parte, 267. 312. 
 Bayley v. Loyd, 61. 
 Beak v. Beak, 351. 354. 
 Beale, Ex parte, 266. 
 Bean, Ex parte, 347. 
 Beasly v. Beasly, 257. 266. 
 Beaumont v. Boultbce, 101. 
 
 V. Meredith, 2. 97, 98. 227. 
 
 Beekwith, Ex parte, 346. 
 Bedford v. Deakin, 157. 241. 
 Beechcr v. Guilburn, 106. 
 Beer v. Ward, 226. 
 BcUhy, Ex parte, 288. 
 Belcher v. Sykes, 236. 
 Bell, Ex parte, 82. 85. 
 
 V. Ansloy, 123. 
 
 V. Humphries, 52. 
 
 V. Phyn, 35. 
 
 Bellairs v. Ebsworth, 125. 
 Ballasis v. Hester, 32. 
 Ben field. Ex parte, 261. 
 Benjamin, Ex parte, 346. 
 
 V. Porteus, 19. 141. 
 
 Bensley v. Bignold, 5. 84. 
 Benson, Ex parte, 289.
 
 VI 
 
 TABLE OF CASES. 
 
 Bentley, Ex parte, 288. 
 Berncy v. Davison, 259. 
 
 V. Vyner, 259. 
 
 Berridge v. Merrill, 176. 
 Bevan, Ex parte, 286. 289. 
 
 V. Lewes, 283. 
 
 Biddle v. Levy, 176. 192. 
 Bigg, Ex parte, 290. 
 Biggs V. Fellows, 6.3. 130. 
 
 V. Lawrence, 5. 82. 117. 
 
 Bignold V. VVatcrhousc, 56. 66. 
 Binford v. Domtnett, 99. 113. 278. 
 Bingham, Ex parte, 284. 
 Birdwood v. Hart, 335. 
 Birkett, Ex parte, 228. 260, 341. 
 Birt v. Hood, 200. 
 Bishop v. Church, 370. 
 Blackburn, Ex parte, 288. 
 
 V. Stupart, 210. 
 
 Blackett v. Weir, 201. 
 Blagden, Ex parte, 336, 337. 
 Blair v. Agar, 143. 
 Blake, Ex parte, 316. 
 Blakey, Ex parte, 68. 228. 
 Bland v. Haselrig, 64. 
 Blankenhapen, Ex parte, 286. 
 Bloxam v. Hubbard, 133. 136. 277. 
 Bloxham v. Pell, 21. 
 Boardman, Ex parte, 294. 
 Bodenham v. Purehas, 244. 
 Bold, Ex parte, 261. 
 Bolitho, Ex parte, 40. 283. 
 Bolland v. Nash, 336. 
 Bolton, Ex parte, 288. 311. 328. 
 
 v. Puller, 203. 267. 271. 299. 
 
 Bonbonus, Ex parte, 41. 44. 46. 264. 284. 
 Bond, Ex parte, 286, 287. 
 
 V. 'Gibson, 52. 
 
 Booth v. Hodgson, 85. 159, 
 Bosanquet v. Wray, 88. 119. 357. 
 Boson v. Sandford, 160. 166. 181. 
 BotteriU, Ex parte, 328. 
 Bovil V. Hammond, 73, 74. 
 
 V. Wood, 172. 175. 
 
 Boughton V. Frere, 194. 
 Bourne, Ex parte, 229. 
 
 V. Freeth, 23. 38. 155. 
 
 Bower v. Swadlin, 187. 
 Bowness, Ex parte, 260. 
 Boyd, Ex parte, 294. 
 Boydell v. Drummond, 250. 
 Boyle, Ex parte, 334. 
 Bradley v. Millar, .328. 
 Braithwailc v. Skoficld, 155. 
 Brammcl v. Jones, 90. 
 Brand v. Boulcott, 87. 
 Brandon v. Hubbard, 130. 
 Brandram v. Wharton, 64. 196. 
 Branton v. Taddy, 29. 
 Brassington v. Ault, 128. 
 Bray v. Fromont, 5. 
 Bretherton v. Wood, 185. 
 Brice's Case, 362. 
 
 Brickhead v. York, 185. 
 Brickwood v. Annis, 210. 
 
 V. Miller, 306.308. 
 
 Bridges v. Mitchell, 102. 
 Bridgett V. Mills, 329. 
 Bristow V. James, 170. 184. 
 
 V. Potts, 308. 
 
 V. Taylor, 62. 252, 
 
 Bromage v. Prosser, 118. 
 Bromficld, Doe, d. v. Smith, 177. 
 Bromley v. Goodere, 296. 
 V. King, 257, 
 
 Brooke v. Enderby, 245. 
 Broome, Ex parte, 107. 302. 323. 
 Broughton v. Proprietors of Manchester 
 
 and Salford Water Works, 28. 
 Brown, Ex parte, 266. 282. 289. 347. 
 
 V. Brown, 199. 
 
 V. Do Tastet, 96. 2-55. 354, 355. 
 
 V. Fox, 199. 
 
 V. Hedges, 90. 136. 
 
 V. Holt, 30. 
 
 V. Leonard, 198. 
 
 V. Litton, 255. 354. 
 
 V. Turner, 83. 
 
 V. Vidler, 232. 255. 
 
 Browne, Ex parte, 126. 229. 
 Brownell v. Brownell, 102. 
 Bruce, Ex parte 294. 
 Brutton v. Burton, 59. 
 Buchanan v. Findlay 333. 
 Buck V. Buck, 30. 
 Buckland v. Newsame, 68. 
 Buckley v. Cater, 97. 227, 
 Buddie V. Wilson, 166, 
 Bullen, Ex parte, 262, 
 Buhner, Ex parte, 84, 
 Burden v. Burden, 355. 
 Burgess v. Merrill, 175. 
 Burgue v. Firman dc Tastet, 193. 
 Burkv. Brown, 100, 
 Burleigh v. Stott, 196, 
 Burlton v. Wall, 258. 264. 
 Burn, Ex parte, '^11. 
 
 v. Burn 59. 360. 369. 
 
 Burnaby, Ex parte, 269. 
 BurncU v. Minot, 80. 
 Burrcll, Ex parte 291. 
 Burroughs v. Elton, 34, 
 Burton, Ex parte, 276, 289. 
 
 v. Green. 205. 
 
 V. Issit, 66. 
 
 Burton v. Woolcy, 7. 113. 
 Butlin, Ex parte, 287, 
 Butts v. Bilkc, 263. 264. 
 Buxton V. Lister, 109. 
 Byers v, Dobey, 88, 166, 
 Bygrave, Ex parte, 258, 
 
 Cabell V. Vaughan, 125, 134. 136. 169. 
 
 171. 184. 
 Calder v. Rutherford, 173. 358. 
 Campbell v. Mullett, 207. 233. '235, 238
 
 TABLE OF CASES. 
 
 VU 
 
 Candler v. Candler, 15. 
 
 Cannan v. Bryce, 85. 
 
 Capper v. Desangcs, 259. 
 
 Carlen v. Drury, 17. 79. 98. 104, 105. 111. 
 
 Carpenter, Ex parte, 238. 324. 
 
 Carrington v. Cantillon, 213. 
 
 Carruthers v. Sheddon, 123. 
 
 Carter, Ex parte, 327. 
 
 V. Dean, 368. 
 
 Carvick v. Vickery, 6. 39. 
 Castel], Ex parte, 293. 
 Catesby, Ex parte, 292. 
 Catt V. Howard, 65. 197. 
 Cawthorn v. Challie, 352. 
 Chambers, Ex parte, 329. 
 
 V. Goldwin, 101. 
 
 Chancey v. May, 97. 143. 
 Chandler, Ex parte, 298. 315. 
 
 V. Dorset, 101. 
 
 V. Parkes, 178. 
 
 Chapman v. Beach, 114. 227. 
 
 V. Graves, 199. 
 
 V. Koops, 205, 206. 
 
 Chappie V. Cadell, 115. 
 Charlton v. Poulter, 114. 
 Chavany v. Van Sommer, 225. 
 Cheap V. Cramond, 14. 18. 63. 
 Cheetham v. Crom. 366. 
 
 V. Ward, 186. 
 
 Cheyne v. Koops, 200. 
 
 Child V. Hudson's Bay Company, 30. 
 
 334. 
 Child "v. Sands, 184. 
 Cholmondeley v. Clinton, 226. 
 Christie, Ex parte, 430. 
 Clarke v. Glennic, 92. 
 Clarke, Ex parte, 294. 
 
 V. Clement 209, 210. 
 
 Clay, Ex parte, 313. 
 
 Clayton's Case, 244. 360. 364. 
 
 Clerk V. Blackstock, 39. 
 
 Clowes, Ex parte, 283. 284. 
 
 Cluges V. Penaluna, 117. 
 
 Coates V. Coates, 240. 
 
 Cobham, Ex parte, 299. 312. 
 
 Cock V. Tunno. 344. 
 
 Cockburn v. Thompson, 29. 107. 212. 
 
 Coffee V. Brian, 75. 
 
 Cohen v. Hannam, 123. 
 
 Colbeck, In re, 22. 264. 278. 
 
 Coldwell V. Gregory, 228. 278, 279. 306. 
 
 Coles V. Gurney, 213. 
 
 Collins V. Prosser, 107. 
 
 Colman, In re, 258. 
 
 Colson V. Selby, 168. 
 
 Colt V. Wollaston, 109. 
 
 Cook, Ex parte, 267. 
 
 V. Batchellor, 118. 133. 
 
 V. Collingridgc, 235. 352. 355, 
 
 V. Rhodes, 226. 
 
 Coopev. Eyre,1.5. 17. 154. 
 Copland, Ex parte, 312. 
 Coryton v. Lithebye 118. 133. 
 
 Cossart, Ex parte, 296. 
 Cossham v. Goldncy, 202. 
 Courtney, Lord, v. Godschall, 102. 
 Cousins V. Smith, 94. 97. 132. 143. 179. 
 Cowell V. Edwards, 107. 
 V. Sike, 360. 
 
 Coxeter v. Anderson, 89. 
 Coxwell V. Bromet, 232. 354. 
 Craven v. Knight, 323. 
 
 Lord, v. Widdows, 16. 
 
 Crawfurd v. Liddell, 102. 
 Crawshay v. Collins, 231, 232. 234. 255. 
 302. 349. 
 
 V. Maule, 33, 35. 115.219. 
 
 221. 223. 225. 231. 235. 350. 351. 362. 
 Crew, Ex parte, 264. 
 Cridland, Ex parte, 263. 
 Crisp, Ex parte, 347. 
 
 V. Perritt, 297. 
 
 Croftv. Pyke, 321. 
 Crosse v. Smith, 138. 
 Crowder v. Tinkler, 213. 
 Crutwell V. Lye, 349. 
 Cubitt V.Porter, 91. 
 Curling v. Oakley, 295. 
 Currie, Ex parte, 296 
 v. Child, 199. 
 
 Curtis v. Perry, 277. 
 Cust, Ex parte, 292. 318. 
 Cutten, Ex parte, 265. 
 
 Dacie v. John, 232. 
 
 Dale v. Hall, 183. 
 
 Dance v. Girdler, 124. 
 
 Daniel v. Cross, 363. 366. 
 
 Daniels, Ex parte, 84. 
 
 Darcy v. Allen, 2, 3. 
 
 Darwent v. Walton, 164. 212. 
 
 Davenport v. Rakestraw, 129. 
 
 David V. Ellice, 157. 242. 
 
 Davidson v. Napier, 309. 
 
 Daviesv. Hawkins, 132. 179. 
 
 Davis V. Fisk, 30. 99. 
 
 Dawson v. Dawson, 101. 
 
 Dean v. Newhall, 188. 
 
 De Berengcr v. Ilammell, 227. 
 
 De Berkom v. Smith, 24. 192. 
 
 De Cosson v. Vaughan, 345. 
 
 Deering v. Lord VVinchelsea, 79. 106 
 
 Deeze, Ex parte, 333. 
 
 Delawney v. Strickland, 155. 
 
 Denton v. Rodie, 154. 
 
 De Tastet, Ex parte, 310. 312. 
 
 v. Shaw, 74. 88. 119. 
 
 v. Taylor, 121. 
 
 Deux v. Jeffereys, 188. 
 
 Dewdney, Ex parte, 195. 258. 298. 310, 
 
 311. 
 Dickenson v. Lockyer, 243. 
 Dickson, Ex parte, 329. 
 Ditchburn v. Spracklin, 131. 193. 
 Dixon V. Cooper, 18. 
 Doddington v. Hallct, 17. 110.
 
 VIU 
 
 TABLE OF CASES. 
 
 Doe V. Baker, 130. 
 
 Dolman v. Orchard, 50. 198. 
 Donegal, Marquis of, v. Stewart, 99. 
 Doo V. Chippendcn, 178. 
 Dove V. Hogg-, 66. 
 Douglass V. Horsfall, 143. 
 
 V. Patrick, 189. 
 
 Dowell V. Moon, 29. 
 Downham v. Mathews, 110. 
 Dowse V. JefFerics, 189. 
 Drake, Ex parte, 316. 323. 
 Drew V. Drew, 99. 
 
 V. Power, 101. 
 
 Dry V. Boswell, 19. 
 Dubois V, Ludert, 179. 
 Duckworth, Ex parte, 347. 
 
 Duff V. East India Company, 102. 252. 
 
 276. 
 Dunbar v. Len, 101. 
 Duncan v. Lowndes, 57. 
 Dunlop, Ex parte, 174. 316. 
 Dutton V. Morrisson, 60. 204, 205. 208. 
 
 228. 259. 299. 308, 309. 312. 321. 
 Dwerryhouse v. Graham, 163. 
 Dyster, Ex parte, 278. 
 
 East India Company v. Evans, 3. 
 
 V. Sandj's, 3. 
 
 Easum v. Cato. 333. 
 Eccleston v. Clipsham, 184. 
 Eckhardt v. Wilson, 128. 259. 341. 
 Eddie V. Davidson, 204. 206. 
 Edgar v. Fowler, 86. 
 Edmonson v. Davies, 162. 
 Edwards, Ex parte, 329. 338. 
 Elliot, Doe d. v. Hulme, 66. 
 Elliot V. Brown, 34. 
 
 V. Davis, 59. 139. 190. 
 
 Ellis, Ex parte, 323. 327. 
 
 v. Schmaeck, 156. 
 
 v. Watson, 192. 
 
 Ellison v. Bignold, 30. 81. 95. 227. 
 
 v. Dezell, 61. 
 
 Elton, Ex parte, 298. 
 Emly, Ex parte, 34. 40. 283. 
 
 V. Lye, 40. 154. 
 
 Emmett v. Butler, 175. 199. 
 Enderby, Ex parte, 275. 280. 
 
 V. Gilpin, 26, 27. 
 
 England, Bank of. Ex parte, 290. 
 
 Estwick V. Coningsby, 356. 
 
 Evans v. Curtis, 191. 
 
 V. Drummond, 156. 197. 243. 251. 
 
 V. Lewis, 169. 
 
 V. Mann, 139. 
 
 V. Richardson, 84. 
 
 V. Silvcrlock, 141. 
 
 V. Yeatherd, 79.200. 202. 
 
 Everett v. Backhouse, 261. 309. 314. 
 Everth v. Black burne, 29. 
 EweJ V. Ambrose, 202. 
 
 Faikney v. Renous, 83. 
 
 Farlow, ExpaHe, 297. 312. 
 Farmer v. Russell, 86. 
 Farr v. Pearce, 350. 
 Fawcett v. Wrathall, 201. 
 Featherstone v. Hunt, 158. 242. 
 Featiierstonhaugh v. Fenwick, 34. 224, 
 
 225. 232. 234. 255. 
 Fell, Ex parte, 238. 268 273. 275, 276. 
 Fenn v. Harrison, 33. 
 Fenning v. Lord Grenville, 91. 
 Fereday v. Hordern, 26. 
 . V. Wightwick, 115. 233. 234. 
 
 267. 321. 
 Ferrail v. Shaen, 325. 
 Figes, Ex parte, 309. 
 
 V. Cutler, 72. 
 
 Fitzgerald v. Boehm, 131. 173. 
 
 v.Trant,188. 
 
 Fletcher, Ex parte, 346. 
 
 V. Dyche, 138. 190. 
 
 Flindt v. Scott, 121. 
 
 Flint, Ex parte, 333. 
 Flintum, Ex parte, 312, 
 Flower v. Herbert, 202. 
 
 V. Young, 193. 
 
 Flyn, Ex parte, 278. 
 Form an v. Horn fray, 95. 
 Fort V. Oliver, 174. 
 Foster v. Alanson, 71. 74. 
 
 v. Donald, 106. 
 
 v. Hale, 33. 114. 
 
 V.Hodgson, 102. 
 
 v. Law^son, 118. 
 
 Fox v. Hanbury, 32. 51. 205. 228, 229. 
 
 236. 248. 298. 30G. 
 Franklin v. Lord Brownlow, 341. 
 Franklyn, Ex parte, 294. 
 Freeman, Ex parte, 241. 253. 285. 287. 
 
 292. 
 Freeman, In re, 369. 
 French v. Andrade, 139. 190. 
 
 V. Backhouse, 52. 
 
 v. Fenn, 333, 334. 
 
 Fromont v. Coupland, 14. 74. 150. 
 Fry, Ex parte, 241. 285. 287. 
 Fuller V. Gibson, 341. 
 Furnival v. Weston, 61. 65. 118. 
 
 Gainsborough v. Stork, 353. 
 
 Gale V. Leekie,.71. 
 
 Gallimore, Ex parte, 229. 347. 
 
 Gahvay, Lord, v. Matthew, 40, 49. 198. 
 
 Gardner, Ex parte, 259. 265. 266. 
 
 Gardom, Ex parte, 57. 
 
 Garret v. Handley, 122. 126. 
 
 Garret v. Taylor, 129. 
 
 Geddes v. Wallace, 10. 11, 23. 80. 105. 
 
 354. 
 Cellar, Ex parte, 14. 53. 
 Geller, Ex parte, 314. 
 George v. Claggett, 139. 
 Germaine v. Frederick, 169. 
 Gibbons v. Wilcox, 20. 191, 192.
 
 TABLE OF CASES. 
 
 IX 
 
 Gibbs V. Merrill, 175,176. 
 
 Gibson v. Hudson's Bay Company, 334. 
 
 Gillam, Ex parte, 265. 
 
 Gillespie v. Hamilton, 219. 221. 362. 
 
 Glassingfon v. Thwaites, 7. 100. 113. 114. 
 
 227. 240. 
 Glennie v. Edmunds, 333. 
 Glossopv. Colman,2. 129. 141. 
 Glover, Ex parte, 329. 
 Godfrey v. Browning, 220, 350. 
 
 V. Turnbull, 248. 250. 
 
 Godson V. Good, 167. 172. 180. 
 V. Smith, 171. 
 
 Gold V. Canham, 247. 
 
 Goldsmith v. Levy, 164. 
 
 Goodacre v. Breame, 200. 
 
 Goodall, Ex parte, 297. 
 
 Goode V. Harrison, 2. 20. 23. 177. 248. 
 
 Goodman v. Whitcomb, 112. 114. 227. 
 
 Gordon v. Austin, 174. 
 
 Gorham v. Thompson, 20. 250. 
 
 Goss v. Dufresnoy, 323. 
 
 Govett V. Radnidge,160. 166. 181. 183. 
 
 Gough V. Duvies, 158. 243. 363. 
 
 Goulding-, Ex parte, 43. 
 
 Gourlay v. Duke of Somerset, 103. 
 
 Gouthwaite v. Duckv?orth, 15, 16. 152. 
 
 Grace v. Smith, 14. 21, 22. 
 
 Graham v. Hope, 249, 250. 
 
 V. Mulcaster, 343. 
 
 v. Robertson, 87. 341. 
 
 Grant v, Hawkes, 47. 
 
 V. Jackson, 64. 194. 
 
 V. Royal Exchange Ass. Company, 
 
 Graves v. Sawyer, 92. 
 
 Graves v. Chisvvell, 359. 360. 368. 
 
 v. Fowler, 325. 
 
 v. Minnethorpe, 101. 
 
 Green v. Barrett, 109. 
 
 v. Deakin, 43. 
 
 V. Greenbank, 184. 
 
 V. Waring, 230. 
 
 Greenslade v. Dower, 38. 152. 
 Greenwood, Ex parte, 314. 
 Gregson v. Hutton, 44. 
 Grellier v. Neale, 178. 
 GnW, Ex parte, 317. 
 Guidon v. Robson, 23, 24. 126. 
 Guthrie, Ex parte, 133. 
 v. Fisk, 133. 143. 
 
 Haddock v.Thomlinson, 213. 
 
 Hadley, Ex parte, .331. 
 
 Hague V. Rolleston, 228.267.298. 305. 
 
 Haigh V. Conway, 174. 
 
 Halfhidc V. Penning, 103. 
 
 Halket, Ex parte, 368. 
 
 Hall, Ex parte, 60. 68. 310, 311. 
 
 V. Curzon, 201. 
 
 V. Gurney, 301. 
 
 V. Smith, 39, 40. 
 
 Hamer, Ex parte, 281. 
 
 Hamil v. Stokes, 107. 302. 
 
 Hammond v. Douglas, 349. 354. 
 
 Hamon v. White, 136. 
 
 Hamper, Ex parte, 14. 16. 18. 179. 203. 
 
 261. 265. 
 Hancock v. Entwisle, 333. 
 
 V. Haywood, 344,345. 
 
 Hankey v. Garret, 205. 309. 323. 
 
 V. Smith, 334. 
 
 Hannan v. Roll, 187. 
 Hanson, Ex parte, 336. 340. 
 Harcourt, Ex parte, 229. 
 Hardcastle, Ex parte, 264. 
 Hardenberg, Ex parte, 329. 
 Harding v. Carter, 55. 
 
 v. Glover, 231. 
 
 Hardy v. Martin, 239. 
 Hargreaves, Ex parte, 274. 292. 
 Harley v. Greenwood, 329. 
 
 Harris, Ex parte, 149. 239. 254. 269. 276. 
 291, 292. 317, 318. 321. 
 
 V. Wade, 59. 
 
 Harrison's Case, 346. 
 
 Ex parte, 32. 
 
 V. Armitage, 95. 114. 
 
 V. Fitzhenry, 129. 
 
 V. Gardner, 107. 
 
 V. Jackson, 37, 38. 58. 163. 
 
 Harrison v. Millar, 29. 
 Hartz v. Schrader, 352. 356. 
 Harvey v. Crickett, 73. 228. 307, 
 
 V.Kay, 88. 119. 
 
 v. Morgan, 343. 
 
 Harwood v. Edwards, 65. 
 Hawkins v. Ramsbottom, 175. 
 Hawkshaw v. Parkins, 59. 60. 
 Hay, Ex parte, 286. 
 
 V. Fairbain, 277. 
 
 Haydon, Ex parte, 312. 
 Heathv. Hall, 311,328. 
 
 V. Hubbard, 92. 
 
 V. Percival, 243, 244. 370. 
 
 Heathecote v. Hulme, 231. 355. 
 Heaton, Ex parte, 286. 
 Helsby v. Mears, 56. 150. 
 Henderson, Ex parte, 175. 261. 
 
 V. Wild, 43. 62. 252. 
 
 Henley v. Soper, 74. 
 He;-cy v. Birch, 110. 
 Herries v. Jameson, 79. 168. 
 Hcsham, Ex parte, 292. 
 Hcskelh v. Blatichaid, 10. 14. 
 Heydon v. Heydon, 204. 299. 
 Hiard v. Bigg, 150. 
 Hickmott's Case, 171. 
 li'iW, Ex parte, 211. ZU. 
 
 V. Burnham, 354. 
 
 Hitciion V. Bennett, 368. 
 Hoare v. Contenein, 359. 
 
 Dawes, 14. 25. 154. 179. 
 
 Hodcnpyl v. Vingcrliocd, 194. 
 
 B
 
 TABLE OF CASES. 
 
 Hodgkinson, Ex parte, 60. 68. 156. 179. 
 262. 
 
 V. Travers, 266. 
 
 Hodgson, Ex parte, 299. 312. 
 
 V. Temple, 117. 
 
 Hogg V. Bridges, 343. 
 
 Holderness v. Shackles, 300, 301. 304. 
 
 Holliday v. Camsell, 90. 
 
 HoJlis V. Carr, 246. 
 
 Holme V. Green, 196. 
 
 Holmes, Ex parte, 297. 
 
 V. Blogg, 177. 
 
 V. Higgins, 6. 74. 77. 
 
 V. Williamson, 79. 
 
 Holyland v. De Mendez, 237. 
 Hood V. Aston, 108. 
 Hooper, Ex parte, 126. 
 
 V. Lusby, 52. 
 
 Hope V. Cust, 37. 45. 
 Hopkinson v. Smith, 15. 
 Hopley, Ex parte, 314. 
 Horn V. Baker, 274. 
 Hornblower v. Proud, 275. 
 Horner v. Moore, 170. 
 Horsey's Case, 299. 
 Horsfall, Ex parte, 309. 
 Hovill V. Browning, 250. 
 Houghton, Ex parte, 211. 
 Houlton's Case, 362. 
 Howlett V. Haswell, 178. 
 Hubbard, Ex parte, 310. 315. 
 Hubert v. Nelson, 162. 
 
 Hudson V. Robinson, 159. 167. 202. 
 
 Hugget V. Montgomery, 160. 
 
 Hume V. Bolland, 55. 148. 
 
 Humphreys v. Hollis, 212. 
 
 Hunt V. Royal Exch. Ass. Company, 66. 
 
 V. Passman, 209. 
 
 Hunter, Ex parte, 107. 262. 267. 283. 
 290. 316. 327. 
 
 V. Richardson, 121. 
 
 Hurst V. Watkis, 89. 
 Husband, Ex parte, 284. 288. 
 Hussey v. Fiddall, 341. 
 Hutton V. Eyre, 81. 188. 
 Hyatv. Hare, 52. 172.358. 
 
 Irvine v. Young, 102. 
 Israel v. Douglas, 65. 
 
 V. Simmons, 131. 
 
 Jacaud v. French, 120. 
 Jackson, Ex parte, 284. 347. 
 
 V. Anderson, 92. 
 
 V. Fairbank, 195. 
 
 V. Jackson, 32. 
 
 V. Sedgwick, 10. 105. 353, 254. 
 
 Jacky V. Buller, 204.^ 
 Jocomb V. Harwood, 370. 
 JafFray v. Fairbain, 178. 
 Jaggers v. Binning, 194. 
 James v. Datid, 89. 
 
 • V. Kynnier, 336. 
 
 Jansen, Ex parte, 310. 314. 
 January v. Spires, 118. 
 Jefterys v. Small, 34. 348. 
 
 V. Smith, 12. 115. 225. 233. 
 
 Jell V. Douglass, 131. 134. 173. 
 Jenkins v. Blizard, 249, 250. 
 Jepson, Ex parte, 281. 
 Jestons V. Brooke, 25 
 Johns, Ex parte, 292. 
 Johnson v. Baker. 60. 
 
 V. Curtis, 101, 102. 
 
 V. Peck, 121. 
 
 Jones,Ex parte, 278. 310. 315. 347. 
 
 V. Dwyer, 272. 
 
 V.Garcia del Rio, 100. 
 
 V. Gibbons, 275. 
 
 V. Herbert, 61. 
 
 V. Sutton, 363. 
 
 V. Yates, 88. 119. 
 
 Josephs V. Pebrer, 30. 
 Jovvett V. Charnock, 194. 
 Joy V. Campbell, 94. 
 
 Keble v. Thompson, 285. 
 
 Keene v. Riley, 368. 
 
 Kelby v. Vernon, 87. 
 
 Kemble v. Farren, 142. 
 
 Kemp V. Andrews, 134. 358. 
 
 Kendall, Ex parte, 314. 321. 362. 366. 
 
 368. 
 Kennedy v. Lee, 107. 239. 
 Kensington, Ex parte, 125. 313, 314. 
 Kershaw v. Matthews, 221. 350. 
 Key V. Flint, 333. 
 Kilby V. Wilson, 147. 
 Kilgour V. Finlayson, 49, 50. 251. 
 Kill V. Hollister, 89. 
 Kinder v. Taylor, 17. 95. 97. 99. 110, 111. 
 
 219. 
 King, Ex parte, 294. 321. 323. 326. 347. 
 Kinnear v. Tarrant, 341. 
 Kinnerly v. Hossack, 138.189. 
 Kinsman v. Barker, 101. 
 Kipling v. Turner, 124. 
 Kirkham v. Newstead, 129. 
 Kirkley v. Hodgson, 277. 279. 
 Knott, Ex parte, 288. 
 Knowles v. Haughton, 94. 
 
 Lacon v. Lacon, 102. 
 Lacy V. Kynaston, 188. 
 
 V. flIcNeile, 65. 197. 
 
 La Forest, Ex parte, 289. 
 Lake v. Craddock, 33, 34, 35. 
 Lambert's Case, 125. 
 Lane v. Williams, 39. 359. 366. 369. 
 Lanesborough v. Jones, 337. 
 Lanfear, Ex parte, 311. 
 Langdaie, Ex parte, 14. 23. 
 Langton v. Hughes, 84. 
 Lavender, Ex parte, 265. 298.
 
 TABLE OF CASES. 
 
 XI 
 
 Law, Ex parte, 346. 
 Lawler v. Kershaw, 13. 
 Lawson v. Morsam, 225. 
 Laycock, Ex 2Mrte,310. 
 Laylon, Ex parte, 179. 261. 
 Leanie v. Bray, 160. 
 Leaverland, Ex parte, 265. 
 Lechmere v. Brasier, 368. 
 Lee, In re, 314. 
 Lees V. Smkh,29. 
 Leeson v. Holt, 250. 
 Legh V. Leg-h, 61. 
 Leglise v.Champante, 140. 
 Lcigli V. Thomas, 96. 
 Leslie v. Wilson, 184. 
 Leveck v. Shaftoe, 21. 128. 140. 
 Lewis V. Morgan, 101. 
 Liardet v. Adams, 222. 227. 
 Liddel, Ex parte, 286. 
 Lightfoot V. Tenant, 84. 
 Lingard v. Bromley, 86. 185. 
 
 V. Messitcr, 279. 
 
 Lingen v. Simpson, 32. 234. 239. 255. 
 Littlewood v. Caldwell, 109. 
 Lloyd, Ex parte, 125. 
 
 V. Archbowle, 128. 139. 
 
 V. Ashby,42. 163. 
 
 V. Fresh field, 283. 
 
 V. Loaring, 94. 
 
 Lodge, Ex parte, 291. 317. 
 
 T.Dicas, 157.241. 
 
 London's Case, City of, 3. 
 Longman, Ex parte, 310. 
 Lovelace's (Lord) Case, 59. 
 Low V. Copestake, 87. 
 Lowfield V. BencrofT, 191. 
 Lucas V. Delacour, 65. 130. 141. 
 Luckett V.Graham, 201. 
 Luke Ex parte, 346. 
 
 Maberley, Ex parte, 298. 
 Machell, Ex parte, 310. 315. 
 
 — V. Kinnear, 140. 
 
 McConnell v. Hector, 121. 
 
 Madox v. Jackson, 107. 
 
 McGae, Ex parte, 304. 
 
 McGennis, Ex parte, 347. 
 
 Mclver v. Humble, 4. 23. 193. 199. 248. 
 
 McMichael v. Johnson, 174. 
 
 Macmurdo v. Bircii, 164. 
 
 M'Nair v. Fleming, 48. 
 
 Magor V. Hammond, 28. 
 
 Mainwaring v. Newman, 88. 119. 
 
 Mair v. Glennie, 19. 277. 
 
 Maitland v. Goldney, 118. 
 
 Mant V. Mainwaring, 199. 
 
 March v. Ward, 39. 
 
 Marlin, Ex parte, 282. 
 
 Marriott v. Shaw, 204. 
 
 Marsh Ex parte, 126. 304. 
 
 v. Vansommcr 44. 
 
 Marshal v. Col man. 111, 112. 
 Marson v. Barber, 208. 
 
 Martell, Ex parte, 310. 
 
 Martin, Ex parte, 261. 276. 
 
 V. Croinpe, 131. 348. 358. 
 
 Martyn v. Knowllys, 92. 
 
 Mason V. Rumsey, 40. 
 
 Masson, Ex parte, 286. 288. 
 
 Master v. Kirton, 108. 225. 
 
 Mather, Ex parte, 84. 
 
 Matthews, Ex parte, 24. 178. 192. 261. 
 328. 
 
 Mavor, Ex parte, 259. 
 
 Mawman v. Gillett, 128. 141. 
 
 Max v. Roberts, 181. 183. 
 
 Maxwell v. Jameson, 82. 
 
 Nay V. Brown, 138. 
 
 Mear, Ex parte, 346. 
 
 Mears v. Serocold, 59. 
 
 Melioruchi v. Royal Exch. Ass. Compa- 
 ny, 334. 
 
 Merryweather v. Nixan, 79. 86. 185. 
 
 Metcalfe's case, 70. 
 
 Metcalfe v. Bruin, 124. 
 
 v. Royal Exch. Ass. Company, 
 
 14. 53. 
 
 V. Rycroft, 130. 
 
 Meux V. Humphry, 66. 
 
 V. Maltby, 96. 143. 212. 
 
 Meyer v. Sharpe, 20. 308. 
 Michell V. Harris, 89. 104. 
 Milbank v. Revett, 114 
 Millburti V. Codd, 78, 79. 256. 
 Miller, Ex parte, 260. 
 Mills, Ex parte, 310. 
 
 V. Bennett, 259. 
 
 Milnesv.Gery, 103. 
 Minchin, Ex parte, 294. 297. 
 Minnett v. Whitney, 49. 52. 
 Mitchell, Exporte,60. 68. 
 
 v. Cockburn, 83. 85. 159. 
 
 Mitchell V. Taibutt, 610. 182. 184. 
 Moffat v. Van Milligen, 119. 
 Molony v. Gibbons, 247. 
 Monkhouse v. Hay, 277. 
 Monro, Ex parte, 275. 
 Montgomery, Ex parte, 309. 
 Moody v. King. 49. 199. 202. 
 Moore, Ex parte, 327. 
 Moravia v. Levy, 71. 75. 
 Moreton v. Hardern, 146. 160. 
 Morgan, Ex parte, 68. 
 Morland v. Pellatt, 343. 
 Morley v. Gaisford, 160. 
 v. Strombom, 164. 
 
 Morris v. Colman, 7. 
 
 v. Wilford, 188. 
 
 Morrisett v. King, 27. 
 Morrow v. Belcher, 184. 
 Morse v. Wilson, 26. 
 Morton, Exparte, 68. 
 v. Grey, 165. 
 
 Mountstephen v. Brooke, 169. 
 Mucklow v. Mangles, 278. 
 Muirhead v. Salter, 20.
 
 Xll 
 
 TABLE OF CASES. 
 
 MuUelt V. Hook, 179. 
 
 Munlon, Ex parte, 263. 
 
 Murray v. East India Company, 28. 
 
 Murray v. Somerville, 168. 
 
 Musson V. May, 358. 
 
 Mutree, Ex parte, 2G0. 
 
 Myers v. Edge, 123. 
 
 Nad in v. Battie, 210. 
 
 Nathan v. Buckiand, 127. 
 
 Natusch V. Irving, 7. 112. 181. 231. 234. 
 
 Neale v. Turton. 78. 88. 119. 
 
 Needham's Case, 187. 
 
 Nelthorpe v. Dorrington, 136. 
 
 Nerot V. Burnard, 235. 
 
 Nesbilt V. Meyer, 110. 
 
 Newland v. Champion, 359. 
 
 Newmarch v. Clay, 245. 251. 
 
 Newsome v. Coles, 24. 198. 250. 252. 
 
 Nicholls V. Chalie, 104. 
 
 V. Dowding, 191. 
 
 Nicholson v. Bownass, 163. 
 Nicoll V. Glennie, 161. 
 Nockells V. Crosby, 77. 
 Noke V. Ingham, 175. 
 Nokes, Ex parte, 224. 298. 
 Nolte, Ex parte 57. 314. 
 Norden v. Williamson, 142. 
 Norfolk, Ex parte, 179.262. 
 Norton v. Shakspearc, 295. 
 Norway v. Rowe, 99. 115. 
 Norwich and LowestofF Navigation Com- 
 pany V. Theobald, 250. 
 Notley V. Buck, 343. 
 Nowland v. Gedes, 174. 
 
 O'Brien v. Currie, 261. 
 Ockenden, Ex parte, 333. 
 Ogilby, Ex parte, 323. 326. 
 Ogilvie V. Foljambe, 49. 
 Ogle V. Barnes, 160. 
 
 v^VVrangham, 52. 
 
 Oldknow, Ex parte, 312. 
 Oliver v. Hamilton, 114. 
 O'Meally v. Wilson, 121. 
 Ord V. Portal, 132. 140. 
 Ormston v. Hamilton, 103. 
 Orr V. Chase, 371. 
 Osborne v. Harper, 87. 131. 248. 
 Ottlcy V. Brown, 84. 94. 
 Ouchterlony v. Easterby, 335. 
 
 Pachelor, Ex parte, 264. 
 Page, Ex parte, 312. 
 
 V. Hiscox, 129. 
 
 Palmer's Case, 363. 
 Parker, Ex por/e, 282. 291. 
 
 V. Barker, 192. 257. 
 
 ■^ V. Lawrence, 187. 
 
 V. Pistor, 206. 
 
 V. Ramsbottom, 336. 238. 324. 
 
 Parkin v. Caruthers, 20. 248. 283. 
 
 V. Fry, 78. 256. 
 
 Parr, Ex parte, 281. 3[0. 
 
 Parry, Ex parte, 233. 
 
 Parsons v. Crosby, 23. 129. 141. 
 
 Paterson v. Zachariah. 49, 243. 249. 
 
 Payler v. Honiershani, 188. 
 
 Paynter v. Houston, 357. 
 
 Peacock, Ex parte, 289. 
 
 V. Peacock, 8. 12. 92. 99. 115.223. 
 
 231. 
 Peake, Ex parte, 238. 269. 314. 
 Pearce v. Chamberlain, 4. 220. 221. 350. 
 
 V. Piper, 97. 227. 
 
 Peele, Ex parte, 41. 68. 253. 284. 
 Peirse v. Bowles, 189. 
 Perham v. Rayna!, 64. 194. 
 Perring v. Hone, 127. 156. 
 Perry v. Hunwicks, 183. 
 
 V Jackson, 60.64.142. 194. 
 
 Pctherick v. Turner, 194. 
 Petriev. Bury, 126, 127. 
 
 : V. Han nay, 82. 
 
 Petty V. Janeson, 10. 105. 354. 
 Peyton, Ex parte, 213. 
 Philips V. Atkinson, 356. 
 V. Biggs, 86. 
 
 326. 
 
 V. Wise, 125. 
 
 Pickering v. Rigby, 357. 
 Pidcock V. Kilby, 228. 
 Pigott V. Bagley, 177.350. 
 Pinder v. Wilks, 149. 
 Pine, Ex parte, 291. 
 Pinkerton, Ex parte, 310. 3 15. 
 Pinkney v. Hall, 39. 
 Pollard V. Scholey, 325. 
 Poole, Ex parte, 265. 
 Pope V. Haman, 204. 
 Porthouse v. Parker, 66. 197. 
 Postan V. Stanway, 172. 
 Pott V. Gallini, 368. 
 Powell, In re, 262. 296. 
 
 ■— Ex parte, 297. 
 
 V. Layton, 160. 165, 166, 181, 182. 
 
 Pratt V. Hutchinson, 30. 
 Price V. Williams, 103. 
 Prickett v. Down, 341. 
 Primrose v. Bromley, 359. 369. 
 Prosser v. Smith, 260, 
 Prolheroe v. Forman, 144. 
 Proud V. Coombes, 101. 
 Puleston, Ex parte, 346. 
 Puller V. Roe, 138. 
 
 Quinten, Ex parte,338, 339. 
 
 Raba v. Ryland, 53. 
 Rackstraw v. Imber, 75. 224. 
 Radenhurst v. Bates, 72, 132. 
 Ramsbotham v. Cator, 307. 
 Ramsbottom v. Duck, 307. 
 
 V. Lewis, 50. 307. 
 
 Randleson, Ex parte, 28. 
 Rapp V. Latham, 55. 147.
 
 TABLE OF CASES. 
 
 Xlll 
 
 Raven v. Dunning^, 199. 
 
 Rawson, Ex parte, 263, 264, 265, 266. 
 
 Ray V. Davies, 345. 
 
 Raynard v. Chase, 158. 
 
 Read, Ex parte, 175. 329. 
 
 V. Bowers, 114. 
 
 Redoubt v. Brough, 332. 
 Reed, Ex parte, 292. 
 
 V. Cole, 29. 
 
 V. Sowerby, 295. 
 
 V. White, 156. 244. 
 
 Reeve, Ex parte, 291. 294. 321. 
 
 V. Parkins, 227. 
 
 Reid V. Hollinshead, 14, 15.53. 
 Revett V. Browne, 185. 
 Rex V. Alnion, 161. 
 
 V. Cawood, 30. 
 
 V. Cole, 261. 
 
 V. Dodd, 2,3.17.30. 
 
 V. Hardwicke, 194. 
 
 V. Holt, 250. 
 
 V. Lafone, 199. 
 
 V. Manning, 161. 215. 
 
 V. Marsh, 161. 
 
 V. Pearse, 161. 
 
 V. Powell, 169. 
 
 V. Rock, 216. 
 
 V. Sanderson, 205. 216. 
 
 V. Stratton, 30. 
 
 V. Topham, 161. 
 
 V.Webb, 30. 
 
 V. Whitstable Company, 93. 
 
 V. Young, 171. 
 
 Rice V. Shute, 17. 134. 166.-182. 184. 
 Richards v. Heather, 173. 
 Richardson, Ex parte, 16. 272. 
 
 V. Gooding, 322. 
 
 V. Griffin, 345. 
 
 Richmond v. Heapy, 69. 121. 
 
 Ridley V. Taylor, 39. 45, 46. 149. 201. 
 
 Rigden v. Pierce, 234. 
 
 V. Vallier, 33. 
 
 Ring, Ex parte, 292. 
 Ripley v. Waterworth, 35. 
 Roberts, Ex parte, 68. 265. 347. 
 
 . V. Hardy, 121. 
 
 Roberts v. Kuflin, 101. 
 Robertson v. Wilkinson, 162. 178. 
 Robey v. Howard, 6. 168. 
 Robinson, v. McDonnell, 277. 
 
 V. Read, 244. 
 
 Robson V. Curtis, 74. 77. 
 
 Rogers v. Imbleton, 160. 
 
 Rogers v. Mackenzie, 316. 
 
 Rolfe, Ex parte, 57. 
 
 Rooth, V. Quin, 49. 194. 249, 250. 
 
 Rordasnz v. Leach, 132. 140. 
 
 Rose V. Hart, 333. 
 
 Rothwell V. Humphreys, 37. 
 
 Rowe V. Wood, 103. 
 
 Rowlandson, Ex parte, 18. 238. 255.265. 
 
 268, 269, 270. 275. 286. 288.' 
 Rowley v. Home, 250. 
 
 Rowton, Ex parte 304. 
 
 Roxby, Ex parte, 281. 
 
 Ruffin, Ex parte, 203. 209. 228. 236. 254. 
 
 268, 269. 273. 275. 352. 
 Russell V. Austwick, 108. 
 
 V. Langstaffe, 47. 
 
 Rutherford, Ex parte, 309. 
 Ryal V. Larkin, 332. 
 
 V. Rowles, 275. 301. 322. 
 
 Ryan v. Mackmath, 225. 
 
 Sadler, Ex parte, 314. 
 
 Sainstry v. Grammer, 107. 
 
 Saint Barbe, Ex parte, 292, 293. 
 
 Saltoun V. Houston, 17. 246, 
 
 Sampson v. Burton, 333. 
 
 Sanders v. King, 100. 
 
 Sandilands v. Marsh, 38. 55, 56. 58. 151. 
 
 Sangster v. Mazarredo, 192. 
 
 Saville v. Roberts, 142. 162. 
 
 V. Robertson, 1.5. 16. 151. 153. 193. 
 
 Saunderson v. Hudson, 173. 
 Sayer v. Bennet, 222. 229. 
 Shack v. Anthony, 75. 
 Scott V. Franklin, 345. 
 
 V.Godwin, 134. 166. 170. 
 
 V. Scholey, 204. 
 
 Scudamore v. White, 103. 
 
 Season v. Gilbert, 178. 
 
 Sedgworth v. Overend, 129. 133. 137. 
 
 Seeley v. Boehm, 115. 
 
 Selkrig v. Davies, 35. 349. 
 
 Senhouse v. Cliristian, 115. 
 
 Sergeant, Ex parte, 82. 
 
 Sharp v. Warren, 77. 
 
 Sharpe, In re, 277. 
 
 Shaw, Ex parte, 265. 
 
 Sheppard v. Baillie, 166. 
 
 Sherman v. Sherman, 102, 103. 
 
 ShirrefF v. Wilks, 44. 56. 
 
 SifFkin v. Walker, 154. 
 
 Sillitoe, Ex parte, 291. 293. 
 
 Simons V. Smith, 200. 
 
 Simpson, In re, 262. 
 
 Ex parte, 310. 
 
 V. Bloss, 85. 
 
 V. Vaughan, 369. 
 
 Simson v. Cooke, 124. 244. 364. 
 
 V. Ingham, 244, 363, 264. 
 
 Skaife v. Jackson, 43. 61, 62. 252. 
 
 Skinner v. Stocks, 128. 139. 
 
 Skipp V. Harwood, 205. 
 
 Slark V. Highgate ArchwayCompany, 28. 
 
 Slater, Ex parte, 187. 
 
 Slaughter v. Cheyne, 295. 
 
 Sleech's Case, 158. 243. 331. 363. 366. 
 
 Slingsby's Case, 126, 127. 
 
 Slipper V. Stidstone, 139. 190. 
 
 Slow, Ex parte, 269. 
 
 Smith, Ex parte, 107.210.228.233. 264. 
 
 266. 272.289. 298. 301. 314. 318. 320. 
 
 327. 346. 
 V. Bailey, 39.
 
 XIV 
 
 TABLK OF CASES. 
 
 Smith V. Barrow, 73. 76. 132. 358. 
 
 V. Dc Silva, 32. 228. 301. 
 
 V. Fromont, 113. 115. 
 
 V. Fugc, 193. 
 
 V. Goddard, 139. 307. 335. 344. 
 
 V. Jameson, 156. 285. 
 
 V. Maplebuck, 188. 
 
 V. Oriel, 91. 306. 346. 
 
 V.Smith, 34. 232. 
 
 V. Stoke?*, 91. 228. 306. 309. 345. 
 
 V. Watson, 10. 14.23. 278. 280. 
 
 Snaith v. Burridge, 54. 
 
 V. Mingay, 47. 
 
 Snellgrove v. Hunt, 137. 342. 
 Solly V. Forbes, 188. 
 Solomon, Ex parte, 288. 
 Solomons v. Medex, 118. 
 
 South Carolina Bank v. Case, 41. 154. 
 South V. Tanner, 169,170. 
 South wood V. Taylor, 334. 
 Spalding V. Mure, 172. 
 Sparrow v. Chisman, 69. 121. 
 Spencer v. Billing, 192, 193. 258. 
 
 V. Spencer, 256. 
 
 Stables v. Eley, 24. 198. 252. 
 Stacey v. Fredcrici, 142. 
 Stacy V. Decy, 139. 
 Staff, Ex parte, 260. 
 Stanborough, Ex parte, Sl'i. 
 Standgroom, Ex parte, 301. 
 Stanifbrlh v. Fellowes, 139. 335. 
 Stansfield v. Levy, 178. 
 Staple?, In re, 284. 
 Stead V. Salt, 38. 60. 67. 
 Steel V. Western, 128. 
 Steers v. Leshley, 83. 
 Steighlitz v. Egington, 58, 59. 
 Stent V. Bailis, 30. 
 Stephens, Ex parte, 336, 337. 
 Stephenson v. Chiswell, 337. 359. 
 Stevenson's Case, 246. 
 Stiles, Ex parte, 296. 
 Stokes v. Stokes, 61. 
 Stone, Expaite, 266. 
 
 V. Marsh, 55. 148. 
 
 Stonehousc v. De Silva, 343. 
 Storer v. Hunter, 272. 274. 
 Storks, Ex parte, 261. 
 Story v. Lord Windsor, 115. 
 Stoveld, Ex parte, 232. 327. 
 Strange v. Lee, 123, 124. 
 Strangford v. Green, 60. 68. 
 Streatfield v. Halliday, 261. 345. 
 Street v. Rigby, 103, 104. 
 Strother v. Willan, 193. 
 Strutt, Ex parte, 295. 
 Stuart V. Marquis of Bute, 35. 
 Sullivan v. Greaves, 85. 159. 
 Sumner v. Powell, 371. 
 Sutton v. Clarke, 166. 
 Swan v. Steele. 37. 39. 43. 48. 
 Sykes V. Bauwens, 165. 
 
 Taitt, Ex parte, 315. 330. 
 Tanner v. Hague, 210. 
 Tarleton v. Backhouse, 257. 
 
 V. Tarleton, 247. 
 
 Taltersall v. Groote, 72. 89. 104. 107. 
 Taylor, Ex parte, 310. 315. 323. 326. 
 
 V. Fields, 144. 205.207. 208. 299. 
 
 321. 
 
 ■ V. Glassbrook, 15. 
 — V. Harris, 168. 180. 
 v. Haylin, 101. 
 
 Taylor v. Higgins, 82 
 
 Tcague v. Hubbard, 78. 88. 119. 
 
 Teed V. Elworthy, 126. 128. 138. 
 
 Tenant v. Elliott, 86. 
 
 Tench v. Roberts, 15. 
 
 Terrell, Ex parte,291. 321. 323. 327. 
 
 Thomas v. Clarke, 40. 
 
 V. Courtney, 188. 
 
 V. Eraser, 369. 
 
 V. Heathorn, 168. 
 
 Thomason v. Frere, 58. 127. 139. 306. 
 
 341. 
 Thompson, Ex parte, 265. 
 
 V. Brown, 244. 
 
 V. Charnock, 89. 104. 
 
 V. Ryan, 234. 
 
 Thompson v. Thompson, 86. 
 Thornton v. Dixon, 33. 35. 349. 
 
 v. Illingworth, 177. 
 
 V. Proctor, 105. 
 
 Thring v. Edgar, 100. 
 
 Thwaites v. Richardson, 194, 195. 
 
 Ticknell v. Short, 102. 
 
 Tinkler v. Walpole, 193. 
 
 Tissard v. Warcup, 173. 
 
 Titner, Ex parte, 269, 
 
 Tobin, Ex parte, 265, 266. 331. 
 
 Tooker's Case, 60. 
 
 Townsend v. Devaynes, 35. 349. 
 
 Trigwell, Ex parte, Sid. 
 
 Tupper V. Haj'thorne, 53. 
 
 Turner v. Davics, 189. 
 
 Twiss V. Massey, 262. 
 
 Twogood Ex parte, 338. 
 
 V. Swanton, 102. 
 
 Twopenny v. Young, 188. 
 Tyler v. Duke of Leeds, 211. 
 
 Vansandau v. Moore, 94. 96. 99. 110. 
 Venning v. Lcckie 71. 73. 
 Vernon v. Blackerby, 96. 
 
 v. Jcfferys, 126. 
 
 V. Vawdry, 101, 102. 
 
 Vicary's Case, 64. 194. 
 Vice V. Lady Anson, 13. 155. 
 
 V. Fleming, 52. 198. 249. 
 
 Voguel, Ex parte, 312. 
 Voyce V. Voyce, 91. 
 
 Vulliamby v. Noble, 219. 221. 248. 340. 
 351. 359. 361, 362. 370. 
 
 Underbill v. Horwood, 368.
 
 TABLE OF CASES. 
 
 XV 
 
 Upham, Ex parte, 266. 
 Usborne, Ex parte, 250. 276. 
 Usher v. Dauncey, 47. 
 Usparicha v. Noble, 121. 
 
 Wadeson v. Richardson, 253. 
 
 WagstafF, Ex parte, 334. 
 
 Wainwright v. Waterman, 351. 
 
 Wait, In re, 204. 228.294. 309. 321, .322. 
 
 Waithman, Doe d., v. Miles, 92. 224. 
 
 Waland v. Elkins, 150. 161. 
 
 Wales, Princess of, v. Earl of Liverpool, 
 
 357. 
 Walker v. Consett, 101. 
 
 V. Harris, 71. 
 
 Want V. Reece, 248. 
 
 Ward V. Haydon, 199. 
 
 Wardc's Case, 361. 
 
 Warner v. Barber, 260. 262, 263. 
 
 Warrington v. Norton, 266. 
 
 Waters v. Taylor, 95, 96. 104. 111. 114. 
 
 204.206.221,222.227. 
 Watkins, Ex parte, 319. 
 Watson, Ex parte, 18. 23. 125. 179. 261. 
 262. 285. 327. 
 
 V. Medex, 329. 
 
 Watts V. Brookes, 94. 
 Waugh V. Carver, 1. 16, 17. 20. 23. 80. 
 Waymill v. Read, 117. 
 Weal V. King, 184. 
 
 Weale v. West Middlesex Water Com- 
 pany, 212. 
 Weaver v. Prentice, 193. 
 Webb, In re, 81. 
 Webb V. Brooke, 5. 84. 
 Webber v. Tivill, 103. 125. 131. 
 Webster v. Webster, 109. 221. 357. 362. 
 Weld v. Bonham, 212. 
 Welfordv. Liddell, 102, 103. 
 Waller v. Governors of Foundling Hos- 
 pital, 199. 
 Wellington v. Macintosh, 103. 
 Wells V. Masterman, 39, 40. 43. 46. 
 
 V. Ross, 179. 
 
 Wenslay, Ex parte, 290. 
 
 West V. Skip, 31, 32. 105. 205. 236. 273. 
 
 298. 321. 
 Weston V. Barton. 123. 
 Weymouth v. Boyer, 212, 213. 
 Whartonv. May, 100, 101. 
 
 v. Walker, 65. 
 
 Whateley v. Menheim, 191. 
 Wheatley, Ex parte, 283. 
 Wheeler, Ex parte, 265. 270. 
 Whelpdale's Case, 169. 
 Whistler v. Webster, 287. 
 Whitcomb v. Whiting, 64. 195. 
 Whitmore v. Wilks, 199. 
 Whitwell V.Thompson, 259. 307. 
 Whyte V. O'Brien, 336. 
 
 Wigan V. Fowler, 28. 
 Wightman v. Townroe, 16. 
 Wilbran, Ex parte, 229. 
 Wilby V. Pistor, 357. 
 Wilks V. Back, 39. 
 Wilkins V. Fry, .342. 
 Wilkinson, Ex parte, 347. 
 V. Frasier, 19. 
 
 Willelt V, Chambers, 6. 55. 147. 
 Williams, Ex parte, 4. 228. 231. 238. 
 
 253, 254. 268, 269. 273. 275, 276. 285. 
 
 351. 
 
 V. Attenborough, 115. 
 
 V. Bingley, 108. 
 
 V. Jones, 9. 
 
 V. Keats, 24. 50. 198. 250. 252. 
 
 V. Nunn, 155. 
 
 V. Rawlinson, 364. 
 
 V. Thomas, 48. 
 
 V. Walsby, 59. 
 
 V. Williams, 107. 
 
 Williamson v. Johnson, 39. 
 Willis V. Dyson, 52. 149. 
 
 V. Jernegan, 100. 102. 
 
 Willock, Ex parte, ^\&. 
 Wilsford V. Wood, 131. 140. 
 Wilson, Ex parte, 347. 
 
 V. Coupland, 65. 
 
 V. Greenwood, 114. 228. 231. 
 
 300. 351. 
 
 V. Rcddall,169. 
 
 Windham v. Paterson, 298. 
 
 Wish V. Small, 19. 
 
 Wood V. Braddiek, 64, 65. 197. 
 
 V. Dodgson, 324. 
 
 Woolley V. Batte, 87. 185. 
 
 V. Gordon, 354. 
 
 V. Kelly, 211. 
 
 Worthington, Ex parte, 262. 281. 
 Worton V. Smith, 118. 
 Wrexham v. Huddlcston, 219.222. 
 Wright V. Hunter, 17. 79. 106. 167. 323. 
 V. Russell, 123. 
 
 Wright&on v. PuUan, 49. 
 
 Wyatt V. the Marquis of Hertford, 156. 
 
 Wych V. East India Company, 102. 
 
 V. Meal. 194. 
 
 Wylic, Ex parte, 314. 
 Wymer v. Kemble, 343. 
 
 Yallop, Ex parte, 277. 366. 
 
 Yonge, Ex parte, 292. 317. 320. 326. 
 
 York V. Blott, 201. 
 
 Yorke v. Fry, 100. 
 
 Young V. Axtcll, 20, 21, 22, 23, 24. 
 
 V. Bairner,200. 
 
 V. Glass, 328. 
 
 V. Hunter, 152, 153. 
 
 V. Keighley, 208. 236. 254.
 
 0^
 
 INDEX 
 
 TO THE MOST IMPORTANT CASES CITEU OR INTRODUCED BY THE 
 AMERICAN EDITOR. 
 
 Note.—" V." follows the name of the plaintiff: "anrf" the name of the defendant. 
 
 Abecl and Case (1 Paige's Rep. 393) 348. 
 Adams v. Browiisun (ITyl. Rep. 452)194. 
 Adams and Hunt (6 Mass. Rep. 519) 39. 
 Adams and Haskell (7 Pick. 59) 74. 
 Almond and The Bank of Wilmington 
 
 (1 VVhart. R6p. 169) 213. 
 Alsop V. Mather (8 Conn. 584) 16. 
 Allaire and Munro (2 Caine's Ca. 327) 
 
 187. 
 Allen V. Blanchard (9 Cow. Rep. 63) 5. 
 
 199. 350. 
 Allen and Smith (18 Johns. Rep. 245) 
 
 74. 200. 
 Allen V. Rostaing (11 Serg. &- Rawle, 
 
 3G2) 193. 
 Arnes and Johnson (6 Pick. Rep. 330) 
 
 348. 
 Anderson and Bowyer (2 Leigh's Rep. 
 
 554) 5. 19. 
 Andrews v. Foster (2 Penns. Rep. 160)38. 
 Andrews and Mereein (10 Wend. 461)43. 
 Anderson v. Henshaw (2 Day's Rep. 
 
 272) 156. 
 Anderson et al v. Moncrief (3 Desaus. 
 
 Cha. Rep. 125) 86. 
 Ann Green, The (1 Gallis. Rep. 274) 120. 
 Anonymous (Tayl. Rep. 113) 58. 
 
 (2 Hayw. Rep. 99) 58. 
 
 Anson, Lady, and Vice (7 Barn. & 
 
 Cresw. 409) 17. 
 Ardley v. Russell (1 P. A. Bro. Rep. 
 
 145) 140. 
 Armistead v. Butler's Adin. (1 Hen. &- 
 
 Munf. 176) 137. 
 Arnold v. Camp (12 Johns. Rep. 403) 242. 
 Armstrong v. Hussey (12 Serg. &. Rawle 
 
 315) 250. 
 Arnold and Dexter (3 Mass. Rep. 284) 
 
 105. 
 Aehby and Lloyd (2 Car. &. Payne 138) 
 
 46. 
 Ashby and Vere (10 B. & Cresw. 288) 
 
 192. 
 Astley and The United States (3 Wash. 
 
 C. C. Rep. 508) 58. 190. 
 Atwater v. Fowler (1 Hall. 180) 74. 
 Atwood et al V. Ratten bury (5 Moo. Rep. 
 
 209) 132. 
 Atkinson v. Laing (D. & Ryl. N. P. C. 
 
 16) 129. 
 
 Austin V. Bostwick (9 Conn. Rep. 496) 
 
 64. 
 Austin and Rice (17 Mass. Rep. 197) 18. 
 
 19. 
 Austin V. Walsh (2 Mass. Rep. 401) 129. 
 
 Babbv.Reed (5 Rawle, 151) 2. 227. 
 Bacon V. Brown (1 Bibb's Rep. 334)243. 
 Bacon and Pate (6 Munf. 9) 126. 
 Buird V. Cochran et al (4 Serg. &, Rawle 
 
 397) 43. 
 Baird and Lee (4 Hen. & Munf. 453) 
 
 246. 
 Bailey v. Clark (6 Pick. Rep. 372) 9. 
 Baker v. Jewell (6 Mass. Rep. 460) 129. 
 
 133. 
 Baker and Conney (7 Har. & Johns. Rep. 
 
 28. 
 Baker et nl v. Wetmore et al (9 Johns. 
 
 Rep. 307) 149. 
 Baker v. Stackpoole (9 Cow. Rep. 420) 
 
 196. 
 Barber v. Hartford Bank (9 Conn. Rep. 
 
 407) 205. 
 Barker et al v. Elake (11 Mass. Rep. 16) 
 
 157. 
 Baker and Coursey (7 Harr. & Johns. 
 
 28) 38. 
 Ballow V. Spencer (4 Cow. Rep. 163) 6. 
 Bank U. States and Winships (5 Pet. S. 
 
 C. Rep. 529) 38. 
 Barger v. Collins (7 Har. & Johns. 213) 
 
 126. 
 Barrett and Chase (4 Paige's Rep.l48)19. 
 Baldwin v. Lawrence (2 Sim. &, Slu. 26) 
 
 213. 
 Barnet v. Watson (1 Wash. Rep. 372) 
 
 126. 
 Barrcll and Gilbert & Story (2 Conn. 
 
 Rep. 665) 65. 196. 
 Bartlclt V. Merrill (6 Pick. Rep. 46) 32. 
 Barstow v. Gray (3 Greenl. Rep. 409) 
 
 128. 141. . 
 Barbour and Mills (4 Day 430, 54) 37. 
 Barker and Smith (IFairf. Rep. 458) 236. 
 Bartlett and Miller (15 Serg. & Rawle, 
 
 13) 18. 
 Basse et al and Gerard ( 1 Dall. 119) 58. 
 Bates et al and Doty (11 Johns. Rep. 
 
 544) 39. 47.
 
 XVlll 
 
 INDEX TO AMERICAN CASES. 
 
 Bass V. Bass (6 Pick. 362) 102. 
 
 Baxter v. Rodman (3 Pick. Hop. 435) 18. 
 
 Bayard et al and Giatz et al (11 Serg. 
 
 & Kawlc. 46) 218. 
 Banks and Hopkins (7 Cow. Rep. 650) 
 
 63. 169. 
 Barnewel! and Graves (2 Cranch. 419) 
 
 233. 
 Barney v. Smiih (4 Harr. & Johns. 485) 
 
 131. 
 Bartle v. Coleman (4 Pet. S. C. Rep. 184) 
 
 5. 
 Baldwin v. Lord (6 Pick. Rep. 348) 138. 
 
 236. 275. 
 Bain and Coffin (10 Moo. Rep. 341) 77. 
 Batty V. McCandie (3 Carr, & Payne. 
 
 202) 25. 
 Bcntley v. Smith (3 Caine's Rep. 170) 
 
 125. 
 Beach v. Hodgkiss (2 Conn. Rep. 425) 
 
 70. 74. 
 Beardlcy et al and Johnson (15 Johns. 
 
 Rep. 4) 63. 
 Becker v. Kirk (cited 2 Caines' Ca. 5) 58. 
 Beding v. Pitkin (2 Caines' Rep. 147) 84, 
 Bennett and New York F. I. Co. (5 Conn. 
 
 Rep. 574) 46. 56. 
 Bell V. Newman (5 Serg. & Rawle 86) 
 
 203. 360. 
 Bernard v. Wilcox (2 Johns. Ca. 374) 
 
 128. 
 Berkshire v. Evans (4 Leigh's Rep. 
 
 223) 5. 
 Bevan v. Lewis (1 Sim. Rep. 376) 39. 
 Beal and Robinson (3 Yeates 267) 189. 
 Bell V. Layman (1 Monroe's Rep. 40) 91. 
 Bell V. Morrison (1 Peter's Sup. C. Rep. 
 
 352) 64. 194. 
 Benson v. Brown (10 Wend. Rep. 258) 2. 
 Bixby V. The Franklin Ins. Co. (8 Pick. 
 
 Rep. 86.) 277. 
 Binney and Bank U. States (5 Mass. 
 
 Rep. 176) 105. 
 Bill V. Porter (9 Conn. Rep. 23) 199. 
 Birchet et al v. Boiling (5 Munf. 442) 
 
 110. 
 Bird et al v. Caritat (2 Johns. Rep. 342) 
 
 127. 
 Bird et al v. Pierpont (1 Johns. Rep. 
 
 118) 127. 
 -Bishops and Livingston (1 Johns. Rep. 
 
 290) 157. 
 Black V. Marvin (2 Penn's Rep. 138) 
 
 199. 
 Blachly and Wiser (1 Johns. Cha. Rep. 
 
 437) 142. 
 Blake and Barker et al (11 Mass. Rep. 
 
 16) 157. 
 Blackburn v. McAllister (Peck's Rep. 
 
 371) 58. 
 Black and Smith (9 Serg. & Rawle, 
 
 142) 162. 
 Blair v. Snover (5 Halst. Rep. 153) 129. 
 
 Blanchard and Allen (9 Cow. Rep. 631) 
 
 5. 199. 350. 
 Blogg and Holmes (8 Taunt. 35. 508) 2, 
 Bloodgood and Kane (7 Johns. Cha. 
 
 Rep. 90) 102. 
 Bloodgood et al and Mackay (9 Johns. 
 
 Rep. 285>-69. 
 Blew V. Rodgers (5 Car. &. Payne 397) 
 
 241. 
 Boardman v. Seymour ( 2 Conn. Rep. 
 
 425 cited) 70. 
 Boardman v. Gore et al (15 Mass. Rep, 
 
 339) 48. 
 Boardman v, Keeler (2 Vern. Rep. 65) 
 
 128. 
 Bogert et al and Murray (14 Johns. 
 
 Rep. 318)4. 74. 81.220. 
 Bold's Surv. and Dickinson (3 Desaus. 
 
 Cha. Rep. 501) 224. 
 Bostwick and Austin (9 Conn. Rep. 
 
 496) 64. 
 Bostwick V. Champion (11 Wend. 508) 9. 
 Bonzey and Colson (6 Greenl. Rep. 174) 
 
 277. 
 Bowen and The Bank of Rochester (7 
 
 Wend. 158) 56. 
 Bowycr v. Anderson (2 Leigh's Rep. 
 
 554) 5. 19. 
 Boyd onti Brisban f4 Paige's Cha. Rep. 
 
 17) 64. 248. 
 Boyd V. Plumb (7 Wend. 309) 56. 
 Boynton v. Page (13 Wend. 425) 236. 
 Boiling and Birchet et al (5 Munf. 442) 
 
 110. 
 Bond V. Hays (12 Mass. Rep. 34) 74. _ 
 Boness Canal Co. v. McAlpine, Fleming 
 
 & Co. (2 Bell's Comm. 615, n. 2) 55. 
 Bound V. Lathrop (4 Conn. Rep. 336) 63. 
 Bowman and Noel (2 Litt. Rep. 46) 79. 
 Boyer and Devoy (3 Johns. Rep. 190)153. 
 Brady v.Colhoun (1 Penns. Rep. 140.) 33. 
 Bracket! and Loring (3 Pick. Rep. 403) 
 
 66. 
 Bradford v. Kimberly (3 Johns. Cha. 
 
 Rep. 431) 355. 
 Brashear and Lansdale (3 Monroe's 
 
 Rep. 330) 6. 33. 
 Bray v. Fromont (Mad. & Geld. Rep. 5) 
 
 220. 
 Brennan and Osborne (2 Nott & Mc 
 
 Cord's Rep. 427) 14. 23. 
 Brewster and Dwight (I Pick. Rep. 50) 
 
 14. 150. 
 Brewster v. Hammett (4 Conn. Rep. 
 
 540) 205. 
 Brick et al and Young et al (2 Penn. 
 
 Rep. 663) 74. 
 Bridges v. Martin (3 Carr. & Payne 83) 
 
 196. 
 Bristol V. Sprague (7 Wend. 423) 250. 
 Briekhouse v. Hunter (4 Hen. & Munf. 
 
 363) 105. 
 Brinley v. Kupfer (6 Pick. 179) 74.
 
 INDEX TO AMERICAN CASES. 
 
 XIX 
 
 Brisban v. Boyd (4 Paige's Cha. Rep. 17) 
 
 64. 248. 
 Brickell and Manning (2. Havw. 133) 
 
 252. 
 Brio-ham v. Eveleth (9 Mass. Rep. .'JSS) 
 
 74. 
 Brinckeriioff et al v. Marvin tt al (5 
 
 Johns. Cha. Rep. 320) 2U3. 
 Brooks and Lowry (2 McCord's Rep. 
 
 421 ■) 9. 
 Brooking- et a I and Bank of Kentucky 
 
 (2 Litt. Rep. 45) 46. 
 Brooks and Farnham (9 Pick. 212) 102. 
 Brown and Bank of Orange (3 Wend. 
 
 Rep. 158) 183. 
 Brown and Benson (lOVVcnd. Rep. 258)2. 
 Brown and Bacon (1 Bibb's Rep. 334) 
 
 243. 
 Brown and James (1 Dall. 339) 69. 
 Brown v. Belches (1 Wash. Rep. 8) 179. 
 Brown V. Duncanson Sc Ray (4 Har. & 
 
 McHcn. Rep. 350) 43. 
 BrowTi V. Cook (1 New Hamo. Rep. 64) 
 
 14. 
 Brown v Leonard (2 Chitt. Rep. 120. 
 
 251. 
 Brown's Ex. v. Thompson (Coxe's Rep. 
 
 2) 189. 
 Brown and Whitaker (11 Wend. 75) 43. 
 Brownson and Adams (ITyl. Rep. 452) 
 
 194. 
 Brown v. De Tastet (Jac. Rep. 284) 
 
 232. 
 Brown v. Warham (3 Harr. & Johns. 
 
 572) 182. 
 Bruen v. Marquand (17 Johns. Rep. 58) 
 
 60. 
 Brumeaux and Moyes et al (3 Yeates, 
 
 30) 194. 
 Brush and Casey (2 Caines' Rep. 293) 
 
 74. 
 Brush and Clement (3 Jolms. Ca. 180) 
 
 58, 187. 
 Bryden v. Taylor (2 Harr. &■ Johns. 
 
 396) 193. 
 Buchanans v. Curry (19 Johns. Rep. 
 
 137) 60. 
 Buck V. Dunbar (6 Munf. 54) 138. 340. 
 Bulkley et al v. Dayton et al (14 Johns. 
 
 Rep.' 387) 60.201. 
 Bunn V. Morris et al (3 Caines' Rep. 54) 
 
 129. 
 Buntee and Warree (1 Ryi. &- Dowl. 
 
 106) 200. 
 Burnet Ex. and Cocke, (6 Munf. 464) 
 
 354. 
 Burrows and Turner (5 Wend. 541. 8 
 
 Wend. 144) 233. 
 Burgfwin v. Hostler's Adm. (Tayl. 124) 
 
 358. 
 Burke and Causten (2 Harr. fc Gill, 
 
 295) 77. 355. 
 Burke v.Winkle (2 Serg.&Rawle, 189) 3. 
 
 Burke and Tomlinson (5 Halst. Rep. 
 
 (295) 125. 
 Burniiam v. Stearns (4 Greenl. Rep. 84) 
 
 43. 
 Burnham v. Whittier( 5 N. Harnp. Rep. 
 
 334) 39. 
 Burr rt«(/Laverty (1 Wend. 531) 47. 
 IJurns V. Hall (2 Pcnn. Rep. 984) 125. 
 Butler's Adm. and Armistead (1 Hen. & 
 
 Munf. 176) 137. 
 Buyers and Cowans et al (Cooke's Rep. 
 
 53)91. 
 Bvrcs and Vanduescn (7 Wend. 268) 
 "230. 
 
 Cadet and Levy (17 Serg. <& Rawle 
 
 126) 64. 194. 
 Cady V. Shepherd (1 1 Pick. Rep. 400) 58. 
 Caldwell and Gram (5 Cow. Rep. 48;)) 61 . 
 Caldwell and Mortimer (Kirby's Rep. 
 
 53) 156. 
 Camp and Arnold (12 John.=. Rep. 409) 
 
 242. 
 Camp and Bradley et al (Kirby's Rep. 
 
 77) 184. 
 
 Campbell V Messier et al (4 Johns. Cha. 
 
 334) 79. 
 Campbell et al and Freel (3 Hay w. Rep. 
 
 78) 14. _ ' 
 Campbell's Ex. and Zelie et al (2 Johns. 
 
 Ca. 383) 133. 
 Campbell v. Matthews (6 Wend. Rep. 
 
 557) 244. 
 Canfield et al and Walcot (3 Conn. Rep- 
 
 194) 55. ] 00. 
 Carey and Ridgeley (4 Har & McHen. 
 
 167) 236. 
 Carr and Hoxie (1 Sumn. Rep. 173) 306. 
 Carter and CJarkson (3 Cow. 85) 128 
 
 141. 
 Carilat and Bird et al (2 Johns. Rep. 
 
 342) 127. 
 Carter et al and Person, (3 Murph. Rep. 
 
 321) 58. 
 Carmichacl and Lane (Vern &. Scriv. 
 
 380) 199. 
 Casey v. Brush (2 Caine's Rep. 293) 74. 
 Case V. A heel (1 Page's Rep. 393) 348. 
 Causten v. Burke (2 Harr. & Gill 295) 
 
 77. 355. 
 Caze and Lamalire (1 Wash. C. C. Rep. 
 
 435) 74. 
 Chadwick and Fanning (3 Pick. Rep. 
 
 420) 74. 
 Chase and Orr (1 Meriv. Rep. 729) 53. 
 
 303. 
 Chambers and Chance (1 Penn. Rep. 
 
 384) 126. 
 Chase v. Barrett (4 Paige's Rep. 148) 19. 
 Chambers and Guhr et al (8 Serg. & 
 
 Rawle, 157) 209. 
 Champion v. Mumford et al (Kirby's 
 
 Rep. 170) 38.
 
 XX 
 
 INDEX TO AMERICAN CASES. 
 
 Champion anot Bostwick(llWend. 508)9. 
 Champliii Ex. v. Tillcy et al (3 Day's 
 
 Rep. 306) 192. 
 Chapin v. Coleman (11 Pick. Rep. 331) 
 
 194? 
 Chapman and Everitt (6 Conn. 347) 14. 
 Chapman ff/jfZ Nichols (9 VVend. 454) 59. 
 Chase and French (6 (jreenl. 166) 236. 
 Chance v. Chambers (1 Penn. Rep. 314) 
 
 126. 
 Chardon v. Oliphant (2 Const. Ct. Rep. 
 
 685) 64. 
 Chazourne v. Edwards (3 Pick. Rep. 5) 
 
 43. 45. 
 Cheston v. Page's Ex. (4 Har. & McHen. 
 
 466) 252. 
 Chick and Dennett (2 Greenl. Rep. 121) 
 
 162. 
 Chiftl'lle and Winslovv (Harp. Eq. Rep. 
 
 25) 36. 
 Chinn v. Respass (1 Monroe's Rep. 29)90. 
 Childres v. Emory (8 Wheat. Rep. 669) 
 
 132. 
 Cliilderton v. Hamraon (2 Serg. &, 
 
 Rawle 68) 189. 
 Choale and Patterson (7 Wend. Rep. 
 
 441)64.194. 
 Church V. Knox (2 Conn. Rep. 517) 205. 
 Clark ant/ Baiiy (6 Pick. Rep. 372) 9. 
 Clark V. Holmes (3 Johns. Rep. 148) 190. 
 
 159. 
 Clark and Ketchara et al (6 Johns. Rep. 
 
 144) 248. 
 Clark V. Miller (4 Wend. 628) 128. 
 Clay V. Grubbs (1 Litt. Rep. 22) 90. 
 Clarkson v. Carter (3 Cow. Rep. 86. 128) 
 
 141. 
 Clement v. Brush, (3 Johns. Ca. 180) 58 
 
 187. 
 Clementson v. Williams (8 Cranch, 72) 
 
 196. 
 Cleveland and McGregor (5 Wend. 475) 
 
 140. 
 Coates V. Coates (6 Madd. Rep. 287) 
 Cochrane et al and Baird (4 Serg. & 
 
 Rawle, 327) 43. 
 Cope V. Warner (13 Serg. & Rawle, 421) 
 
 359. 
 Cocke V. Burnett's Ex. (6 Munf. 464) 
 
 359. 
 Cocke et al and Shelton (3 Munf. 191) 
 
 63. 194. 
 Coe and Halls (4 McCord^s Rep. 136) 01. 
 Coffee V. Eastland (Cooke's Rep. 159) 
 
 125. 133. 
 Coffin V. Bain (10 Moo. Rep. 341) 77. 
 C&gswcll and Ki.-by (1 Caines' Rep. 
 
 505) 39. . 
 Colt V. Tracy (8 Conn. Rep. 268) 64. 
 Coleman and Bartle. (4 Pet. S. C. Rep. 
 
 184)5. 
 Coles Adm. v. Coles (15 Johns. Rep. 
 159) 35. 
 
 Colhoun and Brady (1 Penns. Rep. 140) 
 
 33. 
 Coleman and Chapin (11 Pick. Rep. 331) 
 
 194. 
 Collins and Barger (7 Harr. & Johns. 
 
 213) 126. 
 Com. Bank v. Wilkins (9 Greenl. Rep. 
 
 .34) 205. 
 Conncll ««(/ Mason (IWhart. Rep. 381)4. 
 Conseqna and Willings (1 Peter's Rep. 
 
 301) 162. 
 Colson V. Bonzey (6 Greenl. 474) 277. 
 Coursey v. Baker (7 Harr. & Johns. 28) 
 
 55. 
 Cook and Brown (1 N. Hamp. R. 64) 14. 
 Cook and Jessup (1 Halst. Rep. 434) 
 
 74. 100. 
 Cook onf/ Thompson (2 South. Rep. 580) 
 
 91. 
 Coons and Trimble (2 Marsh. Rep. 376) 
 
 58. 
 Cooper V. Watlington (2 Chitt. Rep. 451) 
 
 107. 
 Cooper V. Watson (3 Dougl. Rep. 413) 7. 
 Cooper and Tuttle (5 Pick. 414) 43. 
 Cooper and Monroe (5 Pick. Rep. 412) 47. 
 Copeland and Fisk (Overt. Rep. 383) 
 
 63. 194. 
 
 Copestake and Low (3 Carr. &. Payne 
 
 300) 140. 
 Corps V. Robinson (2 Wash C. C. Rep. 
 
 388) 63. 194. 
 Coryell &. Co. and Taylor (12 Serg. & 
 
 Rawle, 243) 60. 
 Coster V. Murray (5 Johns. Cha. Rep. 
 
 522) 102. 
 Corning and Heartt (3 Paige's Rep. 
 
 566) 100, 
 Coulter and Stewart (12 Serg. &. Rawle, 
 
 252) 189. 
 Course v. Prince (1 Rep. Const. Ct. 413) 
 
 74. 
 Coursey v. Baker (7 Har. & Johns. 28) 38. 
 Cowans et al v. Buyers (Cooke's Rep. 
 
 53) 91. 
 
 Cowans v. Jackson (20 Johns. Rep. 176) 
 
 66. 193. 
 Cowle.s et al and Dougal (5 Day's Rep. 
 
 54) 38. 154. 
 
 Coyle and Sued (4 Litt. Rep. 162) 48. 
 Craighead and Searight (Penn. Rep. 135) 
 
 64. 194. 
 
 Crandall v. F. Denny & Co. (1 Penn. 
 
 Rep. 127) 12,5. 
 Crary and McFarland (8 Cow. 253) 55. 
 Crane v. French 1 Wend. Rep. 311) 205. 
 Cresson and Porter (10 Serg. & Rawle 
 
 257) 126. 243. 
 Cremer v. Higginson et al (1 Mas. Rep. 
 
 323) 123. 
 Crousillat v. McCall (5 Binn. 433) 70. 
 Crowder v. Robinson (4 McCord's Rep. 
 
 579) 51.
 
 INDEX TO AMERICAN CASES. 
 
 XXI 
 
 Culbcrtson and Lewis (11 Serg. & Raw!e 
 
 48) 139. 
 Cuinpston v. McNair(lWend.Rep. 457)6. 
 Cummings and Porter (7 Wend. 172) 
 
 38. 
 Cunningham and Warner (3 Dow's Rep. 
 
 76) 220. 
 Curriur v. Pennock (14 Serg. & Rawle, 
 
 51) 141. 
 Curry and Buchanans (19 Johns. Rep. 
 
 137) 60. 
 Cutler v.- Winson (6 Pick. Rep. 335) 18. 
 Cuyier v. Cuyler (2 Johns. Rep. 186) 
 
 i87. 
 
 Dacic V. John (1 McClel. & Young, 206 ) 
 
 115. 
 Dail and Mitchell (2 Harr. & Gill. 159) 
 
 12. 128. 
 Dallam and Kinsman (5 Monroe's Rep. 
 
 .384) 133. 
 Dare's Adm. and Linney's Adm. (2 
 
 Leigh's Rep. 588) 359. 
 Darst V. Roth (4 Wash. C. C. Rep. 471) 
 
 59. 
 Dashiell's Adm. and McCullough (1 Har. 
 
 & Gill. 96) 236. 360. 
 Davenport v. Runletl (3 New Hamp. 
 
 Rep. 386) 43. 
 David V. Ellice (7 Dowl. & Ryl. 690) 
 
 157. 
 Davidson and Garland (3 Munf. 189) 
 
 58. 
 Davis and Peters (7 Mass. Rep. 121) 
 
 131. 
 Davis and Salmon & Brown (Binn. 375) 
 
 60. 
 Davis v. Smith (4 Greenl. Rep. 339) 
 
 102. 
 Davis Ex. v. Tulton (1 Overt. Rep. 121) 
 
 246. 
 Dayton and Skinner (19 Johns. Rep. 
 
 513)2.58.226. 
 Dayton et al and Bulkley et al (14 
 
 Johns. Rep. 387)60. 201. 
 De Bernales and Cosio ct al (2 Carr &. 
 
 Payne, 266) 2. 
 De Camp and Holmes (1 Johns. Rep. 
 
 34)131. 
 Do Gront and Marshall ( 1 Caine's Ca. 
 
 123) .359. 
 Deloney v. Hntcheson et al (2 Rand. 
 
 Rep. 183) 33. 36. 
 Dennct v. Chick(2 Grccnl. Rep. 121) 102. 
 De Tastet and Brown (Jac. Rep. 284) 
 
 232. 
 De Wolf and Thorndike (6 Pick. Rep. 
 
 120) 32. 
 Denny & Co. and Crandall (1 Penn. 
 
 Rep. 137) 125. 
 Denton v. Noyes (6 Johns. Rep. 296) 
 
 178. 
 Depeyster and Wheelwright (1 Johns. 
 
 Rep. 471) 135. 
 
 Devcau «St Fowler (2 Paige's Rep. 400) 
 
 236. 
 Devoy and Boyer (3 Johns. Rep. 190) 
 
 153. 
 Dexter v. Arnold (11 Pick. Rep. 11) 
 
 105. 
 Dickerson et al v. Walker et al (2 Hayw. 
 
 23) 58. 
 Dickerson and Gilbert (7 Wend, 449) 
 
 90. 
 Dickinson v. Bold's Survivors (3 Desaus. 
 
 Cha. Rep. 501)224. 
 Dickinson v. Legare et al (1 Desaus. 
 
 Cha. Rep 537) 51. 
 Dishman's Ex. and Sale (3 Leigh's Rep. 
 
 548) 190. 359. 
 Dob V. Halsey (17 Johns. Rep. 40) 9. 14. 
 
 39. 125. 
 Doggett and Halliday (6 Pick. 359) 125. 
 
 133. 
 Dolman v. Orchard (2 Carr. & Payne, 
 
 104) 2.3. 
 Donaghe's Ex. and Williams (1 Rand. 
 
 Rep. 300) 162. 
 Donald & Co. and Totty's Ex. 4 Munf. 
 
 430) 126. 
 Donally et al and Edgar (2 Munf. 387) 
 
 34. 
 Donaldson and Stiles (2 Dall. Rep. 264) 
 
 102. 
 Dorsey's Ex. v. Dorsey's Adm. (4 Har. &• 
 
 McHen. Rep. 231) 348. 
 Dorwin and Woodford (3 Verm. Rep. 82) 
 
 50. 
 Doremus v. Scldon (19 Johns. Rep. 213) 
 
 87. 
 Doty V. Bates et al 11 Johns. Rep. 544) 
 
 39. 47. 
 Douglass and Miller (14 Fac. Coll. 154) 
 
 43. 
 Douglass, Heron &. Co. v. Hair (6 Fac. 
 
 Coll. 57. 2 Bell's Com. 623) 2. 17. 
 Dougall V. Cowles et al (5 Day's Rep. 
 
 511) 38. 154. 
 Dower v. Greenslade (6 Barn, «& Cresw, 
 
 635) 6. 
 Downey v. The Bank of Green Castle 
 
 (13 Serg. v"t Rawle, 288) 162. 
 Drake v. Elwyn (1 Caine's Rep. 184) 
 
 .38, 191, 
 Drydcn and Purviance (3 Serg, & Rawle 
 
 402) 179, 199. 
 Drinker and Ross (2 Hall's Rep. 415) 
 
 14. 
 Dubois V. Roosevelt (4 Johns. Rep, 262. 
 
 n)43. 
 Duberry and Walker et al (1 Marsh. 
 
 Rep. 189) 196. 
 Dunbar v. Buck et al (6 Munf, 34) 138. 
 
 340. 
 Dunch and McComb (2 Dall. 73) 205. 
 Duncanson &- Ray and Brown (4 Har. 
 &, McHen. Rep. 360) 43.
 
 XXll 
 
 INDEX TO AMERICAN CASES. 
 
 Duncan v. Lyon (3 Johns. Cha. Rep. 
 
 391) 69. 335. 
 Dunham .V. Gillis (8 Mass. Rep. 462) 
 
 70. 
 Dunham v. Murdock (2 Wend. Rep. 554) 
 
 205. 
 Dunlap & Co. and Scott & Co. 2 Munf. 
 
 394) 126. 
 Durant and Lamb et al (12 Mass. Rep. 
 
 56). 37. 
 Dwight V. Brewster (1 Pick. Rep, 50) 
 
 14. 150, 
 
 Eastland and Coffee's (Cooke's Rep. 159) 
 
 125. 133. 
 Eaton V. Taj lor et al (10 Mass. Rep. 54) 
 
 251. 
 Eden and Stewart (2 Caines' Rep. 121) 
 
 187. 
 Edgar v. Donaliy et al (2 Munf. 387) 34. 
 Edwards and Chazourne (3 Pick, Rep. 
 
 5) 43. 45. 
 Edwards and Smith (2Har. & Gill 411) 
 
 15. 
 Egberts v. Wood (3 Paige's Rep. 517) 
 
 51. 236. 
 Eichelbcrgcr and Scholefield (7 Pet.S. C. 
 
 Rep. 586) 213. 
 EWery and McLanahan (3 Mason's Rep. 
 
 269)252. 
 Ellice and David (7 Dowl. & Ryl. 690) 
 
 157. 
 Ellis and Peck (2 Johns. Cha. Rep. 131) 
 
 86. 106. 
 Elwyn and Drake (1 Caines' Rep. 148) 
 
 38. 191. 
 Emien and McCarty (2 Dall. 277. 2 
 
 Yeates 199) 205. 
 Emory and Childress (8 Wheat. Rep. 
 
 669) 132. 
 Ensworth and Evernghim (7 Wend. 
 
 326) 44. 61. 
 Eskridge and Tuttle (2 Munf. 330) 59. 
 Evans and Berkshire (4 Leigh's Rep. 
 
 223) 5. 
 Evclcth and Brigham (9 Mass, Rep. 
 
 538) 74. 
 Everitt v. Chapman (6 Conn. Rep. 347) 
 
 14. 
 Evertson and Westerlo, (1 Wend. Rep. 
 
 532) 5. 
 Evernghim v. Ensworth (7 Wend 326) 
 
 44. 61. 
 
 Farrand and Whiting (1 Conn. Rep. 60) 
 
 240. 
 Farnham v. Brooks (9 Pick. 212) 102. 
 Farr v. Smith (9 Wend. 338) 90. 
 Fairchild v. Holly (10 Conn. Rep. 175) 
 
 244. 
 Feiichy v. Hamilton (1 Wash. C. C. Rep. 
 
 491) 152. 
 Fanning V. Chad wick(Pick. Rep. 420)74. 
 
 Fawcett v. Wrashall (2 Carr &. Payne 
 
 305) 199. 
 Feltz and Simpson (1 McCord's Cha. 
 
 Rep. 219) 10. 14. 18. 105. 
 Fenner and Karthaus (2 Peter's Sup. Ct. 
 
 Rep. 222) 60. 
 Fenwick and Moore (Gilm, Rep, 214) 
 
 188, 
 Ferris and Wilkes et al (5 Johns, Rep. 
 
 335) 187. 
 Ferris et al and Whitney (10 Johns. 
 
 Rep. 66) 194. 
 Ferry v. Henry (4 Pick. Rep. 75) 14. 
 Fisher et al and Shubrick's Ex. 2 De- 
 
 saus. Cha. Rep. 1 18) 17. 
 Fisher's Ex. v. Tucker's Ex, (1 McCord's 
 
 Cha. Rep. 170) 64. 251. 
 Fisk V. Copeland (Overt. Rep. 383) 63, 
 
 194. 
 Fitzsimons and Wallace (Dall. 248) 
 
 131. 
 Flagg. V Upham (lO Wend. 147) 43, 
 Fleming and Vice (Young & Jerv. 227) 
 
 52. 
 Fietcher v. Pollard (2 Hen, &. Munf, 
 
 544) 60. 105, 
 Fletcher ci al and Pourie et al) 2 Bay's 
 
 Rep. 146) 137. 
 Flournoy and Woody (6 Munf. 406) 55. 
 Foltz V. Pourie et al (2 Desaus Cha. Rep. 
 
 40) 49. 
 Foot V. Sabin (12 Johns. Rep. 154) 56. 
 Ford and Law (2 Paige's Rep, 310) 51. 
 
 114.231. 
 Forde v. Heron (4 Munf. 316) 35. 
 Forest v. Wain (4 Yeates, 337) 240. 
 Forrest and Van Ness (8 Cranch, 30) 
 
 77. 
 Foster v, Andrews (2 Penns, Rep. 160) 
 
 38. 
 Fowler and Atwater (1 Hall. 180) 74. 
 Fowler and Deveau (2 Paige's Rep. 400) 
 
 236, 
 Foxcroft and Harding (6 Greenl. 76) 
 
 32, 
 Foyles and Barry (1 Peter's Sup, Ct, 
 ' Rep. 311) 182. 
 
 Francis, The (1 Gailis. Rep 614) 120. 
 Franklin v. Robinson (1 Johns. Cha. 
 
 Rep. 157) 355. 
 Frccl V. Campbell et al (3 Hayw. Rep. 
 
 78) 14. 
 Franklin Ins. Co. and Bixby (8 Pick. 
 
 Rep. 86) 277. 
 French v. Chase (6 Greenl. 166) 236. 
 French and Crane (1 Wend. 311) 205. 
 Freshfield and Lloyd et al (2 Carr & 
 
 Payne 325) 55. 
 Fremont and Bray (Mad & Geld. 5) 
 220. 
 
 Gaine et al and Lansing (2 Johns. Rep. 
 300) 42.
 
 INDEX TO AMERICAN CASES. 
 
 XXIU 
 
 Galway, Lord, v. Matthew (1 Camp. 403) 
 
 52. 
 Gardiner v. Levaud (2 Yeates 185) 
 
 199. 
 Garland v. Davidson (.3 Munf. 189) 58. 
 Garnett et al v. Handloy (7 Dowi. & Ryl. 
 
 144. 4 B. &. C. 664) 75. 
 Garell v. IJanna (5 Har. «fc Johns. 412) 
 
 233. 
 Gcddes and Simpson et al (2 Bay's 533) 
 
 64. 196. 212. 
 Gerard v. Basse et al (I Dall. 119) 58. 
 Gibbs and Wilson, 2 Johns. Rep. 280) 
 
 205. 
 Gibbons et al and Manaham (19 Johns. 
 
 Rep. 109) 87. 
 Gilbert v. Dickerson (7 Wend. 449) 90. 
 Gill V. Kuhn (6 Serg. & Rawle, 337) 9. 
 
 14. 17. 74. 
 Giiles and Dunham (8 Mass. Rep. 462) 
 
 70. 
 Gilley v. Singleton (3 Litt. Rep. 249) 
 
 66. 
 Gil more v. N. A. Land Co. ( 1 Peter's 
 
 Rep. 460) 205. 
 Gold and Marsh, (2 Pick. 285) 5. 56. 
 Gold V. Stafford, (9 Piek. 533) 132. 
 Golding V. Vaughan (2 Chit. Rep. 436) 
 
 131. 
 Goodman and Jacobs (2 Cox's Ca. 282,- 
 
 3 Bro. C. C. 488. 12) 99. 
 Goodrich et al and Tom (2 Johns. Rep. 
 
 214)190. 
 Goodwin v. Richardson (11 Mas^ Rep. 
 
 464) 33. 35. 
 Gore et al and Boardman (15 Mass Rep. 
 
 339) 48. 55. 
 Gorham and Lyndon (1 Gallis. Rep. 
 
 368) 205. 
 Gould v. Gould (8 Cow. Rep. 168, 6 
 
 Wend. 263.) 153, 234. 
 Goulding, Ex parte, (2 Glyn & Jam. 
 
 Rep. 118) 43. 
 Graham and Pearpont (4 Wash. Rep. 
 
 232) 51. 
 Graham v. Mulcaster (4 Bingh. 115) 
 
 345. 
 Gram v. Caldwell (5 Cow. Rep. 489) 61. 
 Gram v. Scton (1 Hall's Rep. 262) 58. 
 Gratz et al v. Bayard et al (11 tSerg. & 
 
 Rawle, 46)218. 
 Graves V. Barnewcll (2Cranch419) 233. 
 Graves v. Merry (6 Cow. Rep. 701) 38. 
 
 250. 
 Gray v. The Portland Bank (3 Mass. 
 
 Rep. 304) 74. 
 Gray's Adin. and Wagoners (2 Hen. & 
 
 Munf. 603) 199. 
 Gray and Barslow (3 Greenl. Rep. 409) 
 
 128, 141. 
 Green v. Green (Hamm. Rep. 535) 33. 
 Green and Russell (10 Conn. Rep. 270) 
 
 70. 
 
 Greenslade v. Dower (6 Barn. &. Cresw. 
 
 635) 6. 
 Greencastic, Bank of, and Downey, (9 
 
 Serg. & Rawle, 142) 162. 
 Gregory v. Dodge, 4 Paige's Rep. 556) 
 
 199. 
 Griffith V. Willing et al (3 Binn. 317) 69. 
 Griswold v. VVaddington (16 Johns. Rep. 
 
 489) 5. 51. 84. 120. 
 Griswold and Warner (8 Wend. Rep. 
 
 665) 5. 
 Grubbs and Clay (1 Litt. Rep. 22) 90. 
 Guhr et al v. Chambers (8 Serg. &. 
 
 Rawle, 157) 209. 
 Gurney and Patten et al (17 Mass. Rep. 
 
 182) 135. 160. 
 
 Hack and The U. States, (8 Pet. S. C. 
 
 Rep. 271) 205.215. 
 Hackley v. Patrick (3 Johns. Rep. 538)64. 
 Hadduck v. Wilmarth, (5 JM. Hamp. 
 
 189)205. 
 Hadfcgs and Bank of Pennsylvania, (3 
 
 Yeutes 560) 202. 
 Had field v. Jameson (2 Munf. 53) 55. 
 
 160. 
 Haffan and McBride (1 Wend. Rep. 
 
 326) 58. 60. 
 Hair and Douglass, Heron & Co. (6 
 
 Fac. Coll. 57, 2 Bell's Comm. 623) 
 
 2.17. 
 Hall and Union Bank, (1 Harper's Rep. 
 
 246) 230. 
 Hall and White (3 Pick. Rep. 291) 64. 
 Hall V. Hall (2 McCord's Cha. Rep. 302) 
 
 360. 
 Hall V. Leigh et al (1 Cranch 51) 130. 
 Hall and Burns (2 Penn. Rep. 984) 125, 
 Halls V. Coe (4 McCord's Rep. 136) 61. 
 Halliday v. Doggett (6 Pick. Rep. 359) 
 
 125. 
 Halscy and Havens (5 Paige's Rep. 30) 
 
 51. 
 Halsey v. Whitney (4 Macon's Rep. 232) 
 
 59. 
 Halsey and Dob. (17 Johns. Rep. 40) 9, 
 
 14. 125. 133. 
 Halstead v. Sclienelzel (17 Johns. Rep. 
 
 805) 74. 
 Hamcrslcy v. Lambert (2 Johns. Cha. 
 
 Rep. 508) 359. 
 Hamill v. Purvis (2 Penns. Rep. 177) 56, 
 Hamilton and Felichy (1 Wash. C. C, 
 
 Rep. 491) 152. 
 Hammctt and Brewster (4 Conn. 540) 
 
 205. 
 Hammon and Childerston (9 Serg. &. 
 
 Rawle, 68) 189. 
 Handfbrd v. McNair (9 Wend. 68) 59. 
 Hankinson and Perrine (6 Halst. Rep. 
 
 181) 14. 
 Handley and Garrett (7 Dowl. vt Ryl. 
 
 144. 4 B. & C. 644) 57.
 
 XXIV 
 
 INDEX TO AMERICAN CASES. 
 
 Hanna and Hanna (5 Harr. &, Johns. 
 
 412) 233. 
 Harding v. Foxcroft (6 Grecni. Rep. 76) 
 
 32. 
 Harding and Moreton (6 D. Rayl. 275. 4 
 
 B. &.C. 223) 161. 
 Hart V. Palmer (12 Wend. 523) 66. 
 Harris v. Lindsay (4 Wash. C. C. Rep. 
 
 98) 156. 243. 
 Harraden and Jones (9 Mas. Rep. 540) 
 
 74. 
 Harrif?on & Stcrry et al (5 Cranch, 289 
 
 51. 299. 
 Hart'v. Scliaub (1 Penns. Rep. 285) 59. 
 Hart and Ladue (4 Wend. 583) 138. 
 Hartford Bank and Barber (9 Conn. Rep. 
 
 407) 205. 
 Hartness et al v. Thompson et al (5 Johns. 
 
 Rep. 160) 177. 
 Haskell V. Adams (7 Pick. 59) 74. _ 
 Hastie et al and Livingston (2 Caines' 
 
 Rep. 246) 43. 45. 
 Hawthorne and Kerr (4 Yeates 170) 245. 
 Hawthorne and Smyth (3 Rawle, 355) 
 
 131. 
 Haythorn et al v. Lawson (3 Carr & 
 
 Payne, 196) 118. 
 Hays ond Bond (12 Mass. Rep. 34) 74. 
 Havens v. Hulsey (5 Paige's Rep. 30) 51. 
 Heartt v. Corning (3 Paige's Rep. 566) 
 
 100. 
 Helsby v. Means (5 Barn. & Cresw. 505) 
 
 150. 
 Henderson and Taylor (17 Serg. & 
 
 Rawle, 453) 193. 199. 
 Henry and Ferry (4 Pick Rep. 75) 14. 
 Henderson and Taylor (17 Serg. & 
 
 Rawle, 453) 193. 203. 
 Henshaw and Anderson (2 Lay's Rep. 
 
 272) 156. 
 Henshaw and Williams (11 Pick. 79) 74. 
 Herkimer, The (Stewart's V. Adm. Rep 
 
 23)9. 
 Heron and Forde (4 Munf. 316) 35. 
 Hess et al v. Werts (4 Serg. & Rawle 
 
 356) 2. 17. 
 Hewes Surv. part, and Wain (5 Serg. & 
 
 Rawle 470) 139. 190. 
 Higgins V. Holmes (1 B. & Cresw. 74) 
 
 355. 
 Higginson et al and Cremer (1 Mass. 
 
 Rep. 323) 123. 243. 
 Hills v. Ross (3 Dall. 331) 178. 
 Hinckley et all and Storer (Kirby's Rep 
 
 170) 38. 359. 
 Hobart v. Howard (9 Mass. Rep. 304) 
 
 245. 
 Hodgson et al and Kirk (3 Johns. Cha 
 
 Rep. 400) 52. 
 Hodgson and Williams (2 Harr. &l 
 
 Johns. 474) 58. 
 Holden and Mountjoys (Litt. Sel. Cases 
 
 447) 92. 
 
 Holly and Fairchild (10 Conn. Rep, 
 
 175) 244. 
 Holmes V. Blogg. (8 Taunt. 35. 508) 2'. 
 Holmes and McCoun (4 Litt. Rep. 389) 
 
 209. 
 Holmes and Clark (3 Johns Rep. 148) 
 
 159. 
 Hoxie v. Carr. 1 Sumn. Rep. 174) 33. 
 Holmes v. De Camp (1 Johns. Rep. 34) 
 
 131. 
 Holmes v. The United St. Ins. Co. (2 
 
 Johns. Ca. 329) 153. 
 Holmes and Higgins (I B. &. Cresw. 74) 
 
 355. 
 Holt and Pickering (6 Greenl. Rep. 160) 
 
 59. 
 Hone and Perrin (4 Bingh. 28) 88. 
 Hooker and Pierson (3 Johns. Rep. 70) 
 
 51.60. 
 Hopkins v. Smith (11 Johns. Rep. 161^ 6. 
 Hopkins v. Banks (7 Cow. Rep. 650) 63. 
 
 196. 
 Hortetter v. Kaufman (11 Serg. & R. 
 
 146) 162. 
 Hostler's Adm.anc/Burgwin (Tayl. 124) 
 
 358. 
 Hotchkiss and Beach (2 Conn. Rep. 425) 
 
 70. 74. 
 Howard and Hobart (9 Mass. Rep. 304) 
 ■ 245. 
 Hovv-ards v. Warfield's Adm. (4 Harr. 
 
 & McHen. 21) 137. 
 Howland and Mowatt (3 Day's Rep. 
 
 353) 250. 
 Hoxie v. Carr, (1 Sumn. Rep. 173) 306. 
 Hoy's heirs v. McMurray, (1 Litt. Rep. 
 
 365)212. 
 Howell and Ward (5 Har. & Johns. 60) 
 
 63. 
 Hubbell's Adm. and Sells (2 Johns. Cha. 
 
 Rep. 397) 106. 
 Humphrey's and Bank of So. Carolina 
 
 (1 McCord's Rep. 388) 250. 
 Hunter and Brickhouse (4 Hen. &, Munf. 
 
 363) 105. 
 Hunt, Adm. v. Adams (6 Mass. Rep. 
 
 519) 39. 
 Hurlburt and Kelley (5 Cow. Rep. 534) 
 
 12. 250. 
 Hussey and Armstrong (5 Cow. Rep. 
 
 534) 250. 
 Hutcheson and Deloney (2 Rand. Rep. 
 
 183) 33. 36. 
 
 Iby V. Vining (McCord's Rep. 379) 250. 
 Indiano (the San Jose) (2 Gall. 268) 230. 
 Irvine and Sutton et al (12 Serg. & 
 Rawle, 13) 57. 
 
 Jackson and Cowans (20 Johns. Rep. 
 
 176) 66. 193. 
 Jackson and Pierce (5 Mass. Rep. 243) 
 
 104.
 
 INDEX TO AMERICAN CASES. 
 
 XXV 
 
 Jackson v. Robinson (3 Masons' Rep. 
 
 138) 32. 153. 
 Jackson and Winchester (3 Hayw. 310) 
 
 196. 
 Jacobs V. Goodman (2 Cox's Ca. 282, 3 
 
 Bro. C. C. 488 n.) 99. 
 Jacques v. Marquand (6 Cow. Rep. 497) 
 
 39. 
 James v. Brown (1 Dall. 339) 69. 
 Jameson and Hadfield (2 Munf. 53) 55. 
 
 160. 
 Jameson and Mandeville (5 Cranch 286) 
 
 102. 
 Jaques and Methodist Episc. Clmrch (I 
 
 Johns. Cha. Rep. 55) 99. 
 Jessup V. Cooke (1 Halst, Rep. 434) 74. 
 
 100. 
 Jewel and Baker (6 Mass. Rep. 460) 129. 
 
 133. 
 John and Daci^ (McClel. &, Young 206) 
 
 115. 
 Johnson v. Beardlee et al (15 Johns. Rep. 
 
 4) 63. 
 Johnson and Le Roy et al (2 Pet. Sup. 
 
 Ct. Rep. 186) 38. 45. 49. 199,. 248. 
 Johnson v. Ames (6 Pick. Rep. 330) 348. 
 Johnson and Phelps (8 Johns. Rep. 43) 
 
 187. 
 Johnson and Williamson (2 Dowl. & 
 
 Ryl. Rep. 281) 140. 
 Johnson Adm. v. Ozeas (1 Binn. 191, 4 
 
 Dall. 434) 74. 
 Jones' Case (Overt. Rep. 455) 49. 
 Jones and Harraden (9 Mass. Rep. 640) 
 
 74. 
 Jones' Case,(l McCord's Cha. Rep. 170) 
 Jones V. Nov (2 Milke «fc Keen, 125) 
 
 222. 
 Jordan v. Wilkins (3 Wash. C. C. Rep. 
 
 110) 133. 
 Joseph, The (1 Gallis. Rep.,454) 120. 
 
 Kalback and Thommon (12 Serg. «fe 
 
 Rawle, 238) 248. 
 Kaffrolh and Martin, (16 Serg. & Rawle, 
 
 120) 193. 
 Kane v. Bloodgood (7 Johns Cha. Rep. 
 
 70) 102. 
 Kane el al v. Scofield (3 Caine's Rep. 
 
 368. 39. 
 Kane et al and Van Reinsdyk (1 Gallis. 
 
 Rep. 930) 154. 194. 
 Karthaus v. Ferrer (2 Pet. Sup. Ct. Rep. 
 
 222) 60. 
 Kaufman and Hortetter (11 Serg. & 
 
 Rawle, 146) 162. 
 Keeler v. Boardman, (2 Verm. Rep. 65) 
 
 128. 
 Keeler and Wilder (3 Paige's Rep. 167) 
 
 236. 
 Kelly V. Hurlbut (5 Cow. Rep. 534) 12. 
 
 250. 
 
 D 
 
 Kcnnan and The United States (1 Peter's 
 
 Rep. 168) 125. 
 Kennedy v. McFadon (3 Harr. & Johns. 
 
 194) 74. 
 Kentucky (Bank of) v. Brooking et al 
 
 (2 Litt. Rrp. 45) 46. 
 Kentucky (Bank of) and McGowan (5 
 
 Litt. Rep. 271) 39. 
 Keppele Ex. of Keppele and Long (I 
 
 Binn. 123) 359. 
 Kerr v. Hawthorne (4 Yeates 170) 245. 
 Kctcham et al v. Clarke (6 Johns. Rep. 
 
 144) 248. 
 Kimberly and Post Johns. Rep. 489) 9. 
 
 151. 
 Kingsbury and Ripley (I Swift's Dig. 
 
 342, 1 Day's Rep. 150) 39. 
 Kingman v. Speers ^7 Mass. Rep. 235) 
 
 4. 220. 
 Kinsman and Dallam (5 Monroe's Rep. 
 
 384. 133. 
 Kirby v. Cogswell, (1 Caine's Rep. 505) 
 
 39. 
 Kirk and Becker (cited 2 Caines' Ca. 5) 
 
 58. 
 Kirk V. Hodson ct a/(3 Johns. Cha. Rep. 
 
 400) 52. 
 Kirkpatrick v. TurnbuU (Addis. Rep. 
 
 259) 45. 
 Knapp and Union Bank (3 Pick. Rep. 
 
 112) 102. 
 Knox and Church (2 Conn. Rep. 516) 
 
 205. 
 
 V. Summers (4 Yeates 477) 205. 
 
 Kuhn and Gill (6 Serg. & Rawle, 337) 
 
 9. 14. 17. 74. 
 Kupfer and Brindley (6 Pick. 179) 74. 
 Kyle V. Connelly (3 Leigh's Rep. 719) 
 
 68. 
 
 Lacy V. Walcott et al (2 Dow. &, Ryl. 
 
 458) 306. 
 Ladue v. Hart (4 Wend. 583) 137. 
 Lamalire v. Caze (1 Wash. C. C. Rep. 
 
 435) 74. 
 Lamb et al v. Durant (12 Mass. Rep. 
 
 55) 27. 
 Lambert and Hamersley (2 Johns Cha. 
 
 Rep. 508) 359. 
 Lane and Porter (8 Johns. Rep. 177) 153. 
 Lane Ex. v. Carmichael (Vern. & Scriv. 
 
 380) 199. 
 Lansdale v. Brashcar (3 Monroe's Rep. 
 
 330) 6. 93. 
 Lansing v. Gaine et al (2 Johns. Rep. 
 
 300) 42. 
 Lansing v. Ten Eyek (2 Johns. Rep. 300) 
 
 250. 
 Lansing V. McKillup (7 Cow. Rep. 416) 
 
 66. 
 Laing ttnd Atkinson (D. &, Ryl. N. P. C. 
 
 16) 129. 
 Lathrop and Bound (Conn. Rep. 336) 63.
 
 XXVI 
 
 1N1>EX TO AMERICAN CASES. 
 
 Lawrence and Baldwin (2 Sim. & Stu. 
 
 26) 213. 
 Lawrence and McDennott (7 Serg. &. 
 
 Rawlc 438) 35. 
 Law V. Ford (2 Paiges' Rep. 310) 51. 
 
 114.231. 
 Lawrence v.Seebor (2 Caines' Rep. 203) 
 
 233. 
 Lawson onrfHaythorne (3Carr. &Payne 
 
 18(3) 118. 
 Layman and Bell (1 Monr. Rep. 40) 91. 
 Laverty v. Burr (1 Wend. Rep. 531: 47. 
 Lcavitt V. Peck et al (3 Conn. Rep. 124) 
 
 4a. 52. 
 Ledyards rt al and Manhattan Co. (1 
 
 Caines' Rep. 192) 39. 
 Lee V. Baird (4 Hen. and Munf. 453) 246. 
 Legare et al and Dickinson (1 Deasaus. 
 
 Ciia. Rep. 537) 51. 
 Leigh and Hall (8,Craneh 51) 130. 
 Leonard and Brown (2 Chitt. Rep. 120) 
 
 251. 
 Leonard and Whitman 3 Pick. Rep. 177) 
 
 230. 248. 250. 
 Le Page v. .McCrea 1 Wend. Rep. 164) 
 
 133. 228. 
 Le Roy et nl v. Johnson (2 Pet. Sup. Ct. 
 
 Rep. 116) 38. 45. 49. 199. 248. 
 Lewis anfi Bevan (1 Sim. Rep. 376) 39. 
 Lewis V. Culbcrtson (11 Serg. & Rawle, 
 
 48) 139. 
 Levy V. Cadet (17 Serg. & Rawle, 126) 
 
 64. 194. 
 Levaud and, Gardiner (2 Yeates 185) 
 
 199. 
 Linderbergcr and Wahueslcy (2 Rand 
 
 Rep. 478) 177. 
 Lindsay and Harris (4 Wash.C. C. 98) 
 
 156. 243. 
 Livingston v. Bishop (1 Johns. Rep. 290) 
 
 157. 
 Linney's Adm. v. Dare's Adm. (2 Leigh's 
 
 Rep. 588) 359. 
 Livingston v. Hastie el al (2 Caine's Rep. 
 
 246) 43. 45. 
 Li\ir)}rston V. Lynch (4 Johns. Cha. Rep. 
 
 673) 132. 
 Livingston v. RooseveU (4 Jolms. Rep. 
 
 255) 37. 55. 
 Llovd et al V. Freshfield (2 Car. &, Payne 
 
 325) 55. 
 Llovd V, Ashby (2 Carr. & Payne 138) 
 
 46. 
 Lord and Miller (11 Pick. Rep. 11) 105. 
 Loll? v. Koppele Ex. of Keppele (1 Binn. 
 
 123) 359. 
 Long v. Majcstrc (I Johns. Cha. Rep. 
 
 305)113. 
 Loner and Walker (2 P. A. Bro. Rep 
 
 125) 74.' 
 Lord V. Baldwin (6 Pick. Rep. 348) 138. 
 236. 275. 
 ' Loring v. Brackett (3 Pick. Rep. 403) 66. 
 
 Low V. Copestake (3 Carr. & Payne 
 
 300) 140. 
 Lowry v. Brooks (2 McCord's Rep. 421) 
 
 9. 
 Lowthorps V. Smith (1 Hayw. Rep. 255.) 
 
 91. 
 Lovell et al v. Whitridgc (1 McCord's 
 
 Rep. 7) 137.189. 
 Ludlow v. Simond (2 Caine's Ca. 1) 59. 
 Ludlows and Smith (6 Johns. Rep. 267) 
 
 194. 
 Lyie V. Styles (Wash. C. C. Rep. 224) 51. 
 Lynch and. Livingston (4 Johns. Cha. 
 
 Rep. 673.) 132. 
 Lynch and Stoughton (1 Johns. Cha, 
 
 Rep. 467) 105. 
 Lyndon v. Gorham (1 Gall. Rep. 368) 
 
 205. 
 Lyon and Duncan (3 Johns. Cha. Rep. 
 
 361) 69.335. 
 Ly )n and Taylor (2 Moo. (& Payne. 586.) 
 
 132. 
 
 McAllister v. Montgomery (3 Hayw. 
 
 Rep. 94)34. 131. 
 McAllister and Blaekburne (Peck's Rep. 
 
 371) 58. 
 McAlpine, Fleming & Co. and Boness 
 
 Canal Co. (2 Bell's Comm. 615, n. 2)55. 
 McBride v. Hagan (1 Wend. Rep. 3215) 
 
 58. 60. 
 McCall ancZ Crousillat (5 Binn. 433) 70. 
 McCandy and Batty (3 Carr. & Payne 
 
 202) 25. 
 McCai tv V. Emlen (2 Dall. 277, 2 Yeates 
 
 490) 205. 
 McCarty v. Nixon (2 Dall. 65 n.)131. 
 McCauley v. McFarlane (2 Dcsaus.Cha. 
 
 Rep. 239) 153. 
 McClenachan and Miller (1 Yeates 144) 
 
 199. 
 McClintee and Purviance (6 Serg. & 
 
 Rawle 259) 14. 
 McComb v. Dunch, (2 Dall. 73) 205. 
 McCoun V. Holmes (4 Litt. Rep. 389. 209. 
 McCuUough V. Dashiell's Adm. (1 Har. 
 
 &,Gill. 96)236. 300. 
 McCrca onrf Le Page (1 Wend. Rep. 164. 
 
 133. 228. 
 MeDermott and Lawrence (7 Serg. & 
 
 Rawlc 438) 35. 
 McDowal V. Wood (2 Nott & McCord's 
 
 Rep. 242) 2. 
 McFall et al and Williams et al (2 Serg. 
 
 &, Rawle, 280) 162. 
 McF;«;len and Kennedy (3 Har. & Johns. 
 
 194) 74. 
 McFarland v. Crary (8 Cow. 253) 55. 
 McFarlane and McCauley (2 Desaus. 
 
 Cha. Rep. 239) 153. 
 McGregor v. Cleveland (5 Wend. 475) 
 
 140.
 
 INDEX TO AMERICAN CASES. 
 
 XXVll 
 
 McGowan v. The Bank of Kentucky (5 
 
 Litt. Rep. 271)39. 
 Mclntyre v. Oliver, surv. part. (2 Hawk's 
 
 Rep. 209) 144. 
 MiiKillup and Lansinor (7 Cow. 416) 66. 
 McKay and Mumford (8 Wend. 442) 
 
 228. 
 McLinahan v. Ellery (3 Mason's Rep. 
 
 26J) 252. 
 McLeod and Napier (9 Wend. Rep. 120) 
 
 252. 
 McMurray and Hoy's heirs, (1 Litt. 
 
 Rep. 335) 212, 
 McNair and Cuinpston (I Wend. Rep. 
 
 457) 6. 
 McNair and Hawford (9 Wend. 68) 59. 
 McPherson v. Ralhbone (7 Wend. 216) 
 
 193. 
 Mackay v. Bloodgood et al (9 Johns. 
 
 Rep. 285) 59. 
 Majestre and Long (1 Johns. Cha. Rep. 
 
 305) 113. 
 Manahun v. Gibbons et al (19 Johns. 
 
 Rep. 109) 87. 
 Mandeville v. Jameson, (5 Cranch 286) 
 
 102. 
 Mandeville and Sheehy, (6 Cranch, 253) 
 
 162. 
 Manhattan Co. v. Ledyard et al (ICaines' 
 
 Rep. 192) 39. 
 Manning v. Brickcll, (2 Hayw. 23) 252. 
 Manufacturer's and Mecii. Bank v. Gore 
 
 et al (15 Mass. Rep. 75) 48. 55. 
 Manufacturer's fc Mechanics' Bank v. 
 
 Winship(5 Pick. Rep. 11) 39. 
 Marks and Stansbury, (4 Dail. 130) 178. 
 Marquand and Bruen, (17 Johns. Rep. 
 
 58) 60. 
 Marquand v. Jacques (6 Conn. Rep. 497) 
 
 39. 
 Marquand v. The N. Y. Man. Company, 
 
 (17 Johns. Rep. 525) 228. 
 Marshall v. De Groot, (1 Caines' Ca. 
 
 123) 359. 
 Marsh V. Gold (2 Pick. Rep. 285) 5. 56. 
 Martin v.' Vanschaick (4 Paige's Rep. 
 
 429)114. 
 Marvin and Black (2 Pcnns. Rep. 138) 
 
 199. 
 Martin v. Kaffroth (16 Serg. & Rawle. 
 
 120) 193. 
 Mason v. Connell (1 Whart. Rep. 381) 4. 
 Mather and Alsop (8 Conn. 584) 16. 
 Matthews and Campbell (6 Wend. 557) 
 
 244. 
 Martin v. Walton et al (1 McCord's Rep. 
 
 16) 49. 250. 
 Martin v. Bridges (3 Carr. &. Payne, 83) 
 
 196. 
 Marvin et al and Brinkerhoff et al (5 
 
 Johns. Cha. Rep. 320) 203. 
 Matthew and Lord Galway, (I Camp. 
 
 Rep. 403) .52. 
 
 Maxcy and Ordiorne, (15 Mass. Rep. 44) 
 
 63. 194. 
 Me3,der v. Scott (4 Vern. Rep. 26) 139. 
 
 190. 
 Meade V. Tomlinson (1 Days Rep. 148) 
 
 59. 
 Mt-ars and Helsby (5 Barn. & Crcsw. 
 
 505) 150. 
 Merrill v. Parker (6 Grcenl. 41) 64. 
 Mercem v. Andrews (10 Wetid. 461 )43. 
 Meng and Pleasants (1 Dall. Rep. 380) 
 
 68. 
 Mercer v. Sayrc et al (Anth. N. P. Rep. 
 
 119) 64. 196. 
 Merscreau v. Norton, (15 Johns. Rep. 
 
 1U8) 91. 
 Merrill v. Bartlett (6 Pick. Rep. 46) 32. 
 Merry and Graves (6 Cow. Rep. 701) 38. 
 
 250. 
 Messier et al and Campbell, (4 Johns. 
 
 Cha. Rep. 334) 79. 
 Methodist Episc. Church v. Jaques, 1) 
 
 Johns. Cha. Rep. 65) 99. 
 Micklcs et at and Sandfbrd, (4 Johns. 
 
 Rep. 224)49.251. 
 Mifflm V. Smith (17 Serg. & R. 167) 151. 
 
 224. 
 Miller and Bartlett (15 Serg. & Rawlc, 
 
 137) 18. 
 Miller and Clark (4 Wend. 628) 128. 
 Miller V. Lord (11 Pick. 11) 106. 
 Miller (Blair) v. Douglass (14 Fac. Coll. 
 
 154,2 Bell's Com. 016)43. 
 Miller V. McClenachan, (I Yeates, 144) 
 
 199. 
 Miller v. Starks (13 Johns. Rep. 517) 199. 
 Mills V. Barbour, (4 Day, 430) 37. 
 Mills and Robertson (2 Har. <fe Gill. 98) 
 
 43. 200. 
 Minnelt v. Whitney (16 Vin. Ab. 244) 75. 
 Mitchell V. Dall. 2 Harr. & Gill. 159) 12. 
 
 128. 
 Moncrief o/kZ Anderson etal (13 Desaua 
 
 Cha. Rep. 125) 86. 
 Montgomery and McAllister, (3 Hayw. 
 
 Rep. 94) 34. 131. 
 Monroe v. Cooper 5 Pick. Rep. 412) 47. 
 Moody V. Payne, (2 Johns. Cha. Rep. 
 
 548) 144. 205. 
 Moore and Ritchie et al (5 Munf. 338.) 
 
 189. 
 Moreton v. Harding (6 D. & Ryl. 275 4. 
 
 B. .fee. 223) 161. 
 Morris et al and Bunn, (3 Caines' Rep . 
 
 54) 129. 
 Morrison and Be'.l (1 Pet. Sup. Ct. Rep. 
 
 352) 64. 
 Mortimer v. Caldwell, (Kirby'a Rep. 53) 
 
 156. 
 Mountjoys v. Holden (Litt. Sel. Ca. 447) 
 
 99. 
 Mowatt V. How and (Day's Rep. 353) 
 
 250.
 
 XXVlll 
 
 LNDEX TO AMERICAN CASES. 
 
 Moyes et al v. Bruineaux, (3 Yeates, 30) 
 
 194. 
 Muir and Teller, (2 Penn. Rep. 740) 194. 
 Miilcaster and Graham (4 Bingh. 115) 
 
 345. 
 Mumford and Murray (6 Cow. 441) 131. 
 
 229. 
 Mumford v. McKay (8 Wend. 442) 228. 
 Mumford and Nicol (4 Johns. Cha. Rep. 
 
 525) 32. 205. 
 Mumford et al and Champion (Kirby's 
 
 Rep. 170)38. 
 Munro v. Allaire (2 Caines' Ca. 327) 187. 
 Murchie and Rose (2 Call's Rep. 409) 
 
 138. 192. 
 Munn and Sigourney (7 Conn. Rep. 11) 
 
 33. 234. 
 Murray v. Bogert et al (14 Johns. Rep. 
 
 318) 4. 74.81.220. 
 Murray v. Murray, (5 Johns Cha. Rep. 
 
 70) 127. 262. 
 Murray and Coster (5 Johns. Cha, Rep. 
 
 522) 102. 
 Murray v. Mumford (6 Cow. Rep. 441) 
 
 131. 229. 
 Murdock cind Dunham (2 Wend. Rep. 
 
 554) 205. 
 Muzzy V. Whitney, (10 Johns .Rep. 226) 
 
 19. 
 
 Nairn v. Sir W. Forbes &, Co, (2 Bell's 
 
 Com. vol, ii, p. 626) 2. 
 Nash V. Tinker (cited 8 Cunn. 587) 16. 
 Napier v. Rapelje (9 Wend. 120) 60. 
 Nai)ier v. McLeod (9 Wend. 120) 252. 
 Nelson Ex parte (1 Cow. Rep. 417) 177. 
 New halls and Woodward (1 Pick. Rep. 
 
 .500) 177. 
 New bold et al v. Sims. (2 Serg. &. Rawle 
 
 40J) 70, 
 Newman and Bell (5 Serg. & Rawle 
 
 86) 203. 360. 
 New York Man. Company and Mar- 
 
 quand (17 Johns. Rep. 525) 228. 
 New York Firemen Ins. Co. v. Bennett 
 
 (5 Conn. Rep. 574) 46. 56. 
 Nichols V. Chapman (9 Wend. 454) 59. 
 Nicoll V. Mumford, (4 Johns. Cha. Rep. 
 
 525) 32. 205. 
 Nisbet V. Patton (4 Rawle 120) 161. 
 Niven V, Spickerman et at (12 Johns. 
 
 Rep. 401) 71. 
 Nixon and McCarty (2 Dall 65, n) 131 
 Noel V. Bowman (2 Litt Rep. 46) 79. 
 Norden v. Williamson (1 Taunt. 377) 
 
 199. 
 Norman v. Norman et al (2 Yeates, 154) 
 
 199. 
 North Am. Land Co. and Gil'more (1 
 
 Peter's Rep. 460) 205. 
 Norton and Mersereau (15 Johns. Rep. 
 
 180) 91. 
 
 Noy and Jones (2 Milne tSt Keen 125) 
 222. 
 
 Odiorne v. Maxcy (15 Mass. Rep. 44) 
 
 63. 194. 
 Oliphant and Chardon (2 Const. Ct. 
 
 Rep. 685) 64. 
 Oliver -et al and Rose (2 Johns. Rep. 
 
 365) 86. 187. 
 Oliver surv. partn. and Mclntire (2 
 
 Hawk's Rep. 209) 194. 
 Oney and Shields (5 Munf. 551) 178. 
 Orr v. Chace (1 Meriv. Rep. 729) 58. 
 
 363. 
 Orange, Bank of, and Brown (3 Wend. 
 
 Rep. 158) 183. 
 Orchard and Dolman (2 Carr. & Payne 
 
 104) 23. 251. 
 Osborne v. Brennan (2 Nott & McCord 
 
 Rep. 427) 14. 23. 
 Otis and Fix (5 Pick. Rep. 38) 193. 
 Oxley and Tuckers (5 Cranch 34) 313. 
 Ozeas v. Johnson (1 Binn. 191. 4 Dall. 
 
 434) 74. 
 
 Page's Ex. and Cheston (4 Har. & 
 
 McHcn.466)252. 
 Palmer and Hart (12 Wend. 523) 66. 
 Parker v. Merrill (6 Greenl. 41) 64 
 Parker and Vallett (6 Wend. 615) 38. 
 Parkes et al v. Danforth et al (16 Mass. 
 
 Rep. 299) 179. 
 Pate v Bacon (0 Munf. 219) 126. 
 Patrick and Hackley (3 Johns. Rep. 
 
 538) 64. 
 Patterson v. Choate (7 Wend. 441) 64. 
 
 194. 
 Patton and Nisbet (4 Rawle 120) 161. 
 Patterson et al and Wallace et al (2 Har. 
 
 &, McHen. Rep. 463) 205. 
 Patten et al v. Gurney (17 Mass. Rep. 
 
 182) 135. 160. 
 Payne and Moody (2 Johns. Cha. Rep. 
 
 548) 144. 205. 
 Pearpont v. Graham (4 Wash. Rep. 
 
 232) 51. 
 Peck V. Ellis (2 Johns. Cha. Rep. 131) 
 
 86. 106. 
 Peck et al and Leavitt (3 Conn. Rep. 
 
 124) 49. 52. 
 Pendergrast and Roach (3 Harr. & 
 
 Johns. 33) 222. 
 Pennock and Currier (14 Serg. & Rawle 
 
 51) 141. 
 Pennsylvania (Bank of) v. Hadfeg (3 
 
 Yeates 560) 202. 
 Fennel and Cole (2 Rand. Rep. 174) 
 
 177. 
 Perrine v. Hankinson (6 Halst. Rep. 
 
 181) 14. 
 Person v. Carter et al (3 Murpb. Rep. 
 
 321) 58. 
 Peters v. Davis (7 Mass Rep. 257>131.
 
 INDEX TO AMERICAN CASES. 
 
 XXIX 
 
 Petty's Ex. and Yates (I Har. &l Johns. 
 
 Rep. 58) 1U4. 
 Phelps V. Johnson (8 Johns, Rep. 43) 
 
 187. 
 Phillips V. Prevost (4 Johns. Cha. Rep. 
 
 205) 99. 
 Phiniiey and Wilbey (15 Mass. Rep. 
 
 112)74. 
 Pickering v. Holt (6 Greenl. Rep. 160) 
 
 59. 
 Pierce v. Jackson (6 Mass. 243) 104. 
 Pierpont and Dird et al (1 Johns. Rep. 
 
 118) 127. 
 Pierson v. Hooker (3 Johns. Rep. 70) 
 
 51. 60. 
 Pitkin and Beding (2 Caints' Rep. 147) 
 
 34. 
 Pitts V. VVauo-h (4 Mass. Rep. 424) 161. 
 Pix V. Olis (5 Pick. Rep. 38)" 193. 
 Pleasants v. Meng (1 Dall. 380) 68. 
 Plumb and Boyd (7 Wend. 309) 56. 
 Foindexter v. Woddy (6 Munf. 418) 43. 
 
 192. 239. 
 Pollard aiid Fletcher (2 Hen. & Munf. 
 
 544) 60. 105. 
 Pollock and Sheiton (1 Hen. & Manf. 
 
 422) 59. 
 
 Portland Bank and Gray (3 Mass. Rep. 
 
 364) 74. 199. 
 Porter and Bill (9 Conn. Rep. 23) 199. 
 Porter v. Cumings (7 Wend. 172) 38. 
 Porter and Jackson (2 Mart. Rep. 200) 
 
 58. 
 Porter v. Crcsson (10 Serg. & Rawle, 
 
 257) 126. 
 Post V. Kimberly (9 Johns. Rep. 439) 9. 
 
 151. 
 Pourie et al v. Fletcher et al (2 Bay's 
 
 Rep. 146) 137. 
 Pourie et al and Foltz (2 Desaus. Cha. 
 
 Rep. 40) 49. 
 Prevost and Phillips (4 Johns. Cha. 
 
 Rep. 205) 99. 
 Price &. Co. v. Towsey (3 Lilt. Rep. 
 
 423) 196. 248. 
 
 Prince and Course (1 Rep. Const. Ct. 
 
 413) 74. 
 Pulham and Wright el al (2 Chitt. Rep. 
 
 1-21) 249. 
 Purviance v. Dryden (3 Serg. &. Rawle, 
 
 492) 179. 199. 
 Purviance v. McClintee (6 Serg. & R. 
 
 259) 14. 
 Purviance v. Sutherland (Addis. Rep. 
 
 291) 139. 
 Purvis and Hamill (2 Penns. Rep. 177) 
 
 56. 
 Pyke and Thomas (4 Bibb's Rep. 418) 
 
 70. 
 
 Quinu & Janney and Rooth (7 Price 
 193) 52. 
 
 Ratnchander v. Hammond (2 Johns. Rep. 
 
 200) 192. 
 Rnpclje and Napier (9 Wend. 120) 60. 
 Rathbone and UcPhcrsoni^ Wend.216) 
 
 193. 
 Ratienbury and Atwood et al (Moo. Rep. 
 
 209) 132. 
 Reed and Wilson et al (3 Johns. Rep. 
 
 175)91. 
 Reed and Babb (5 Rawle 151) 2. 227. 
 Respass and Chiun (1 Monroe's Rep. 29) 
 
 90. 
 Rice V.Austin (17 Mass. Rep. 197) 18, 
 
 19. 
 Richardson and Goodwin (11 Mass. Rep. 
 
 459) 33. 
 Richards and Terrill (1 N. & McCord, 
 
 20) 70. 
 Richardson's Ex. v. Wyatt's Ex. (2 De- 
 saus Cha. Rep. 471) 34. 
 Richardson Ex. v. Wyatt (2 Desaus. 
 
 Rep. 271) 232. 
 Richards and Wirter (10 Conn. Rep. 37) 
 
 205. 
 Ridgeley v. Carey (4 Har. «fe McHen. 
 
 167) 236. 
 Ripley v. Kingsbury (1 Swift's Dig. 342 
 
 1 Day's Rep. 150) 39. 
 Ritchie et al v. Moore (5 Munf. 388) 139. 
 Robertson v. Mills (2 Harr. &, Gill. 98) 
 
 43. 200. 
 Roach V. Pendergrast (3 Harr. & Johns. 
 
 33) 222. 
 Robertson v. Smith (18 Johns. Rep. 459) 
 
 162. 
 Robins V. Willard (6 Pick. Rep. 464) 144. 
 Robinson v. Beail (3 Yeates, 227) 189. 
 Robinson and Corps (2 Wash. C. C. 
 
 Rep. 388) 63. 194. 
 Robinson and Franklin (1 Johns. Cha. 
 
 Rep. 157) 355. 
 Robinson v. Cowder (4 McCord's Rep. 
 
 519) 51. 
 Robinson v. Robinson (1 Fairf. Rep. 240) 
 
 17. 
 Robinson and Jackson (3 Mason's Rep. 
 
 138) 32. 153. 
 Rochester, Bank of v. Bowen (7 Wend. 
 
 309) 56. 
 Rodman t/n<Z Baxter (3 Pick.Rep. 335) 18. 
 Rogers and Smith (17 Johns. Rep. 340) 
 
 Ul. 241. 
 Rogers V.Rogers (1 Hall's Rep. 391) 73 
 Roosvelt and Dubois (4 Johns. Rep. 
 
 202 n.) 43. 
 Roosvelt and Livingston (4 Johns. 255) 
 
 37. 55. 
 Rostain and Allen (11 Serg. & Rawle, 
 
 362) 193. 
 Rose v. Murchie (2 Gallis. Rep. 409) 138. 
 
 192. 
 Rose v. Oliver et al (2 Johns. Rep. 365) 
 
 86, 187.
 
 XXX 
 
 INDEX TO AMERICAN CASES. 
 
 Rop V. Drinker (2 Hall's Rep. 415) 14. 
 Roth and Darst (4 Wash. C. C. Rep. 471) 
 
 59. 
 Rootes V. WeJford &, Co. (4 Munf. 215) 
 
 64. 196. 
 Roolh V. Quinn & Janney (7 Price 193) 
 
 52. 
 Rowley v. Stoddart (7 Johns. Rep. 210) 
 
 186. 
 Runlett an<Z Davenport (3 New. Hamp. 
 
 Rep. 3b6) 43. 
 Russel and Ardley (1 P. A. Bro. Rep. 
 
 145) 140. 
 Russel V. Green (lO Conn. Rep. 270) 70. 
 
 Sabin and Foote (19 Johns. Rep. 154) 
 
 56. 
 Sale V. Dickman's Ex. (3 Leigh's Rep. 
 
 548) 190. 359. 
 SalinoQ &, Brown v. Davis (4 Binn. 375) 
 
 60. 
 Salt and Stead (10 Moo. 389. 3 Bing. 
 
 101) 60. 
 Sanders et al and Studdy (2 Dowl. & 
 
 Ry 1.347) 194. 
 Sand ford v. Mickles et al (4 Johns. Rep. 
 
 224) 49. 251. 
 Say re et al and Mercer (Anth. N. P. 
 
 Rep. 119)64. 196. 
 Schenck et al and Seely (1 Penn. 75) 
 
 125. 
 Schenelzell. and Halstead (17 Johns. 
 
 Rep. 80) 74. 
 Schaub and Hart (1 Penns. Rep. 285) 
 
 59. 
 Schlatter and Witmer, (2 Rawle, 359) 
 
 2. 
 Scholefield v. Eichelberger (7 Pet S. C. 
 
 Rep. 586) 218. 
 Scolfield et al and Kane (3 Caines' Rep. 
 
 368) 39. 
 Scott V. Dunlap & Co. (2 Munf. 349) 
 
 126. 
 Scott V. Trent (1 Wash. Rep. 77) 137. 
 
 252. 
 Scott et al and United States Ins. Com- 
 pany (1 Johns. Rep. 106) 153. 
 Scott et al V. Israel (2 Binn. 145) 178. 
 Scott and Meader (4 Verm. Rep. 26) 
 
 139. 190. 
 Scottin V. Stanley (I Dall. Rep. 129) 32. 
 Seariffht v. Craighead (1 Pen. 135) 64. 
 Secbor and Lawrence (2 Caines' Rep. 
 
 203) 233. 
 Seely v. Schenk et al (I Penn. Rep. 75) 
 
 125. 
 Selden and Doremus (19 Johns. Rep. 
 
 213) 87. 
 Sella V. HubbcU's Adm. (2 Johns. Cha. 
 
 Rep. 397) 106. 
 Seton and Gram (1 Hall's Rep. 262) 58. 
 Seymour and Boardman (cited 2 Conn. 
 
 Rep. 425) 70. 
 
 Shaffer v. Snyder (7 Serg. & Rawle 504) 
 
 250. 
 Sheeny v. Mandeviile (6 Cranch 253) 
 
 162. 
 Sheldon v. Skinner (9 Wend. 525) 71. 
 Shclton V. Cocke et al (3 MunH 191) 
 
 59. 63. 194. 
 Shelton v. Pollock (1 Har. & Munf. 422) 
 
 59. 
 Shepherd and Cady (11 Pick. Rep. 400) 
 
 58. 
 Sherburne et al and Waldon et al (Johns. 
 
 Rep. 409) 14. 52. 64. 194. 
 Sherwood v. Marwick (5 GreenL 'Rep. 
 
 295) 175. 
 Sliields V. Oney (5 Munf. 551) 178. 
 Shubrick's Ex. v. Fisher et a/ (2Desau8. 
 
 Cha. Rep. 148) 17. 
 Simond and Ludlow (2 Caine's Ca. 1) 
 
 59. 
 Sims and Newbold et al (2 Serg. &. 
 
 Rawle, 317) 70. 
 Sigourney v. Munn (7 Conn. Rep. 11) 
 
 33. 
 Sigourney v. Munn (7 Conn. 423) 234. 
 Sims V. Willing et al (8 Serg & Rawle, 
 
 103) 151. 
 Simpson v. Feltz (1 McCord's Cha. Rep. 
 
 219) 10. 14. 18. 105. 
 Simpson et al v. Geddes (2 Bay's Rep. 
 
 533; 64.196.212. 
 Singleton and Gilley (3 Litt. Rep. 249) 
 
 66. 
 Skinner v. Dayton (19 Johns. Rep. 513) 
 
 2 58 2'^6 
 Skinner and Sheldon (4 Wend. 525) 
 
 91. 
 Smith v. Edwards (2 Har. &. Gill. 411) 
 
 51. 
 Smith and Farr (9 Wend. 338) 90. 
 Smith (The matter of) 15 Johns. Rep. 
 
 102) 205. 
 Smith v. Allen (13 Johns. Rep. 245) 74. 
 
 200. 
 Smith and Barney (4 Harr. & Johns. 
 
 485) 131. 
 Smith v. Black (9 Serg. & Rawle 142) 
 
 162. 
 Smith and Bently (3 Caines, Rep. 170) 
 
 125. 
 Smith and Davis (4 Greenl. Rep. 339) 
 
 102. 
 Smith and Hopkins (11 Johns. 161) 6. 
 Smith and Lowthorp (Hayn. Rep. 255) 
 
 91. 
 Smith V. Ludlows (6 Johns. Rep. 267) 
 
 194. 
 Smith and Mifflin (17 Serg. & Rawle 
 
 167)151.224. 
 Smith and Robertson (18 Johns. Rep. 
 
 452) 162. 
 Smith et al v. Rogers (17 Johns. Rep. 
 340)167.241.
 
 INDEX TO AMERICAN CASES. 
 
 XXXI 
 
 Smith and Sylvester (9 Mass. Rep. 119) 
 
 159. 
 Smith and Vasse (6 Craneh 131) 178. 
 Smith V. Walker (6 Johns 267) 63. 
 Siriith and Spaulding (1 Fairf. Rep. 333) 
 
 199. 
 Smith V. Stone (4 Gill & John. 310) 
 
 60. 
 Smith V. Barker (1 Fairf. 458) 236. 
 Smvth V. Hawthorn (3 Rawle, 355) 
 
 131. 
 Sneed v. Coyle (4 Litt. Rep. 162) 48. 
 Snced v. Weister (2 Marsh. Rep. 285) 
 
 155. 
 Snover and Blair (5 Halst. Rep. 153) 
 
 120, 
 Snow and Thompson (i Greenl. 264) 
 
 19. 
 Snyder and Shaffer (7 Serg. & Rawle, 
 
 504) 250. 
 Southard and Steel (3 Monroe's Rep. 
 
 433) 60. 
 South Carolina f Bank of) v. Humphreys 
 
 (1 McCord's Rep. 379) 250. 
 Spaulding v. Smith (J Fairf. Rep. 363) 
 
 199. 
 Sperry's Estate (1 Ashm. Rep. 347) 
 
 360. 
 Spencer and Ballow (4 Cow. Rep. 161) 
 
 6. 
 Speers and Kingsnian (7 Pick. Rep. 
 
 2.35) 220. 
 Spickerman et at and Niven (12 Johns. 
 
 Rep. 401) 71. 
 Spraffue and Bristol (7 Wend. 423) 
 
 250. 
 St. John V. Standring (2 Johns. 468) 
 
 91. 
 Stafford v. Gold. (9 Pick. 533) 132. 
 Standring and St. John (2 Johns. Rep. 
 
 468) 91. 
 Starks and Miller (13 Johns. 517) 199. 
 Stansbury v. Marks (4 Dall. 130) 178. 
 Stanley and Scottin (1 Dall. Rep. 129) 
 
 32. 
 Stackpoolc and Baker (9 Cow. Rep. 420) 
 
 196. 
 Stead V. Salt (10 Moo. 389. 3 Bing. 101) 
 
 60. 
 Stearns v. Burnliam (4 Greenl. Rep. 84) 
 
 43. 
 Steele and Southard (3 Monroe's Rep. 
 
 433) 60. 
 Slerhng and Whitney et al (14 Johns. 
 
 Rep. 215) 193. 
 Sterry et al and Plarrison (5 Craneh 
 
 2S:)) 51. 299. 
 Stewart v. Coulter (12 Scrg. & Rawle, 
 
 252) 189. 
 Stewart v. Eden (2 Caine's Rep. 12 1 ) 
 
 187. 
 Stiles V. Donaldsortf (2 Dall. Rep. 264) 
 
 102. 
 
 S(oddart and Rowley (7 Johns. Rep. 
 
 210) 186. 
 Stone and Smith (4 Gill, & Johns. 310) 
 
 60. ■ 
 Storcr V. Hinckley it al (Kirby's Rep. 
 
 170) 38. 359. 
 Story V. Barrel & Gilbert (2 Conn. Rep. 
 
 665) 65. 196. 
 Stoughton V. Lynch (1 Johns. Cha. Rep. 
 
 467)105. 
 Studdv V. Saunders et al (2 Dowl. & 
 
 Ryl" 347) 194. 
 Styles and Lyle (2 Wash. C. C. Rep. 
 
 224) 51. 
 Summers and Knox (4 Ycates 477) 
 
 205. 
 Sutherland and Purviance (Add. Rep 
 
 .331) 139. 
 Sutton et al v. Irwine el al (12 Serg. &. 
 
 Rawle 13) 57. 
 Sylvester v. Smith (9 Mass. Rep. 119 ) 
 
 159. 
 
 Taylor, James, Case of (1 P. A. Bro. Rep, 
 
 App. Ixxiii.) 58. 
 Taylor v. Coryell &, Co. (12 Serg. & 
 
 Rawle, 243) 60. 
 Taylor and Brydcn (2 Harr, & John 396) 
 
 193. 
 Taylor et al and Eaton (10 Mass. Rep. 
 
 54) 251. 
 Taylor v. Henderson (17Ser^, &, Rawle, 
 
 453) 193. 199.203. 
 Taylor v. Lyon (2 Moo. & Payne, 586) 
 
 132. 
 Taylor v. Terme (3 Harr. & Johns. 505) 
 
 14. 
 Teller v. Muir (2 Penn, Rep. 740) 194, 
 Ten Eyck and Lansing (2 Johns, Rep» 
 
 300) 250. 
 Terme and Taylor (3 Harr. & Jbhns.^ 
 
 505) 14.- 
 Terrill v. Richards (1 Nott. &, McCord's 
 
 20) 70. 
 Terry et al and Van Vechten et al (2 
 
 Johns. Cha. Rep. 197) 143. 
 Thomas v. Pyke (4 Bibb's Rep. 418) 70, 
 Thommon v. Kalback (12 Serg. &. Rawle, 
 
 238) 248. 
 Thompson and Bownes' Ex. (Coxe's 
 
 Rep. 2) 189. 
 Thompson v. Snow, 4 Greenl. Rep. 264) 
 
 19. 
 Thompson v. Cook (2 South, Rep. 580) 
 
 91. 
 Thompson et al and Hartncss et al (5 
 
 Johns. Rep. 160) 177. 
 Thorndikc v. De Wolf (6 Pick. Rep. 120) 
 
 32. 
 Tillcy et nl and Champlin Ex. (3 Day's 
 
 307) 192. 
 Tiljier v. Whitehead (1 Dall. 261) 39.
 
 xxxu 
 
 INDEX TO AMERICAN CASES. 
 
 Tinker and Nash (8 Conn. Rep. 587, 
 
 cited) 16. 
 Toll and Wailing (9 Johns. Rep. 141) 
 
 178. 
 Tom V. Goodrich et al (2 Johns. Rep. 
 
 214) lyu. 
 
 Tornlinson and Hart (2 Verm. Rep. 
 
 101. 
 Tornlinson v. Burke (5 Halst. Rep. 295) 
 
 125. 
 Tornlinson and Meade (1 Day's Rep. 
 
 48) 59. 
 Totty's Ex. V. Donald & Co. (4 Munf. 
 
 43U) 126. 
 Towsey and Price & Co. (3 Litt. Rep. 
 
 423) 196. 248. 
 Tracy and Coit (8 Conn. Rep. 268) 64. 
 Trent and Scott (1 Wash. Rep. 77) 166'. 
 
 137. 252. 
 Trimble v. Coons (2 Marsh. Rep. 376) 
 
 58. 
 Tucker's Ex. and Fisher's Ex. (1 Mc- 
 
 Cord's Cha. Rep. 170) 64. 251. 
 Tucker's v. Oxley, (5 Cranch 34) 313. 
 Tulton and Davis' Ex. (1 Overt. Rep. 
 
 121) 246. 
 Turnbuil and Kirkpatrick (Add. Rep. 
 
 259) 45. 
 Turner v. Burrows (5 Wend. 541) 233. 
 Tultle V. Cooper (5 Pick. 414) 43. 
 Tuttle V. Eskridge (2 Munf. 330) 59. 
 
 Union Bank v. Hall (1 Harper's Rep. 
 
 246) 230. 
 Union Bank v. Knapp (3 Pick. Rep. 112) 
 
 102. 
 Union Insurance Co. and White (1 Nott 
 
 & McCord's Rep. 359) 236. 
 United States v. Hack (8 Pet. S. C. Rep. 
 
 271)205.45. 
 United States v. Astley (3 Wash. C. C. 
 
 508)58. 190. 
 United States v. Kennan (1 Peter's Rep. 
 
 168) 125. 
 United States In?. Co. and Holmes (2 
 
 Johns. Ca. 329) 153. 
 United States Ins. Co. v. Scott et al (1 
 
 Johns. Rep. 106) 153. 
 Upham and Flagg (10 Wend. 147) 43. 
 
 Vallett V. Parker (6 Wend. 615) 38. 
 Van Breamere et al v. Cooper et al (2 
 
 Johns. Rep. 279) 192. 
 Van Deusen and Byres (5 Wend. 268) 
 
 230. 
 Van Ness v. Forrest (8 Cranch, 30) 77. 
 Van Reimsdyk v. Kane et al (1 Gallis 
 
 Rep. 630) J 54. 194. 
 Van Rensselaer and Wendell (1 Johns. 
 
 Cha. Rep. 350) 142. 
 Van Schaick and Martin (4 Page's Rep. 
 
 479) 114. 
 
 Van Vechten et al v. Terry et al (9 
 
 Johns Cha. Rep. 197) 143. 
 Vassee v. Smith (6 Cranch, 231) 178. 
 Vuughan and Golding, (2 Chit. Rep. 436) 
 
 131. 
 Vere and Ashby (10 B. & Crew. 288) 
 
 192 
 Vice and Lady Andson (7 Barn. & 
 
 Cresw. 409) 17. 
 Vice V. Fleming (1 Young & Jerv. 227) 
 
 52. 
 Vining and Iby (2 McCord's Rep. 379) 
 
 250. 
 Vredenburg and Waddington .(2 Johns. 
 
 Ca. 227) 245. 
 
 Waddington and Griswold (16 Johns. 
 
 Rep.489)5.51. 84. 120. 
 Waddington v. Vredenburgh (2 Johns. 
 
 Ca 227) 245. 
 Waddy and Poindexter (6 Munf. 418) 
 
 43. 192. 239. 
 Waggoners v. Craig's Adm. (2 Hen. & 
 
 Munf. 603) 199. 
 Wailing v. Toll (9 Johns Rep. 141) 178. 
 Wakely v. Hart et al (6 Binn. 319) 217. 
 Walcot V. Canfiuld et al (3 Conn. Rep. 
 
 194) 55. 160. 
 Walden et al v. Serburne et al (15 Johns, 
 
 Rep. 409) 14. 52. 64. 194. 
 Walker et al v. Duberry (1 Marsh. Rep. 
 
 189) 196. 
 , Walker v. Long (2 P. A. Bro. Rep. 125) 
 
 74. 
 Walker et al v. Dickerson et al (2 Hayw. 
 
 Rep. 23) 58. 
 Walker and Smith (6 Johns. Rep. 267) 
 
 63. 
 Wallace v. Fitzsimons (1 Dall 248) 131. 
 Wallace et al v. Paterson et al (2 Harr. & 
 
 McHcn. 463) 205. 
 Wallace, Ex. and Wilson (1 Scrg. &, 
 
 Rawle, 53) 125. 
 Walmesly v. Lindenberger (2 Rand. Rep. 
 
 478) 177. 
 Wain and Forest (4 Yeates 337) 240. 
 Wain, surv. partn. v. Hewer (5 Serg. & 
 
 Rawle, 470) 1.39. 190. 
 Walsh and Austin (2 Mas. Rep. 401) J29. 
 Walton et al and Martin (1 McCord's 
 
 Rep. 16) 49. 250. 
 Ward V.Howell (5 Harr. & Johns. 60) 
 
 63. 
 Ward and Wodrop (3 Desaus. Cha. Rep. 
 
 203) 234. 360. 
 Warner and Cope (13 Serg. & Rawle, 
 
 411) 359. 
 Warner v. Griswold (8 Wend. Rep. 665) 
 
 Warfield's Adm. and Howards (4 Har. & 
 
 McHen. 21)137. 
 Warner v. Cunningham (3 Dow'b Rep. 
 
 76) 220.
 
 INDEX TO AMERICAN CASES." 
 
 XXXUl 
 
 Walbridge and Williams (3 Wend. 415) 
 
 45. 
 Watson and Cooper (3 Dougl. Rep. 413) 
 
 7. 
 Warree v. Buntee (1 Ryl. & Dowl. 106) 
 
 200. 
 Watlington and Cooper (2 Chit. Rep. 
 
 451) 107. 
 Watson and Barnelt (1 Wash. Rep. 372) 
 
 126. 
 Watson V. Welles (5 Conn. Rep. 468) 66. 
 Waugh and Pitt (4 Mass. Rep. 424) 161. 
 Weister and Sneed (2 Marsh Rep. 285) 
 
 155. 
 Welford & Co. and Rootes (4 Munf. 215) 
 
 64. 196. 
 Welles and Watson (5 Conn. Rep. 468) 
 
 66. 
 Wctmore et al and Baker et at (9 Johns. 
 
 Rep. 307) 149. 
 Wendell v. Van Rensselear (1 Johns. 
 
 Cha. Rep. 350) 142. 
 Worts and Hess et al (4 Serg. &, Rawle, 
 
 356) 2. 17. 
 Westcrlo v. Evertson (1 Wend. Rep. 
 
 532) 5. 
 Wheelright v. Depeyster (1 Johns. Rep. 
 
 471) 135. 
 White V. Hall (3 Pick. 291) 64. 
 Whitaker v. Brown (1 1 Wend. 75) 43. 
 White V. Union Insurance Co. (1 Nott 
 
 & McCord's Rep. 559) 236. 
 Whitehead and Tillier (1 Dall. 269) 39. 
 Whiting V. Farrand (1 Conn. Rep. 60) 
 
 240. 
 Whitman v. Leonard (3 Pick. Rep. 
 
 177) 230. 245. 250. 
 Whitney v. Ferris et al (10 Johns. Rep. 
 
 66) 194. 
 Whitney and Minnett (10 Vin. Abr. 
 
 244) 75. 
 
 Whitney and Muzzv (10 Johns. Rep. 
 
 226) 19. 
 Whitney and Halsey (4 Mason's Rep. 
 
 232) 59. 
 Wiiitncy et al v. Sterling (14 Johns. 
 
 Rep. 215) 193. 
 Whitridgo and Lovel et al {I McCord's 
 
 Rep. 7) 137,183. 
 Whitticr and Burnhara (5 N. Hamps. 
 
 Rep. 334) 39. 
 Widdifield et al v. Widdifield (2 Binn. 
 
 245) 191. 
 
 Wilby V. Phinney Adra. (15 Mass. Rep. 
 
 123) 88. 
 Wilby V. Phinney (15 Mass. Rep. 112) 
 
 74. 
 Wilcox and Bernard (2 Johns. Ca. 374) 
 
 128. 
 Wilkes et al v. Ferris (5 Johns. Rep. 
 
 335) 187. 
 Wilkins and Comm. Bank (9 Greenl. 
 
 34) 205. 
 
 E 
 
 Wilkins and Jordan (3 Wash. C. C. 110) 
 
 133. 
 Willard and Robbins (6 Pick. Rep. 464) 
 
 194. 
 Williams and Clemcntson (8 Cranch, 
 
 72) 196- 
 Williams v. Hcnshaw (1 1 Pick. 79) 74. 
 Williams v. Hodgson (2 Harr. «fc Johns. 
 
 474) 58. 
 Williams v. McFall et al (2 Serg. & 
 
 Rawle, 280) 162. 
 Willams V. Walbridge (3 Wend. 415) 45. 
 Williams v.' Donaghe's Ex. (1 Rand. 
 
 Rep. 300) 162. 
 Williams et al v. Hamilton (1 South 
 
 Rep. 220) 207. 
 Williamson v. Johnson (2 Dowl. & Ryl. 
 
 Rep. 281) 140. 
 Williamson and Norden (1 Taunt. 377) 
 
 199. 
 Willings V. Consequa (1 Peter's Rep. 
 
 301) 162. 
 Willing and Griffith (3 Binn. 317) 69. 
 Willing et aland Sims (8 Serg. & Rawle, 
 
 103) 151. 
 Wilmington Bank v. Almond (1 Whart. 
 
 Rep. 169) 243. 
 Wilson V. Wallace's Ex. (8 Serg. & 
 
 Rawle 53) 125. 
 Wilson et al v. Connie (2 Johns Rep. 
 
 280) 224. 
 Wilson V. Gibbs (2 Johns. Rep. 280) 
 
 205. 
 Wilson et al v. Reed (3 Johns. Rep. 175) 
 
 91. 
 Wiser v. Blachley (1 Johns. Cha. Rep. 
 
 437) 142. 
 Wister v. Richards (10 Conn. Rep. 37) 
 
 205. 
 Withers v. Withers (8 Pet. S. C. Rep. 
 
 355) 105. 
 Witmer v. Schlatter (2 Rawle 359) 2. 
 Winship v. The Bank U. States (5 Pet. 
 
 S. C. Rep. 529) 38. 
 Winchester v. Jackson (3 Hayw. Rep. 
 
 310) 196. 
 Winkle and Burke (2 Serg. & Rawle, 
 
 189) 3. 
 Winship and Man. &, Mech. Bank (5 
 
 Pick. Rep. 11) 39. 
 Winslow V. ChiiFelle ■ (Harp. Eq. Rep. 
 
 25) 36. 
 Winsor and Cutler (6 Pick. Rep. 335) 18. 
 Wodrop V. Ward (3 Dcsaus. Cha. Rep. 
 
 203) 236, 360. 
 Wood anri McDowall (2 Nott & McCords 
 
 Rep. 242) 2. 
 Woodward v. Newhall's (1 Pick. Rep. 
 
 500) 177. 
 Woody V. Flournoy (6 Munf. 506) 55. 
 Wood and Egberts (3 Paige's Rep. 517) 
 
 51, 236.
 
 XXXIV 
 
 INDEX TO AMERICAN CASES. 
 
 Woodford v. Dorcoin (3 Verm. Rep. 82) 
 
 50. 
 VVooda and Egbert (3 Paige's Rep. 517) 
 
 131. 
 Wolcott and Lacy (2 Dovvl. & Ryl. Rep. 
 
 458) 306. 
 Wrashall and Fawcett (2 Carr. & Payne 
 
 305) 199. 
 Wright et al v. Pulham (2 Chit. Rep. 
 
 121) 249. 
 Wyatt and Blew (5 Car. & Payne, 397) 
 
 241. 
 
 Wyatt's Ex. and Richardson's Ex. (2 
 Desaus Cha. Rep. 471) 34. 232. 
 
 Yates V. Petty's Ex. (1 Harr. & Johns. 
 
 Rep. 58) 104. 
 Young et al v. Brick et al (2 Penn. Rep. 
 
 663) 74. 
 
 Zelie et al v. Campbell's Ex. (2 Johns 
 Ca. 383) 133.
 
 PRACTICAL TREATISE 
 
 ON THE 
 
 LAW OF PARTNERSHIP. 
 
 CHAPTER I. 
 
 OF THE CONTRACT OF PARTNERSHIP. 
 
 Partnership has been thus described by an eminent 
 writer on the civil law : contractus societatis est, quo duo, 
 pluresve, inter se pecimiam, res, ant operas confenint, eo 
 fine ut, quod inde redit lucri, inter singulos pro rata, divi- 
 datur.{a) This definition, has been observed, is good 
 only as between the parties, but not with respect to the 
 world at large.(6) To render a partnership complete, a 
 communion of loss as well as profit is essential.(c) The 
 shares of the parties must be joint, though it is not ne- 
 cessary that they should be equal : and the parties joint- 
 ly interested in the purchase must also be jointly con- 
 cerned m the future sale.(c?) Partnership, therefore, in 
 its extended and complete sense, is a voluntary contract, 
 between two or more persons, for joining together their 
 money, goods, labour, and skill, or either or all of them, 
 upon an agreement, that the gain and loss shall be di- 
 vided proportionably between them, and having for its 
 object the advancement and protection of fair and open 
 trade.(c)(l) 
 
 Every person sui juris is competent to contract the 
 
 (a) Puffendorf, lib. 5. cap. 8. [b) Waiigh v. Carver, 2. H. Bl. 246. 
 (c) Coope V. Eyre, 1 H. Bl. 37. \d) Ibid. (e) Wats, on Partn. 1. 
 
 (1) Partnership is a contract by which two or more persons join in 
 common money or goods, and labour or service, for carrying on some 
 
 1
 
 2 OF THE CONTRACT 
 
 relation of partner. An infant may, by law, be a 
 partner, and he will be entitled to all the bene- 
 [ *2 ] fits resulting from the partnership, *although he 
 will not be liable for the losses, if he chooses to 
 avail himself of his minority.(a)(l) But a feme covert 
 cannot sustain the character of partner, because she 
 is legally incapable of entering into the contract of 
 partnership ;(2) and although married women are not 
 
 (a) Goode v. Harrison, 5 B. & A. 150. But an infant partner, who, 
 on attaining the age of majority, does not disaffirm the partnership, is 
 responsible on contracts subsequently made by the firm. Id. ibid, and 
 see Glossop v. Colman, 1 Stark. N. P. C. 25. 
 
 lawful commerce, work, or other business, that they may share among 
 them all the gain or loss thence arising. Forbes, Inst, of Scot. Law, 
 Part 2. B. 3, sect. 3. page 184. {edit. Edin. 1722, 12mo.) See also the 
 definition of partnership, by Domat, Civ. Law, vol. 1, p. 85. (edit. 
 Paris, 1745, fol.) and in the Ordenanzas de Bilbao, p. 71. cap. 10 
 num. 1. {edit. Madrid, 1796. fol.) 9 Johns. Rep. 488. The most satis- 
 factory definition is to be found, 3 KenVs Commentaries, p. 23, 2d. 
 Edition. 
 
 When it is recollected how much weight is given to the credit raised 
 by the use of a partnership firm, it maybe questioned whether a single 
 individual can, by the use of a firm, make a partnership, which shall 
 have the effect of entitling the creditors dealing with that firm to a pre- 
 ference over the stock of it. The essential principles on which alone 
 the separate character of a partnership, and the distinct appropriation of 
 its funds, rest, forbid this conclusion. So it was, accordingly, deter- 
 mined by the Court of Sessions, who refused to make any distinction 
 in favour of the creditors of a firm set up by an individual ; but massed 
 together the whole of the debts of that firm, and of the individual. 
 Nairn v. Sir W. Forbes ^ Co. 25th Nov. 1795; BelVs Comm. vol! 2. 
 p. 626. 
 
 (1) An infant who has been in partnership with a person of full 
 age, but who dissolves the contract the day after he becomes of age, 
 cannot recover from a creditor of the partnership, money paid during 
 its continuance. Holmes v. Blogg, 8 Taunt. 35, 508. In Scotland 
 it would appear to be beyond the power of a father, as administrator 
 for his son, or of tutors, on the part of a pupil, to engage him as a 
 partner in a Company : and an action for inferring responsibility 
 against the pupil's estate would be ineffectual. But in such a case, the 
 father or tutor would probably be held liable as, himself, the substitute 
 for the incapable minor. BelVs Comm. vol. 2. p. 627, and the cases 
 there cited. If, however, a minor acts as a trader, and holds himself 
 out to the world as such, his dealings are on the same footing with 
 those of a person of full age. BelVs Comm. vol. 1. p. 249. See also 
 
 • Pothier, Conlr. de Societe, {edit. Paris, 1807.) p. 84. 
 
 (2) Cosio et al. v. De Bcrnales, 2 Carr. &; Payne, 266.
 
 OF PARTNERSHIP. 4 
 
 unfrequently entitled to shares in banking-houses and 
 other mercantile concerns, under positive covenants, yet 
 vs^hen this happens, their husbands are entitled to such 
 shares, and become partners in their stead.(l) 
 
 The contract of partnership may be divided into the two 
 classes of public and private. It may be denominated 
 public, where the association consists of an indefinite or 
 a large definite number of joint undertakers ; and pri- 
 vate, where a few individuals only connect themselves 
 together. The former is usually called a company or 
 society, and is instituted to carry on some important 
 undertaking, for which the capital and exertions of a few 
 individuals would be insufficient. Of these, some are in- 
 corporated by letters patent, or act of parliament, such 
 as the East India Company and the Bank of England ; 
 others are not, such as most of the Fire and Life Insur- 
 ance Companies. 
 
 Those companies or societies, which are not confirm- 
 ed by public authority, are, in fact, nothing more than 
 ordinary partnerships, and the laws respecting them are 
 the same ;(b) but the articles of agreement between the 
 parties are usually very different. The capital is generally 
 divided into a certain number of shares, \vhereof each 
 partner may hold one or more ; but he is restricted to 
 a certain number. Any partner can also tranfer his 
 share, under certain limitations ; but no partner acts 
 personally in the aflfairs of the company ; the execution 
 of their business being entrusted to officers, for whom 
 the whole company are responsible, though the superin- 
 tendency of such officers is frequently committed to di- 
 rectors chosen from the body at large. 
 
 (6) Rex V. Dodd, 9 East, 516. Beaumont v. Meredith, 3 Ves. and 
 Bea. 180. 
 
 (1) See Code Civil, par Sirey, art. 220. (edit. Paris, 1821, 4to.) 
 Whether a feme sole trader in Pennsylvania can legally enter into a 
 contract of partnership, with a view to benefit her trade, or to maintain 
 her family, has not been decided ; but it would be difficult to maintain 
 since the decision in Burke v. Winkle, 2 Serg. & Rawle, 189, that she 
 could not enter into such a contract. See also as to the power oi feme 
 sole traders in South Carolina, McDowall v. Wood, 2 Nott & McCord's 
 Rep. 242. 2 Bay, 162, 333.
 
 2 OF THE CONTRACT 
 
 There are likewise trading companies established by 
 public authority. The king, by his charter, may consti- 
 tute fraternities or companies for the management of 
 foreign or domestic trade.(z) Since trade cannot 
 [ *3 ] be maintained and increased without *order and 
 government,(a) therefere the king may erect 
 gildam mercatoriam for the advantage of trade ;(6) and 
 none but the king can erect a society for trade, or public 
 trading company.(c) But the king, by his charter, can- 
 not make a total restraint of trade, for such a patent 
 would be void.(c?) 
 
 A royal charter is necessary to enable a company to 
 hold lands, to have a common seal, and enjoy the other 
 privileges of a corporation; but a charter is sometimes 
 procured merely to limit the risk of the partners ; for, 
 in every private unincorporated company, the members 
 are liable for the debts without limitation: (e) (1) in 
 incorporated societies, they are only liable to the extent 
 of their shares in the stock of the society. Sometimes 
 trading companies are authorised by act of parliament ; 
 but this high authority is only necessary to confer ex- 
 clusive privileges, which, by the principles of the common 
 law, cannot be granted by the king's charter, (g) 
 
 Not any one of the public trading companies, incor- 
 porated by royal charter, or act of parliament, are to be 
 considered as partnerships, within any of the legal prin- 
 ciples applicable to partnerships formed by the voluntary 
 
 (z) Com. Dig. Tit. Trade, B. Darcy v. Allen, cited in the city of 
 London's case, 8 Rep. 125. 
 
 (a) Com. Dig. Tit. Trade, D. (b) City of London's case, supra. 
 
 (c) East India Company v. Sandys, Skinn. 224. 
 
 {(l) Darcy v. Allen, supra. See also 3 Mod. 132. East India Com- 
 pany V. Evans, 1 Vern. 307. 
 
 (e) Rex V. Dodd, 9 East, 516. 
 
 (g) Kyd on Corporations, 1st vol. p. 61. 
 
 (I) Hess et al. v. Werts, 4 Serg. &l Rawle, 356. TVitmer v. Schlat- 
 ter et al. 2 Rawle, 359. Bahh v. Reed et al. 5 Rawle, 151. Skinner v. 
 Dayton, 19 Johns. Rep. 513. Benson v. Brown. 10 Wend. Rep. 258. 
 The law of Scotland imposes the same obligation. Douglass, Heron 
 8f Co. against Hair, 24th July, 1778; 6 Fac. Coll. p. 57. BelVs Comm. 
 623, vol. 2. (4th edit. Edin. 1821.)
 
 OF PARTNERSHIP. 
 
 agreement of individuals. For in such public companies, 
 where a trade is to be carried on under the corporate 
 name in joint stock (as in the case of the East India 
 Company, ^-c), the members, as such, are not objects of 
 the bankrupt laws ; (a) and there are express provisions, 
 that they are not to be liable, on account of the joint 
 trade, in their individual capacities ; nor one of them for 
 the debts or engagements contracted by others ; but only 
 for their respective shares or interest in the joint stock, 
 and that upon trade and contracts carried on or made 
 in the corporate character. Therefore, if one or more 
 persons enter into such a society, and become sharers 
 of the property and joint stock, yet such an association 
 does not constitute a partnership, according to the cus- 
 tom of merchants, nor within the principles of law estab- 
 lished respecting joint traders. 
 
 To contract the relation of private, as it has been con- 
 tradistinguished from public partnership, no charter 
 or license is ^necessary ; the bare consent of the [ *4 ] 
 parties being, for this purpose, sufficient. Such con- 
 sent may be testified, either in express terms, as by articles 
 of copartnership, or positive agreement ; or the assent 
 may be tacit, and to be implied solely from the acts and 
 conduct of the parties, {b) An implied, or presumptive 
 assent, has equal operation with one that is express and 
 determined. Thus, to constitute a partnership inter se, 
 the existence of written articles is not essential, the 
 mere act of trading jointly being sufficient for that pur- 
 pose ; and, with respect to the world, it may be laid 
 down as an undeniable proposition, that persons having 
 a mutual interest in the profits of any business, or parti- 
 cular branch of business, carried on by them, or persons 
 appearing ostensibly as joint traders, are to be recog- 
 
 (a) 6 Geo. IV. c. 16. s.2. 
 
 (b) Under the Romans, the social contract or partnership needed no 
 other solemnity but the consent of parties, without any writing at all; 
 and Barbeyrac, in his notes on Puffendorf, observes, that a partnership 
 is contracted sometimes tacitly; where, for example, a thing being 
 bought in common is not divided, but the parties interested, without 
 explaining themselves further, enjoy it equally, each sharing in the 
 profit that arises, and contributing his own proportional part in the ne- 
 cessary expenses for its maintenance.
 
 4 OF THE CONTRACT 
 
 nised and treated as partners, whatever may be the na- 
 ture of the agreement under which they act, or what- 
 ever motive or inducement may prompt them to such an 
 exhibition, (b) But a joint possession has not, per se, 
 the effect of converting the possessors into partners. A 
 joint possession, or the holding of something in common 
 among many, does not necessarily imply the reciprocal 
 choice of the parties ; on the contrary, several may hold 
 a thing in common, independently of their own original 
 free election. Of this latter class are the joint donees 
 or joint legatees of one and the same thing, or those 
 who, through other causes, chance to hold something 
 between them, which is not divided, and is to be pos- 
 sessed in common without any mutual agreement. The 
 free and personal choice of the parties is so essentially 
 necessary to the constituting of a partnership, that even 
 the executors and representatives of deceased partners 
 themselves do not, in their representative capacity, suc- 
 ceed to the state and condition of partners, (c) althoiigh 
 a community of interest necessarily exists between them 
 and the surviving partners, until the affairs of the part- 
 nership are wound up. (d) And, on the same 
 [ *5 ] principle, one partner can in *no instance, without 
 the consent of his copartners, introduce a stranger 
 into the concern as a partner, (1) although he may 
 charge his own undivided interest to any extent lie 
 pleases in favour of that stranger, (e) 
 
 The law of England permits only those mercantile 
 associations Avhich are sanctioned by justice and sound 
 policy. It follows, therefore, that the object of every 
 partnership must be the adventuring in some lawful trade 
 or business. By the civil law it is well established, that 
 no partnership can be contracted, except it have relation 
 to fair trade or commerce, or some other thing that is 
 
 (b) Mclver v. Humble, 16 East, 174. 
 
 (c) Pearce v. Chamberlain, 2 Ves. sen. 34. 
 ((/) ^ajjoar/e Williams, 11 Ves. 3. 
 
 (e) Bray v. Fromont, 6 Madd. 5. 
 
 (1) Murray v. Bogert, 14 Johns Rep. 318. Kingman v. Speers, 
 7 Mass, Rep. 235. Mason v. Connell, 1 Whart. Rep. 381.
 
 OF PARTNERSHIP. 5 
 
 honest and lawful : every partnership, formed on a basis 
 at variance with such principles, being considered not 
 only improper but unjust. Si malejicii societas coita sit, 
 constat nullam esse societatem ; generaliter enim traditur, 
 rerum inhonestarum nullam esse societatem. Societas Jla- 
 gifioscB rei nullas vires habet. Delictorum turpis atgue 
 fce,da communio est. Nor, according to the laws of this 
 country, is there any sound distinction to be made be- 
 tween an association, for the pupose of engaging in 
 transactions which are m^ala in se, and those which are 
 mala prohibita ; the latter, as well as the former, tending 
 to encourage a breach of the law, and it being equally 
 unfit that a man should be allowed to take advantage of 
 what the law says he ought not to do, whether the thing 
 be prohibited because it is against good morals, or whe- 
 ther it be prohibited because it is against the interest of 
 the state, (b) (1) Thus a partnership for importing 
 prohibited goods, (c) or making time bargains in the 
 funds, would be held illegal and invalid, not less than a 
 partnership for keeping a disorderly house, or robbing 
 on the highway. (2) But if the object contemplated by 
 persons associating themselves together as partners, do 
 not contravene either the law of nature, or the municipal 
 law of the land, it will be valid, although it do not relate 
 to trade. Partnerships are not necessarily confined to 
 trades or commercial adventures. They may lawfully 
 
 (6) Bensley v. Bignold, 5 B. & A. 331. Aubert v. Maze, 2 Bos. & 
 Pul.371. 
 
 (c) Biggs V. Lawrence, 3 T. R. 454. Webb v. Brooke, 3 Taunt. 13. 
 
 (1) See Griswold v. TVaddington, 16 Johns Rep. 489, et seq. Bar- 
 tie V. Coleman, 4 Pet. S. C. Rep. 184. 
 
 (2) See a curious bill by a highwayman against his companion, for 
 a share of the phmder; and a statement of the partnership mode of 
 dealing, in Sir JV. D. Evan's edition of Pothier on Obligations, vol. 
 2, p. 3, and in the Ewop. Mag. 1787, vol. 2, p. 360. Lord Kenyan, 
 in Ridley v. Moore, Clifford'' s Rep. of Southivark Election, also men- 
 tions this case, of which, however, it is said, no record remains in the 
 office. The clerk, however, of an unincorporated company, associated 
 for the purpose of carrying on banking, contrary to law, cannot set up 
 the unlawful character of the association, so as to defeat a bill in equity 
 against him by the company for an account of his agency. Berkshire 
 y. Evans, 4 Leigh's Rep. 223.
 
 OF THE CONTRACT 
 
 subsist in cases unconnected with mercantile speculations. 
 For instance, a partnership may exist between attorneys, 
 (1) or farmers (2) as well as between merchants and bank- 
 ers, (z) Nor does it follow, from *the contraction 
 [ *6 ] of the relation of partners, that the persons con- 
 tracting it are indiscriminately united as general 
 partners ; for a partnership may be limited to a particu- 
 lar branch of business, without extending to all the con- 
 cerns in which any member of the firm may chance to 
 be engaged, (a) Thus, two merchants may join in send- 
 ing out a cargo of goods to a foreign country. As to this 
 adventure, they have all the rights, and are subject to all 
 the liabilities of partners ; but the relation of co-partner- 
 ship between them ceases with it, and at no time extends 
 to any of their other concerns. So, several may be inter- 
 ested in a chattel, and agree to manage it at their nmtual 
 expense, and for their mutual profit ; quoad hoc they are 
 partners. In hke manner, if two persons, who are not 
 partners in trade, draw a bill of exchange payable to 
 themselves or their order, they are partners as to the 
 transaction of the bill, but, in every other respect, they 
 continue perfectly distinct. (6) (3) So, if a number of 
 persons associate together and subscribe sums of money 
 for the purpose of obtaining a bill in parliament to make 
 a railway, they are jpro hac vice to be treated as part- 
 ners, (c) 
 
 (z) Per Gould J., Coope v. Eyre, 1 H. Bl. 37. 
 
 (a) Per Lord Mansfield, Willett v. Chambers, Cowp. 814. See 
 also Robey v. Howard, 2 Stark. N. P. C. 557. 
 
 (b) Carvick v. Vickery, Dougl. 653 n. 
 
 (c) Holmes t). Higgins, 1 B. &C. 74. 
 
 (1) Marsh V. Gold et al. 2 Pick. Rep. 285. Westerlo v.Evertson, 
 
 1 Wend. Rep. 532. Warner et al. v. Griswold, 8 Wend. Rep. 665. 
 And between physicians, ^^llen v. Blanchard, 9 Cow. Rep. 631. 
 
 (2) Lansdale v. Brashear, 3 Monroe's Rep. 330. So there may be 
 a partnership in a ferry. Bowyer v. Jinderson, 2 Leigh's Rep. 554. 
 
 (3) 17 Serg. &; Rawle, 167. But where two persons signed a 
 joint note, it was held, that it was not evidence of a partnership existing 
 between them. Hopkins v. Smith, 11 Johns. Rep. 161. It has been 
 well observed, however, in relation to this decision, that it is not easy 
 to perceive a distinction between the cases, 3 KenVs Comm. p. 30, 2d. 
 Ed. Partners in a specific purchase or adventure, have, in relation to
 
 OF PARTNERRHIP. 
 
 When the object or purpose the partners have in view, 
 in forming a partnership, is clearly and distinctly de- 
 fined, and the contract of partnership does not expressly 
 or impliedly confer upon some the power of binding all 
 to the adoption of different projects, it is not competent 
 to any number of the partners, short of the whole of 
 them, to engage the partnership in adventures which 
 are incompatible with the declared object or purpose; 
 because, if it were so, an individual, by engaging in one 
 specified concern, might be implicated in any other con- 
 cern whatever, however diflferent in its nature, against 
 his consent. Each partner, therefore, has the power of 
 insisting that the original contract of partnership shall 
 not be contravened by an extension of its purposes ; and 
 he is not deprived of that power, notwithstanding the 
 other partners oflfer to indemnify him against the loss 
 that may be sustained by their embarking in transac- 
 tions which were not, in the first instance, intended to 
 form a part of the partnership concern : for, whilst the 
 partnership continues, the right of a partner is 
 to hold his co-partners to the *specified purposes [ *7 ] 
 of their association, and not to rest upon indem- 
 nities with respect to what he has not contracted to 
 engage in.(a) And this principle (upon which a court 
 of equity will act in the case of a common partnership) 
 applies with equal force to all companies or societies 
 whose objects are, at the time of their institution, de- 
 fined, and who are not purposely invested with a power 
 of binding the body by a majority, or any select part of 
 
 («) Natusch V. Irving, Appenflix, post. 
 
 that adventure, all the rights, and are subject to all the liabilities of 
 general partners, and each may sign a note in the names of all for the 
 moneys advanced, or services rendered in relation to the transaction in 
 which they are partners Cumpston v. McNair, I Wend. Rep. 457. 
 But where A. and B. entered into a contract with C. for a conveyance 
 from him to them of a farm, for which tliey were to pay in part in good 
 negotiable promissory notes to be endorsed by them ; held, that this 
 contract did not constitute them special partners, so that one could bind 
 the other by an indorsement in the name of both without the knowledge 
 or assent of the other. Balloiv v. Spencer et al. 4 Cow. Rep. 163. 
 And see Greenslade v. Dower et al. 6 Barn. «fc Cresw. 635. 
 
 2
 
 OF THE CONTRACT 
 
 it. Such companies, if there be one dissentient mem- 
 ber, cannot embark in undertakings not originally con- 
 templated; nor can they compel that member to retire 
 from the company on receiving his subscribed capital 
 and interest, in order thereby to leave them at liberty 
 to pursue their extended operations. And it is not a 
 sufficient answer to the requisition of the shareholder 
 who calls upon the company to observe the objects for 
 Avhich the company was formed, to urge, that he may 
 dispose of his shares at a price considerably beyond 
 what he gave for them ; because, for that very reason, 
 coupled with having the partnership concern carried on 
 according to the contract, he may expect augmented 
 improvement in the value of his shares.(6) A covenant, 
 in articles of partnership, that none of the partners shall 
 carry on, for their respective private benefit, that branch 
 of commerce in which they are jointly engaged, is not 
 only allowed, but is the constant course.(c) Indeed, the 
 principles of a court of equity will not permit that par- 
 ties bound to each other, by express or implied agree- 
 ment, to promote an undertaking for their common 
 benefit, should any of them engage in another concern, 
 which necessarily gives them an interest directly adverse 
 to their original undertaking.(rf) (1) 
 
 In considering the constitution of a partnership, the 
 inquiry will be chiefly directed to its requisites in rela- 
 tion to strangers or the world at lars^e. Inter se a diffi- 
 culty seldom arises. The question is generally, not 
 between the parties, as to whether a partnership is 
 formed, or what shares they shall divide, but respecting 
 creditors claiming a satisfaction out of the funds of a 
 particular house, who shall be deemed liable in regard 
 to these funds. For when a partnership is entered into 
 
 (b) Natusch r. Trvlng, Appendix, post. 
 
 (c) Morris v. Colman, 18 Ves. 438. 
 
 {(i) Glassington v. Thwaites, 1 Sim, &. Stu. 133. And see Burton 
 V. Wookey, Mad. 367. 
 
 (1) Coatea v. Coates, 6 Mad. Rep. 287. Cooper v. ffatson, 3 Dough 
 Rep. 413.
 
 OF PARTNERSHIP. 8 
 
 by persons ^engaging in a commercial or any other trade 
 or speculation, there is usually a contract or agreement 
 between the parties, providing for its existence, and de- 
 fining the rights of the partners respectively. By this 
 contract, where it subsists, the partnership is regulated : 
 if there be not an express agreement, the partnership, as 
 regards its regulation, is governed by the contract im- 
 plied by the law from the relation of the parties. In the 
 latter case, the concurrent opinion of all the writers on 
 the civil law is, that the loss must be equally borne, and 
 the profits equally divided.(/) And by the law of Eyig- 
 land^ where a partnership is constituted by the mere act 
 of trading jointly, each of the persons so trading, though 
 liable to°creditors to the whole extent of the losses, is 
 only responsible inter se for his own fdiquot proportion 
 of them ; and, with respect to the profits, each will be 
 considered as equally interested in the joint concern, 
 unless the contrary be made to appear. There is, in- 
 deed, a nisi prius decision, in which it seems to have 
 been assumed, that each member of a firm is not, in all 
 cases in which the rights of the partners are undefined, 
 necessarily entitled to an equal share of the profits. In 
 that case, a father, on his son's coming of age, told him 
 that he should have a share in his business, and the son 
 was held out to the world as a partner, and acted, in 
 that capacity, between five and six years ; and upon an 
 issue, out of Chancery, to ascertain the son's interest. 
 Lord Ellenhorough said, that he was not to be presumed 
 to be entitled to a moiety, on account of the indefinite 
 nature of the agreement, but left it to the jury to con- 
 sider what was a fair proportion, under the particular 
 circumstances of the case ; and the jury gave the son 
 one-fourth part of the profits.(^) But Lord Eldon has 
 expressed his dissatisfaction at the result of this issue, 
 
 (/) Et quidem si nihil de partibus lucri et dainni nominatim conve-' 
 nerit, pequales scilicet partes et in lucro et in damno spectantur. Quod 
 si expressae fuerint partes, hae servari debent. Neo enim unqnam du- 
 bium fuit, quin valeat conventio, si duo inter se pact! sint, ut ad uiiuin 
 quidem dure partes et lucri et damni pertineant, ad aliuni tenia, Insiit. 
 lib. 3. t. 26. s. 1. 
 
 [g) Peacock v. Peacock, 2 Campb. 45.
 
 OF THE CONTRACT 
 
 observing, that he had no conception of the principle 
 upon which a jury, on the footing of a quantum meruit^ 
 could have held the son entitled to a quarter share only; 
 for, as no distinct proportion was ascertained, by force 
 of any express contract between the parties, they must, 
 
 of necessity, have been equal partners, if part- 
 [ *9 ] ners in any thing.(A)(l) *However, articles of 
 
 partnership are, in most cases, executed at the 
 
 ill) S. C. 16Ves. 56. 
 
 (1) " Lorsque I'acte de Societe ne determine point la part de chaque 
 associe dans les benefices ou partes, la part de chacun est en proportion 
 de sa mise dans le fonds de la societe. 
 
 " A regard de celui qui n'a apporte que son Industrie, sa part dans 
 les benefices, ou dans les perles, est reglee comme si sa mise eut ete 
 egale a celle de I'associe que a le moins apporte." 
 
 {Code Civil, Art. 1853.) 
 
 It is obvious that the case of more than two persons constituting a 
 partnership is contemplated by this provision. The rule, however, 
 seems to be, in the case of tivo persons contracting the partnership 
 relation, one of whom furnishes capital, and the other industry or skill, 
 without ascertaining by express agreement the proportions in which 
 they are to share the profits, or divide the losses, the same as laid down 
 by Lord Eldon. " D'apres, cette loi positive," says Mons. Hutteau, 
 in a note to Pothier, Contrat de Societe, page 12, (edit. Paris, 1807, 
 Svo.) " il fault necessairement faire a I'espece proposee par ^l. Pothier 
 rapplioalion de I'art. 1853 du Code Civil. 
 
 " Voyons les deux cas : Ou le capilaliste a stipule qu'il preleveroit 
 sa mise au fonds ; et alors ce qui reste devient benefice : s'il n'y a que 
 deux associes celui qui en est pour son industrie partage egalement ce 
 benefice avec Thomme qui a avance ses fonds ; 
 
 " Ou il n'esl pas stipule que le caiptaliste prelevcra ses fonds : dans 
 ce cas, il semble que la decision doit toujours etre la meme, parceque 
 I'art. 1833 suppose que le capitaliste doit avant tout retirer sa mise, et 
 qu'il n'y a de partage a faire que des benefices qui excedent. 
 
 " Mais que doit on dire si les raises ne sont plus entieres par les 
 pertes qu'a eprouvee la societe ? 
 
 " C'est toujours le cas d'appliquer la derniere disposition de I'art. 
 1853 La perte est de 500 francs sur la mise de fond du capitaliste, 
 V. g.; cc dernier en supporte la moilie, et I'associe pour son industrie 
 doit pour indeninite les 250 francs au capitaliste. On voit que nous 
 parlous d'un principe, ce que nous supposons toujours que la mise des 
 fonds doit etre prelevee ; mais a cet egard, c'est par suite de I'induction 
 que nous tirons des expressions de I'art. cite." See, also Ordenanzas 
 de Bilboa, page 77, cap. 10, num. 14. Palexfs Mor. Phil. chap. xiii. 
 page 112, {edit. Lon.l. 1817.) Mackenzie's Inst. Scot. Law, 192, {edit. 
 Edin. 1723, 12mo.)
 
 OP PARTNERSHIP. 9 
 
 time the partnership is constituted, and they are capa- 
 ble of being determined legally by their expressive form. 
 The duties and obligations, as well as the rights of the 
 partners inter se, being ascertained and defined by the 
 several provisions contained in such articles, they are 
 regulated, and can alone be enforced, consistently with 
 the terms and stipulations agreed upon. With reference 
 to their own individual interests, and as a matter of pri- 
 vate arrangement, joint traders may stipulate among 
 themselves that they are severally to be responsible only 
 for their own losses and defaults, or they may contract 
 for any specific apportionment of the losses in their dis- 
 cretion. The same observation applies to the profits, 
 the division and distribution of which is more peculiarly 
 the object of compact or agreement. In fact, the various 
 stipulations and provisions, relating to the commence- 
 ment of the partnership,(/) the manner in which the 
 business is to be conducted, the space of time for which 
 the partnership is to endure, the capital each is to bring 
 into the trade, the proportion in which the profits and 
 loss are to be divided, the time and manner agreed upon 
 for settling the accounts, the powers and duties of the 
 partners in regard to conducting the business, and enter- 
 ing into engagements which may afiect the co-partner- 
 ship, the mode in which the partnership may be dissolved, 
 together with the various covenants adapted to the cir- 
 cumstances of each particular case, are purely and 
 entirely the subject of personal and private agreement 
 and arrangement; and, in whatever way they may ulti- 
 mately be settled, they cannot be impeached, unless they 
 interfere with or contravene any rule or principle of law. 
 But although, where a partnership has, for its basis, 
 written articles, the diflferent provisions of which have 
 been acted upon and observed by the partners, those 
 articles are to be regarded as suppljnng the rule by 
 which to determine any disagreement between them, 
 yet the subsequent transactions of the partners may 
 control and supersede clauses in those articles, or may 
 furnish evidence of a new agreement different from the 
 
 (i) See Williams v. Jones, 5 B. & C. 108.
 
 y OP THE CONTRACT 
 
 written articles, provided those transactions show a pro- 
 babiHty, amounting ahnost to demonstration, that the 
 articles were otherwise intended ; for, whatever may be 
 
 the language of a partnership-deed, *the dealings 
 [ *10 ] and transactions among the partners may be 
 
 such as to amount to distinct evidence, that some 
 of the articles in that deed were waived by all parties, 
 and were not to be considered as rules which should 
 regulate the rights and duties of the partners.(^) 
 
 A partnership may legally subsist as between indivi- 
 duals and the world, and yet not as between the indivi- 
 duals themselves.(l) For the former purpose, appearing 
 as partners, or participating in the profits of a trade, is 
 sufficient ; for the latter, the parties must have joint 
 shares in the stock, and must be jointly interested in the 
 general trade or the particular adventure.(/) (2) Thus, 
 where it was agreed between two persons that one of 
 them should furnish goods on an adventure, the profits 
 of which were to be equally shared with the other, it 
 was held, that as between themselves, no partnership 
 was formed, for that the division of profits was merely 
 a mode of remunerating trouble and credit ; but that 
 they were liable as partners to third persons.(m) And 
 a right to share in the profits of a particular adventure 
 will render a person liable to third persons, as a partner, 
 
 (k) Geddes v. Wallace, 2 Bligh, 270, and see Jackson v. Sedgwick, 
 1 Swanst. 469. Petty v. Janeson, 6 Madd. 146. 
 
 (/) Hesketh v. Blanchard, 4 East, 141. (m) Id. Ibidi 
 
 (1) Gill V. Xuhn, 6 Serg. & Rawle, 337. Post v. Kimberly, 9 
 Johns. Rep. 489. Dob v. Halseij, 17 Johns. T?ep. 40. Bailey v, 
 Clark, 6 Pick. Rep. 372. Bostwick v. Champion, 1 1 Wend. 508. 
 
 (2) It is not necessary that all the j)artners should contribute money, 
 or in equal proportion — it is sufficient if they contribue what is equiva- 
 lent to money. Nor is it required that all should share equally in the 
 profits and losses. Therefore, where one person furnishes a license, 
 and the aid of his name, in consequence of which he is to share in half 
 the profits of the voyage, and another supplies the cargo, a partnership 
 exists between the parties. The Herkimer, Stewart's V. Adm. Rep. 
 23, 24. A business in which two are engaged, but having no mutual 
 interest in the capital invested, and no stipulation for mutual loss, is 
 not a co-partnership. Loicry v. Brooks, 2 McCord's Rep. 421. Bai- 
 ley V. Clark, 6 Pick. Rep. 372.
 
 OF PARTNERSHIP. 10 
 
 in respect of transactions arising out of the particular ad- 
 venture in the profits of which he is to participate; but 
 still it does not invest him with the character of partner 
 inter sc, nor does it give him any interest in the property 
 itself which is the subject-matter of the adventure ; the 
 power over the property remains in the person who 
 furnished the capital with which it was purchased.(?i) (1) 
 And, notwithstanding a person, who is not in fact a 
 partner, may incur the responsibilities of a partner to 
 those who are unconnected with the firm, it does not 
 follow that he contracts the same responsibilities as be- 
 tween himself and the firm. For although a joint and 
 mutual liability necessarily attaches upon, and results 
 from, a co-partnership, it is not a consequence that it 
 necessarily constitutes one, or that, as there can be no 
 partnership without a joint responsibility, there can be 
 no joint responsibility without a partnership. Thus, a 
 servant or manager, engaged in a partnership concern, 
 who acts as one of the partners in the partner- 
 ship, is unquestionably a *partner, with respect [ *11 ] 
 to the world, and liable for loss to the creditors 
 of the partnership, yet he is not so liable as between 
 himself and his employers. Such a partner stands dis- 
 tinguished from the others -in the nature of his interest; 
 he is one capable of being dismissed at any time, and, 
 as he has no stock in the partnership, he consequently 
 can exercise no dominion over any part of it. It would, 
 indeed, be singular if he were to be held responsible 
 ijiter se ; because if, in any one year, his proportion of 
 a loss amounted to a sum which equalled or fell short of 
 his salary, that proportion would substantially or pro 
 tanto extinguish his right of claiming the salary. There- 
 fore, in a case which was recently before the House of 
 Lords, in which it appeared that the appellant was en- 
 gaged as manager of the Glasgow Glasswork Company at 
 an annual stipend, and that, for the purpose of creating an 
 addition to his stipend, and thereby of securing his skill 
 
 (n) Smith v. Watson, 2 B. & C. 401. 
 (1) See Simpson v. Feltz, 1 McCord's Cha. Rep. 219.
 
 11 OF THE CONTRACT 
 
 and industry, he was also to have a share of the profits, 
 to be calculated according to a proportion of capital and 
 stock not advanced by him, but assigned by way of 
 nominal interest ; it was determined that he was not a 
 partner subject to loss in account with the other part- 
 ners. And in that case it was also considered that the 
 manager was not liable for loss, although it was ex- 
 pressed in the articles of partnership that the partners 
 (not accepting the manager) were to be subject of profit 
 and loss, and although the manager signed the partner- 
 ship books, joined in securities given by the partnership, 
 and in most other partnership acts, including the adver- 
 tisement for a dissolution ; because it appeared, from 
 the general structure, and all the provisions of the con- 
 tract taken and construed together, as well as from the 
 transactions between the parties and the conduct of the 
 other partners, that the provision, as to profit and loss, 
 was not intended to apply to the manager.(o) In a late 
 case it was held that the assignee of a partner, who had 
 
 never been acknowledged a partner, nor been 
 [ *12 ] permitted to act in *that character, did not, by 
 
 mere acceptance of the assignment, incur a liar;^ 
 bility for losses as between himself and the other part- 
 ners. (p) 
 
 (o) Geddes v. Wallace, 2 Bligh, 270. The partnership was dis- 
 solved in 1792, and no demand was made of the losses until 1807, al- 
 though in the intermediate time the parties were engaged in a protracted 
 litigation, which furnished occasion to make the claim, if the right ex- 
 isted ; and it was decided that although the partnership articles and the 
 transactions of the partners might have supplied unequivocal proof of 
 the liability of the manager to loss, yet that the laches of the re^spondents 
 would have so weakened and destroyed that proof, as that a court could 
 not have acted upon the efTect of it. Id. ibid. 
 
 (p) JefFerys v. Smith, 3 Russ. 158. Where A., a partner in a con- 
 cern, entered into an executory contract with B. to assign his interest 
 in the business, and the latter interfered and acted as a partner, but 
 subsequently assigned his share, and gave notice to the other partners 
 of his having withdrawn, and afterwards refused to complete the con- 
 tract of purchase with A., on the ground that a good title could not be 
 made; it was determined that as between the partners, B. was liable to 
 contribute to the partnership losses up to the time of assigning and 
 giving notice of his withdrawal, but that such liability thereupon ceased, 
 and the assignment was not the less effectual, though made to an insol- 
 vent party, and in order to put an end to that liability. Id. ibid.
 
 OP PARTNERSHIP. 12 
 
 We will now consider what constitutes a partnership, 
 as regards persons dealing or contracting with parties 
 standing in the relation of joint traders; and, in this in- 
 vestigation, the question what constitutes a partnership 
 inter se, will both directly and incidentally arise. But it 
 may be premised, that, wherever the existence of a part- 
 nership, as to third persons, is established, the presump- 
 tion of law is, that a partnership exists between the par- 
 ties themselves. (y) 
 
 The question, to whom the character and denomina- 
 tion of partner, with respect to third persons, attaches, 
 will, in the manner we propose to examine it, admit of 
 consideration under three different heads: In the first 
 place, we will inquire what constitutes an actual osten- 
 sible partner; secondly^ what satisfies the appellation of 
 a secret or dormant partner; and thirdly, we will state 
 what is sufficient to fix upon a party the character of 
 a nominal partner. An actual ostensible partner is a 
 party who not only participates in the profits and con- 
 tributes to the losses, but who appears and exhibits him- 
 self to the world as a person connected with the partner- 
 ship, and as forming a component member of the firm. 
 A dormant partner is likewise a participant in the profits 
 and a contributor to the losses of the trade; but his name 
 being suppressed and concealed from the firm, his interest 
 is consequently not apparent.(l) A nominal partner has 
 not any actual interest in the trade or its profits, but, by 
 allowing his name to be used, he holds himself out to 
 the world, as apparently, having an interest. 
 
 An actual ostensible partner, qua partner, is clearly 
 answerable for the debts and engagements of the 
 partnership. In *his person, all and more than [ *13 ] 
 is necessary to entail liability is concentrated. 
 He is entitled to a proportionate share in the distri- 
 bution of the profits, and his name is likewise, with his 
 own consent, introduced as composing a constituent 
 
 {q) Peacock v. Peacock, 2 Campb. 45. 
 
 (1) Kelley et at v. Hurlburt el al, 5 Cow. Rep. 534. Mitchell v. 
 Ball, 2 Har. & Gill, 172. 
 
 3
 
 13 OF THE CONTRACT 
 
 part of the firm. Either his right to a share of the pro- 
 fits, or the permitted exhibition of his name as partner, 
 would be sufficient to render him responsible. The for- 
 mer would subject him to liability, because strangers, or 
 third persons, in the consideration of the law, give credit 
 and trust to the general profits of the trade, and conse- 
 quently to each and all of the persons participating or 
 concerned in the profits, as if they were partners : and 
 the latter would be equally effective against him in that 
 respect, since third persons, dealing with the firm, have 
 a right to conclude that a party who, by his own acts, 
 identifies himself with the partnership, in the character 
 of partner, does actually and in fact sustain that cha- 
 racter with which he represents himself to be clothed. 
 There can be no doubt, indeed, but that such a person 
 fills the relation of partner with respect to strangers. 
 It will, in this place, therefore, be only necessary to ob- 
 serve, in respect to joint stock companies, that a party, 
 paying his deposit on shares, and afterwards signing the 
 deed of partnership, has been held to be a partner from 
 the time of depositing, as a recognition of the payment 
 in a transaction connected with the partnership, and 
 consequently liable for all supplies subsequent to that 
 period, (r) We will now proceed to examine in what 
 cases a party partaking of the profits of a trade, but 
 whose name is not suflfered to appear in the copartner- 
 ship firm, is considered as superinducing a liability as 
 partner, in respect to the fulfilment of the engagements 
 of the partnership. This inquiry will, in a great mea- 
 sure, have for its object the ascertainment of what con- 
 stitutes a dormant partner, since, except in the instance 
 of such a partner, the question but seldom arises. 
 
 It may be laid down as a clear and well-estabhshed 
 principle of law, founded upon reasons of policy, that 
 whoever has a right to share in the profits of a trade, or 
 particular adventure, or has a specific interest in the 
 profits themselves, as profits, becomes chargeable as a 
 partner to third persons, in respect of transactions 
 
 (r) Lawler v. Kershaw, 1 M. & Mai. 93. And See Vice v. Lady 
 Anson, lb. 96. S. C. 1 Mann. & Ryl. 113. and 7 B. &; C. 409.
 
 OF PARTNERSHIP. 14 
 
 arising out of the trade or particular adventure, 
 in the ^profits of which he is to participate.(s) (1) [* 14 ] 
 The reason why such a person becomes, by im- 
 phcation and operation of law, clothed with the charac- 
 ter of partner, is, that by the effect of the agreement for 
 a participation, the party participant takes from the 
 creditors a part of that fund which is the proper secu- 
 rity to them for the satisfaction of their debts, and upon 
 which they rely for payment. (0 (2) Another reason 
 assigned for subjecting a dormant partner to responsi- 
 bility is, that if he were exempted, he would receive usu- 
 rious interest for his capital, without its being attended 
 with any risk.(z<) The general principle was recognised 
 in a modern case, where an agreement, which did not 
 constitute a partnership between the parties to it, was 
 nevertheless held to subject them to responsibility, in the 
 character of partners, to third persons. In that case, (v) 
 A., having neither money nor credit, proposed to B., 
 that if he would order, with him, certain goods to l3e 
 shipped upon an adventure, if any profit should arise 
 from them, B. should have one half for his trouble ; and B. 
 having acceded to this proposition, it was decided that 
 he was liable as a partner to creditors, although the con- 
 tract did not constitute a partnership between A. and 
 B., (3) but was merely an agreement for a compensation 
 
 («) Metcalf V. Royal Exch. Ass. Company, Barnard, 343. Grace 
 V. Smith, 2 Blacks. 998. Ex parte Hamper, 17 Ves. 404. Ex parte 
 Langdale, 18 Ves. 301. Ex parte Gellar, 1 Rose, 297. Fremont v. 
 Coupland, 2 Bingh. 170. 
 
 (/) Per De Grey C. J., Grace v. Smith, supra. 
 
 {u) Per Lord Mansfield, Hoare v. Dawes, 1 Dougl. 371. 
 
 (v) Hesketh v. Blanchard, 4 East, 143. 
 
 (1) Purviance v. McCl'mtee et at. Gill v. Kuhn, 6 Serg. &l Rawle, 
 259. 337. Osborne v. Brennan, 2 Nott &, McCord's Rep. 427. 
 Brown v. Cook et al. N. Hampsh. Rep. 64. Taylor v. Terme et al. 3 
 Harr. & Johns. 505. Dwight et al v. Brewster el al. 1 Pick. Rep. 
 50. Dob V. Halsey, 16 Johns. 34. Simpson v. Feltz, 1 McCord's 
 Cha, Rep. 218. Everitt v. Chapman, 6 Conn. 347. 
 
 (2) Per Spencer, C. J„ Dob v. Halsey, 16 Johns. Rep. 40. Per 
 Curiam, Freel v. Campbell et al. 3 llayw. Rep. {Tenn.) 78. See also 
 6 Serg. & Rawle, 261, 262. 
 
 (3) Perrine v. Hankinson, 6 Halst. Rep. 181. Boss v. Drinker, 
 2 Hall's Rep. 415.
 
 14 OF THE CONTRACT 
 
 for trouble and credit. And it has been determined, 
 that an agreement between a merchant and a broker, 
 that the latter should purchase goods for the former, 
 and, in lieu of brokerage, should receive for his' trouble 
 a certain proportion of the profits arising from the sale, 
 and should bear a proportion of the losses, did not vest 
 in the broker any share in the property so purchased, or 
 in the proceeds of it, although it rendered him liable as 
 a partner to third persons. (!^5) The same principle 
 was acted upon in another case.(x) There a merchant 
 in London recommended consignments to a merchant 
 abroad; and it was agreed, that the commission on all 
 sales of goods recommended by one house to the other 
 should be equally divided, without allowing any de- 
 duction for expenses: and it was determined, 
 [ *15 ] * that- as this was a participation in profit, it con- 
 stituted a partnership between the parties. (1) 
 And where a broker, employed to purchase goods for a 
 firm, was to act free of commission, and to be one-third 
 interested in the adventure, he was held to be a partner 
 with his employers.(^) So, where the clerk of an at- 
 torney, living in a distant town, transacted business in 
 the name of the latter for his own benefit, but made an 
 allowance of one-third of the profit to the attorney, by 
 way of remuneration to him for his occasional superin- 
 tendence of the business, Mr. Justice Richardson was of 
 opinion, that such a division of the profits, notwithstand- 
 ing its illegality, amounted to a partnership.(z) On the 
 
 {w) Smith V. Watson, 2 B. & C, 401. And see Keid v. HoUinshead, 
 4 B. & C. 867. 
 
 {x) Cheap V. Cramond, 4 B. & A. 663. 
 
 {y) Reid v. HoUinshead, 4 B. & C. 867. 
 
 (z) Hopkinson v. Smith, 1 Bingh. 13. S.C. 7 B.Moore, 237. See 
 Taylor v. Glassbrook, 3 Stark. N. P. C. 75. An agreement with an 
 unqualified person, to assist in the business and share the profits, in lieu 
 of salary, is to be considered a partnership ; and its necessary effect 
 being to enable another to practise as an attorney, and to use the name 
 of one for his own account and profit, it was held within the provisions 
 
 (1) Walilen et al. v. Shuhurne et al., 15 Johns. Rep. 409. The 
 question whether the agreement, as between the parties, in Ferry v. 
 Henry, 4 Pick. Rep. 75, constituted a partnership, was not decided.
 
 OF PARTNERSHIP. 15 
 
 same principle, where the creditor of a firm agreed to 
 share in the profit and loss of an adventure of which the 
 goods were to be supplied by his debtors, and his debt 
 was to be reimbursed to him from the returns of the ad- 
 venture, and after that he was to have his share of profit 
 proportionable to the amount of the sum due to him; 
 on an action by the seller of the goods against the cre- 
 ditor and his debtors, it was held that they were part- 
 ners in this transaction, and therefore jointly liable, as 
 the agreement was antecedent to the purchase of the 
 goods, although the creditor did not appear as a joint 
 purchaser at the time of the purchase :(a) but if the 
 goods had been first purchased, and the respective par- 
 ties had entered into a subsequent agreement of the 
 above nature, the creditor, whose name did not appear 
 in the purchase, would not have been liable to the seller, 
 though responsible for any subsequent engagement rela- 
 tive to the particular adventure ;(h) (1) nor would a sub- 
 sequent acknowledgment of his liability constitute him 
 a partner antecedent to the period when his joint 
 liabihty commenced.(c) *When different persons [ *16 ] 
 purchase goods, each on his separate credit, and 
 afterwards join them in one common adventure, of which 
 they are to share the profit and loss, they become part- 
 ners from the time of making the agreement, but not 
 until the community of interest has taken place.(c?) 
 And the executors of a deceased partner, whose names 
 are not added to the trade, but who continue his share 
 of the partnership property in the concern, for the benefit 
 of his infant child, and who, on a division of the profits 
 
 of the 22 G. 2. c. 46. s. 11. Tench v. Roberts, 6 Mad. 145. But an 
 agreement by the widow of a deceased attorney with her son, to carry 
 on the business, and to share the profits, during a certain period, for the 
 mixed consideration of the goodwill of the business, the advance of 
 money, and family affection, is neither -within the mischief nor the 
 words of the statute. Candler v. Candler, Ibid. 141. 
 
 (a) Gouthwaite v. Duckworth, 12 East, 421. 
 
 (b) Id. ibid. Savilie v. Robertson, 4 T. R. 720. 
 
 (c) Id. ibid. (d) Id. ibid. Savilie v. Robertson, 4 T. R. 770. 
 
 (1) See Smith v. Edwards, 2 Harr. & Gill. 411.
 
 16 OF THE CONTRACT 
 
 and loss, carry the same to the account of the infant, 
 and take no part of the profits themselves, are liable as 
 dormant partners, because, by embarking the property 
 in trade in the first instance, they contract a responsi- 
 bility in a court of law, which their subsequent applica- 
 cation of the profits to purposes not of personal benefit 
 cannot vary.(e) (1) Nor can the responsibility attaching 
 upon a participator in the profit be varied or altered by 
 any private arrangement or stipulation. As regards his 
 own individual interest, with reference to himself and 
 his co-partners, he may stipulate and provide for a con- 
 tracted responsibility; such as, that he is not to be liable 
 for losses, or that he is merely to sustain his own, or to 
 bear only a proportionate amount of the losses; but a 
 stipulation or provision of such a description will not, 
 in any manner, affect or limit his liability to persons 
 dealing with the firm. The covenant or agreement of 
 the partners cannot be binding upon their creditors, but 
 only upon themselves.(/) In questions with third per- 
 sons, as was remarked by Lord Eldon in a recent 
 case,(^) no stipulation or secret agreement can protect 
 a party firom loss, because the law itself, to the right of 
 receiving the profits of the trade, annexes a responsi- 
 bility for the losses. Therefore, where two ship agents, 
 at diflferent ports, entered into an agreement to share, 
 in certain proportions, the profits of their respective 
 commissions, "and the discount on the bills of tradesmen 
 employed by them in repairing the ships consigned to 
 them, and the agreement provided, that neither should 
 be answerable for the acts or losses of the other, but 
 
 (e) Wightman v. Townroe, 1 Man. & Selw. 412. See also JE^a: /)ar/e 
 Richardson, Buck. 242, 421. Co. B. L. (7th ed.) 74. 
 
 (/) Waugh V. Carver, 2 H. Bl. 235. Lord Craven v. Widdows, 2 
 Ch. Ca. 139. 
 
 (^) Ex parte Hamper, 17 Ves. 412. 
 
 (1) Alsop V. Mather, 8 Conn. Rep. 584. Nash v. Tinker, cited 8 
 Conn. Rep. 587. The Court of Chancery sometimes order a trade to be 
 carried on by executors for the benefit of infants, under its direction, 
 and in such case they would not be personally responsible. Thompson 
 V. Brown et al. 4 Johns. Cha. Rep. 619.
 
 OF PARTNERSHIP. 17 
 
 each for his own ; it was held, that by this agreement 
 they became hable, as partners, to all persons 
 with *whom either contracted in his character of [ *17 ] 
 ship agent.(A) And this legal responsibility is 
 not to be measured or computed by the extent of each 
 partner's interest in the concern, since whatever the 
 share of the profits to which he is entitled may be, how 
 great soever the inequality between the stipulated profit 
 he may derive and the loss he will sustain, if subjected 
 to general responsibility, it is immaterial to those who 
 deal with the partnership, notwithstanding that a limited 
 and contracted liability may properly form matter of 
 private regulation amongst the partners themselves. In 
 many parts of Europe^ partnerships, restrictive as to 
 liability, are admitted, provided the deed or instrument, 
 regulating the co-partnership, be entered on a register 
 kept for that purpose ; but the law of Engla7id is other- 
 wise, the rule being, that if a partner shares in advan- 
 tages, he also shares in all disadvantages.(z)(l) As 
 between the members of a firm and the persons having 
 claims upon it, each individual member is answerable, 
 in solido, for the amount of the whole of the debts con- 
 
 (h) Waugh V. Carver, 2 H. Bl. 235. 
 
 (i) Per Lord Loughborough, Coope v. Eyre, 1 H. Bl. 37. In Ire- 
 land, partners, in co-partnerships formed under the anonymous part- 
 nership act, 21 &; 22 G. 3, c. 46, s. 1,2, are only liable to the creditors 
 of the concern, to the extent of their respective shares in the co-part- 
 nership. 
 
 (1) The law in Pennsylvania, till the passage of the act of 21 March, 
 1836, entitled " An Act relative to limited partnerships," (Pamp. Laws, 
 1836, p. 143, Appx. No. 1.) was the same as in England, (4 Serg. & 
 Rawle, 367.) Limited partnerships are authorized by statute (Rev. 
 Stat. vol. i. 763, Appx. No. 2.) in New Fork, in Mai-yland, (Acts, Dec. 
 Session, 1825, chap. 113, Appx. No. 3.) in Massachusetts, (Rev. Stat, 
 of Mass. 4 Nov. 1835, p. 304, Appx. No. 4.) There was a bill before 
 the Legislature of New Jersey in February, 1836, to authorize limited 
 partnerships, but it did not become a law. See the question, as to the 
 difficulties attendant upon the introduction of such partnerships into 
 States whose laws are founded on those of England, well discussed in 
 the Am. Quarterly Review, for March, 1836, vol. xix. p. 48. The 
 Societe en Commandite is provide.d for in Louisiana by the Civil Code, 
 (Tit. XL chap. 2, sec. 4, Art. 2810 to 2822, p. 888.)
 
 17 OF THE CONTRACT 
 
 tracted by the partnership, without reference either to 
 the extent of his own separate beneficial interest in the 
 concern, or to any private arrangement or agreement that 
 may exist between himself and his co-partners, stipulating 
 for a restricted responsibility.(A;)(l) And upon this prin- 
 ciple the members of an unincorporated company or 
 society are liable to third persons, as general partners 
 in the undertaking for which the company or society is 
 formed.(/) (2) Those who have the management are, it 
 is true, answerable to the whole extent of their engage- 
 ments ; but even as between them and the members of 
 the society, each individual member is liable to a con- 
 tribution for what they may have paid.(m) 
 
 A distinction, however, prevails between an interest 
 in the profits themselves, as profits, and the payment of 
 
 a given sum of money, in proportion to a given 
 [ *18 ] quantum of the profits, as the *reward of, and as 
 
 a compensation for, labour and services. For in- 
 stance, a remuneration made to a traveller or other clerk 
 or agent by a portion of the sums received by or for his 
 
 {k) Rex V. Dodd, 9 East, 527. Rice v. Shute, 5 Burr. 2611. Ab- 
 bot V. Smith, 2 W. Blacks. 947. Wright v. Hunter, 1 East, 20. Dod- 
 dington v. Hallet, 1 Ves. sen. 497. Lict. Park, J., Saltoun v. Hous- 
 toun, 1 Bingh. 444. 
 
 (/) Rex V. Dodd, 9 East, 527. Per Lord Eldon, Carlen v. Drury, 
 1 Ves. & Bea. 157, and Kinder v. Taylor, MS. 
 
 (m) Carlen v. Drury, supra. 
 
 (1) Shubrick^s ex. v. Fisher et al. 2 Desaus. Cha. Rep. 148. See 
 Gill et al v. Kuhn, 6 Serg. & Rawle, 333. 
 
 (2) Hess et al v. Werts, 4 Serg. & Rawle, 356. Robinson v. Robinson, 
 1 Fairf. Rep. 240. JDousrlass. Heron ^ Co. v. Hair, 2 Bell's Comm. 623. 
 (4th ed. Edin. 1821.) It is necessary, however, in such cases, even as 
 regards creditors, that the party sought to be charged as a partner, 
 should have done every act necessary to complete the acquisition of 
 an interest in the subject matter of the undertaking for which the com- 
 pany or society is formed, or he will not be responsible. Therefore, 
 where, in an action for goods supplied for the purpose of working a 
 mine, it appeared that the defendant had paid money for certain shares, 
 and received a certificate that she was a proprietor of those shares, 
 and that she had acknowledged that she was a share holder, but no 
 assiornment of any interest in the mine had been made to her; it was 
 held, that the action could not be maintained. Vice v. Lady Anson, 7 
 Barn. & Cresw. 409.
 
 OF PARTNERSHIP. 
 
 18 
 
 subject the traveller, clerk, or agent, to liability as a 
 partner; such remuneration being merely a mode of 
 payment adopted to increase or secure exertion. (1) So 
 a factor receiving for his commission a pcr-centage on 
 the amount of the price of the goods sold by him, in- 
 stead of a certain sum, proportioned to the quantity of 
 the goods sold, does not thereby become a partner, (n) 
 Neither is a person who receives from a trader an agreed 
 sum in respect of goods sold by his recommendation, as 
 one shilling per chaldron on coals or the like, to be con- 
 sidered a partner ; for, there, there is no mutuality, such 
 a case resembling a payment made to an agent for pro- 
 curing orders, and having no distinct reference, in the 
 terms of the agreement, to any particular coals pur- 
 chased by the coal-merchant for resale, upon which a 
 third person may become a creditor of the coal-mer- 
 chant, (o) The distinction was i\oticed with regret by 
 Lord Eldo?i in a recent case,(;?) in which his lordship 
 expressed himself in the following manner : — " The cases 
 have gone farther to this nicety, upon a distinction so 
 thin, that I cannot state it as established upon due con- 
 sideration, that if a trader agrees to pay another per- 
 son for his labour in the concern, a sum of money, even 
 in proportion to the profits, equal to a certain share, that 
 will not make him a partner ; but if he has a specific in- 
 terest in the profits themselves, as profits, he is a part- 
 ner. It is clearly settled, though I regret it, that if a 
 man stipulates, that, as the reward of his labour, he shall 
 have, not a specific interest in the business, but a given 
 sum of money, even in proportion to a given quantum 
 of the profits, that will not make him a partner; but if 
 he agrees for a part of the profits, as such, giving him 
 a right to an account, though having no property in the 
 capital, he is, as to third persons, a partner." And in a 
 
 (n) Dixon v. Cooper, 3 Wils. 40. 
 o) Cheap v. Cramond, 4 B. & A. 670. 
 /)) Ex parte Hamper, 17 Ves. 404. 
 
 (1) Miller v. Bartlett et al. 15 Serg. & Rawle, 137. Simpson et al. 
 V. Feltz, 1 McCord's Cha. Rep. 219. 
 
 4
 
 18 OF THE CONTRACT 
 
 still later case, (^) the same very learned lord is reported 
 thus to have observed: "It is impossible to say, as to 
 third persons they are not partners ; the ground being 
 settled, that if a man, as a reward for his labour, 
 
 chooses to stipulate for an interest in the pro- 
 [ *19 ] fits *of a business, instead of a certain sum 
 
 proportioned to those profits, he is, as to third 
 persons, a partner, and no arrangement between the 
 parties themselves can prevent it." Having alluded 
 to the opinion entertained by Lord Eldon of this re- 
 fined, but known distinction, it will not be improper 
 now to advert to the decisions by which that distinction 
 has been settled and established. In the first case on 
 the subject, (r) a broker was employed to sell goods, un- 
 der an agreement that he was to have, for his own pro- 
 fit, whatever he could obtain upon the sales beyond a 
 stated sum, as a reward for his trouble ; and it was held, 
 that the broker was not a partner with the owner of the 
 goods, nor did such an agreement constitute a liability 
 in that capacity to third persons. So a sailor, employed 
 in the whale fishery, who is to receive a certain propor- 
 tion of the profits as wages, is not liable as a partner.(s) 
 And an agreement to pay one fifth of the profit or loss 
 of a voyage in lieu of wages, primage, &c. does not 
 constitute a partnership between the captain and sail- 
 ors, {t) So, where (ii) the proprietor of a lighter agreed 
 with a person who w orked the lighter, that, in conside- 
 ration of working her, the latter should receive one half 
 of the gross earnings for his labour, it was ruled by Lord 
 Ellenhormigh^ that such an agreement did not constitute 
 a partnership, it being merely a mode of paying wages 
 for labour; but that it would have been otherwise, had 
 the agreement been that the two were to share the pro- 
 fits arising from the working the lighter. (1) The same 
 
 (9) Ex parte Rowlandson, 1 Rose, 89. See also Ex parte Watson, 
 
 19 Ves. 461. 
 
 (r) Benjamin v. Porteus, 2 H. Bl. 590. 
 (s) Wilkinson v. Frazier, 4 Esp. 182. 
 {t) Mair V. Glennie, 4 Man. & Sehv. 240. 
 (w) Dry V. Boswell, 1 Campb. 329. 
 
 (1) Rice V. Jlustin, 17 Mass. Rep. 197. Cutler v. Winsor, 6 Pick.
 
 OF PARTNERSHIP. 19 
 
 principle was acted upon in the case of " Wish v. 
 Small,(v) where an agreement between two persons for 
 a division of the net profits arising on a sale of cattle 
 was considered as a method adopted by the one for 
 payment to the other of the price of their pasturage. 
 There the proprietor of cattle agreed with a grazier that 
 the cattle should be depastured upon his land, and that, 
 after being fattened, the latter should, as a remuneration, 
 receive one half of what the cattle sold for above a cer- 
 tain sum, which was their estimated value ; and it was 
 held by Mr. Baron Thomson, that this was merely a 
 mode of paying for the pasture, and that it did not cre- 
 ate a partnership between the parties. And Mr. Justice 
 Holroyd has held, that an agreement between a 
 broker and a *third person, that the latter should [ *20 ] 
 have one half of the commission, claimable by 
 the former for brokerage, on effecting policies of insu- 
 rance, did not constitute a partnership, but was a mere 
 subcontract, (w;) In another case (^) on this subject, it 
 was determined by the Court of Common Pleas, that an 
 agent who has no interest in the capital, but who is paid 
 by a proportion of the profits of an adventure, has not 
 such an interest in the good themselves, or the profits 
 specifically, as to render him liable, jointly with the 
 owners, to third persons. (1) Such are the cases estab- 
 lishing that distinction, the existence of which is de- 
 
 (v) 1 Campb. 331., in note. 
 
 (w) Gibbons v. Wilcox, 2 Stark. N. P. C. 45. And see Muirhead 
 V. Sailer, cited 4 B. & A. 667. 
 (x) Meyer v. Sharpe, 5 Taunt. 74. 
 
 Rep. 335. Chase v. Barret, 4 Paige's Rep. 148. See the cases of the 
 seamen employed in the whale fisheries, and of the shipments to India 
 on half profits, put by Putnam, .1. ibid. p. 206, and Baxter v. Bod' 
 man, 3 Pick. Rep. 435. See also Muzzy v. JVhilney, 10 Johns. Rep 
 228, which was the case of an isolated transaction. See also 1 McCord's 
 Cha. Rep. 219. ffl.lkinson v. Frazier, was the case of a seamen en- 
 gaged for a whaling voyage. 
 
 (1) See, and consider, Jiice v. Austin, 17 Mass. Rep. 197. Cutler 
 V. Winsor, 6 Pick. Rep. 335. Bowyer v. Anderson, 2 Leigh's Rep. 
 550, and Thompson v. Snow, 4 Greenl. Rep. 264. See the remarks 
 of Gibson, C. J. 15 Serg. & Rawle, 139.
 
 20 OF THE CONTRACT 
 
 plored by the learned and noble lord to whose opinion 
 we have already adverted; a distinction which may 
 justly be opened to the observation, of not having been 
 established " upon due consideration." It does not seem 
 to be perfectly in unison with the principle upon which 
 every person having an actual and determined interest 
 in the profits is amenable to the joint creditors. Such a 
 person, as we have seen, superinduces a liability, be- 
 cause, by abstracting a portion of the profits, he is de- 
 priving the creditors of a part of the fund, which they 
 naturally regard as that out of which their demands are 
 to be discharged. The same reason might, it is appre- 
 hended, be assigned with equal force in the case of a 
 person, the wages of whose labour are paid by a sum 
 proportioned to a given quantum of the profits. Nomi- 
 nally, indeed, there is a discrepancy betwee-n the two 
 cases, but in what the substantial diflference consists it is 
 not easy to determine. The distinction, however, has 
 so long prevailed, and has obtained successively the 
 sanction and support of so many learned and enlighten- 
 ed judges, that it would be presumptuous to canvass or 
 question its propriety. 
 
 A retiring partner, who receives an annuity fairly 
 proportioned to the interest he possessed in the profits 
 and the good will, at the time of his secession from the 
 partnership, is absolved from continued responsibility to 
 third persons,(y) provided the fact of his retirement is 
 sufl[iciently promulgated to the w^orld.(z) From the judg- 
 ment of Lord Ch. J. Eyre in a celebrated case,(a) 
 [ *21 ] *it seems that great Judge, at one time, entertained 
 a doubt upon this question ; but that doubt was, ac- 
 cording to his own statement, afterwards completely re- 
 moved. His lordship is reported thus to have expressed 
 himself: " This case has been extremely well argued, and 
 the discussion of it has enabled me to make up my 
 mind, and removed the only diflficulty I felt; which was, 
 
 (y) Young v. Axtell, cited in Waugh v. Carver, 2 H. Bl. 242. 
 (z) Parkin v. Carruthers, 3 Esp. N. P. C. 248. Gorham v. Thomp- 
 6on, Peake's N. P. C. 43. Goode v. Harrison, 5 B. & A. 157. 
 (a) Waugli V. Carver, supra.
 
 OF PARTNERSHIP. 21 
 
 whether, by construing this to be a partnership, we 
 should not determine, that if there was an annuity grant- 
 ed out of a banking house to the widow, for instance, 
 of a deceased partner, it would make her liable to the 
 debts of the house, and involve her in a bankruptcy ? 
 But I think this case will not lead to that consequence." 
 However, notwithstanding a fair equivalent annual pay- 
 ment, in lieu of the interest actually existing in a part- 
 ner at the time of his withdrawing himself from the 
 firm, will not render him liable to demands against the 
 partnership, on the ground of the benefit he derives; 
 yet if he still continue to participate in the profits, 
 the mere circumstance of his having withdrawn his 
 name will not protect him from responsibility. Such a 
 person, although virtually and apparently he has re- 
 nounced the partnership, continues to possess an actual 
 and beneficial interest in it and its profits, in the char- 
 acter of dormant partner, and consequently cannot avail 
 himself of his nominal retirement, as affording him an 
 exemption from continued liability. (/>) And to discharge 
 him in the capacity of annuitant simply, the profits of 
 the trade must only be relied upon, as a fund for pay- 
 ment of the annuity,(c) which, to have the effect of ex- 
 oneration, must be certain and defined. If it be casual, 
 indefinite, and depending on the accidents of trade, the 
 original liability is not extinguished, because there is 
 not a complete extinction of interest in the profits.(J) 
 Therefore,(c) where a partnership for seven years was 
 terminated at the end of one year, and the partner con- 
 tinuing in the business gave to the retiring partner a 
 bond for the capital which the latter brought into the 
 trade with legal interest, and agreed to give him an 
 annuity of two hundred pounds for six years, if the 
 remaining partner so long lived, as and in lieu of his 
 
 (6) Grace v. Smith, 2 Blacks, 998. Leveck v. Shaftoe, 2 Esp. N. 
 P. C. 468. 
 
 (c) Per J)e Grey C. J., Grace v. Smith, supra. 
 
 {d) Per Blackstone J., Id. ibid. Young v. Axtell, cited 2 H. Bl. 
 242. 
 
 (e) Bloxham v. Pell, cited in Grace v. Smith, supra.
 
 22 OF THE CONTRACT 
 
 share of the profits, and the retiring partner was 
 [ *22 ] to have at *all times an undisturbed right of in- 
 specting the books ; it w-as held by Lord Mans- 
 field that this continued his connection as a partner; 
 the annuity being casual, as depending on the life of the 
 grantor, and the liberty to inspect the books, which was 
 reserved to the seceding partner, being in fact the right 
 of a partner, and evincing that he was not wholly unin- 
 terested in . the profits. And where a retiring partner 
 assigned all his interest in the concern to two of the 
 continuing partners, upon trust to pay him an annuity 
 for his life, subject to abatement or enlargement with 
 the fluctuation of the profits of the trade. Lord Eldon 
 held that the partnership, with reference to creditors, 
 was not determined.(/) Even a reservation by a re- 
 tiring partner of a contingent interest in the concern 
 will, it seems, prevent the effectual determination of the 
 partnership, quoad third persons. Thus, where a father, 
 on retiring from business, assigned all his share in the 
 concern to his co-partners upon trust for his infant chil- 
 dren, in such shares as he should appoint, and in default 
 of appointment upon trust for the children, to be di- 
 vided amongst them when the youngest should attain 
 the age of majority, it was held that the contingent in- 
 terest the father had in the share so assigned, depending 
 upon the death of any of the children under age, was 
 such an interest reserved by him in the concern, as, with 
 respect to creditors, prevented the determination of the 
 partnership.( g) The original responsibility would hke- 
 wise exist where the retiring partner is not only to re- 
 cieve an annuity, but likewise a per-centage upon all 
 sales to old customers, and to new customers by him 
 recommended.(A) But where a partner declining busi- 
 siness allows his capital to remain in the hands of his 
 co-partner at legal interest, and he is to receive in addi- 
 tion a stipulated annuity for a stated term of years, it 
 does not operate as a continuance of the partnership. 
 
 (/) In re Colbeck, Buck. 48. {g) Id. ibid. 
 
 (//) Young V. Axtell, supra.
 
 OF PARTNERSHIP. 
 
 22 
 
 This question was agitated in a leading case on this 
 subject,(0 in which the jury found that a loan, upon such 
 terms, did not create a secret constructive partnership ; 
 and the Court, on application being made to it for the 
 purpose, refused to disturb the verdict. 
 
 Having seen in what cases a dormant partner con- 
 tracts, and an outgoing partner continues his responsibi- 
 lity to third persons, we will now consider what 
 renders a party answerable to creditors *in the [ 23* ] 
 capacity of a nominal partner. In the instances 
 which have already been reviewed, the responsibility 
 incurred by the parties is either wholly, or partially, 
 counterbalanced, when it is enforced, by the right of 
 participation in the profit. However, to fix upon a 
 person the character of partner, and to burden him with 
 its consequences, it is not necessarily essential that he 
 should derive any profit or advantage from the concern; 
 if he have an apparent interest it is sufficient, although 
 he does not reap any actual benefit. A man may con- 
 tract the liability of, and be sued as, a partner, who 
 never was in reality a partner.(A:) For instance, a per- 
 son who is not interested in the capital embarked in the 
 trade, or in its profits may be responsible as a partner, 
 if, by lending his name, he hold himself out to the world 
 as being a partner.(/) So, a person who retires from a 
 house of trade, and suffers his name to continue in the 
 firm after he has ceased to be an actual partner, is lia- 
 ble to the world as a partner, although the property be- 
 longs entirely to other persons.(m) And the manager 
 or servant of a partnership concern, w ho acts as one of 
 the partners in the partnership, stands in the relation of 
 a partner with respect to third persons.(?i) It is the 
 permitted use of the name which makes such a person 
 
 (?) Grace v. Smith, 2 Blacks. 998. 
 
 {k) Per Abbott C. J., Goode v. Harrison, 5 B. & A. 156. Bourne 
 V. Freeth, 9 B. & C. 639. 
 
 (/) Per Lord Eldon, Ex parte Langdale, 18 Ves. 301. Young v. 
 Axtell, cited 2 H. Bl. 242. Guidon v. Robson, 2 Camp. 302. Par- 
 sons V. Crosby, 5 Esp. N. P. C. 199. Mclver v. Humble 16 East, 
 174. 
 
 (m) Per Best J., Smith v. Watson, 2 B. & C. 411. 
 
 (n) Geddes v. Wallace, 2 Bligh, 270.
 
 23 
 
 OF THE CONTKACT 
 
 liable, as one of those by and to whom every thing is 
 bought and sold.(o) (1) The principle upon which persons 
 suffering their names to be used as partners subject them- 
 selves to responsibility has been ably stated by Lord Ch. 
 J. Eyre, in his judgment on a case which we have already 
 had frequently occasion to notice.(j9) " Now a case," 
 said that learned Judge, " may be stated, in which it is 
 the clear sense of the parties to the contract, that they 
 shall not be partners ; that A. is to contribute neither 
 labour nor money, and, to go still farther, not to receive 
 any profits. But, if he will lend his name as a partner, 
 he becomes, as against all the rest of the world, a 
 partner, not upon the grounds of the real transaction 
 
 between them, but upon principles of general 
 [ ^24 ] *policy, to prevent the frauds to which creditors 
 
 would be liable, if they were to suppose they lent 
 their money upon the apparent credit of three or four 
 persons, when in fact they lent it only to two of them, 
 to whom, without the others, they would have lent no- 
 thing." The liability of nominal partners results solely 
 from their holding themselves out as partners, or suffer- 
 ing their names to be used as members of the firm ; and 
 as they thereby give a false appearance of substance to 
 the concern, it is but equitable that they should make it 
 good. Therefore, where parties are not in point of fact 
 partners in trade, yet if one so represents himself, and 
 by that means gets credit for goods for the other, both 
 are to be considered and treated as partners.((7) And 
 to create responsibility as a nominal partner, the allow- 
 ed use of the name on bills of parcels used by the firm 
 seems to be sufficient,(r) (2) notwithstanding that the 
 creditor was originally ignorant of the introduction of 
 the name.(s) In a late case,(/) in which one person, for 
 
 (0) Ex parte AVatson, 19 Ves. 461. 
 (p) Waiigh V. Carver, 2 H. Bl. 235. 
 
 Iq) Per Lord Kenyan, De Berkom v. Smith, 1 Esp. N. P. C. 29. 
 (r) Young v. Axtell, supra. (s) Id. ibid. 
 
 [t) Ex parte Matthews, 3 Ves. & Bea. 125. 
 
 (1) Osborne v. Brennan, 2 Nott & McCord's Rep. 427. Dolman 
 V. Orchard, 2 Carr. & Payne, 104. 
 
 (2) See what is said, 6 Serg. Rawle, 338.
 
 OF PARTNERSHIP. 24 
 
 the purpose of counteracting a report that a partnership 
 existed between him and another, caused an advertise- 
 ment to be inserted in the Gazette, notifying a dissolu- 
 tion, Lord Eldon refused to decide the question of part- 
 nership, but directed an issue to try it. However, to 
 render a person responsible as a nominal partner, posi- 
 tive consent or at least a knowledge by him of the as- 
 sumption of his name, from which his acquiescence will 
 be inferred, must be shown.(w) Without actual concur- 
 rence or passive privity, which conclusively affords a 
 presumption of acquiescence, he does not become a 
 partner in the fraud practised upon the creditors by the 
 improper use of his name, and he cannot therefore be 
 made to suffer for the acts of others of which he is not 
 conscious, and the which he is not privy. On this 
 principle it has been held,(v) that the unauthorized use 
 of the name of a seceding partner, after ample notice 
 has been given of his having withdrawn from the part- 
 nership, does not induce an obligation upon him 
 to fulfil contracts *improperly entered into by [ *25 ] 
 the old firm in his name, jointly with their own, 
 because it is not essential to his protection that he 
 should apply to a court of equity for an injunction to 
 restrain the remaining partners from using the style of 
 the old firm. And it has been decided that a man can- 
 not be liable as a partner, where there has not either 
 been a contract between him and the ostensible person 
 to share jointly in the profits and loss, nor has he per- 
 mitted the other to make use of liis credit, and to hold 
 him out as one jointly liable.(z^) It remains to be ob- 
 served, that persons, who appear to the w orld as part- 
 
 (u) Guidon v. Robson, Campb, 302. 
 
 \v) Newsome v. Coles, 2 Campb. G17. But where tlic retiriuir 
 partner suffered his name to remain over the door, he was held liable 
 to a bona fide holder of a bill of exchange drawn after the dissolution. 
 Williams v. Keats, 2 Stark. N. P. C. 290.(1) And where a retiring 
 partner, in the business of carriers, permitted his name to remain on 
 the cart, and over the house of business, he was held responsible for 
 the negligence of the driver. Stables v. Eley, 1 C. & P. 61 1. 
 
 {w) Hoare w. Dawes, Dougl. 371. 
 
 (1) Dolman v. Orchard, 2 Carr. & Payne, 104. 
 5
 
 25 OF THE CONTRACT 
 
 ners, may not only lawfully stipulate among themselves 
 that some of them shall not participate in the profit 
 and loss, and therefore shall not contract the liability 
 of partners, but it seems that those, who are excluded 
 from participation, will not be responsible, in the charac- 
 ter of partners, to such claimants upon the firm as are 
 apprised of the stipulation.(^)(l) 
 
 Where a contract is entered into by parties, which, 
 in its nature and conditions, is immoral, or in violation 
 of the general laws of public policy, such as being af- 
 fected by usury, it does not amount to a partnership 
 contract within the legal principles established respect- 
 ing joint traders, and the parties themselves are not 
 legally bound by it. For instance, an agreement pur- 
 porting to be, or assuming the shape of a partnership in 
 trade, contracted for a single dealing, according to which 
 one of the partners advanced a sum of money for the 
 purchase of particular goods, stipulating at the same 
 time to have one half of the profits upon a resale of 
 such goods, which profits exceeded five per cent., and 
 the principal sum lent was not risked, was held to be 
 unconscionable, and consequently not binding.(?/) So, 
 if the borrower of money give a bond for the principal 
 and interest at five per cent., and at the same time, co- 
 venant to pay to the lender a certain portion of the pro- 
 fits of a trade carried on by him in partnership with 
 others, this is a usurious contract, and the obligee can- 
 not recover upon the bond ; for, in such an agreement, 
 provision being made to receive the profits only, and not 
 to engage for the losses of a trade, it is contrary to the 
 principle upon which the partnership contract must be 
 founded, namely, reciprocal risks, and advantages, and 
 
 must, consequently, it has been said, be deemed 
 [ *26 ] a contract not *having operation between the 
 
 parties.(2^) If, however, a bona fide partnership 
 
 (ar) Alderson v. Pope, 1 Campb. 408. 
 (y) Jestons v. Brooke, Cowp, 793. 
 
 (z) Morse v. Wilson, 4 T. R. 353. In this case it was insisted for 
 the plaintiff, that although as between him and the partners he was 
 
 (1) Batty et at. v. McCandie et al. 3 Carr. & Payne, 202. Ensign 
 V. Wands, 1 Johns. Ca. 171.
 
 OP PARTNERSHIP. 26 
 
 is entered into, an advance of money, on whatever 
 terms, in order to carry on the business, cannot be con- 
 sidered as a loan ; and if there be not a loan the con- 
 tract is not affected by usmy. Therefore, where A and 
 B by deed covenanted to become partners as army 
 clothiers, for ten* years, and that A should advance 
 20,000/. as part of the capital for carrying on the busi- 
 ness, and that B should find a like sum ; that A during 
 the continuance of the partnership, should have out of 
 the profits, if sufficient, or, if not, out of the capital, 
 
 not under any liability, yet to all the rest of the world he was, by 
 the general rules of law, responsible for the partnership engagements, 
 and as the principal of his debt was thereby put in hazard, the con- 
 tract was not usurious. But Lord Kenyon and Mr. J. Buller were 
 of opinion that, as the plaintiff could only be liable to the joint credi- 
 tors in the event of the insolvency of the partners, the principal was 
 no farther hazarded than in the case of every other loan, the repayment 
 of which must depend upon the solvency of the borrower. However, in 
 the late case of Fereday v. Hordern, 1 Jacob, 144, Lord Eldon de- 
 termined that where the lender of money assumes, in respect of the 
 loan, the character of a partner to third persons, the security given for 
 the loan is not invalidated on the ground of usury, although the benefit 
 reserved exceed the legal rate of interest, and the lender expressly 
 stipulates for an indemnity against losses. There A, B, and C, part- 
 ners in trade, in consideration of 4000/. paid them by D in augmen- 
 tation of their capital, agreed by deed to admit him into partnership 
 with them for a term. It was covenanted that D should receive, in lieu 
 of profits, a clear sum of 550/. per annum, and all the property of the 
 concern was charged with the payment of this sum quarterly, and of 
 the 4000/. at the determination of the partnership. A, B, and C, were 
 to pay rent, taxes, wages, and the other outgoings of the trade, which 
 was to be carried on by them, and in their names only, and D was not 
 to be required to attend to it. D was at liberty to retire on giving 
 twelve months' notice ; on his retiring, or at the end of the term, the 
 4000/., and the arrears (if any) of the 550/. per annum, were to be 
 paid to him by A, B, and C, by instalments to be secured by their 
 bonds, and they were to indemnify him from the debts of the partner- 
 ship. On a bill being filed, praying that the deed niiglit be delivered 
 up to be cancelled on the ground of its being usurious, tlie Lord Chan- 
 cellor observed, that though D was not under any liability as between 
 himself and A, B, and C, yet as he was lial>le for the debts of the con- 
 cern to all the rest of the world, it was impossible to make out that the 
 deed was usurious. It appears to be difllcult to reconcile this latter de- 
 cision with that of Morse v. Wilson. See also Anderson v. Maltby, 
 2 Ves. jun. 248. S. C. 4 Bro. C. C. 423. In Enderby v. Gilpin, 
 5 B. Moore, 571, Park J., in adverting to the case of More v. Wilson, 
 seems to have thought that a person could not be a partner to strangers, 
 and a lender to the firm.
 
 26 
 
 OP THE CONTRACT 
 
 2000/. yearly for his share of the profits. B then cove- 
 nanted that, on the determination of the partnership by 
 effusion of time, the sum of 20,000/. should be repaid to 
 A, and that B should guarantee all debts and 
 [ *21 ] pay all losses. In an action brought upon *the 
 deed to recover the 20,000/. at the expiration of 
 the ten years, B pleaded that the deed was executed by 
 way of shift, in pursuance of an usurious agreement ; 
 but that plea, upon issue joined, being negatived by the 
 verdict of a jury, the Court of Common Pleas, and af- 
 ter^vards the Court of King's Bench, on error, held, that, 
 after that finding, the deed must be taken to disclose 
 the real intention of the parties, and that it was not, 
 therefore, void upon the ground of usury.(a) And if 
 the lender agree to share the losses of the concern, a 
 loan for more than five per cent, has been held not to 
 be usurious, on the ground that a partnership is estab- 
 lished between the parties.(Z>) 
 
 Although the general right which any number of in- 
 dividuals possess, of associating themselves together for 
 the purpose of carrying on any lawful trade or busi- 
 ness, is unquestionable, yet restraints have, in various 
 instances, been imposed by the legislature upon such a 
 right. In the business of bankers, for the purpose of 
 securing to the Bank of England exclusively the privi- 
 lege of banking, it has been declared by the 
 [ *28 ] Ba7ik acts(c) *to be unlawful for any body cor- 
 porate, or for any other persons in covenants 
 
 (a) Enderby v. Gilpin, 5 B. Moore, 571. S. C. 5 Barn. & Aid. 954. 
 
 (6) Morrissel v. King, 2 Burr. 981. 
 
 (c) 6 Ann. c. 22, s. 9. 7 Ann. c. 7, s. 61. 3 Geo. 1, c. 8, s. 44. 15 
 Geo. 2, c. 13, s. 5. 21 Geo. 3, c. 60, s. 12. 39 & 40 Geo. 3, c. 28. 
 By the 7 Geo. 4, c. 46, it is enacted, that it shall and may be lawful 
 for any bodies politic or corporate erected for the purposes of banking, 
 or for any number of persons united in covenants or co-partnership, 
 although such persons so united are carrying on business together shall 
 consist of more than six in number, to carry on the trade or business of 
 bankers in England, in like manner as co-partnerships of bankers con- 
 sisting of not more than six persons in number may lawfully do ; and 
 for such bodies politic or corporate, or such persons so united as afore- 
 said, to make and issue iheir bills or notes at any place or places in 
 England exceeding the distance of sixty-five miles from London, pay- 
 able on demand, or otherwise, at some place or places specified upon
 
 OP PARTNERRHIP. 28 
 
 or partnerships in England, consisting of more than six 
 persons, except the Bank of England, to borrow, owe, 
 or take up any sum of money on their bills or notes 
 payable on demand, or at any less time than six months 
 from the time of borrowing. In a recent case, where a 
 partner in a banking house in Scotland, consisting of 
 more than six persons, opened an office in England as 
 agent of the Scotch house, and issued their notes pay- 
 able on demand, it \^'as held to be a clear violation of 
 the Bank acts.(^) (I) And in expounding these statutes, 
 it has been ruled, that a promissory note, issued by a 
 commercial company consisting of more than six per- 
 sons, who are not bankers, is not within the prohibi- 
 tion.(e) But a corporation, not established for trading 
 
 such bills or notes, exceeding the distance of sixty-five miles from 
 London, and not elsewhere, and to borrow, owe, or take up any sum 
 or sums of money on their bills or notes so made and issued at any such 
 place or places as aforesaid : provided, that such corporations, or persons 
 carryinir on such trade or business of bankers in co-partnership, shall 
 not have any house of business or establishment as bankers in Lon- 
 don, or at any place or places not exceeding the distance of sixty-five 
 miles from London; and that every member of any such corporation 
 or co-partnership shall be liable to and responsible for the due payment 
 of all bills and notes which shall be issued, and for all sums of money 
 which shall be borrowed, owed, or taken up by the corporation or co- 
 partnership of which such person shall be a member, such person be- 
 ing a member at the period of the date of the bills or notes, or becoming 
 or'being a member before or at the time of the bills or notes being pay- 
 able, or being such member at the time of the borrowing, owing, or 
 taking up of any sum or sums of money upon any bills or notes by the 
 corporation or co-partnership, or while any sum of money on any bills 
 or notes is owing or unpaid, or at the time the same became due from 
 the corporation or co-partnership ; any agreement, covenant, or con- 
 tract to the contrrry notwithstanding. The 20th section provides, that 
 nothing in the act contained shall extend or be construed to extend to 
 prejudice, alter, or affect any of the rights, powers, or privileges of the 
 Governor and Company of the Bank of England, except as the exclu- 
 sive privilege of the said Governor and Company is by the act specially 
 altered and varied, 
 
 (d) Ex parte Randleson, 1 Mont. & M. 86. 
 
 (e) Wigan v. Fowler, 1 Stark. N. P. C. 459.(2) 
 
 (1) See the Act of 22d March, 1817, {Pennsylvania,) against un- 
 incorporated banks and individuals issuing notes in " the nature of Bank 
 notes." 6 Sm. Laws, 441, Purd. Dig. 96, Edit, 1831. 
 
 (2) S. C. 1 Chit. Rep. 128. The King's Bench refused to set 
 aside the verdict, and enter a nonsuit.
 
 28 
 
 OP THE CONTRACT 
 
 purposes, cannot become acceptors of a bill of exchange 
 payable at a less period than six months from its date, 
 such a case being a direct infringement on the rights 
 of the Bank of England;(f) unless, indeed, the act 
 of Parliament by which the corporation is created, ex- 
 pressly authorises and empowers it to become a party 
 to negotiable securities.(^) And even in the latter case, 
 if the corporation is empowered to raise money by 
 notes for a special purpose only, yet if it issue notes at 
 less than six months' date, without stating therein that 
 they were given for that purpose, the corporation may 
 resist payment, on the ground that they were given 
 for another purpose ; and this will be a defence even 
 
 against an innocent indorsee.(/i) And with the 
 [ *29 ] view of suppressing ^societies amongst coal 
 
 buyers, and thereby of keeping the coal trade 
 open and free, a partnership composed of more than 
 five persons for the purchasing of coals for sale, or for 
 making regulations with respect to the manner of 
 carrying on the trade, is, by a legislative provision,(i) 
 rendered illegal, and is to be deemed an unlawful 
 combination to advance the price of that article, for 
 which the parties concerned are punishable by indict- 
 ment on information. And formerly, in the case of 
 marine insurances, the right of jointly assuring any ship 
 or goods at or going to sea was prohibited,(i^) (except 
 in the instances of the Royal Exchange and London As- 
 
 (/) Broughton v. Proprietors of Manchester and Salford Water 
 Works, 3 Barn. & Aid. 1. In Magor v. Hammond, which was a spe- 
 cial verdict argued before the twelve Judges, it is stated by Bayley,J., 
 to have been decided, that the several acts made for the protection of 
 the Bank of England, did not prevent more than six persons from 
 paying their debts by their acceptance, but merely prevented more than 
 that number carrying on a banking concern, 9 Barn. &l Cres. .363. 
 
 (g-) Slark V. Highgate Archway Company, 5 Taunt. 792. Murray 
 V. East India Company, 5 Barn. & Aid. 204. 
 
 (A) Slark V. Highgate Archway Company, supra. 
 
 (i) 28 G. 3, c. 53, s. 2. 
 
 [k) 6 G. 1, c. 18, s. 12. The cases which arose upon this branch 
 of the statute are, Lees v. Smith, 7 T. R. 338. Harrison v. Millar, 
 Ibid. 340, n. S. C. 1 Esp. N. P. C. 513. Reed v. Cole, 3 Burr. 1512. 
 Branton v. Taddy, 1 Taunt. 6. Cockburn v. Thompson, 16 Ves. 328. 
 Dowell V. Moon, 4 Campb. 166.
 
 OP PARTNERSHIP. 29 
 
 surance Companies^ upon whom, in consideration of a 
 compensation made by them to the pubhc, an exclusive 
 monoply in this respect was conferred,) and the policies 
 of assurance effected by underwriters having a joint 
 interest, were not only declared to be ijoso facto void, 
 but every sum underwritten was forfeited in equal 
 moieties, one to the king, the other to the informer. So, 
 in favour of the same Insurance Companies, a joint 
 loan of money upon bottomry by any other than those 
 Companies, or by any society or partnership, was inter- 
 dicted, and the security given upon such a loan was 
 declared to be ipso facto void, and the lenders were sub- 
 jected to the same penalties as are inflicted in cases 
 of usury .(/) But these prohibitions are now relaxed ; 
 the legislature, to destroy the monopoly thereby created, 
 and to allow assurances to be effected on the principle 
 of a free trade, having enacted that so much of the 
 prohibitory statute as restrained any corporation, so- 
 ciety, or partnership, from granting, signing, and under- 
 writing any policy of assurance, or making any con- 
 tract for assurance, of or upon any ship or goods at 
 sea, or going to sea, or from lending money by way 
 of bottomry, or as made any such contract void, or 
 declared that the same should be adjudged usurious, 
 or as imposed any forfeiture or penalty in respect of 
 any such policy or contract, should be re- 
 pealed.(m) Besides, in *the instances we have [ *30 ] 
 enumerated, the legislature, in the year 1720, in conse- 
 quence of the multiplicity of wild schemes which were 
 then formed, found it necessary to interfere to secure 
 the public against the ruinous consequences of projects, 
 where great hopes are held out on false foundations ; 
 and an act of Parliament was passed,(7i) which had for 
 its object the preventing combinations of speculating 
 individuals, who, without the authority of an act of Par- 
 
 (Z) See 6 G. 1, c. 18, s. 12 ; and Everth v. Blackburne, 2 Stark. N. 
 P. C. 66. S. C. 6 Mau. & Selw. 152. 
 
 (w) See 5 G. 4, c. 114, s. 1. 
 
 (n) 6 G. 1, c. 18, s. 18. The difFerent projects to which the atten- 
 tion of the legislature was called at the time this act of Parliament was 
 passed, are detailed in the 19th vol. of the Commons' Journals, p. .341.
 
 30 THE INTEREST OF PARTNERS 
 
 liament, or the king's charter of incorporation, and by 
 means of delusive schemes, might engross the public 
 attention, and entail upon the unwary all the mischief 
 which gaming and rash speculation are calculated to 
 produce. In this respect, however, the law is now 
 altered, the legislature having, on principles of policy, 
 repealed so much of the act alluded to as related to the 
 undertakings, attempts, and practices thereby denounced, 
 judging it more expedient to leave such matters to the 
 cognizance of the common law.(o) 
 
 CHAPTER II. 
 
 SECTION 1. 
 The Interest of Partners in Stock in Trade. 
 
 Having considered the nature of a partnership, the 
 various ways by which the relation of partners may be 
 contracted, and in what instances it is prohibited, we 
 will now proceed to inquire what interest partners have, 
 by law, in the goods or capital they contribute at the 
 outset, or acquire in the course of trade. 
 
 Partners are, at law, joint tenants of their merchan- 
 dise; not only of that particular part which was brought 
 into the partnership at the time of its formation, but 
 they continue so throughout their co-partnership deal- 
 ings, whatever changes or additions may be made to it 
 
 (o) See 6 G. 4, c. 91, The reader is referred to the following list 
 of cases as elucidatory of the construction put upon the statute : — Rex 
 V. Cawood, 2 Ld. Raym. 1361. S. C. 1 Stra. 472. Rex v. Dodd, 9 
 East, 516. Buck v. Buck, 1 Campb. 547. Stent v. Bailis, 2 P. Wras. 
 217. Rex V. Stratton, 1 Camp. 549, n. Rex v. Webb, 14 East, 406. 
 Pratt u. Hutchinson, 15 East, 515. Ellison?;. Bignold, 2 Jac. & Walk. 
 503. Davis v. Fisk, in Appendix to Farren's Treatise on Life Ass. p. 
 128. Brown v. Holt, 4 Taunt. 587. Child v. Hudson's Bay Com- 
 pany, 2 P. Wms. 207. Josephs v. Pebrer, 3 B. & C. 639.
 
 IN RKAL PROPERTY. 31 
 
 in the course of trade.(a) The joint tenancy, created 
 by the contract of partnership, differs, however, in one 
 of its chief characteristics, from an ordinary joint ten- 
 ancy, because as between partners there is no jus accres- 
 cendi, or right of survivorship, a quahty which, being 
 appended to a possession per my ct per tout, at common 
 law, always accompanies a joint tenancy. The absence 
 of this distinguishing feature of a joint tenancy is no- 
 ticed by Lord Coke, in commenting upon a passage of 
 Littleton, in which it is laid down, that the right of sur- 
 vivorship exists between joint tenants. That able com- 
 mentator says,(6) " an exception is to be made of two 
 joint merchants ; for the wares, merchandises, debts or 
 duties that they have, as joint merchants or partners, 
 shall not survive, but shall go to the executors of him 
 that deceaseth ; and this is per legem mercatoriam, which 
 is part of the laws of this realm, for the advancement 
 and continuance of commerce and trade, which is pro 
 bono publico; for the rule is, that jus accrescendi inter 
 mercatores pro benejicio commercii locum nan habety Even 
 where two persons, by testamentary disposition, take, as 
 joint tenants, leasehold and personal estate *em- 
 barked in trade, and there is no express severance [ *32 ] 
 of the joint tenancy, yet if they continue to deal as 
 partners for a length of time, a severance between them- 
 selves will be implied, and survivorship will not hold.(c) 
 This denial to the survivor of any benefit arising from 
 survivorship is a maxim of lex mercatoria, of which the 
 courts will take notice without its being specially plead- 
 ed.{d) It has been said(e) that partners are either 
 tenants in common of the partnership effects, or joint 
 tenants without benefit of survivorship; but it would 
 seem, that, strictly speaking, partners are rather to be 
 considered as falling within the latter denomination. (/) 
 
 (a) West V. Skip, 1 Vcs. 242. S. C. 2 Swfiinst. 58G. 
 
 (b) Co. Litt. 182, a. 
 
 (c) Jackson v. Jackson, 9 Ves. 591. S. C. 7 Ves. 535. 
 
 (d) Bellasis v. Hester, 1 Ld. Raym. 281. 
 
 (e) Wats, on Part. 65 ; and see 2 Brownl. 99. 
 
 If) Abbott on Ship. 94. Com. Dig. tit. Merchant, D. 3. Bar. Abr. 
 tit. Joint Tenants and Tenants in Common, C. 2 Beawes,99. Annand 
 
 6
 
 32 THE INTEREST OF PARTNERS 
 
 Each partner is possessed per my et per tout, that is, by 
 the half or moiety and by all, or, in other words, each 
 has a joint interest in the whole, but not a separate in- 
 terest in any particular part of the partnership pro- 
 perty ; and being so possessed, and because the title of 
 partners is undivided, it follows that all have a unity, or 
 the same species of interest in the stock in trade, whether 
 each individual partner contributes exactly in the same 
 proportion or not ; but their several degrees of interest 
 must be regulated according to the stipulated propor- 
 tions, and the different conditions of the partnership. 
 To whatever share a partner may be entitled, in what- 
 ever sum the firm may be indebted to him, he has no 
 exclusive right to any part of the joint effects, until a 
 balance of accounts be struck between him and his co- 
 partners, and it be ascertained precisely what is the 
 actual amount of his interest.(^) 
 
 Besides the purchase of joint stock, partners are 
 sometimes obliged to invest part of their capital in real 
 property; for it very frequently happens, that joint un- 
 dertakmgs require the possession of lands or houses, in 
 order to carry on the intended trade or speculation. 
 Wherever that is the case, and the lands or houses 
 purchased with the joint capital are held for the 
 [ *33 ] purpose* of, and as the substratum for, the part- 
 is, Honiwood, Cas. in Chan. 129. It seems that the owners of a ship 
 are not interested in it as joint tenants, but as tenants in common. £x 
 parte Harrison, 2 Rose, 76.(1) 
 
 (g) Fox V. Hanbury, Cowp. 445. Smith v. De Silva, Ibid. 469. 
 West V. Skip, 1 Ves. jun. 242. S. C. 2 Swanst. 586. Lingenv. Simp- 
 son, 1 Sim. & Stu. 600. 
 
 (1) Merrill v. Bartlett, TJiorndike v. De Wolf, 6 Pick. Rep. 46. 
 120. Harding v. Foxcroft, 6 Greenl. Rep. 76. Jackson v. Robinson, 
 :-} Mas. Rep. 138. Nicoll v. Miimford, 4 Johns. Cha. Rep. 522. Con- 
 tra S. C. on appeal, 20 Johns. Rep. 611, when it was held, that 
 though the part owners of a ship are, generally speaking, tenants in 
 common, yet there may be a special partnership between them, in the 
 ship as well as in the cargo, in regard to a particular voyage, adventure, 
 and the proceeds arising from the sale of the ship and cargo, and the 
 profits of the adventure. Ship owners are analogous also to partners, 
 and liable as such for necessary repairs and stores ordered by one of 
 themselves for the vessel. Scottin v. Stanley et al. 1 Dall. Rep. 129.
 
 IN REAL PROPERTY. 33 
 
 nership concern, the partners are in reality, and to all 
 beneficial intents, tenants in common thereof, without 
 regard to the form of conveyance, the individual to 
 whom it is made, or the length of time for which the 
 interest is to endure. Courts of law, it is true, must 
 look to the legal estate ; they will consider the survivor 
 of two joint-tenants as, invariably, entitled to the whole 
 by survivorship ; and if lands are conveyed to one of 
 several partners, they will invest him with all the rights 
 of a tenant in severalty, excluding from their attention 
 the funds from which the lands were bought, and the 
 object of the purchase. But courts of equity, unfettered 
 by technical rules, seek to effectuate the intention of the 
 parties, and are guided by the justice of each particular 
 case: they, consequently, conceive, that there is a ten- 
 ancy in common between partners of real property, and 
 they decree the person in whom the legal estate vests 
 to be a trustee for those beneficially interested. In 
 equity, therefore, real estates, bought by a commercial 
 partnership, for the purpose of the partnership concern, 
 are to be considered as forming a part of the partner- 
 ship fund.(/i)(l) Thus, where five persons purchased 
 a tract of ground, with the intention of draining it, and 
 the conveyance was to them as joint-tenants in fee, but 
 they contributed rateably to the purchase, they were 
 held to be tenants in common in equity ; and though 
 one of the five undertakers deserted the partnership for 
 thirty years, yet he was afterwards admitted on such 
 terms as would place the others on a footing of equality 
 
 (h) Thornton v. Dixon, 3 Bro. C. C. 199. Per Lord Hldon, Craw- 
 shay V. Maule, 1 Swanst. 608, 521. See also Sugd. on Vend, and 
 Purch. (5th ed.) 522. 
 
 (1) Sigourney V. Munn, 7 Conn. Rep. 11. Greene v. Greene, 
 Hamm.Rep. (Oiiio,) 535. ffox/e v. Carr, 1 Sumn. Rep. 174. "Where 
 parties purchase an estate jointly, for the purpose of their trade, it is 
 considered in equity as an estate in common in England; and in Vir- 
 ginia, where the Jws accrescendiis abolished, it is so considered in laiv 
 as well as equity." Per Green, J., Deloney v. Hutcheson et al. 2 
 Rand. Rep. 183. See Brady v. Colhovn, 1 Penns. Rep. 140.
 
 33 THE INTEREST OF PARTNERS 
 
 with him.(?) So, if a person becomes, by his acts, a 
 partner, in a colliery, for instance, in which land is ne- 
 cessary to carry on the trade, the interest in a lease will 
 pass, by operation of law, as an incident to the trade, 
 without being affected by the statute of frauds; and if 
 one of the partners take a lease of the colliery in his 
 own name, he will be deemed to take and hold the pre- 
 mises for himself and his co-partners in equal shares.(A') 
 On the same principle, if the lease of the premises, 
 where the joint trade is carried on, be renewed by one 
 
 partner, in his own name, clandestinely, it is a 
 [ *34 ] *trust for the partnership, and is to be accounted 
 
 for as partnership property.(/) And where real 
 estates are purchased with the partnership funds, but 
 conveyed only to one partner, they are, nevertheless, 
 partnership property. But if estates are purchased out 
 of the partnership fund, and conveyed to one partner 
 under a specific agreement that the estates shall be his, 
 and he shall be debtor for the money, the estates are 
 his separate property.(l) And a provision having been 
 made for the wife of such purchaser previous to the 
 marriage, and at that time an infant, in bar of dower, 
 thirds, and all claim upon the real and personal estate 
 of her husband, which in its nature was precarious and 
 uncertain, she was held entitled to dower against the 
 assignees under a joint commission against the part- 
 
 (f*) Lake v. Craddock, 3 P. Wins. 158. S. C. 1 Eq. Ca. Abr. 291, 
 pi. 3. And see what is said by Lord Hardwicke in Rigden v. Vallier, 
 2 Ves. 258. S. C. 3 Atk. 731. 
 
 (k) Foster v. Hale, 3 Ves. 696. S. C. 5 Ves. 308. 
 
 (/) Featherstonhaugh v. Fenwick, 17 Ves. 298. See also Burroughs 
 V. Elton, 11 Ves, 29. Where a partner, since deceased, contracted in 
 his own name for a lease of premises to be employed in the partner- 
 ship trade, Lord Eldon refused to restrain the landlord from granting a 
 lease to his representatives, on the ground that the contract was made 
 with him alone, but he restrained the representatives from disposing of 
 the lease, when granted, except for partnership purposes, and with the 
 assent of the surviving partner. Alder v. Fouracre, 3 Swanst. 489. 
 
 (1) See, and consider, Goodwin \. Richardson, 11 Mass. Rep. 469, 
 particularly what is said at page 475, 1 Sumn. Rep. 182.
 
 IN REAL PROPERTY. 34 
 
 ners.(m)(l) When it is doubtful whether the purchasers 
 bought the property to carry on trade, an inquiry will 
 be directed before the master to ascertain the fact.(rz) 
 
 But although, during the lives of the partners, free- 
 hold estates, purchased by a commercial partnership, as 
 an article of stock, are considered as forming a portion 
 of the joint fund, yet, on the death of any of the part- 
 ners, it does not appear clearly established, whether they 
 pass as real estate, or as stock, although, according to 
 modern decisions, it may perhaps, be considered as set- 
 tled, that the right of survivorship does not exist even 
 in such a case.(o) (2) Formerly, indeed, it was held, 
 that lands, purchased for the purpose of as partnership 
 concern, were in all respects a portion of the partner- 
 ship fund, and were therefore distributable as'personal 
 property .(/>) (3) And this doctrine seems more conso- 
 
 [m) Smith v. Smith, 5 Ves. 189, And see Ex parte Emly, 1 
 Rose, 64. 
 
 (n) 1 Ves. jun. 435. 
 
 (o) See Mr. Eden's note to Thornton v. Dixon, 3 Bro. C. C. 200. 
 
 (p) JefTerys v. Small, 1 Vern. 217. Lake v. Craddock, supra. See, 
 also, Elliot V. Brown, 1 Vern. 217. S. C. 3 Swanst. 489, n. and cited 
 by Lord Eldon, 9 Ves. 597. 
 
 (1) See Richardson's Ex. v. Wyatfs Ex. 2 Desaus. Cha. Rep. 471. 
 The case is reported in a very loose, confused manner, and the fact of 
 a renunciation of dower is asserted in one of the exceptions. 
 
 (2) Two men, who were partners in a drove of cattle, applied part 
 thereof to a joint purchase of a settlement right to land, and one of 
 them died ; the survivor had the land surveyed by virtue of a land- 
 oflice treasury warrant, and sold it to a third person, who, having no- 
 tice of the partnership right, obtained a grant of the whole from the 
 Commonwealth : — Held, that purchaser from the heir of the deceased 
 partner was entitled to his share of the land. Edgar v. Donally et al. 
 2 Mumf. 387. 
 
 (3) In Tennessee the Act of 1784, c. 22, s. 6, provides, " that 
 estates held in joint-tenancy, for the purpose of carrying on, and pro- 
 moting trade and commerce, or any other useful work, or manufacture, 
 established and pursued, with a view of profits to the parties therein 
 concerned, shall be vested in the surviving partner or partners in order 
 to enable him or them, to settle and adjust the partnership business ; 
 and pay off the debts which may have been contracted in pursuit of 
 the joint business; but as soon as the same shall be effected, the sur- 
 vivor, or survivors, shall account with, and pay and deliver to the heirs, 
 executors, and assigns respectively of the deceased partners, all such
 
 34 THE INTEREST OF PARTNERS 
 
 nant to natural equity; for if the jus accrescendi were 
 allowed to operate with regard to real property, it might 
 
 happen that the partner, indebted to the partner- 
 [ *35 ] ship for his *proportion of the purchase money, 
 
 would succeed to the whole, while the represen- 
 tatives of the deceased partner, who advanced the mo- 
 ney, would, by his death, be deprived of the benefit he 
 intended should result from the purchase.(9') However, 
 Lord Thurlow^ determined,(r) that, although a co-part- 
 nership agreement might alter the nature of real pro- 
 perty ,(s) it must be express to do so ; and that if the 
 intention of the parties, that such a conversion should 
 take place, be not sufficiently manifested, the houses 
 and lands they hold and use in the trade will descend 
 according to the rules of the common law. Nor does 
 this determination stand unsupported ; a succeeding, and 
 a most eminent judge, has considered himself bound by 
 his authority. In two cases(/) which came before the 
 late learned Master of the Rolls (Sir W. Grant), he re- 
 cognised and acted upon the decision of Lord Thurlow, 
 considering the question as concluded by it. But, not- 
 withstanding the respect due to judicial opinions deliver- 
 ed by judges of such celebrity, it seems that the princi- 
 ple on which they are founded is at present very doubt- 
 ful, if not expressly overruled. In the case of Townsend 
 v. Devaynes{u) Lord Eldon decided, that the freehold of 
 
 {ci) Lake v. Craddock, supra. 
 
 (?•) Thornton v. Dixon, supra. See, also, Stuart v. Marquis of 
 Bute, 11 Ves. 665, 6. 
 
 (s) See Ripley v. Waterworth, 7 Vesey, 425. 
 
 {t) Bell V. Phyn, 7 Vesey, 453. Balmain v. Shore, 9 Vesey, 500. 
 
 {u) Mont, on Partn. in notes, p. 97. 
 
 part, share, or suras of money, as he or they may be entitled to by 
 virtue of the original agreement, or according to his or their share or 
 part in the joint concern, in the same manner as partnership is usually 
 settled between joint merchants, or the representatives of their deceased 
 partners." Under this act it has been held, that the surviving partner 
 has a complete and perfect right to sell the real estate, without regard 
 to the state of the partnership accounts, to which a purchaser from him 
 was not obliged to look — the power being absolute to sell, and not upon 
 the condition, if needful for payment of debts. McAllister v. Mont- 
 gomery, 3 Hayw. Rep. 94.
 
 IN REAL PROPERTY. 35 
 
 premises, purchased by partners, for the purpose of car- 
 rying on the business in which they are engaged, is, on 
 the death of one partner, to be considered as personal 
 estate. The same noble and learned lord is, in another 
 case,(v) represented to have stated it as his opinion, that 
 all property involved in a partnership concern ought to 
 be considered as personal. And the opinion entertained 
 by gentlemen of the first professional eminence is, that 
 where real estate has been purchased with partnership 
 property, for the use of the partnership, it becomes per- 
 sonal property, not only as between the members of the 
 partnership respectively, and as between the partnership 
 and creditors, but also as between the representatives of 
 a deceased and the surviving paTtner.(z^)) (1) 
 
 (v) Selkrig v. Davies, 2 Dow. P. C. 242. See, also, Crawshay v. 
 Maule, 1 Swanst. 508. 521. 
 (w) Thornton v. Dixon, supra. 
 
 (1) The English cases upon the subject of real estate held, for 
 partnership purposes, by the partners, it has been remarked by Chief 
 Justice TiLGHMAN, (7 Serg. &l Rawle, 442,) arose out of disputes be- 
 tween the heirs and personal representatives of deceased partners ; — 
 but the difference of opinion which may be discovered in those cases, 
 does not apear to have created any difficulty in the minds of the Judges 
 in New York in a case between the administratrix of a deceased part- 
 ner and the surviving partner. It was an action of assumpsit, brought 
 by the administratrix, to recover from the surviving partner, a moiety 
 of the moneys arising from the sale of a still-house and lot of ground, 
 used for partnership purposes, and sold by the intestate and surviving 
 partner, to the latter of whom the whole purchase-money had been 
 paid. The decision was, that when real estate is held by partners for 
 partnership purposes, they do not hold it as partners, but as tenants in 
 common, and that the rules of partnership properly do not apply to it. 
 Coles adm. v. Coles, 15 Johns. Rep. 159. By positive agreement, as 
 between partners and their heirs, and personal representatives, the 
 character of real estate may be changed — it may be brought into stock," 
 and considered as personal property — but if a conveyance be taken to 
 partners as tenants in common, without any mention of agreement to 
 consider it as stock, though it be acquired for partnership purposes, as 
 regards purchasers, without notice, from either partner; or separate 
 creditors, it is to be considered as real estate. McIJermot v. Lawrence, 
 7 Serg. & Rawle, 438. Forde v. Heron, 4 Munf. 316. And though 
 the land may have been purchased with partnership funds, that circum- 
 stance (unless there be notice, 1 Sumn. 182, 1 83,) will not raise an equity 
 in favour of partnership creditors against the separate creditor (by mort- 
 gage) of one of the partners, Forde v. Heron. See also Goodwin v.
 
 (36) 
 
 SECTION II. 
 
 Of AcU hy which one Partner may hind the Firm. 
 
 The object of our last inquiry was to ascertain what 
 interest partners respestively possessed in the joint per- 
 sonal stock, and in real property acquired through the 
 medium of the partnership funds : we will now endeav- 
 our to explain by what acts one partner may, in com- 
 mercial transactions, bind the firm. It has been well ob- 
 
 Jtichardson, 11 Mass. Rep. 469. Deloney v. Hutcheson et al. 2 Rand. 
 Rep. 183. Chancellor Kent has remarked in a late publication (3 
 Coram. 39, 2nd edit.) that " these latter cases, and particularly the one 
 in New York, go to the entire subversion of the equity doctrine now 
 prevalent in England, but the other American cases are more restricted 
 in their operation, and are not inconsistent with the most correct and 
 improved view of the English Law." His remark has reference to 
 McAllister v. Montgomery, and Edgar v. Donally, the decision in 
 the latter of which cases he ' observes, " was a recognition of the true 
 rule of equity on the subject." See also 1 Sumn. Rep. 183. ih. seq. 
 And in a late case in Equity in South Carolina it appeared, that J. A. 
 conveyed to T. C. the undivided moiety of half a lot of land, which 
 he had held in common with complainants, and of which partition had 
 been made. In 1817, complainants conveyed to J. A. and T. C. the 
 other half of the lot, and took in payment two notes, one of J. A. 
 indorsed by T. C. and .the other of T. C. indorsed by by J. A. J. A. 
 and T. C. afterwards erected a steam mill on that part of the lot of 
 which the moiety had been first conveyed by J. A. using the other part 
 as appendant thereto. The business of sawing lumber was carried on 
 jointly; bills for lumber were made out in the name of "A. & C." 
 and they sued, and were sued, as "A. & C." In 1820, A. & C. be- 
 came insolvent, and the bill was fded by complainants to obtain pay- 
 ment of the notes above mentioned, out of the mill and lot, as part- 
 nership property, in preference to the separate creditors of J. A. & T. 
 C. A certificate of J. A. & T. C. dated 1822, after their insolvency, 
 declaring that they held the mill and lot as partnership property, was 
 offered in evidence, and held to be admissible. It was held, that the 
 circumstances were suflicient to establish, that the mill and lot were 
 partnership property, and that complainants were entitled to payment 
 in preference to separate creditors of tlie partners: subject, however, 
 as to the moiety of A. to tlie claims of his creditors who had obtained 
 judgments against him before his conveyance to T. C, who were 
 bound, nevertheless, first to exhaust J. A.'s private estate. Winslow 
 et ux V. Chiffclle ct al. Harper's Equity Reports, 25.
 
 OF ACTS BV WHICH ONE PARTNER MAY BIND THE FIRM. 36 
 
 Berved,(ar) that the transactions of partners, in which 
 they all severally and respectively join, differ in nothin,^, 
 in respect to legal consequences, from transactions in 
 which they are concerned individually. We are here, 
 however, chiefly to consider in instances, by virtue of 
 the relation subsisting between them, the act of one 
 shall be construed as the act of all. It may be laid 
 down, that partners are bound universally by what is 
 done by each other in the course of the partnership bu- 
 siness. The hability, under contracts, is commensurate 
 and co-extensive with their rights. Although the gen- 
 eral rule of law is, that no one is hable upon any con- 
 tract, except such as are privy to it; yet this is not con- 
 travened by the liability of partners, since they may be 
 imagined virtually present at, and sanctioning the pro- 
 ceedings they singly enter into in the course of trade ; 
 or as each vested with a power, enabling him to act at 
 once as a principal, and as the authorised agent of his 
 co-partners. By entering into the partnership, each 
 party reposes confidence in the other, and constitutes 
 him his general agent, as to all the partnership concerns ; 
 and it would be a great impediment to commerce, if, in 
 the ordinary transactions of their trade, it were neces- 
 sary that the actual consent of each partner should be 
 obtained, or that it should be ascertained that the trans- 
 action was really for the benefit of the firm ; hence the 
 act of one, when it has the appearance of being on be- 
 half of the firm, is considered as the act of the rest. 
 It is for the advantage of partners themselves, that 
 they are thus held liable ; as the credit of their 
 *firm in the mercantile world is hereby great- [ *37 ] 
 ly enhanced, and a vast facihty is given to all 
 their dealings ; insomuch, that they may reside in dis- 
 tant parts of the country, or in diflerent quarters of the 
 globe. A due regard to the interest of strangers is, at 
 the same time, observerd ; for where a merchant deals 
 with one of several partners, he relies upon the credit of 
 the whole partnership, and therefore ought to have his 
 remedy against all the individuals who compose it. 
 
 {x) See Wats, on Partn. 167. 
 
 7
 
 37 OF ACTS BY WHICH ONE PARTNER 
 
 It is a clear and undeniable proposition of law, that 
 one partner may, by his own acts, bind his co-partners 
 in all transactions relating to the partnership.(i/) The 
 power of an individual by partner, his separate act, thus 
 to induce a joint responsibility, is not confined, simply, to 
 the drawing or accepting a negotiable instrument, which 
 species of engagement, according to the present course 
 of mercantile dealings, is of frequent occurrence, but 
 the members of a firm will be bound by any contract or 
 engagement into which any single partner may enter, 
 provided the contract or engagement itself has a refer- 
 ence to the partnership. In a case that arose in the 
 reign of Queen Anne^{z) it was held, by Lord Ch. J. 
 jFZo//, that if one member of a firm of bankers receive a 
 sum of money to purchase a ticket in the lottery, and 
 undertake to pay the benefit arising from it, the other 
 members are liable if the ticket, when purchased, be 
 drawn a prize. So a partner, whilst employed in trans- 
 acting the partnership business, may borrow money for 
 the purpose of defraying his expenses, and it will be 
 a charge upon the whole firm.(a) In fact, whatever be 
 the nature of the contract, there is no doubt but that 
 the act of every single partner, in a transaction relating 
 to the partnership, binds all the others.(5) (1) And the 
 act or assurance of one partner, made with reference to 
 business transacted by the firm, will bind all the part- 
 
 [y] Harrison v. Jackson, 7 T. R. 207. 
 
 (z) V. Layfield, 1 Salk. 292. S. C. Holt's Rep. 434. 
 
 (a) Rot.hwell v. Humphreys, 1 Esp. N. P. C. 406. 
 (6) Per Lord Mansfield, Hope v. Cusl, cited 1 East, 48. Swan v. 
 Steele, 7 East, 210.(2) 
 
 (1) Lamb et al. v. Diirant, 12 Mass. Rep. 56, 57. Livingston v. 
 Roosevelt, 4 Johns. Rep. 255. Mills v. Barbour, 4 Day, 430. See 
 8 Cow. Rep. 690, 691. 
 
 (2) Mr. Coimpi has remarked, in relation to this case, (Com. Contr. 
 vol. i, p. 309, edit. N. York, 1819,) "that it does not appear from the 
 case how Clerk, one of the defendants, became a party." It is evident 
 from the report that Clerk is but the addition of the defendant Steele. 
 See Weld v. Hornby, Clerk, Roe dem. Briine, Clerk, v. Rawlings. 
 Richmond v. Johnson, Clerk, 7 East, 195, 279, 583. The remark 
 does not appear in the 2d edition (Lond. 1824,) but the parties are 
 still stated to be, Swan and others v. Steele, Clerk and fVood.
 
 MAY BIND THE FIRM. St 
 
 ners, even although it be out of the regular course, and 
 be contrary to an express arrangement amongst them- 
 selves, because it is within the scope of his authority. 
 To illustrate this position, a case may be put where two 
 persons, in partnership for the sale of horses, agree 
 between themselves never to warrant any horse ; 
 yet, though this be their *coui'se of business, it is [ *38 ] 
 clear that if upon the sale of a horse, the pro- 
 perty of the partnership, one of them should give a w^ar- 
 ranty, the other would be thereby bound, because the 
 public cannot be supposed cognizant of their private ar- 
 rangements.(c) But the implied authority of one part- 
 ner to bind another is generally limited to such acts as 
 are, in their nature, essential to the general object of the 
 partnership. Indeed, an authority in one partner to 
 bind the firm will not be implied, except in matters 
 which are necessary to carry on the trade in which the 
 partners have embarked. (J) Therefore it has been de- 
 cided that a joint interest in and occupation of a farm 
 by two persons is not a partnership, so as to convey to 
 each an implied authority to bind the other by the ac- 
 ceptance of bills of exchange for payments in respect of 
 the farm. As, where A. and B. agreed with C. to take a 
 farm, and to pay for the stock, &c. at a valuation, by 
 bills at three months, and B. becoming subsequently un- 
 able to attend to the business, A. and C. without the 
 knowledge or consent of B., entered into a new agree- 
 ment to pay part in cash, and the remainder by bills at 
 six and twelve months, which A. accepted for himself 
 and B., it was held that B. having never ratified the 
 giving such bills by A., the mere joint occupation of the 
 farm by himself and A. could not operate by relation so 
 as to render the bills binding on him contrary to the 
 terms of the original contract, and without his assent. (e) 
 We will, in the first place, consider in what cases one 
 
 (c) Per Mbott, C. J., Sandilands v. Marsh, 2 B. & A. G79. And 
 see Fenn v. Harrison, 3 T. R. 760. 
 
 {d) Per Best C. J., Stead v. Salt, 3 Bingh. 103. Bourne v. Freeth, 
 9 B. & C. 641. 
 
 (e) Greenslade v. Dower, 7 B. & C. 635. S. C. 1 Mann. Si Ryl. 
 640.
 
 38 ONE PARTNER BINDING 
 
 partner is invested by law with the power of binding his 
 co-partners, by the making, the drawing, the indorsing, 
 or accepting of promissory notes or bills of exchange, 
 and, at the same time, we will point out the instances 
 in which that authority is denied to him. 
 
 The power of one partner to bind the firm in partner- 
 ship transactions, by the making of promissory notes, or 
 the drawing, accepting, or indorsing of bills of exchange, 
 has never been disputed.(/) (1) It is within the scope 
 of a trading partner's general authority so to act, with- 
 out the necessity of the creditors inquiring whether the 
 particular partner had such an authority expressly de- 
 legated to him. This was so settled in the reign 
 [ *39 ] of *King William the Third, by the case of 
 Pinkney v. HalL(g) and in conformity with the 
 custom of merchants, although many cases are extant, in 
 which, previously to that period, the power of one part- 
 ner to bind his co-partners by such means was recog- 
 nised. 
 
 The signature of one partner, as the maker of a joint 
 promissory note,(2) or the drawer of a bill of exchange in 
 respect of a joint transaction, is therefore binding upon 
 his copartner,(A) (3) and equally binding is his accept- 
 
 (/) Per Lord Kenyan, Harrison v. Jackson, supra. 
 Ig) 1 Salk. 126. S. C. 1 Ld. Raym. 175. 
 
 (h) Smith V. Baily, 11 Mod. 401. Lane v. Williams, 2 Vern.277. 
 S. C. 16 Vin. Abr. 243. 
 
 (1) Livingston v. Roosevelt, 4 Johns. Rep. 265. The marginal 
 note to the case of Graves v. Merry at al. 6 Cow. Rep. 701, in re- 
 lation to the authority of a partner to sign notes in the partnership 
 name, is incorrect — the question in that case was, whether the note 
 was drawn before or after a dissolution of the partnership. 
 
 (2) Coursey v. Baker, 7 Harr. &l Johns. 28. Storer v. Hinchley 
 et at.. Champion v. Mumford et al. Kirby's Rep. 170. 4 Johns. 266. 
 Drake v. Elwyn, 1 Caines' Rep. 184, 1st edition — the report in the 
 2d edition is incorrect. Vallett v. Parker, 6 Wend. 615. Foster v. 
 Andrcivs, 2 Penns. Rep. 160. Porter v. Cumings, 7 Wend. 172, a 
 very particular case. See Winship v. The Bank United States, 5 
 Pet. S. C. Rep. 529. 
 
 (3) Per Brainerd, J. Mills v. Barbour, 4 Day's Rep, 430. Dou- 
 gal V. Cowles et al. 5 Day's Rep. 511. Le Boy et al. v. Johnson, 2 
 Peters' Sup. Ct. Rep. 186.
 
 THE FIRM BY BILL OR NOTE. 39 
 
 ance of a bill of exchange ;(i) for, the bill being drawn 
 upon them jointly, the acceptance of a single partner, in 
 the names of both,(l) is in legal effect a joint accept- 
 ance.(^) So prima facie, the indorsement of a bill or 
 note by one partner, in the name of the partnership, 
 binds all the firm.(/)(2) Even where one partner in- 
 dorses a bill in a different name from that of the actual 
 firm, such an indorsement will be binding, if it be proved 
 that the partner was in the habit of issuing bills into the 
 world indorsed under the former designation : because 
 such evidence would estabhsh an acting by procuration, 
 and there seems to be no doubt but that one partner 
 may so act for the whole firm.(m)(3) Nor in the case 
 of a note or bill does it form any valid objection to their 
 enforcement against a firm, that the former is made, or 
 the latter accepted, by one partner in his individual 
 name, if it appear from the securities themselves that it 
 was intended they should have a joint operation: in 
 
 (i) Anon. Styles, 370. Bull. Nisi Prius, 279. 
 
 (k) Anon. Holt, 67. Pinkney v. Hall, 1 Salk. 126. S. C. 1 Ld. 
 Rayra. 175. 
 
 (/) Wells V. Masterman, 2 Esp. N. P. C. 731. Swan v. Steele, 7 
 East, 210. Ridley v. Taylor, 13 East, 175. Where a bill or note is 
 payable to several persons, not in partnership, the right to transfer it is 
 in all collectively, not in any individually ; and an indorsement by and 
 in the name of one only will not give the indorsee a right to sue. Car- 
 vick V. Vickery, Dougl. 653, n. So, where a bill is drawn on two 
 persons, who are not partners, if it is only accepted by one, it must be 
 protested. Holt, 297. Mar. 64. Beawes, pi. 228. 
 
 (m) . Williamson v. Johnson, 1 B. &; C. 146. 
 
 (1) Or even in his own name, Dougal v. Cowles et al. 5 Day's Rep. 
 511. Per Baldwin, J. 
 
 (2) Manhattan Co. v. Leclyard et al. 1 Caines' Rep. 192. See Kane 
 el al. V. Schofield, 3 Caines' Rep. 368. McGoivan v. TJie Bank of 
 Kentucky, 5 Litt. Rep. 271. And one of two partners may give an 
 authority to a clerk, under the firm of the house, who may, in conse- 
 quence thereof, accept bills, and sign, or indorse notes, in the name of 
 the Company. Tillier v. fThiteheml, 1 Dall. 269. 
 
 (3) One member of a firm may indorse a note, made payable to the 
 firm, to himself, using the style of the firm for that purpose, and as in- 
 dorsee, in his individual capacity, sue the maker of the note, and re- 
 cover. Kirby v. Cogswell, 1 Caines' Rep. 505. Burnhum v. IVhit- 
 iier, 5 N. Hamp. Rep. 334.
 
 39 ONE PARTNER BINDING 
 
 such cases the holder may, at his election, enforce pay- 
 ment either jointly against the firm, or separately against 
 the party whose signature is attached.(n)(l) Thus, a 
 promissory note, by which the maker individually, 
 [ *40 ] but *on the behalf of himself and partners, en- 
 gaged to pay a stipulated sum, has been held to 
 affect the whole firm ; and it is not to be considered as 
 a mere personal undertaking, by the individual partner, 
 to pay a debt due from himself and his co-partners. (o) 
 In like manner, a bill of exchange drawn upon a firm, 
 but accepted by one in the name of the other partner, 
 is binding upon the firm, because the mere acceptance, 
 as indicating an^ intention to be bound by the terms of 
 the-request in the bill, would be sufficient to give the bill 
 validity, and the effect of that acceptance cannot there- 
 fore be controlled by the addition of the name of an in- 
 dividual partner.(yj) And although the indorsement of 
 
 (n) Hall V. Smith, 1 B. & C. 407. See Clerk v. Blackstock, Holt's 
 N. P. C. 474. March v. Ward, Peake's N. P. C. 130. Wilks v. Back, 
 2 East, 264. 
 
 (o) Lord Galway v. Matthew, 1 Campb. 403. In Hall v. Smith, 1 
 B. & C. 497, it was held that a promissory note, beginning, " I pro- 
 mise to pay," signed by one member of a firm for himself and his 
 partners, was binding upon the party signing as a several note, or as a 
 joint note was binding upon the firm. [^Bob v. Halsey et al. 11 Johns. 
 Rep. 544.] 
 
 (p) Mason v. Rumsey, 1 Campb. 384. Wells v. Masterman, supra. 
 In the case of Thomas v. Clarke, 2 Stark. N. P. C. 451. Lord C. J. 
 Abbott held, that a partner who executed a charter-party of affreight- 
 ment, and in the commencement of it professed to contract for himself 
 and his co-partner, thereby bound the latter, although all the stipula- 
 tions and obligations in the remaining part of the instrument were made 
 in the name of the said freighter. 
 
 (1) Doty V. Bates et al. 11 Johns. Rep. 544. See Hunt, adm. v. 
 Adams, 6 Mass. Rep. 519. It must appear in all cases, prima facie, 
 from the security sought to be enforced against a partnership, that it 
 was intended to have a joint operation, or it M'ill not be binding upon 
 the partnership. Ripley v. Kingsbury, as stated 1 Swifs Dig. Laws 
 of Connecticut, 342, S. C. 1 Day's Rep. 150. Manufacturers and 
 Mechanics Bank v. Winship, 5 Pick. Rep. 11. And, therefore, if a 
 partner borrow a sum of money, and gives his own security for it, it 
 does not become a partnership debt by being applied for partnership 
 purposes, with the knowledge of the other partner. Bevan v. Leivis, 
 1 Sim. Rep. 376. Jacques v. Marqttand, 6 Cow. Rep 497.
 
 THE FIRM BY BILL OR NOTE. 40 
 
 one partner, which cannot be treated as the indorsement 
 of the firm, will not render the firm liable, notwithstand- 
 ing the money thereby raised be applied to partnership 
 purposes ;(</) yet it is clear that a firm, consisting of 
 several, may carry on business in the name of an indi- 
 vidual partner, and then the whole firm will be bound 
 by acts done by him as representing the firm.(r) Thus, 
 where one partner of a firm in England proceeded to a 
 foreign country for the purpose of establishing a branch 
 concern, to be carried on in his individual name, with 
 strict instructions that the names of the firm should ap- 
 pear as little as possible on paper, and that no greater 
 than a stated sum should at any time be risked on part- 
 nership speculations; he, however, against those in- 
 structions, entered into risks greatly exceeding that 
 sum, and indorsed bills in the course of such dealings in 
 his own name, the firm in England subsequently sanc- 
 tioning them, and the transaction being for the benefit 
 of the partnership ; it was determined that such indorse- 
 ments were to be deemed the indorsements of the firm, 
 in the name used by them for the purposes of the foreign 
 business, and that they were liable upon those 
 *bills.(s) And it is indisputable, that in every [ *41 ] 
 case in which a firm becomes, through the in- 
 strumentality of a single member, a party to a negotia- 
 ble security, and the transaction which occasioned the 
 giving the security was bona fide^ and fairly referable to 
 the partnership concerns, the act of the single partner, 
 in pledging the joint credit, will have a conclusive bind- 
 ing operation upon all the partners collectively. And 
 cases exist in which one partner may enter into a joint 
 engagement in a transaction not relating to the partner- 
 ship, and it will be binding upon the firm if it have re- 
 ceived either their express or implied sanction. In many 
 cases of partnership it is frequently necessary for its 
 salvation, that the private demand of one partner should 
 
 {q) Ex parte Emly, 1 Rose, 61. Emly v. Lye, 15 East, 7. 
 (r) Ex parte Bolitho, Buck. 100. 
 
 (s) South Carolina Bank v. Case, 8 B. & C. 427. S. C. 2 Man. & 
 Ryl. 459.
 
 41 ONE PARTNER BINDING 
 
 be satisfied at the moment, as the ruin of the one might 
 affect the other partners ; and therefore the firm, to avert 
 such a posssible evil, would rather allow the individual 
 partner to liberate himself by dealing with it, than ex- 
 pose themselves to the consequences which might ensue 
 from their non-acquiescence.(/) In these cases the joint 
 liability depends upon the degree of evidence adduced 
 to prove the authority, the mere relation of partners not 
 of itself being sufficient to confer upon each the power 
 of binding the firm in separate transactions.(w) The 
 nature of the entries in the books, or the appropriation 
 of the money to the partnership, or to a separate ac- 
 count, or the privity and silence of the firm, would be 
 evidence of an authority delegated to the single part- 
 ner.(i;) Previous authority is not the only criterion by 
 which to determine the joint liability of the partners un- 
 der such circumstances : subsequent approbation being, 
 for this purpose of equal efficacy ; for a strong case of 
 subsequent approbation by all the partners raises an in- 
 ference of their previous positive authority having been 
 given to the particular partner to sign the partnership 
 name to a bill, or to negotiate it, and will subject the 
 partners to liability in a transaction where they would 
 
 not have been chargeable without such subsequent 
 [ *42 ] assent.(t^) In instances of this description, the*act 
 
 of the partner must be ascribed rather to his 
 character of agent than of partner; and, the agency 
 being established, of course the partnership would be as 
 firmly bound by his separate acts as they would have 
 been had they expressly and personally concurred in 
 them. But where no such agency exists, and a joint 
 security is pledged in a transaction unconnected with 
 
 {t) Per Lord Eldon, Ex parte Bonbonus, 8 Vesey, 580. 
 
 {u) Ex parte Peele, 6 Vesey, 600. *' If a man gives a partnership 
 engagement, in the partnership name, with regard to a transaction not 
 in its nature a partnership transaction, he who seeks the benefit of that 
 engagement must be able to say, that though in its nature not a part- 
 nership transaction, yet there was some authority beyond the mere cir- 
 cumstance of partnership, to enter into that contract, so as ta bind the 
 partnership." Per Lord Eldon, Id. Ibid. 
 
 (u) Ex parte Bonbonus, sitpra. 
 
 (w) Id. Ibid.
 
 THE FIRM BY BILL OR NOTE. 42 
 
 the partnership, if it be manifest to the person advancino- 
 money upon it that it is sent into circulation upon the 
 separate account of the individual partner, and, conse- 
 quently, that it is against good faith that he should in 
 such a case pledge the firm, it must be shown that he 
 had authority to bind them ; for the law does not imply 
 an authority in individual partners over the joint fund, 
 except in matters which affect the partnership con- 
 cerns.(.r')(l) In the hands of a person aware of, and 
 collusively partaking in the fraud committed upon the 
 partnership by the individual partner pledging the firm 
 in a separate transaction, the joint security would not 
 be available. In such a case it would be the same as if 
 the debtor had pledged the fund of a stranger for his 
 own debt, on his own assertion that he had authority to 
 do so : if he had such authority, the pledge would be 
 good; but the creditor would take it at the peril of prov- 
 ing that authority, if it were afterwards denied. The 
 power possessed by one partner of binding his co-part- 
 ners in joint transactions, without their knowledge or 
 consent, bears in many instances sufficiently hard upon 
 them ; but it would be carrying their liability for each 
 other's acts to a most unjust extent if it were suffered 
 that, in a separate transaction, one partner could pledge 
 the credit of the firm. This subject has frequently fallen 
 under judicial consideration, and the doctrine stated has 
 uniformly received the sanction and support of the dif- 
 ferent judges before whom it has been questioned. It is 
 indeed indisputably settled, that if a creditor of one of 
 
 (x) Ex parte Agace, 2 Cox's Ca. 312. In transactions unconnected 
 with the joint trade, no liability will be entailed upon a dormant part- 
 ner, where his responsibility was not originally regarded, and the fact 
 of his being a partner was unknown at the lime the claim arose. There- 
 fore, where one partner accepted a bill in the name of his firm, but not 
 in a partnership transaction, it was held that an indorsee could not main- 
 tain an action on such acceptance against a dormant partner, whose 
 name did not appear, and who was not known to be a partner, nor the 
 bill taken on his credit. Lloyd v. Ashby, 2 Carr. & Pa. N. P. C. 138. 
 
 (1) Livingston v. Roosevelt, 4 Johns. Rep. 251. Lansing v. Gaine 
 et al. 2 Johns. Rep. 300. 
 
 8
 
 43 
 
 ONE PARTNER BINDING 
 
 the partners collude ^vith him to take payment or se- 
 curity for his individual debt out of the partner- 
 [ '*43 ] ship funds, knowing at the time that it is *with- 
 out the consent of the other partner, it is fraudu- 
 lent and void.(7/)(l) Therefore, if a man, who has 
 dealings with one partner only, draws a bill of exchange 
 upon the partnership on account of those dealings, he 
 is guilty of a fraud ; and, in his hands, the acceptance 
 made by the partner on the behalf of the firm would be 
 void.(z)(2) So, where a bill was drawn by one partner, 
 in the joint name, to the order of his separate creditor, 
 it was held that the latter could not recover in an action 
 upon the bill against the firm, notwithstanding that he 
 had not notice of the non-concurrence of the co-partner, 
 and was not apprized that the consideration would be 
 disputed. (a) (3) And where in an action by an indorsee 
 against a firm, it appeared that the bill upon which he 
 sued was indorsed by one partner in the partnership 
 name, and that the indorsee, at the time he discounted 
 
 {y) Per Lord Elhnborough. Swan v. Steel, 7 East, 210. S. C. 3 
 Smith, 109. 
 
 {z) Wells V. Masterman, 2 Esp. N. P. C, 731. In Ex parte Gould- 
 ing, in the matter of O'Neil and Martin, bankrupts, before the Vice 
 Chancellor, sittings after Trinity Term, 1826, a question arose, whether 
 the joint estates of the bankrupts was liable for a bill accepted by one 
 of them, in the name of the firm, but for his own individual debt, and 
 without the knowledge of his co-partner. The Vice Chancellor, on 
 account of the importance of the question, took time to, consider it, and 
 afterwards said, " I am of opinion, that where one partner gives an 
 acceptance in the name of the firm in satisfaction of his own private 
 debt, and without the knowledge of his co-partner, such an acceptance 
 cannot hind the joint estate." MSS. S. C. 2 Glyn & James. 118. 
 
 (a) Green v. Deakin, 2 Stark. N. P. C. 347. In Henderson v. Wild, 
 2 Campb, 561. Lord Ellenhorough held, that if two persons are in 
 partnership, and a third individual owes them a sum of money on the 
 partnership account, a receipt for this given by one partner upon setting 
 off a private debt due from himself to that third person, will be a bar 
 to an action by, the partners for the debt due to the partnership. See 
 Skaife v, Jackson, 3 B. & C. 421. 
 
 (1) Per Spkncer, C. J., 4 Johns. Rep. 269, 270, citing Swan v. 
 Steel, and Ex parte Bonbonus, 8 Ves. jun. 540. 
 
 (2) Brown v. Buncanson and Bay, 4 Har. & McHen. Rep. 350. 
 
 (3) Whitaker v. Broivn, 1 1 Wend. 75.
 
 THE FIRM BY BILL OR NOTE. 43 
 
 it, was informed that the transaction was to be conceal- 
 ed from the other partners, it was ruled that he could 
 not successfully sue the partnership ; because the trans- 
 action itself indicated that the money was for the sepa- 
 rate partner's own use, and was not intended to be 
 applied to partnership purposes.(&) Upon the same 
 principle it is, that where one partner clandestinely 
 draws and accepts a bill in the name of the firm, partly 
 for a demand which the payee has against the partner- 
 ship, and partly for the single partner's own debt, the 
 payee, in an action against all the partners, can only 
 recover upon the former part of the consider- 
 ation, though money be paid into *court on the [ *44 ] 
 count on the bill.(c) And if a partnership nego- 
 tiable security be given by one partner to his creditor in 
 discharge of an antecedent debt due from himself alone, 
 the presumption is, that the firm is not responsible, because 
 the separate creditor must be considered as being ad- 
 vertised, in the nature of the transaction, that it could 
 not be intended to be a partnership proceeding.(rf)(l) 
 
 (6) Arden v. Sharp, 2 Esp. N: P. C. 523. 
 
 (0) Barber v. Backhouse, Peake's N. P. C. 61. 
 
 (d) Ex parte Bonbonus, 8 Vesey, 540. 
 
 (I) Bairdw. Cochran et al. 4 Serg. &; Rawle, 397. Chazourne v. 
 Edwards et al. 3 Pick. Rep. 5. Ex parte Goidding, 2 Glyn & Jam. 
 118. Livingston v. Hastie et al. 2 Caines' Rep. 246. Lansing v. 
 Caine et al. 2 Johns. Rep. 300. Livingston v, Roosevelt, Dubois v. 
 Roosevelt, 4 Johns. Rep. 251, 262, note. Davenport v. Runlett, 3 
 New Hamp. Rep. 386. Blair Miller against Douglass, 14 Fac. Coll. 
 154. 2 Bell's Comm. 616, n. 2. See, also, Poindexter v. Waddxj, 
 6 Munf. 418. Robertson v. Mills, 2 Har. & Gill. 98. Foster v. .An- 
 drews, 2 Penns. Rep. 160. Stearns v. Burham, 4 Greenl. Rep. 84. 
 Flagg V. Upham, 10 Wend. Rep. 147. In an action against partners 
 on a promissory note made by one of them in the name of the firm, 
 the confessions of the partner who made the note are not admissible to 
 prove it to have been a partnership transaction. Tuttle v. Cooper, 5 
 Pick. Rep. 414. And though a partner be present and hear the arrange- 
 ment respecting tlie indorsement of a note for the separate debt of the 
 other partner, he will not be bound — his consent must be proved not 
 presumed. Mercien v. Jindrus, 10 Wend. 461. And taking the pro- 
 perty of the firm, upon a purchase of one of the partner.", to satisfy 
 his private debt, renders the party liable to die firm for goods sold and 
 delivered. Dob v. Halsey, 16 Johns. Rop. 34. Nor can a debt due
 
 44 
 
 ONE PARTNER BINDING 
 
 Nor is this rule confined in its operation to the miscon- 
 duct of a single partner ; it applies as forcibly in a case 
 in which the members of an old firm pledge the name of 
 a newly admitted member, jointly with tlieir own, to the 
 discharge of a debt contracted anterior to the admission 
 of that partner. In such a case, the members of the old 
 firm cannot, without the privity of the new partner, ac- 
 cept a bill, in the style of the new partnership, for a debt 
 which was due from the old firm, so as to render such 
 acceptance available against the incoming partner in 
 the hands of a creditor who knowingly takes such a 
 security; for, if this were allowed, it would only be 
 conceding to two or more partners that which is denied 
 to a single partner, namely, the power of pledging the 
 joint fund for their individual debts.(e) And wherever a 
 bill is drawn or indorsed by an individual partner in the 
 joint name under circumstances which evidently disclose 
 that covin existed between that partner and the holder 
 of the security, to charge the other partners without 
 their knowledge or consent, either expressed or implied, 
 for the private advantage of the parties to such fraudu- 
 lent agreement, it is void in the hands of the covinous 
 holder; and its validity may be impeached, not only in 
 an action by such holder against the partnership, but it 
 may be questioned in any action instituted by him 
 against other parties to the bill ; for the bill being void, 
 it cannot be made the foundation of an action, and, 
 if the holder were allowed to put it in suit against 
 
 (e) Shirreff v. Wilkes, 1 East, 48. 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 ?;. Vansommer and another, London 
 Sittings after Mich. T. 1786, cor. BiiUer, J. 
 
 to a Jirni be discharged by one of the partners applying it in payment 
 of an individual debt owing by him to the debtor of the firm, unless 
 done with the knowledge and approbation of the other partners. 
 Everns^him v. Ensworlh, 7 Wend. 326. The case of Kirkpatrick v. 
 Turnbidl et al. Addis. Rep. 259, seems to have been hastily decided, 
 and cannot be considered as authority.
 
 THE FIRM BY BILL OR NOTE. 45 
 
 Other parties, the loss would eventually fall upon the 
 partnership ; for its amount must, in some way 
 or other, be allowed in account by *them, or the [ *45 ] 
 defendant, ajjainst whom a verdict mi<i^ht be ob- 
 tained, would have his remedy over against the partner- 
 
 ship.(/)(i) 
 
 But, although a joint security, given by an individu d 
 partner for his separate debt, or in a transanction which 
 is foreign to the partnership, is not binding upon the 
 firm, when it is put in suit by the party who is privy to 
 the misapplication, yet, if such a security be given to a 
 person who, ignorant of the circumstances for which it 
 was manufactured, and of the purposed application of 
 its produce, takes it on the credit of the partnership 
 name ; or if, being given to one who was instrumental 
 to the fraud committed on the partnership, it be by him 
 afterwards negotiated, and get into the possession of a 
 bona Jide holder, the security may, in either case, be 
 enforced against the partners collectively. Third per- 
 sons, who have no knowledge of the real transaction, 
 and who are free from all imputation, are not affected 
 by the original fraudulent agreement, because they have 
 a right to presume that the acting partner was, in the 
 particular case, invested with authority from his co- 
 partners to give circulation to the joint security. The 
 same observation applies to the person who takes a se- 
 curity immediately from the partner who misconducts 
 himself. If there be nothing in the nature of the trans- 
 action itself, from which it can fairly be inferred that he 
 was conscious at the time of the misapplication, or if 
 
 (/) Ridley v. Taylor, 13 East, 175. See, also, Hope v. Cust, cited 
 1 East, 53. 
 
 (1) Tiierefore, a friendly indorser would not be liable, thougli he did 
 not know the note was not given for a partnership debt; for if tlie in- 
 dorsee recovered against him, he would, being an innocent payee, and 
 unacquainted with the circumstances under which the note was issued, 
 recover against the partners in an action for money paid, and by cir- 
 cuity the partners would be at last rendered liable. Livingston v. Has- 
 tie, 2 Caines' Rep. 246. Chazourne v. Edwards et aL3 Pick. Rep. 
 5. Williams v. JFalbridge, 3 Wend. 415.
 
 45 
 
 ONE PARTNER BINDING 
 
 there be not any such crassa negltgentia on his part in 
 not inquiring whether the one partner with whom he 
 deals is authorised to dispose of the joint security as his 
 own, as to render the transaction, on that account, frau- 
 dulent, he has a perfect right to call upon the partner- 
 ship to fulfil the engagement for whiich their credit has 
 been pledged by the individual partner. If the doctrine 
 were different, no faith or reliance could be placed upon 
 partnership securities, unless, indeed, it were incumbent 
 upon a person receiving an apparently joint negotiable 
 instrument, to apply to each of the parties whom it pur- 
 ports to affect, to know whether he assented to its nego- 
 tiation, or otherwise that it should be void. Such an 
 obligation would, in theory, be as strange and novel as 
 it would, in practice, be in most cases impracticable, and 
 in every case a great impediment to commerce. The 
 law has therefore declared, that instruments affecting to 
 
 charge a partnership, but which are sent into the 
 [ *46 ] world by an individual * partner for his own 
 
 personal benefit, are invalid only in the hands 
 of the party who is cognisant of, and privy to, the 
 abuse of the joint name, and who is consequently a par- 
 taker in the fraud attempted to be practised upon the 
 partnership. Thus a bill accepted by one partner in 
 favour of a person with whom he has separate dealings 
 would, as we have seen,(^) be inoperative against the 
 partnership, when payment of it is attempted to be en- 
 forced by the separate creditor himself, but it would be 
 otherwise in the case .of his bo7ia fide indorsee. In the 
 hands of the latter, the acceptance of one partner, though 
 fraudulently made, binds the firm, because he is ignorant 
 of the circumstances under which the security was 
 created and circulated, and takes it on the faith and 
 credit of the partnership name.(/i)(l) So, if one part- 
 
 (g-) See ante, p. 42. 
 
 (A) Per Lord Kenyan, Wells v. Masterraan, 2 Esp. N. P. 
 
 731. 
 
 (1) Per Kent, J., Livingston v. Roosevelt, 4 Johns. Rep. 
 Per LivijfGSTON, J., Livingston v. Hastie, 2 Caines' Rep. 250. 
 Poy et al. v. Johnson, 2 Peters' Sup. C. Rep. 186. 
 
 279. 
 Le
 
 THE FIRM BY BILL OR NOTE. 46 
 
 ner indorse a bill in the partnership name, and send it 
 into circulation, and it gets into the hands of a bona fide 
 holder, who takes it on the credit of the partnership 
 name, and is ignorant of the circumstances, though in 
 fact the bill was first discounted for that partner's own 
 use, the partnership is liable.(i)(l) For, in the ordinary 
 course of commercial transactions, as upon discount, it 
 would be monstrous to hold, that one partner, borrow- 
 ing money upon a bill of exchange, by which he pledges 
 the partnership to the repayment, cannot affect the firm 
 merely because the money, ^vhen raised, is applied by 
 the single partner to his own use, the discounter at the 
 time, having no knowledge that it was, or was intended 
 to be, a separate transaction.(^) On the same principle 
 of want of collusion, the application by one partner of 
 a joint bill or note, in discharge of his individual debt, 
 does not under all circumstances necessarily invalidate 
 it as a security against the firm. For instance, the 
 members of a banking firm would be bound to honour 
 their notes, in the hands of a person who received them 
 from a single partner in payment of his own separate 
 debt J because the creditor, having no knowledge on the 
 subject, might rationally imagine, that the notes had 
 been previously sent into circulation, and had returned 
 into the possession of his debtor as his own individual 
 property.(/) And it has been decided,(m) that if 
 a partnership security be indorsed *by one part- [ *47 ] 
 ner to his own separate creditor, against whom, 
 neither actual covin in the transaction, nor any thing 
 
 (i) Arden v. Sharp, 2 Esp. N. P. C. 524. 
 (k) Ex parte Bonbonus, 8 Vesey, 540. 
 (/) Ridley v. Taylor, 13 East, 175. .flrg. 
 \m) Ridley v. Taylor, supra. 
 
 (I) Bank of Kentucky v. Brooking et al. 2 Littel's Rep. 45, 46. 
 New Fork F. I. Co. v. Bennett, 5 Conn. Rep. 574. But if the holder, 
 who receives the security, be ignorant of the circumstances through 
 gross negligence, he cannot enforce the security against the firm. Ibid. 
 And, in such a case, a dormant partner would not be liable, as the 
 security could not be taken on the credit of his name. Lloyd v. Ashby 
 et al. 2 Carr. &i Payne, 138.
 
 47 
 
 ONE PARTNER BINDING 
 
 which is sufficient to warrant a conclusion of knowledge 
 of the want of authority of the individual partner ap- 
 pears, the firm will be bound by the indorsement; and 
 especially in a case in which, if covin or want of autho- 
 rity really did exist, the firm are in a situation* clearly 
 and positively to establish it, and they neglect to do so. 
 In the absence of such proof, the fair and irresistible 
 presumption is, that the partner in possession of the 
 security had, for some valuable consideration, or in vir- 
 tue of some arrangement with his co-partners, become 
 its proprietor, so as to be authorised to deal with it as 
 his own.(l) And this rule prevails, although, by the 
 terms of the copartnership articles, the partners are pro- 
 hibited from circulating any bills or notes, if the holder 
 of a joint security were ignorant of that circumstance 
 at the time he received the same ; but on proof of such 
 restrictive clause, and that the bill was issued by one 
 partner without the concurrence, and in fraud of the 
 others, the holder must show that he gave value for 
 it.(w)(2) Neither is it alone in cases of the fraudulent 
 misconduct of partners that a joint responsibility may 
 
 (n) Grant v. Hawkes, Chitty on Bills, (5th ed.) 42, n. 
 
 (1) The rule in A^eiv York is different from that established in /Rid- 
 ley V. Taylor. 'J'he separate creditor, who has obtained the partner- 
 ship paper for the private debt of one of the partners, is required to 
 show the assentof tlie whole tirm to be bound, and the burden of avoid- 
 ing such security is not tlirown upon ihe firm, by requiring them to 
 prove, that the act was covinous on the part of tiie partner for whose 
 private debt the paper of the firm was given. Dob v. Huhey, 16 Johns. 
 Rep. 38, 39. Laverly \. Burr, 1 Wend. Rep. 531. Prima facie, 
 however, a note made by one partner in the name of the firm, will be 
 intended to be given in the regular course of partnership dealings, and 
 it is matter of defence, that it was taken from one of tlie partners for 
 what was known at tlie time to be his separate debt. Daly v. Bates, 
 11 John*. Rep. 544. But this rule is limitated to cases where the sig- 
 nature or other circmnslances indicate a partnership concern ; and 
 therefore where a partnership was carried on in the nanie of an indi- 
 vidual, it was held, that a note in the common form, signed by such 
 individual, did noi prima facif bind his co-partners ; and that, upon the 
 question whether it was given for the use of the co-parlnership, the 
 burden of proof was on the holder. Maimfaclnrers and Mechanics 
 Bank v. Winship, 5 Pick. Rep. 11. 
 
 (2) Bank of Kentucky v. Brooking et al. 2 Littel's Rep. 41.
 
 THE FIRM BY BILL OR NOTE. 47 
 
 be brought upon a firm ; for a bill which has been drawn 
 in blank by one partner, and has been by him delivered 
 to a clerk, to be filled up in the ordinary course of busi- 
 ness, will, if misapplied by the clerk, be binding upon 
 the firm in the hands of a party whose title cannot be 
 impeached. Thus, Mhere one of three partners drew a 
 bill of exchange, in blank, in the name of the partner- 
 ship firm, payable to their order, and delivered it, in- 
 dorsed, to a clerk to be filled up for the use of the firm, 
 as the exigences of business might require, according to 
 their course of dealing, and the drawer dying, the sur- 
 viving partners assumed a new firm ; the clerk having 
 afterwards filled up the bill, inserting a date prior to the 
 death of the drawer, and sent it into circulation, it was 
 held, that the surviving partners were hable to a bona 
 fide indorsee, although no part of the value came to 
 their hands.(o) The rule, indeed, is universal, that 
 V herever there is an absence of collusion or privity on 
 the part of the holder, who has given value for the bill 
 or security he seeks to enforce against the firm, 
 it is no impeachment of his right, to *show an [ *48 ] 
 original fraudulent misapplication of the security, 
 either by a partner or a servant, because the innocent 
 partners having clothed the particular partner or their 
 servant with an apparent authority, it is more consonant 
 to justice that they should suffer, than that the bona fide 
 holder, who relied upon the joint responsibility, should 
 sustain the loss.(l) Nor does it in any degree affect 
 the question, as to joint hability, that the party, after 
 having taken and given value for the security, discovers 
 the misappropriation of the produce : if the security be 
 
 (o) Usher V. Daiincey, 4 Campb. 97. See Russell v. Langstaffe, 
 Dougl. 514. Snaith v. Mingay, 1 Mau. & Selw. 87. 
 
 (1) In an action against a firm, upon a negotiable note made by one 
 partner in the name of the firm, and indorsed by the payee to the plain- 
 tiff, the other partners have a right to show that the note was fraudu- 
 lent in its inception,, or was fraudulently put into circulation, \yhich 
 being established, will throw the burden of proof on the plaintiff to 
 show, that he came to the note fairly and without knowledge of the 
 fraud. Alonroe v. Cooper, 5 Pick. Rep. 412. 
 
 9
 
 48 
 
 ONE PARTNER BINDING 
 
 taken, in good faith, without a knowledge at the time, 
 of the fraud contemplated by the partner, no subse- 
 quently acquired knowledge of his misconduct in giving 
 the security can disaffirm the act.(p)(l) Where per- 
 sons are partners in a particular and single transaction 
 only, and not general partners, they are not liable, even 
 to a bona fide holder, on a bill issued by one of them in 
 relation to a different concern.(9) (2) 
 
 It has been ruled by Lord Ke?iyo?i,(r) that if different 
 firms, consisting partly of the same members, be carried 
 on in the same name, a bill of exchange, upon which the 
 members of one of the firms are liable, is a valid security 
 against the members of any of the firms in the hands of 
 the holder, without notice that it was on account of any 
 particular partnership concern. This decision must, 
 however, be understood with some limitation. The 
 holder may have a right to elect against which of the 
 partnerships he will enforce his claim, but he cannot 
 hold all of them liable. This appears to have been the 
 conclusion to which the House of Lords came in a re- 
 cent case.(s) It was there decided, that where several 
 partnerships, consisting of different individuals, carry on 
 business under the same firm, and enter into negotiable 
 securities under the same signature, the holder of such 
 securities has a right to select which of those partner- 
 ships he chooses for his' debtor. 
 
 On the subject of negotiable instruments it remains to 
 be observed, that even in transactions in which all the 
 
 (p) Swan V. Steel, 7 East, 210. 
 (q) Williams v. Thomas, 6 Esp. N. P. C. 18. 
 (r) Baker v. Charlton, Peake N. P. C. 79. 
 
 (s) McNair v. Fleming, Mont, on Part. 32, n. (r.) Ex relatione 
 Sir Samuel Romilly. 
 
 (1) See what is said by Spencer, J., 4 Johns. Rep. 269, 270. 
 
 (2) It is matter of legal defence only, in such a case that a note has 
 been given by one partner in the name of the firm for a consideration 
 not connected with partnership transactions; and if a judgment at law 
 be obtained against the firm, without defence, equity will not afl[brd 
 relief, unless it be shown that defence at law was impracticable. Sneed 
 V. Coyle, 4 Litt. Rep. 162.
 
 THE FIRM BY BILL OR NOTE. 49 
 
 partners are interested, the authority of one partner to 
 make, draw, accept, or indorse promissory notes 
 or bills of exchange in the joint *name is only [ *49 ] 
 implied, and may therefore be rebutted by ex- 
 press previous notice, to the party taking a joint security 
 from one partner, of his want of authority, or that the 
 others will not be liable upon it.(l) Such a power is 
 not indispensably essential to the existence of a partner- 
 ship; the partners may stipulate between themselves, 
 that it shall not be exercised : and if a third person, ap- 
 prized of such a stipulation, will take a joint security, he 
 cannot sue the firm upon it, although it were truly re- 
 presented to him, by the partner giving the security, that 
 the money to be advanced on it was required for the 
 purpose of, and was in fact applied in, liquidating the 
 partnership debts ;(2) much less can he hold the firm 
 responsible on a security so obtained, if he take it in 
 defiance of a positive notice, previously given by one of 
 the memfcs, that he will not be answerable for any bill 
 or note signed and negotiated by the others.(^) (3) And 
 the power of one partner to bind the firm by a negotia- 
 ble security, where it is capable of being exercised, is 
 only co-existent with the duration of the partnership 
 itself; for, immediately on its dissolution, the power 
 ceases.(w) (4) Therefore, where A, after the dissolution 
 
 (/) Galway v. Matthew, 10 East, 264. S. C. 1 Camp. 403. See 
 also Rooth V. Quin, 7 Price, 193. Miniiett v. Whitney, 16 Vin. Abr. 
 244. Ogilvie v. Foljambe, 3 Meriv. 65. 
 
 iu) Wrightson v. PuUan, 1 Stark. N. P. C. 375. And see Moody 
 V. king, 2 B. & C. 558. 
 
 (1) Per Parker, C. J., Boardman v. Gore et al. 15 Mass. Rep. 
 339. 
 
 (2) See Le Roy et al. v. Johnson, 2 Peters' Sup. Ct. Rep. 186. 
 
 (3) And it makes no difference in such a case, that the partner giv- 
 ing the notice is a secret partner, and that the existence of the partner- 
 ship is unknown to the opposite party. Leavitt v. Peck et al. 3 Conn. 
 Rep. 124. 
 
 (4) Per Curiam, HacMey v. Patrick, 3 Johns. Rep. 538, Lansing 
 V Gaine et al. 2 Johns. Rep. 300. Sandford v. Mickles, 4 Johns. Rep. 
 224. Jones' Case, 1 McCord's Cha. Rep. 170. Overt. Rep. 455. 
 Foltz V. Pourie et al. 2 Desaus. Cha. Rep. 40.
 
 49 ONE PARTNER BINDING 
 
 of a partnership between himself and B, accepted a bill 
 in the name of the partnership, bearing date before the 
 dissolution, Lord Ellenhorovgh held that an indorsee, 
 who took the bill without notice of the dissolution, could 
 not enforce it against B.(i;) And if a dissohition is 
 agreed upon, a person who knows of it cannot charge 
 the partnership with a subsequent acceptance by one of 
 the partners in the partnership name, unless he can 
 prove that the intention to dissolve was abandoned, or 
 that the acceptance was for a partnership transaction, 
 and free from fraud.(?^;) So, although the notice of dis- 
 solution empowers one partner to receive and pay all 
 debts due to and from the partnership, no authority is 
 thereby conveyed to such partner to bind the firm by a 
 bill of exchange. (:?•) (1) And if, under such circum- 
 stances, a bill be drawn in the partnership name 
 [ *50 ] upon a debtor to the firm, ^'which bill the partner 
 who has the arrangement of the affairs indorses 
 ostensibly on the behalf of the firm, and gets it dis- 
 counted for the purpose of applying its proceeds towards 
 liquidating the partnership debts, and afterwards the bill 
 is dishonoured by the acceptor, no action upon the bill 
 will lie against the firm at the instance of the indorsee 
 and discounter — because, to involve the partners col- 
 lectively, they should .all have concurred in making the 
 indorsement; neither can an action be maintained against 
 all the partners for money paid to the use of the part- 
 nership.(?/) Nor, in the case of a dissolution, does it 
 signify, whether the bill or note negotiated had or had 
 not a prior existence. The moment the partnership 
 ceases, the partners become distinct persons : they are, 
 from that period, tenants in common of all the property 
 embarked in it ; and if any securities which belonged to 
 
 {y) Wrightson v. Pullan, supra. 
 
 {w) Paterson v. Zachariah, 1 Stark. N. P. C. 71. 
 
 {x) Kilgour V. Finlayson, 1 H. Bl. 155. 
 
 \y) Id. ibid. 
 
 ■ (1) Martin v. Walton et al. 1 McCord's Rep. 46. Sandford v. 
 Mickles et al. 4 Johns. Rep, 224. 2 Desaus. Cha. Rep. 43, 44.
 
 thp:; firm by simple contracts. 50 
 
 the partnership are afterwards sent into the world, all 
 the partners must join in giving effectual negotiability to 
 them.(a)(l) It has been doubted by Lord Kenyon^ 
 whether if an indorsement were actually made on a bill 
 or note before a dissolution of partnership, but the bill 
 or note were not put into circulation until afterwards, 
 the indorsement would be so far valid as to charge the 
 partners who were not privy to the negotiation of the 
 instrument.(5) (2) But this exemption from future lia- 
 bihty is granted only on the supposition that proper 
 means have been taken to make the disolution noto- 
 rious ; and therefore a dissolution will not protect the 
 quondam partners, if they suffer their names to continue 
 on the partnership premises, and the holder of the bill 
 or note took it bona fide, and for value and without 
 knowledge of the dissolution.(c) 
 
 It is not however to be supposed, that the power of 
 one partner to bind his co-partners is confined solely to 
 the using the name of the partnership firm, in the 
 concocting and giving circulation* to negotiable [ *51 ] 
 instruments. Whatever other contracts relate to 
 and are identified with the partnership can be enforced 
 against the firm, notwithstanding they were singly en- 
 tered into by an individual partner, without the express 
 authority of the others.(3) Thus, a contract for the 
 
 («) Abel V. Sutton, 3 Esp. N. P. C 108. On the same principle, 
 it has been held, that after a secret act of bankruptcy committed by one 
 of two partners, the other cannot by an indorsement in the name of the 
 firm transfer the property in a bill which belonged to the firm before 
 the bankruptcy; for, the partnership having ceased to exist, the solvent 
 partner is to be considered tenant in common with the assignees of the 
 bankrupt partner, and the property in the bill can only be transferred 
 by their respective indorsements. Ramsbottom v. Lewis, 1 Campb. 
 279. 
 
 ib) Abel V. Sutton, supra. 
 
 (c) Williams v. Keats, 2 Stark. N. P. C. 290. Dolman v. Orchard, 
 2C. «feP. 104. 
 
 (1) Per Curiam, Sandford v. Mickels et al. 4 Johns. Rep. 228. 
 Lansing v. Gaine et al. 2 Johns. Rep. 300. 
 
 (2) Woodford v. Dorwin, 3 Verm. Rep. 82. 
 
 (3) Wins/dp v. TTie Ba7ik U. States, 5 Pet. S. C. Rep. 529.
 
 51 ONE PARTNER BINDING 
 
 sale or purchase of partnership effects, is equally valid 
 and effectual, when made by one partner on the behalf 
 of himself and his co-partners, as if it were directly and 
 personally ratified and assented to by all the members 
 of the firm. Over the partnership stock one partner 
 may exercise the jus disponendi^ and in the absence of 
 fraud on the part of the purchaser, the sale will be bind- 
 ing upon the firm. So in the case of purchases, one 
 partner may imphcate the credit of the firm; and if 
 there be no collusion between him and the seller, the 
 latter may resort to the firm, although the goods pur- 
 chased never formed an article of joint stock. He who 
 acts is considered as the authorised agent of the others; 
 trade could never otherwise be carried on by more than 
 a single individual. The power possessed by each part- 
 ner, individually, of disposing of the joint merchandise 
 has been long an admitted principle of law, and so far 
 back as the reign of King James the First, it received the 
 sanction of judicial approbation. Lamherfs case(c?) is 
 thus reported : " In this case, it was agreed by the court, 
 that the sale of one partner is the sale of them both ; 
 and therefore, although that one of them selleth the 
 goods or merchandiseth with them, yet the action must 
 be brought in both their names ; and in such case, the 
 defendant shall not be received to wage his law, that 
 the other partner did not sell the goods unto him, as is 
 supposed in the declaration." The existence of the 
 same implied authority was recognised in a more recent 
 case, in which Lord Mansfield observed, that each part- 
 ner has a power singly to dispose of the whole of the 
 partnership effects; (e)(1) his authority to do so being 
 
 {d) Godbolt, 244. 
 
 (e) Fox V. Hanbury, Cowp. 445. 
 
 (1) Per Kent, C. J., Pierson v. Hooker, 3 Johns. Rep. 70, and 
 Livingston v. Roosevelt, 4 Johns. Rep. 277. Per Brainerd, J., 3Iills 
 V. Barber, 4 Day's Rep. 430. La7nb et al. v. Durant, 12 Mass. Rep. 
 54. Lyle v. Styles, 2 Wash. C. C. Rep. 224. 4 Wash. C. C. Rep. 
 234. See Law v. Ford, 2 Paige's Cha. Rep. 310. One partner, 
 therefore, may, in the partnership name, by an instrument not under 
 seal, assign the partnership effects and credits in trust for creditors of
 
 THE FIRM BY SIMPLE CONTRACTS. 51 
 
 implied from the nature of business.(/) Indeed, part- 
 ners being joint-tenants of the partnership stock, it fol- 
 lows that one may lawfully dispose of the whole interest 
 in it. So with respect to purchases ; a purchase by one 
 partner on the joint account is, in contemplation of law, 
 a purchase by the firm, and is equally binding and opera- 
 tive against them, as if all the members collec- 
 tively had concurred *in it.(^)(l) Nor, as re- [*52] 
 gards the vendor, can the sale be impeached by 
 the firm, merely because it was effected by the indi- 
 vidual partner, with the fraudulent intention of cheating 
 his co-partners. With whatever view the goods are 
 bought, or to whatever purpose they are applied, a sale 
 to one partner is, in legal effect, a sale to the partner- 
 ship, if the seller be exempt from the imputation of col- 
 lusion. Therefo]^e, where one of two partners, with the 
 
 (/) Per Best, J., Barton v. Williams, 5 B. <fe A. 405. 
 ( g) Hyat V. Hare, Comb. 383. 
 
 the firm, such an assignment being a transaction in the usual course of 
 trade. Harrison v. Sterry et al. 5 Cranch. 289. Egberts v. Wood, 
 3 Paige's Cha. Eeports, 517. Robinson v, Croivder et al. 4 McCord's 
 Rep. 519. Havens v. Hulsey, 5 Paige's Cha. Rep. 30, contra. See 
 Pearpont et al. v. Graham, 4 Wash. C. C. Rep. 232. The decree in 
 Dickinson v. Legare et al. 1 Desaus. Cha. Rep. 537, decided in 1797, 
 is right, as will appear if the facts be attentively considered — the as- 
 signment in that case was made by a partner who was a prisoner of 
 war, in the country of the captor, to an alien enemy, with whom, ac- 
 cording to the case of Grisrvold v. IVaddington, 16 Johns. Rep. 438, 
 no valid contract can exist, and to whom no promise can arise, by im- 
 plication of law, from any transaction had with a citizen of this coun- 
 try. Chancellor Matthews, who delivered the opinion of the Court, 
 rested the decision, however, upon want of power in one partner, with- 
 out consent or privity of the others, to make an assignment of the part- 
 nership effects to secure a creditor — he admitted that it was a case of 
 the first impression, that the books furnished ))o precedent, [Harrison 
 V. Sterry, was decided in 1809,) and after noticing, with some warmth, 
 the evil consequences that might arise from the exercise of such a power 
 by one partner, set aside the assignment as " unwarranted by any law, 
 or usage of merchants, as inequitable and nefarious." It does not ap- 
 pear from the report, whether the assignment was under seal or not; 
 but if it had been under seal, the question would have been disposed 
 of in a few words, without difficulty, upon a different principle. 
 
 (1) Per Brainerd, J., Mills v. Barber, 4 Day's Rep. 430. Per 
 Baldwin, J., Bengal v. Coivles, 5 Day's Rep. 515.
 
 52 
 
 ONE PARTNER BINDING 
 
 intention of cheating the other, goes to a shop and 
 purchases articles such as might be used in the partner- 
 ship 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 trans- 
 action, and the other partner is liable for the price of the 
 goods, without proof of any previous dealings between 
 the parties.(A)(l) But although an innocent seller is 
 not to suffer for the fraud or misconduct of the partner, 
 yet where he is expressly forbidden by one partner to 
 deliver goods on the joint account, he must, in an action 
 for goods sold, show that the sale was adopted by the 
 dissentient partner, or that he derived a benefit from the 
 delivery .(z) (2) So one partner may order insurances 
 
 (A) Bond V. Gibson, 1 Campb. 185. 
 
 (z) Willis V. Dyson 1 Stark. N. P. C. 164. And see 
 
 field, 1 Salk. 291. Minnett v. Whitney, 16 Vin. Abr. 244. 
 Fleming, 1 Younge &, Jerv. 226. 
 
 • V. Lay- 
 Vice V. 
 
 (1) See the principle stated by Spencer, C. J., Walden v. Sher- 
 burne, 15 Johns. Rep. 422, 423. 
 
 (2) Even where a partnership exists between tivo persons only, the 
 position cannot be considered as established law, while it rests upon 
 the authority of a single decision at Nisi Prius. Booth v. Q,uin and 
 Janney, 7 Price, 193, was the case of an action against a firm consist- 
 ing of two partners only ; and the Court, after taking occasion to ob- 
 serve, that it was with much reluctance that they received determina- 
 tions at Nisi Prius, on questions brought before them for more deliberafe 
 consideration, {^Lord Gcdway v. Matthew, 1 Camp. 403, and Willis v. 
 Dyson, 1 Stark. 164, having been cited,) however high the authority 
 cited might stand in their estimation, and expressing a desire that the 
 citing such cases might be disconutinued in future on occasions requir- 
 ing more elaborate research, desired the question might be argued as if 
 it were, (admitting the continuance of the partnership,) whether the 
 defendant Janney could protect himself from debts incurred by Quin, 
 by the notice which he had given, that he would not be answerable fbr 
 any debts contracted inthe partnership name? And, after the argument 
 was concluded, observing, " that it was a question of vital importance 
 to the commercial world," they ordered a new trial, the verdict having 
 been for the plaintiff", in order that a bill of exceptions might be ten-* 
 dered, or some other course adopted, which might carry the question 
 further to receive the most solemn decision. I have not been able to 
 ascertain what has since been done in this case, no trace of it appear- 
 ing in subsequent reports. It may be fairly concluded from it, how- 
 ever, that the question is by no means settled or at rest. Where there 
 are many partners, there is still greater difliculty in admitting, that one
 
 THE FIRM BY SIMPLE CONTRACTS. 52 
 
 to be effected on the account of his co-partners, and such 
 an order will render them all hable for the premiunis.(A:) 
 He may, likewise, pledge the partnership effects, and the 
 pledge will bind his co-partners, although made without 
 
 {k) Hooper v. Lnsby, 4 Campb. 66. But the managing owner and 
 part owner of a ship has no implied authority, as such, to order in- 
 surances to be effected on account of the other part owners. Id. ibid. 
 Bell V. Humphries, 2 Stark. N. P. C. 345. French v. Backhouse, 5 
 Burr. 2727 ; Ogle v. Wrangham, Abbott, 76. The distinction is, that 
 part owners are tenants in common, and one cannot dispose of the share 
 of the other; but partners are joint-tenants of their merchandise, and 
 one may dispose of the whole property. 
 
 can stop the whole course of dealing of the concern, whenever he is 
 pleased so to do; and there is no case deciding that he possesses the 
 
 power. Lord Holt, in v. Layfield, which was an action against 
 
 several, said, " that where there are severed partners, and a man goes 
 upon the credit of all, the act of one is evidence against the rest, unless 
 they show a disclaimer and refusal to be concerned in it;" — an opinion 
 which would prove the act of one to be void, if against the consent of 
 a majority of the partners. The case of Minnett v. Whitney, is in 
 no respect opposed to this opinion, as will appear from the facts, which 
 are thus stated in Viner. — " Three persons entered into partnership in 
 the trade of sugar-boiling, and agreed that no sugar shoidd be bought 
 without the consent of the majority; one of them after makes a pro- 
 test that he would no longer be concerned in the partnership with them. 
 The two other persons after make a contract for sugars, the seller hav- 
 ing notice that the third had disclaimed the partnership, he shall not 
 be charged." The most that can be collected from the case is, that 
 where a purchase is made after a dissolution of partnership, of which 
 the seller has notice, only those who purchase are liable — for if the 
 partnership had existed when the sale was made, all would have been 
 responsible by the very terms of it for purchases made by a majority. 
 The point arose in a case before Chancellor Kent, and he decided, 
 that the acts of the majority of the partners bound the rest, unless spe- 
 cial provision were made to the contrary. Three co-partners engaged 
 a clerk, as book-keeper and cashier, at a fixed salary, for two years, 
 with an understanding that he should have a larger compensation as the 
 business extended, and his duties increased ; and during the third year 
 it was discovered that he had overdrawn moneys belonging to the firm, 
 and applied the same to his own use, of which he afterwards rendered 
 a statement; h\it ti/)o of the partners, against the consent of the third, 
 continued him in their employ : Held, that he was entitled to an in- 
 creased compensation for his services after the second year, the fact of 
 continuing him in service after a discovery of his improper conduct, 
 being an admission that he had not forfeited his right to an increased 
 allowance. Kirk v. Hodgson et al. 3 Johns. Cha. Rep. 400. The 
 learned Judge, however, by whom this last mentioned decision was 
 
 10
 
 52 
 
 ONE PARTNER BINDING 
 
 their privity and consent, if the pawnee have no notice 
 that the property is partnership property, and there be 
 no fraud or collusion in the transaction. For instance, 
 where two persons purchased, for the joint account of 
 themselves and a third person, some clover seed, and 
 shipped and consigned the same to the latter, to whom 
 they transmitted the bill of lading and invoice; the con- 
 signee having lodged with a factor the bill of lading for 
 the landing and sale of the seed, and having afterwards 
 
 borrowed money from him on the security of it, 
 [ *53 ] it was *held that the pledge was available against 
 
 the shippers. (/) So where A and B directed their 
 broker to purchase cotton, in which he was to be allowed 
 interest to the extent of one-third, he acting in the bu- 
 siness free of commission; he also insured the goods, 
 and deposited them in warehouses, of which he kept the 
 key for their joint security, and throughout every part 
 of the correspondence relative to the goods, the transac- 
 tion was referred to as a joint concern, — the Court of 
 King's Bench held that he was, quoad hoc, to be deemed 
 a partner ; and therefore that having pledged them with- 
 wout fraud or collusion on the part of the pawnee, the 
 latter was entitled to hold them as against the princi- 
 pals. (m) And if one of two partners in a speculation 
 in coffee deliver the coffee for exportation, and borrow, 
 from the person to whom it is delivered, money upon its 
 security, the other partner is bound by it; and if the pro- 
 perty, on a sale, should not produce the sum lent, he 
 
 (Z) Raba i-. Ryland, Gow's N. P. C. 132. See also S. P. Tupper 
 V. Haythorne, Ibid. 135. n. Metcalf r. Royal Exch. Ass. Comp., Bar- 
 nard. 343. 
 
 (m) Reid v. Hollinshead, 4 B. & C. 867. S. C. 6 D. & R. 444. 
 
 made, has remarked of it, " that it related only to the case of the 
 management of the interior concerns of the partners among themselves, 
 and to that it is to be confined." (3 KenVs Comm. 45, 2d edit.) And 
 it is to be observed, that all the Barons of the Exchequer in Vice v. 
 Fleming, 1 Young &l Jerv. Rep. 227, asserted the power of one partner 
 to discharge himself from future liabilitity by an absolute notice, unequiv- 
 ocally given to a person who in a course of dealing might have a claim 
 against all the partners, arising from the act of one partner; and the doc- 
 trine is also sustained by the case of Leavitt v. Peck, 3 Conn. Rep. 124.
 
 THE FIRM BY SIMPLE CONTRACTS. 53 
 
 will be responsible for the difrerence.(w) But although 
 one partner may pledge joint propety, and the pledge 
 will be binding upon his co-partners, if fairly conducted, 
 yet the same principle does not extend to part-owners 
 or persons who have jointly engaged in a particular 
 purchase they are to be regarded as tenants in common 
 of the subject matter of the purchase, and each being 
 entitled to an undivided moiety only, one cannot, even 
 before partition made, convey any better or greater title to 
 the pawnee than he himself had ;(o) and after a partition 
 has taken place, as each is then entitled to a distinct 
 specific moiety, a pledge by one of the moiety belong- 
 ing to the other is, in effect, a pledge of a specific chat- 
 tel, and the property not being in the pawner, the pa^^'- 
 nee, of course cannot acquire a lean upon it, for the 
 monies he may advance.(/>) Thus, where one of two 
 persons, partners in a particular transaction, borrowed 
 money on partnership goods in the hands of a broker, 
 by drawing bills on the broker, which were discounted 
 by a third party, and the broker's warrants deposited in 
 the hands of such third party as a security ; the broker 
 was desired by the partners to make a division of the 
 goods held on their joint account, who accord- 
 ingly appropriated *specific warrants to each. [ *54 ] 
 Half the bills which had been discounted on the 
 security of the warrants had been paid, and the broker, 
 at the request of his employer, procured the same per- 
 son to renew the other half, and as security lodged the 
 warrants which had been appropriated to tlie other part- 
 ner on the division : it was decided that the partnership 
 had been determined by the partition, and that the second 
 pledge was a pledge of a specific chattel belonging to an- 
 other ; that the discounter had no lien on the warrants 
 (although he was entirely ignorant that any other person 
 than his debtor had any interest in the goods), and there- 
 
 (n) Ex parte Cellar, 1 Rose B. C. 297. 
 
 (o) Barton v. Williams, 5 B. & A. 395.(1) (p) Id. Ibid. 
 
 (1) S. C. in Error, Young & McClell. Rep. 406. Judgment af- 
 firmed.
 
 54 
 
 ONE PARTNER BINDING. 
 
 fore that trover was maintainable by the rightful owner 
 against the discounter.(^) So where one partner con- 
 signs goods to another partner for a specific purpose, and 
 in the performance of a joint contract, the consignee has no 
 right to divert that purpose, and pledge the goods; neither 
 has the pawnee any lien on the goods for the advances 
 made by him, if at the time of the pledge it was within his 
 knowledge that it was partnership property, and that the 
 proceeds were not to be applied for the purposes of the 
 partnership. (r) Thus, where three persons residing in 
 Dublin., and different firms in London., jointly engaged 
 to supply provisions for the navy, which were to be de- 
 posited in government stores, and the residents at Dub- 
 lin., in performance of the contract, shipped a cargo of 
 provisions to London., and sent to one of the firms in Lon- 
 don a bill of lading, deliverable to the order of the ship- 
 per, and indorsed in blank, it was determined, that the 
 house in London could not pledge the bill of lading to 
 their own bankers (who had notice of the consignment, 
 and knew the nature of the transaction) for advances on 
 their own account, although there had been other trans- 
 actions, independent of the contract between the house 
 in Dublin and the London house, upon which account, 
 the former was indebted ; and although the house in 
 Lo7idon was under acceptances to a considerable amount, 
 in anticipation of the particular, and other bills of lading 
 of the shipments to be made from Irela?id.(^s.) 
 
 Independently of the instances we have enumerated, 
 one partner may, in any other case of simple contract, 
 
 effectually pledge the partnership firm to the 
 [ *55 ] performance of an engagement *he may singly 
 
 make, if it be done in the usual and accustomed 
 mode of dealing, and have relation to the trade in which 
 the partners are jointly engaged.(l) And where the 
 
 {q) S. C. in error, 1 McClelland v. Younge, 307. 
 
 (r) Paley Pr. & Ag. 180. (s) Snaith v. Burridge, 4 Taunt. 684. 
 
 (I) Whether, where one partner hired five slaves, for partnership 
 account, and gave a writing signed by himself alone, certifying that he 
 had hired the said slaves at the price of $350, and that this should enti- 
 tle the person from whom he hired them to the other partner's bond for
 
 THE FIRM BY SIMPLE CONTRACTS. 55 
 
 transaction, which furnishes to a stranger an apparent 
 claim upon the firm, took its origin in a deahng with one 
 partner, strictly within the ordinary course of" business, 
 it affords the firm no ground of exemption from the re- 
 sponsibility created, that, in consequence of the fraudu- 
 lent and dishonest conduct of the particular partner, the 
 transaction, in respect of which they are charged, was 
 beneficial to himself alone ; for, by forming the connec- 
 tion of partnership, the partners declare themselves to 
 the world satisfied with the good faith and integrity of 
 each other, and impliedly undertake to be responsible 
 for what they shall respectively do within the compass 
 of the partnersliip concerns. Therefore, if after a gene- 
 ral partnership between two conveyancers in the coun- 
 try, money is received partly by one of the firm and 
 partly by the other, to be laid out upon a mortgage, 
 which is forged by one of the partners, without the 
 knowledge of the other, the innocent partner is liable to 
 repay the money. (^) (1) Even where the representations 
 made by one partner to a person dealing with the firm 
 are not only untrue, but the supposed transactions, out 
 of which a joint liability arises and to which the repre- 
 sentations refer, are fictitious, the innocent partner will 
 be bound to fulfil them, if it was within the scope of the 
 particular partner's authority to do what he has untruly 
 stated to have been done.(u) (2) But in a matter wholly 
 
 (t) Willet V. Chambers, Cowp. 814. 
 
 [u) Rapp V. Latham, 2 B. & A. 795. And see Harding v. Carter, 
 Park on Ins. 4. Stone v. Marsh, 6 B. & C. 551. Hume v. Bolland, 
 1 Ry.& Mood. 371. 
 
 the same, payable on the 1st of Januori/, 1811, an action could be sus- 
 tained against both partners on the refusal to give such bond ? See 
 fVoody V. Floumoy, 6 Munf. 506. 
 
 (1) See Mamifadurers and Mechanics Bank v. Gore et al. Board- 
 man V. Gore ei al. 15 Mass. Rep. 75, 331. See, also, Hadjield v. 
 Jameson, 2 Munf. 53. McFarland v. Crary et al. 8 Cow. Rep. 253. 
 Church V. Sparrojv, 5 Wend. 223. 
 
 (2) But if money be lent to one of two partners, who says he bor- 
 rows it for the firm, and he misapply it, and there be proof that the 
 plaintiff lent it under circumstances of negligence, and out of the ordi- 
 nary course of business, he cannot recover against the other partner. 
 Lloyd et al. v. Freshjield et al. 2 Uarr & Payne, 325.
 
 55 
 
 ONE PARTNER BINDING. 
 
 unconnected with the partnership, one partner cannot 
 bind the others.(v) (1) And where one engages in any 
 contract connected with the business, for which he solely 
 derives the benefit, and this circumstance is known to 
 the person with whom he contracts, the firm will not be 
 liable. Thus, where the proprietor of a stage coach 
 intended to relinquish a part of his interest in the con- 
 cern in favour of a particular person, and that person 
 agreed with one of the proprietors of the mail-coach, 
 who was also the book-keeper, to resign the refusal to 
 him in consideration that his family and private parcels 
 should be carried free by the mail ; and, in pursuance 
 
 of such agreement, the parcels were conveyed 
 [ *56 ] exempt from carriage for two years, *and one 
 
 was afterwards lost ; it was determined that this 
 agreement did not bind all the proprietors, and conse- 
 quently that they were not jointly responsible to make 
 good the loss, unless actual notice of the existence of 
 the understanding had been given to them, to which 
 they did not object.(tij) Positive consent, however, or 
 acquiescence, which in all cases may be inferred from 
 passive privity, will induce that responsibility upon part- 
 ners which a different line of conduct would have 
 averted. For instance, in the case to which we last 
 alluded, all the members of the firm might have been 
 compelled to answer in damages for the loss of the par- 
 cel, if they had been cognizant of the arrangement be- 
 tween the individual partner and the ow^ner of the parcel, 
 and had neglected to signify their disapprobation of it. 
 
 (v) Sandilands v. Marsh, 2 B. & A. 678 
 
 (iv) Bignold v. Waterhouse, 1 Maul. & Selw. 259. 
 
 (1) Per Van Ness, J., Livingston v. Roosevelt, 4 Johns. Rep. 265, 
 266. Per Duncan, J., 12 Serg, & Rawle, 15. So a co-partnership 
 formed to transport passengers and their baggage, by a line of stages, 
 does not, from the mere nature of the business, authorise one of the 
 partners to bind the firm, unless they expressly assent, by an agree- 
 ment, to convey a person a given distance, within a specified time. 
 fValcot V. Canjield et al. 3 Conn. Rep. 194. So in Scotland it has 
 been held, that subscribing to a Canal Company was beyond the ordi- 
 nary power of a partner. Bo-ness Canal Company against McMpine^ 
 Fleming ^ Co. stated 2 BelVs Comm. 615, n. 2.
 
 THE FIRM BY SIMPLE CONTRACTS. 56 
 
 Therefore, where one of several defendants partners as 
 carriers, together with the coach-office keeper, had 
 agreed with a party to carry at the ordinary rates, not- 
 withstanding the notice, and there had been subsequent 
 accounts settled upon the footing of such contract, it 
 was held that the carriers were liable, and not only the 
 partners at the time, but all who might afterwards be- 
 come so, until special notice given, of an intention to re- 
 scind the contract.(.r) So it has been determined, that 
 where one of two partners makes a contract as to the 
 terms on which any business is to be transacted by the 
 firm, although such business is not only not in their 
 usual course of dealing, but is even contrary to their ar- 
 rangement with each other; yet if the business is after- 
 wards transacted by or with the knowledge of the other 
 partner, he is bound by the contract made by his part- 
 ner.(.y)(l) 
 
 One partner can likewise bind the firm by a guarantee 
 to be answerable for the debt or responsibility of a third 
 person, given in a matter that relates to the partnership. 
 In the case of Hope v. Ciist^{z) Lord Mansfield laid down, 
 that one partner may bind his co-partners by giving a 
 letter of credit or guarantee in the joint name, and that 
 the person in whose favour the guarantee is given has a 
 remedy upon it against all the partners ; although, where 
 such an instrument is given without the consent of the 
 other partners, and is contrary to their interests, 
 the court will look at *it very strictl}^; and if there [ *57 ] 
 be any ground for a suspicion of " Covin, or such 
 gross negligence as may amount to or be equivalent to 
 covin," the partners will not be liable. And in a more 
 recent case(a) in which a single partner, in the partnership 
 name had guaraYiteed the payment of certain purchases 
 made by a person unconnected with the firm, and the 
 
 {x) Helsby v. Mears, 5 B. & C. 504. S. C. 8 D. & R. 289. 
 (y) Sandilands v. Marsh, 2 B. & A. 673. 
 (z) Cited in Shirreff v. Wilks, 1 East, 53. 
 (a) Ex parte Gardom, 15 Ves. 286. 
 
 (1) See Marsh v. Gold et al. 2 Pick. Rep. 285.
 
 56 
 
 ONE PARTNER BINDING 
 
 counsel(i) declined arguing whether such a guarantee 
 bound the partnership, Lord Eldon remarked that the ob- 
 jection, that the partership was not bound by the sig- 
 nature of one partner, was properly abandoned. So in Ex 
 parte Rolfe,(c) the same learned lord stated the distinction 
 to be, that a partner has no right to guarantee a separate 
 transaction at the expense of the other partners, where 
 they are not concerned ; but that a partner may give a 
 guarantee for his partners, in a matter that relates to 
 the partnership. And although a case which came 
 before Lord Ellenhorough may appear to conflict with 
 these authorities ; yet on close investigation it is per- 
 fectly reconcilable. That was an action(rf) against 
 partners on a guarantee given by one of them without 
 special authority, for the payment of a bill of exchange, 
 and there being no evidence to show that the transaction 
 was connected with the partnership, his lordship held 
 that the guarantee was not binding on the firm;(l) but 
 to prove an authority so to bind the partnership, he said 
 that a subsequent recognition would be tantamount to a 
 previous command ; and that an authority in the par- 
 ticular instance should be inferred, if a previous course 
 of dealing were shown, in which similar guarantees had 
 been given in the partnership name, with the privity of 
 all the partners. Where one partner, with the knowledge 
 of his co-partners, gives a guarantee in a transaction not 
 referable to the partnership, they can of course adopt it, 
 in which case they are concluded from objecting to the 
 want of authority in the partner giving it ; and Lord 
 Eldon has said that, if partners are informed of such a 
 measure having been taken by their partner, though 
 perhaps not in that particular transaction, and they do 
 not think proper to state whether they authorised such 
 
 h) Sir S. Romilly. (c) 2 Gl. & Jam. 306. 
 d) Duncan v. Lowndes, 3 Campb. 478. 
 
 (1) See iM9of V, Sabin, 19 Johns. Rep. 154. A^ew York Firemen 
 Ins. Co. V. Bennett et al. 5 Conn. Rep. 574. Bank of Rochester v. 
 Bowen. Boyd v. Plumb, 7 Wend. 158. 309. Hamill v. Purvis, 2 
 Penns. Rep. 177.
 
 THE FIRM BY A GUARANTEE. 57 
 
 partner so to act or not, it is not too much to take it for 
 granted that they accede to the guarantee which their 
 partner has given. (e) Where a guarantee given by one 
 partner, has reference to business actually trans- 
 acted by *the partnership, it will be binding upon [ *58 ] 
 the firm, though the business so transacted was 
 out of the ordinary course of their partnership business.(l) 
 Thus, where A employed B and C, who were his navy 
 agents, to lay out money in the purchase of an annuity 
 for him, of which, and of the fact of the money being 
 laid out, both were cognisant; but B, unknown to C, 
 guaranteed the punctual payment of the annuity, it was 
 held that though it was no part of the business of navy 
 agents to negociate annuities, yet that C was bound by 
 this enjiaffement of B's : for beincr connected with the 
 transaction, which both had undertaken, and to which 
 both were privy, it became in point of law, an assurance 
 made by one partner with reference to business trans- 
 acted by both.(/)(2) 
 
 Although, in simple contracts, which may have a ten- 
 dency to promote the common object, the act of each 
 partner binds all the others, yet one partner cannot, as 
 such, bind another by deed, even in commercial dealings ; 
 and this both for technical reasons, and on the general 
 policy of the law. No custom could extend to the exe- 
 cution of instruments of such efficacy as deeds ; the 
 sealing and delivery by the party, or some one expressly 
 authorized by him, who thus Ijecomes his attorney for 
 the purpose, are indispensably necessary; and such a 
 power if allowed, would have the most mischievous ten- 
 dency; for, as the want of consideration for securities 
 
 (e) Ex parte Nolle, 2 Gl. & Jam. 306. 
 (/) Sandilands v. Marsh, 2 B. & A. 673. 
 
 (1) Sutton fy McNickle v. Irwine ct. al. 12 Serg. & Rawle, 13. 
 
 (2) So where a guaranty is given personally and individually to one 
 of several partners in a firm, an action may be maintained upon it in 
 the names of all the firm, if it appears that the guaranty was intended 
 for the benefit of all. Garrett et al. v. Handley 7 Dow. &l Rvl. 144. 
 S. C. 4 Barn. & Cresw. 664. 
 
 . 11
 
 58 ONE PARTNER BINDING 
 
 under seal cannot be inquired into, it would extend to 
 the case of mortgages, and would enable a partner to 
 give to a favourite creditor a real lien on the estates of 
 the other partners. This question was agitated in a 
 case in which a deed was executed by one partner in a 
 partnership transaction, for a full and valuable con- 
 sideration received by all the partners ; but it was de- 
 cided by the Court of King's Bench that the deed was 
 inoperative against the firm. (^•) (1) Nor will the cir- 
 cumstance of the partnership being constituted by deed 
 make any difference j(/i) unless a particular power au- 
 thorising the partners to execute such instruments for 
 each other be reserved.(i) (2) It has indeed been ruled 
 
 by Lord Mansfield^ that, for a partnership debt, 
 [ *59 ] one partner has authority to *execute a bond for 
 
 his co-partners ;(i^) the propriety, however, of this 
 decision cannot now be canvassed, because the facts 
 that it involved are not sufficiently disclosed. (/) But, 
 notwithstanding one partner has not an implied autho- 
 rity to bind his co-partners by deed, his signature to a 
 
 (§•) Harrison v. Jackson, 7 T. R. 207. See also Thomason v. Frere, 
 10 East, 418. (Ji) Harrison v. Jackson, supra. 
 
 (i) Id. Ibid. Steiglitz v. Egginton, Holt's N. P. C. 141. 
 
 (Ar) Mears v. Serocold, cited by Dumpier, in arg. in Harrison v, 
 Jackson, supra. (/) Per Lord ^en»/o/i, Harrison v. Jackson, supra. 
 
 (1) Clement v. Brush, 3 John. Ca. 180. .Anonymous, Tayl. Rep. 
 113. Becker v. Kirk, cited 2 Caines' Ca. 5. See 4 Day's Rep. 429, 
 430. Gerard v. Basse et al. 1 Dall. 119. Anon. 2 Hayw. Rep. 29, 
 over ruling Walker et al. v. Dickerson et al. 2 Hayw. Rep. 23. See 
 Garland v. Davidson, 3 Mimf. 189. Case of James Taylor, 1 P. A. 
 Browne's Rep. App. Ixxiii. Person v. Carter et al. 3 Murph. Rep. 
 321. TVilliams V. Hodgson, 2 Har. &, Johns. 474. McBride v. Ha- 
 gan, 1 Wend. Rep. 326; 4 Day's Rep. 428, 429. The- United States 
 V. Astley et al. 3 Wash. C. C. Rep. 508; 1 McCord's Cha. Rep. 171 ; 
 Blackburn v. McAllister, Peck's [Tenn.) Rep. 371. See and consider 
 Orr V. Chace, 1 Meriv. Rep. 729 — a case which seems contrary to es- 
 tablished doctrine. See 11 Pick, Rep. 403. 
 
 (2) Trimble v. Coons, 2 Marsh. Rep. (Kentucky) 376 — where it is 
 said that the authority must be under seal. In Skinner v. Dayton, 19 
 Johns. Rep. 513, it was held'according to the marginal abstract of the 
 case, that such authority may be by parol. See 3 Kenfs Com. 48, 2d 
 edit. So also in Cady v. Shepherd, 11 Pick. Rep. 400. Gram v. 
 Seton, I Hall's. Rep. 262. Jackson v. Porter, 20 Martin's Louis, 
 Rep. 200.
 
 THE FIRM BY DEED. 59 
 
 a deed on the behalf of the firm will be binding upon 
 them, if it be done with the express sanction of the dif- 
 ferent members, and in their presence. Thus, where one 
 partner by the authority of his co-partner, and in his 
 presence, executed a deed for both of them, in a trans- 
 action in which they were both interested, it was decided 
 to be a vahd execution to charge both, though the deed 
 'Was sealed only once.(m)(l) In such a case, it is not 
 essential that each partner should actually deliver the 
 deed, the fact of the presence of all the partners at the 
 time of its execution, and the circumstance of their 
 treating the deed as their own, being sufficient to raise 
 the inference of a constructive delivery as against all of 
 them.(w) And a warrant of attorney under seal, exe- 
 cuted by one person for himself and his partner, in the 
 absence of the latter, but with his consent, is a sufficient 
 authority for signing judgment against both.(o) (2) But 
 a subsequent acknowledgment by one partner, that he 
 gave an authority to execute a deed on his behalf, will 
 
 (wi.)Ball V. Dunsterville, 4 T. R. 313. See also Lord Lovelace's 
 case, Sir W. Jones, 268.— Williams v. Walsby, 4 Esp. N. P. C 220. 
 (n) Burn v. Burn, 3 Vesey, 578. 
 
 (0) Brutton v Burton, 1 Chit. Rep. 707. But judgment cannot be 
 entered up against two defendants on a wnrrant of attorney, purporting 
 to be an authority to confess a judgment against three, but signed only 
 by two, the third refusing to execute it. Harris v. Wade, Ibid. 322. 
 
 (1) Per Storv, J., Halsey et al. v. Whitney et al. 4 Mason's Rep. 
 232; Mackay v. Bloodgood et al. 9 Johns. Rep. 285, a stronger case 
 than Ball v. Dunsterville, as the deed was not executed in the imme- 
 diate presence of the partner who did not sign and seal. See Ludloiv 
 V. Simond, 2 Caines' Ca. 1. But the instrument must be so worded 
 and executed, as to exhibit on its face the intention to bind the partner- 
 ship, and to preclude the inference that is an individual engagement. 
 Meade v. Tomlinson, 1 Day's Rep. 148. In that case it was decided, 
 that a surviving partner could not maintain an action of covenant on a 
 charter-party entered into by his deceased co-partner, in his own name, 
 with the defendant. It appeared that the charter-party was entered 
 into by the deceased for the joint account of the plaintiff and himself, 
 but the plaintiff was not named, nor the partnership mentioned. The 
 report is not very satisfactory, and the decision is contrary to the prin- 
 ciples laid down by the King's Bench in Garrett et al v. Handle^}, 3 
 Dowl. & Ryl. 144. See also Tultle v. Eskridge, 2 Munf. 330. Shel- 
 ton V. Pollock, 1 Hen. & Munf. 422. 
 
 (2) Nichols V. Chapman, 9 Wend. Rep. 454, contra.
 
 59 
 
 ONE PARTNER BINDING 
 
 not give the deed validity as against him, unless the 
 authority itself be shown to have been legal, and under 
 seal.(/>)(l) 
 
 Where one partner executes a bond in his own name 
 and that of his co-partner, as their joint and several 
 bond, the bond, although inoperative against the latter, 
 is still a valid separate bond of the partner by whom it 
 was executed ; for he cannot avail himself of the objec- 
 tion arising from the non-execution by his co-part- 
 ner.{q) (2) So, if a partner, on behalf of himself and 
 his co-partner, refer all differences between them and a 
 third person to arbitrators, and promise to per- 
 [ *60 ] form their award, which ^directs, that the suits 
 
 (p.) Steiglitz V. Egginton, Holt's N. P. C. 141. 
 {q) Elliott V. Davis, 2 Bos. and Pul. 338, Hawkshaw v. Parkins, 
 Swanst. 543. 
 
 (1) Skinner v. Dayton, 19 Johns. Rep. 513. Cady v. Shepherd, 11 
 Pick. Rep. 400. Gram v. Sefon, 1 Hall's Rep. 262, contra. In the 
 case of Darst et al v. Both, 4 Wash. C. C. Rep. 471, the action was 
 brought by the plaintiffs upon a covenant executed by one of them, 
 and having only the signature and seal of Henry Darst 4' Co. and of 
 the defendant, and the execution of the deed by one of the plaintiffs, 
 with the assent of the otheic, was proved by their subsequent rati- 
 fication only. The defendant liofh, by whom the deed was certainly 
 well executed, after the performance by the plaintiffs of the contract on 
 their parts, raised the question as to the validity of the execution of 
 the deed by the plaintiffs, against them, they seeking to enforce the 
 performance by the defendant of his contract. In Steiglitz v. Eggin- 
 ton the defendants were sued upon award, made upon a submission 
 imder seal, executed by one of them, for " self and partner,'''' in his 
 own name, and the defective execution was sought to be supplied by 
 evidence of the subsequent acknowledgment of the other partner, that 
 he had agreed to the submission. The doctrine of the text is supported 
 by the case of Hart v. Schaiib, 1 Penns. Rep. 285. Pickering v. Holt, 
 6 Greenl. Rep. 160. Hanford v. McXair, Blood v. Goodrich. 9 
 Wend. Rep. 68. 12 Wend. Rep. 525. See 12 Wend. Rep. 55. 
 
 (2) Green et al. v. Beats, 2 Gaines' Rep. 254. Clement v. Brush, 
 3 Johns. Ca. 140. Skinner v. Dayton, 19 Johns. Rep. 513. Wil- 
 liams V. Hodgson, 2 Harr. &, John. 474. Gates v. Graham, 12 
 Wend. Rep. 53. But the action must be brought against the partner 
 alone who executed the obligation ; for if the other partners be joined, 
 the plaintiff cannot recover against them, nor against the partner who 
 actually did execute the instrument, Hart v. Schaub, 1 Penns. Rep. 
 285.
 
 THE FIRM BY A RELEASE. 60 
 
 against such partner shall cease, and that he shall 
 pay a certain sum; such partner is liahle to an action 
 for non-performance of the award, although the other 
 partner is not made a party to the submission. (r) (1) But 
 where an individual partner executes a deed for himself 
 separately, on the faith and understanding that it is to 
 be executed by all the partners, it does not bind him un- 
 less the execution of all is procured, on the principle that 
 the transaction is incomplete. It has, therefore been 
 determined that an award made against one member of 
 a firm, by virtue of a deed of reference executed only 
 by such member, upon the faith that it was to be exe- 
 cuted by all the partners, is not evidence of a debt due 
 from such partner.(.s) In bankruptcy, however, as \\ill 
 be hereafter seen, one partner can execute a deed on 
 behalf of himself and his co-partners, and it will be 
 
 (r) Strangford v. Green, 2 Mod. 228. 
 
 (s) Antram v. Chase, 15 East, 209. See also Dutton v. Morrison, 
 17 Vesey, 193. Johnson v. Baker, 4 B. & A. 440. 
 
 (1) Slead et al. v. Salt, 10 Moore's Rep. 389. 3 Bingh. 101. 
 S. C. This was the case of a submission not under seal, and was 
 decided upon the authority of Strangford v. Green. In Pennsylvania, 
 however, it had been decided, that one partner, unless perhaps where 
 there is express dissent on the part of the other partner communicated 
 to the party litigant with the firm, may by agreement in writing not 
 under seal, refer any partnership matter, and the award will be binding 
 on the firm. Taylor v. Coryell, 12 Serg. & Rawle, 243. And the 
 same point has been decided in Kentucky, Southard et al. v, Steele, 3 
 Monroe's Rep. 433. Though one partner, as such, cannot bind his 
 co-partner by a bond, or writing under seal, to comply with an award ; 
 (McBride et al. v. Ilagan et al. 1 Wend Rep, 326. Karthaus v. Ferrer 
 et al. 2 Peter's Sup. C. 222,) yet where an award is made pursuant 
 to a submission so executed by one partner, who, afterwards, accepts 
 the amount awarded on favour of the partnership, and indorses a re- 
 ceipt in full in the award, it is sufficient to bar the co-partnership claim; 
 for it operates either as a release by one partner, or as an award and 
 satisfaction. Buchanans v. Curry, 19 Johns. Rep. 137. The case of 
 Fletcher v. Pollard, 2 Hen. & Munf. .544,. was a decison between two 
 partners ; one of whom, after a bill filed by the plaintiff against him- 
 self and another defendant, also a partner, the partnership consisting of 
 three, made an agreement v;ith the plaintiff, by. which all matters in 
 difference between himself and the plaintiff, relating to the " co-part- 
 nery," were referred to referees, who made an award, which was held 
 to be binding between the parlies to the agreement to refer.
 
 60 
 
 ONE PARTNER BINDING 
 
 binding upon the latter.(/) This, indeed, is an excep- 
 tion, and has never been considered as impeaching the 
 general rule. 
 
 But although one partner cannot, by deed, bring any 
 fresh burden upon his co-partner, he may, by deed, bar 
 him of a right which they possess jointly. Where there 
 is a promise to several jointly, or there are several joint 
 obligees or covenantees, a release by one binds all;(M)(l) 
 and, as contracts with a partnership are made jointly 
 with all its members, one may therefore defeat the 
 claims of the rest. In this respect the law of England 
 corresponds with the rule of the civil law, Acceptilatione 
 unius tollitur obUgatw;(v) for in the same manner as a 
 payment of the whole, to any one of the creditors, libe- 
 rates the debtor against all, a release by one, which 
 presupposes satisfaction, ought to have the same effect. 
 This may seem hard; but a deed implies a full con- 
 sideration, which, in the case of a release, would 
 [*61 ] be for the joint benefit of all the partners; *and 
 if any prejudice is sustained by the misconduct 
 of one, the law imputes it to the folly of the others, who 
 have associated with a man so neglectful of their in- 
 terests.(t^) Thus, where an action was brought by 
 several partners as indorsees of a promissory note 
 
 {t) Ex parte Mitchell, 14 Ves. 597. Ex parte Hall, 1 Rose, B. C, 
 2. Ex parte Hodgkinson, 19 Ves. 291. S. S. Coop. Case, 99. 
 See also post. 
 
 (m) Co. Litt. 232. a. Tooker's Case, 2 Rep. 68, Bac. Abr. Tit. Re- 
 lease, D. Com. Dig. Tit. Release, 2 Rol. Abr. 410. Arton v. Booth, 
 4 B. Moore, 194. Hawkshaw v. Parkins. 2 Swanst. 542. Sheph. 
 Touchst. 335. Per Lord Kenyan, Perry v. Jackson, 4 T. R. 516. 
 Stead V. Salt, 3 Bingh. 103. 
 
 {v) Inst. 1. 2. ff. de duob. reis. [w) 6 Rep. 25. a. 
 
 (1) Pierson et al. v. Hooker, 3 Johns. Rep. 68. Bulkley et al. v. 
 Dayton et al. 14 Johns. Rep. 387. Bruen v. Marquand, 17 Johns. 
 Rep. 58. And though the release be executed after the dissolution of 
 partnership, by a partner who had no authority to release more than 
 his own moiety of the debt, the action against the debtor is gone. Sal' 
 man and Brown v. Davis, 4 Binn. 375. Napier v. Bapelje, 9 Wend. 
 Rep. 120. Smith V. Stone, 4 Gill. & Johns. 310.
 
 THE FIRM BY A RELEASE. 61 
 
 against th6 defendant as indorser, and it appeared in 
 evidence that one of the partners had discharged a prior 
 indorser by a deed of composition ; it was holden, that 
 such deed not only bound the partnership, but operated 
 as a release to the defendant.(a:) But, in cases of gross 
 collusion with debtors, where fraud manifestly appears, 
 a court of law will control the legal power of one part- 
 ner to release the debt, and in the exercise of its equit- 
 able authority, will set aside a release granted by him.(l) 
 A strong case of fraud must, however, be clearly estab- 
 lished in the particular instance ; for although it be con- 
 trary to agreement that the releasor should interfere in 
 the receipt or discharge of the debt released, and, on 
 that account, his release is improper, yet, unless the 
 transaction be proved to have been fraudulent, the re- 
 lease will be effectual and binding.(?/) Where, therefore, 
 two plaintiffs, who were partners, instructed their attor- 
 ney to proceed to trial, in an action brought by them 
 against the defendant for misrepresentation as to their 
 solvency ; and a few days before the trial, one of them 
 gave a release to the defendant, without the knowledge 
 of or communication with such attorney, the court re- 
 fused to interfere.(z) But it will always be considered, 
 in what right the release is given by a joint obligee. If 
 he release all actions in a representative capacity, a 
 joint bond in his own right is not discharged, and so vice 
 
 (x) Ellison and others v. Dezell, Bristol Sum. Ass. 1811. Selw. N. 
 P. (5th ed.) 362. 
 
 (y) Arton v. Booth, 4 B. Moore, 192. See also Leghv. Legh, 1 Bos. 
 & Pul. 447. Jones v. Herbert, 7 Taunt. 421. Skaife v. Jackson, 3 
 B. &C. 421. 
 
 (z) Furnival v. Weston, 7 B. Moore, 356. 
 
 (1) Therefore, one partner cannot, during the continuance of the 
 partnership, release a debt due to the firm, in consideration of a debt 
 due from himself individually ; and if such appear to be the fact on the 
 face of the release, it is void. Gram et al. v. CaldwelU 5 Cow. Rep. 
 489. See Evernghim v. Ensworth, 7 Wend. Rep. 326. Hulls et al. 
 V. Coe, 4 McCord's Rep. 136, contra.
 
 61 
 
 ONE PARTNER BINDING 
 
 versa.(l) Thus, in an old case,(a) A and B took an 
 obligation from C, for the payment to them of a sum of 
 money, and this was done by them as trustees, and for 
 securing the payment of legacies to younger children : 
 A brought an action on this bond, to which C pleaded a 
 release from B; but upon oyer it appeared that the release 
 
 was of all actions which B had on his own account; 
 [ *62 ] and in truth *B did not know of the taking of the 
 
 bond, nor was he privy to the suit; and though 
 it was objected that the release of one abhgee discharged 
 the bond, and that it must be on his own account, yet it 
 was adjudged that the release did not operate as a bar ; 
 for that the words " on his own accoimt" must have been 
 inserted for some purpose, and could not in this case be 
 for any other, but to distinguish demands, which B had 
 in his own right, from those he had in right of or in 
 trust for others. And, if A be bound to B and C, sol- 
 vend^ the moiety to B, and the other to C, the release of 
 one shall not prejudice the other; and if there are seve- 
 ral covenantees in the same deed, one covenantee will 
 not be bound by a release from the others.(&) 
 
 A receipt for a joint debt by one partner will also 
 operate the discharge of the debtor against any claim 
 of the other partner, where the money in respect of 
 which the receipt is given has been ho)ia fide paid. Thus, 
 where on a dissolution of partnership it was agreed that 
 an agent should receive the joint debts, and such agree- 
 ment was recognised by a debtor of the firm, but one of 
 the firm afterwards countermanded the agent's autho- 
 rity, and demanded payment of the debt, a receipt from 
 such partner was held to discharge the debtor from 
 future liability.(c) But a receipt is only a prima facie 
 
 (a) Stokes v. Stokes, 1 Vent. 35. 1 Lev. 272. 2 Keb. 530. But see 
 Bayley v. Loyd, 7 Mod. 250. 
 
 (b) Moor, 64. 
 
 (c) Bristow V. Taylor, 2 Stark. N. P. C. 50. S. C. 6Mau. & Selw. 156. 
 
 (1) See Clement V. Brush, 3 Johns. Ca, 180 — a very particular case. 
 See also Emerson v. Knower, 8 Pick. Rep. 63.
 
 - THE FIRM IN LEGAL PROCEEDINGS. 62 
 
 acknowledgment that a debt has been paid ; and if it ap- 
 pears to have been obtained by fraud, it will not prevent 
 the creditors from suing their debtor. Thus, in an action 
 by two co-trustees for money had and received to their 
 use, the defendant produced a receipt for the amount 
 given by one of the plaintiffs : on the part of the plain- 
 tiffs, evidence was admitted to show that the giving the 
 receipt was a fraudulent transaction, and that the money 
 had not been paid, and the plaintiffs recovered.(<?) 
 
 Payment to one partner is also payment to all, and 
 will entail upon each the obligation of refunding if the 
 payment was lawful. Therefore, when one of two part- 
 ners, being about to dissolve partnership, took a 
 warrant of attorney to himself *alone from a [*63] 
 debtor, to secure the payment of a debt to the 
 partnership, by instalments, and he, after the debtor had 
 committed an act of bankruptcy, and after the dissolu- 
 tion of partnership, received part of such a debt, and 
 died after the commission was sued out ; it was held, 
 that the surviving partner, in the absence of any evi- 
 dence of his being exonerated by the terms of the dis- 
 solution, was liable to repay to the assignees of the 
 debtor the money so received after his bankruptcy.(e) 
 And, on the principal of payment to one being payment 
 to all, an acknowledgment of payment by one partner is 
 conclusive evidence against the demand of another. 
 Therefore, where in the case of a particular partnership, 
 in which two different houses, one in London^ the other 
 abroad, agreed to share profits of mutual consignments, 
 recommended to each by the other ; the house abroad 
 having acknowledged the receipt and subsequent sale of 
 
 (d) Skaife v. Jackson, 3 B. & C. 421. And see Henderson v. Wild, 
 2 Campb. 561. 
 
 (e) Biggs V. Fellows, 8 B. & C. 402. S. C. 2 Man. & Ryl. 450. 
 A rule nisi for entering a nonsuit in an action of trover between the 
 same parties, for the value of goods delivered after the act of bank- 
 ruptcy, and before the dissolution of partnership, was discharged, 
 without calling upon the counsel for the plaintiff; the delivery of the 
 goods being originally to the two partners, and the custody and the in- 
 terest continuing unchanged down to the time of the tinal conversion 
 by sale. 
 
 12
 
 63 ONE PARTNER BINDING 
 
 goods, consigned to them by a third party, at the recom- 
 mendation of the London house, the latter advanced 
 money to the consignor, expecting to be repaid by the 
 house abroad, but on the failure of that house brought 
 an action against the consignor to recover the advances 
 which had been made by them ; it was held, that as the 
 participation in the profits constituted a partnership be- 
 tween the two houses quoad hoc, the acknowledgment of 
 the receipt and sale of the goods, consigned by the 
 house abroad, was, in effect, a receipt by the house in 
 London, and therefore that the advance of money was 
 merely a payment of money, for which they were pre- 
 viously accountable.(/^) 
 
 Independently of commercial transactions, one part- 
 ner may bind another in legal proceedings. Partners 
 being identified in interest, the acts and admissions of 
 any one, with reference to the common object, are the 
 acts and declarations of all, and are binding upon all.(l) 
 Therefore, until the late act of parliament, which re- 
 quires a written memorandum to take any case out of 
 the operation of the statute of limitations,(^) (2) 
 [ *64 ] where there was a * joint and several engage- 
 ment for the payment of money, an acknowledg- 
 ment by one of the debtors of its existence was held 
 sufficient to deprive the others of the benefit of a plea 
 
 (/) Cheap V. Cramond, 4 B. & A. 663. 
 
 (g") 9 Geo. 4. c. 14. § 1, which enacts, that where there shall be 
 two or more joint contractors, or executors, or administrators of any 
 contractor, no such joint contractor, executor, or administrator, shall 
 lose the benefit of the 21 Jac. 1. c. 16. (statute of limitations), so as to 
 be chargeable in respect, or by reason only, of any written acknow- 
 ledgment or promise, made and signed by any other or others of 
 them. 
 
 (1) Corps V. Rohinso7i et al 2 Wash. C. C. Rep. 388. Bound et al. 
 V. Lathrop, 4 Conn. Rep. 336. Fiak v. Copeland, Overt. Rep. 383. 
 Per Parker, C. J, Odiorne v. Maxcy, 15 Mass. Rep. 44. 
 
 (2) Per Story, J. 1 Gallis. Rep. 635. Johnson v. Beardlee ef.al. 
 15 Johns. Rep. 4. Bound etal. v. Lathrop, 4 Conn. Rep. 336. 2 Pick. 
 Rep. 583. The acknowledgment will be binding although made after dis- 
 solution of the partnership. Shelton v. Cocke et al. 3 Munf. 191. 
 Smith V. Walker et al. 6 Johns Rep. 267. Ward v. Howell, 5 Harr. 
 <fc Johns. 60. Hopkins \. Banks et al. 7 Cow. Rep. 650. J^Jliite v.
 
 THE FIRM IN LEGAL PROCEEDINGS. 64 
 
 of that statute.(A) It is clear that such an acknowledg- 
 ment made by an individual debtor would have revived 
 the debt against him, and there could be no ground for 
 distinguishing between the case of one and many debtors, 
 where only one of them made the acknowledgment ; for 
 the party from whom the acknowledgment proceeded 
 could not deny the existence of the debt, and if the ac- 
 knowledgment of one, where only one was sued, would 
 prevent the operation of the statute of limitations, so also 
 would the acknowledgment of one where many were 
 sued. To hold otherwise would have been to establish 
 an anomaly in the law, because in other cases an ac- 
 knowledgment by one of many, who are jointly concern- 
 ed, is binding on the rest.(i) That doctrine has been 
 applied to acknowledgments in cases of trespass, conspi- 
 racy, and other offences, up to high treason. (^) It fol- 
 lows, therefore, that admissions by one partner must be 
 governed by the same principle, and that they will be 
 binding on the firm. And even after a dissolution of the 
 partnership, the admission of one partner is binding 
 upon his co-partner if it relate to a transaction which 
 occurred during the existence of the partnership; for, 
 
 (A) Whiteomb v. Whiting, Dougl. 651. Perry v. Jackson, 6 T. R. 
 516. Perhain v Kaynal, 2 Bingh. 306. ace. But see Bland v. Hasel- 
 rig, 2 Ventr. 151, contra, and the observations of the Judges in deliver- 
 ing judgment on the cases of Atkins v. Tredgold, 2 B. & C. 23. and 
 Brandram v. Wharton, 1 B. &; A. 463. See also Grant v. Jackson, 
 Peake's N. P. C. 202,, and post, where this subject is more fully ex- 
 plained. 
 
 (i) Vicary's case, Bac. Abr. Tit. Evidence, 623. S. C. G. Evid. 51. 
 
 {k) See 1 Phill. on Evid. 96, et seq. 
 
 Hall, 3 Pick. Rep. 291. ./Jws/m v. Bosiivick, 9Conn. Rep. 496. Pat- 
 terson V. Shoate, 7 Wend. Rep. 441. Unless the acknowledgment be 
 made with a vie\v to the advantage of the party making it, to a party 
 who has notice of his object. Coit v. Tracy, 8 Conn. Rep. 268 ; 
 9 Conn. Rep. 1. A different doctrine prevails in /'eunsy/uam'a and 
 Kentucky. In those States it has been decided on solemn argument, 
 that after the dissolution of a partnership, one partner cannot, by his 
 acknowledgment, revive a partnership debt, so as to deprive the others 
 of the benefit of the statute of limitations. Levy v. Cadet, 17 Serg. <fe 
 Rawle, 126. Searight v. Craighead, 1 Penns. Rep. 135. Hell \. 
 Morrison, Peter's Sup. C. Rep. 352. See as to South Carolina, 
 Ktsher's Ex. v. Tucker's Ex. 1 McCord's Cha. Rep. 170.
 
 64 
 
 ONE PARTNER BINDING 
 
 with regard to things past, the partnership is not dis- 
 solved, but only with respect to things future.(/) (1) 
 Thus, when the creditor of a partnership, in discharge 
 of a demand against himself, assigned to a third person 
 the debt owing to him by the firm, it was determined 
 that a verbal promise, by one of the partners, to pay 
 such debt to the assignee, was not within the statute of 
 
 frauds; for it was not an undertaking for the 
 [ *65 ] debt of ^another, the old debt being extinguished 
 
 and a new one created : and that the promise 
 bound, not only the party who made it, but the whole 
 partnership, even though some of the members of the 
 firm had retired before the promise was given ; provided 
 the debt to which it had reference arose out of joint 
 contracts, entered into whilst they continued in the 
 partnership.(m) But to aflect the ex-partners, after a 
 dissolution, the admission of the single partner must 
 clearly refer to a liability created pending the partner- 
 ship ; since, if it relate to a transaction which has occur- 
 red since the separation, it is not evidence to charge 
 them.(?i) (2) Neither is a declaration made by one of 
 
 (/) Wood i;.Bra(ldick, 1 Taunt. 104. 
 
 (m) Lacy v. McNeile, 4 Dowl. & Ryl. 13. ; and see Israel v. Doug- 
 las, 1 H. Bl. 239. Wilson v. Coupland, 5 B. & A. 228. Wharton v. 
 Walker, 4 B. & C. 163. 
 
 (n) Wood V. Braddick, supra. 
 
 {!) Per Story, J., 1 Gallis. Rep. 635, 636, citing Wood v. Braddick. 
 ^cc. 3 Hayw. Rep. 310, 311. Simpson et al. v. Geddes, 2 Bay's Rep. 
 533. Parker v. Merrill, 6 Greenl. Rep. 41. Contra. Shelton v. 
 Cocke et al. 3 Munf. 191. Bootes v. Welford fy Co. 4 Munf. 215. 
 Mercer v. Sayre et al. Anth. N. P. Rep. 119. Hackley v. Patrick, 3 
 Johns. Rep. 536. Walden v. Sherburne et al. 15 Johns. Rep. 409. 
 Brisban v. Boyd, 4 Paige's Cha. Rep. 17— denying the rule laid down 
 in IVood V. Braddick. See also Chardon v. Oliphant, 2 Const. Ct. 
 Rep. 685. Cadet v. Levy 17 Serg. & Rawle, 126. Bell v. Morrison, 
 1 Peter's Sup. Ct. Rep. 352. Fisher's Ex. v. Tucker's Ex. 1 McCord's 
 Cha. Rep. 170. 
 
 (2) A partnership consisting of A. & B. held a note against C. dated 
 December ^\st, 1811, for the payment of 1074 dollars, and interest. 
 On the 2d oi July, 1812, C. paid to B. 375 dollars, which B. promised 
 to indorse on C.'s note, but neglected so to do. On the 20th December, 
 1816, after dissolution of the partnership of A. & B., A. gave a writing, 
 signed with his individual name, to C, acknowledging that he had re-
 
 THE FIRM IN LEGAL PROCEEDINGS. 65 
 
 two partners, during an existing co-partnership, evidence 
 to bind his partner as to a transaction which occurred 
 previous to the partnership, unless a joint responsibihty 
 be proved as a foundation for such evidence.(o) In an 
 action by a firm upon a contract made with one partner, 
 his declaration, that the property, which formed the sub- 
 ject matter of the contract, belonged to himself individ- 
 ually, and had been allotted to him out of the partnership 
 stock, is evidence against the firm, and will prevent their 
 maintEiining a joint action for a breach of it.(;?) And 
 we have seen that one partner is competent to release a 
 supposed right of action, even after proceedings to en- 
 force it have been instituted by the firm.^q) And as he 
 may release an action, it seems to follow that he has the 
 power of suspending proceedings in it. Therefore, 
 where three partners sued as plaintiffs, and two out of 
 the three agreed with the defendant to accept common 
 bail, and stay proceedings for six weeks, it was held 
 that this agreement was binding on the third 
 partner.(r) So, where several are ^concerned [ *66 ] 
 
 (o) Catt V. Howard, 2 Stark, on Evid. 45. S. C. 3 Stark. N. P. C. 3. 
 
 (p) Lucas V. Delacour, 1 Maul & Selw. 249. 
 
 {q) See wite p. 61., and Furnival v. Weston, 7 B. Moore, 356. 
 
 (r) Harwood and others v. Edwards, Trin. 13 Geo. 2. B. R. MSS. 
 In this case the plaintiffs, who were the two Flarwoods and Skipp, 
 were partners in the trade of brewers. It was stipulated by the articles, 
 that Skipp was to be cash-keeper and receive the debts, but the Har- 
 
 tained in his hands the money of C. to the amount due on the note, 
 and promising to refund to C. such sum as, in a suit then pending on 
 the note, the Court should find to have been paid thereon. The money 
 so retained by A. had been paid to him as a member of the partnership 
 of A. &L B. for the use of the late firm, in pursuance of the agreement 
 of A. contained in his writing of the 16th December, 1816. The suit 
 on the note was withdrawn. C. then brought an action of indebitatus 
 assumpsit for money had and received, against A. & B. jointly, to re- 
 cover back 375 dollars, as so much money overpaid. Held, that the 
 action was well brought ; and that the writing given by A. in Decem- 
 ber, 1816, was admissible in evidence, and properly constituted a part 
 of the plaintiffs case, and that the plaintiff was not precluded from 
 recovering back money paid under the circumstances, on the ground 
 the payment, at the time, was voluntary. Story v. Barrell Sf Gilbert, 
 2 Conn. Rep. 665. One of the Judges (Hosmer, afterwards Chief 
 Justice,) dissented, upon grounds which appear to the Editor to be 
 conclusive.
 
 66 
 
 ONE PARTNER BINDING 
 
 together in partnership, notice to one partner is equiva- 
 lent to notice to all of them, if the transaction, in 
 respect of which the notice is given, be bona fide.{s) (1) 
 And notice given by one partner is available as a notice 
 by the firm. Hence, if one of several, jointly interested 
 in a cargo, effect an insurance for the benefit of all, he 
 
 woods appointed another person for that purpose. The defendant was 
 a debtor to the partnership, and Skipp brought the action against him 
 in the name of himself and the Harwoods, but without their knowledge 
 or consent. The Harwoods afterwards signed an agreement with the 
 defendant to accept common bail and stay proceedings for six weeks; 
 and upon motion to file common bail and stay proceedings accordingly, 
 the question was, whether the act of two of the partners, in entering 
 into such an agreement, was binding on the other, it being stipulated in 
 the articles that one should not release or give credit without all. Lee 
 C. J. "I do not see how we can enter into any stipulation in the arti- 
 cles between these partners, but we must consider the question as ab- 
 stracted from the articles altogether, and as an agreement by two of the 
 partners. A release by one will be a discharge in personal actions, and 
 every one has a right to the whole personalty ; and if one has power 
 to release, why may not one suspend these proceedings ? Here is an 
 agreement by two : they may discharge the suit, but they have only 
 delayed the proceedings. If one can discharge, the majority have 
 power to suspend." ProbynJ. "It is the common justice of this 
 court, if the plaintiff' makes an agreement, to compel him to perform 
 it. Here are three plaintiff's ; one promotes the action, two dissent or 
 are ignorant of it, and these two agree to accept common bail and stay 
 proceedings, and they are as much plaintiffs as the other one. I am 
 of opinion this agreement is good, and the court will stay proceedings 
 pursuant to the agreement. Every partner may make an agreement to 
 bind the other partners, and therefore the majority may bind the mi- 
 nority." Cha}yple J. " The dispute upon the articles of co-partnership 
 is in the Court of Chancery. The defendant applies for the benefit of 
 his agreement with the plaintiffs. The act of one partner is the act of 
 all ; this suit must be considered as brought by all, and this agreement 
 must be taken to be the agreement of all." The rule was made abso- 
 lute. 
 
 (s) Per Lord Ellenborough, in Bignold v. Waterhouse, 1 Mau. & 
 Selw. 259. Porthouse v. Parker, 1 Campb. 82. Alderson v. Pope, 
 lb. 408. 
 
 (1) CHlley et al. v. Singleton, 3 Littel's Rep. 249, See Cowans \. 
 Jackson, 20 Johns Rep. 176, and compare the case with Porthouse v. 
 Parker. Watson v. Welles, 5 Conn. Rep. 468. See also Hart v. 
 Palmer, 12 Wend. Rep. 523. The rule is the same, though the busi- 
 ness be carried on in the name of one partner only. Lansing v. 
 McKillup. 7 Cow. Rep. 416.
 
 THE FIRM BV A SUBMISSION TO ARBITRATION. 66 
 
 may give notice of abandonment for all.(^) It has been 
 decided, that a note for the weekly payment under the 
 Lords' Act may be signed by one member of a firm for 
 himself and his partner(M) : and such a note will be good 
 and obligatory upon a retiring partner, if given after he 
 has seceded, where the deed of dissolution empowers the 
 remaining partners to use his name in the prosecution 
 of all suits.(i^*) (1). 
 
 The entering into a submission to refer to arbitration 
 forming no part of the ordinary concerns of a commer- 
 cial partnership, one partner has not an implied 
 authority to bind his co-partners *by such a sub- [ *67 ] 
 mission, even though it be of matters arising out 
 of the common business. Indeed if such a delegation 
 of authority by one partner had a binding operation on 
 the firm, the arbitrators might, by their award, call upon 
 the partners to do acts, which by law they could not be 
 compelled to perform. Therefore, where a firm, con- 
 sisting of five persons, sued a debtor to them, and the 
 defendant, who pleaded the general issue, put in an 
 award upon the matter touching which the action had 
 been brought, but it appeared that the submission was 
 signed by no more than three of the partners, and there 
 was nothing to show that they had an express authority 
 to bind the others to it, the Court of Common Pleas 
 held, that the submission was insufficient, and the award 
 made upon it, no bar to the action.(z^;) But although 
 
 (/) Hunt V. Royal Exchange Assurance Com., 5 Mau. & Selw. 47. 
 Where joint lessors are partners in trade, a notice to quit in the names 
 of all, signed by one only is valid. Doe d. Elliott and others v. Hulme, 
 2 Mann. <fc Ryl. 433. 
 
 (u) Meux V. Humphry, 8 T. R. 25. Dove v. Hogg, 1 N. R. 306. 
 
 (v) Burton V. Issit, 5 B, & A. 267. 
 
 (w) Stead v. Salt, 3 Bingh. 101. Where an award is offered in evi- 
 dence, the execution of the submission deed by all parties must be 
 
 (1) One of two joint plaintiffs, who had formerly been partners, 
 having agreed that the action should be discontinued, the other made 
 affidavit that the cause of action was a debt due to tlie partnership; and 
 that the agreement was made to defraud him by collusion between his 
 co-plaintiff and the defendant. And thereupon the court refused to 
 order a nonsuit. Loring et at. v. Brackctt, 3 Pick. Rep. 403.
 
 67 ONE PARTNER BINDING 
 
 one partner cannot qua partner bind his co-partners to 
 the performance of an award made on a submission of 
 partnership matters, yet if by the submission he engage 
 that they shall perform the award, he will be answera- 
 ble for their obedience to it. Thus, where one partner, 
 on the behalf of himself and his co-partner, referred all 
 differences between the plaintiff and them to arbitrators, 
 and promised to perform their award, which was that 
 all suits against such partner should cease, and that he 
 should pay a certain sum; an action being brought for 
 the non-performance of the award, it was objected that 
 the other partner was not made a party to the submis- 
 sion : but the court said, the defendant may undertake 
 for his partner, and having engaged for him, and promised 
 
 that he should perform the award on his part, 
 [ *68 ] notwithstanding the other partner is *not bound ' 
 
 so to do, yet if he refuse, it is a breach of the de- 
 fendant's promise.(x) 
 
 One partner may, in proceeding under the bankrupt 
 lavjs, effectually bind his co-partners. Thus, although a 
 commmission of bankruptcy, which purports to issue on 
 the petition of one only of two partners, cannot be sup- 
 proved, since the submission of the rest is the consideration to each 
 party to submit himself to arbitration. Thus, where there had been a 
 deed of reference between a creditor and several partners of all co- 
 partnership accounts, and of all matters in difference between the par- 
 ties or any two of them, and an action of trover was afterwards brought 
 by the creditor, the assignee under a commission of bankruptcy of one 
 of the partners, (in which action the plaintiff produced the award and 
 deed of reference as evidence of a separate debt due to him from the 
 bankrupt,) the Court of King's Bench held, that it was indispensably 
 necessary to prove the execution of the deed by all the parties ; for 
 this was a reference of the aggregate accounts between all and each of 
 the partners, and the consideration to each for entering into the submis- 
 sion was, that each parly's account should be liquidated, not only as to 
 one, but as to all: the accession of all, therefore, ought to be proved ; 
 and, without such proof, the arbitrator would not appear to have com- 
 petent authority to decide the whole question between the parties. An- 
 tram v. Chase, 15 East, 209. 
 
 (x) Strangford v. Green, 2 Mod. 228. In Com. Dig. Arbitrament, 
 D. 2, it is laid down, •' If there be a controversy between A of the one 
 part, and B and C of the other, and B submits for himself and C, and 
 there be an award that B shall pay ; this is good, though C be a stran- 
 ger."
 
 THE FIRM IN BANKRUPTCY. 68 
 
 ported, because where the debt is due to a partnership, 
 it must appear that all the partners to whom it is due 
 concur in the proceeding ;(y) yet, if the commission it- 
 self profess to have been awarded at the instance of all 
 the partners, it will be valid, notwithstanding the affida- 
 vit grounding it, and the bond to the Lord Chancellor^ 
 were made and executed by one partner only on behalf 
 of the firm.(z) One partner may also prove a joint 
 debt under the commission, or singly vote in the choice 
 of assignees ; or he may, by a power of attorney exe- 
 cuted by himself, on behalf of the firm, authorise a third 
 person to represent and act for the partnership in these 
 respects.(a) So, one partner, without consulting the 
 other members of the firm, may sign a bankrupt's certi- 
 cate, either during the continuance of the partnership or 
 after a dissolution, upon a debt proved during the sub- 
 sistence of the partnership.(6) In fact, to most import- 
 ant purposes, the act of one partner is, in bankruptcy, 
 to be considered as the act of all.(c) (1) Where one 
 of two partners became a bankrupt, a commission issued 
 against a debtor to the firm on the petition of the sol- 
 vent partner alone, in the character of and as one of 
 the assignees of his bankrupt partner, has been held to 
 be regular, though the other assignees did not join in 
 the affidavit and petition.((/ ) (2). 
 
 {y) Buckland v. Newsame, 1 Taunt. 477. But see Ex -parte Bla- 
 key, I Glyn & James. 197. 
 
 {z) Ex parte Hodgkinson, 19 Ves. 291. S. C.Cooper's Ca. 99. Ex 
 j3. Roberts, lb. 102. i?x/). Peele, Buck. 457. jEx /J. Morton, lb. 44. 
 
 (a) Ex parte Mitchell, 14 Ves, 597. 
 
 \b) Ex parte Hall, 1 Rose, 2. S. C. 17 Ves. 62. 
 
 (c) Per Lord Eldon, Ex parte Hodgkinson, supra. Ex parte Mor- 
 gan, Buck. 109. The general order of the 12lh August, 1809, requires 
 that, in cases of partnership, all petitions in bankruptcy shall, before 
 they are presented, be signed by one of ihe partners; and, upon this 
 branch of the order, it has been held, that a petition signed by one 
 partner in the partnership name is not sufficient. Ex parte Hall, 1 
 Glyn &, James. 355. n. (a). 
 
 U) Ex parte Blakey, 1 Glyn & James. 197. Where there is only 
 
 (1) A petition subscribed by one of two partners, without any oihcr 
 than the general authority arisinc from the partnership, has been held 
 to be a legal ground for issuing a commission. Pleasants v. 3Jeng, 1 
 Dall. Rep. 380. 
 
 (2) See Kyle v. Connelly, 3 Leigh's Rep 719. 
 
 13
 
 69 
 
 LEGAL REMEDIES 
 
 ^SECTION III. 
 
 Legal Remedies hetweeyi Partners. 
 
 Having considered in what cases one partner has the 
 power of binding his co-partners Mdthout their express 
 acquiescence, we will now proceed to inquire, what 
 remedies partners have, as between each other, for the 
 vindication of rights when violated by one who sustains 
 the character of a partner. These may be divided into 
 actions at law, and suits in equity. We will, in the first 
 place, ascertain what are the existing legal remedies. 
 At law, there are several actions which it is competent 
 to a partner to bring against persons who are jointly 
 engaged with him in trade. The actions of account, 
 covenant, assumpsit, and trover, are severally adapted to 
 the adjustment of partnership differences ; and these we 
 will consider separately, and in the order they have been 
 arranged. 
 
 The action of account has in a great measure fallen 
 into disuse,(l) a preference of late years being given to 
 
 one petitioning creditor, there must be a debt due to him separately, for 
 which he could maintain an action at law ; therefore, one of two joint 
 obligees is not by himself a good petitioning creditor against the obli- 
 gor, Buckland v. Newsame, 1 Taunt. 477. 1 Camp. 474; and, so on 
 the other hand, where one of three partners undertook to provide for 
 bills of exchange drawn by the three, such acceptances were holden 
 not to support a commission on a petition of the three against the ac- 
 ceptor. Richmond v. Heapy, 1 Stark. N. P. C. 202. Sparrow v. 
 Chisman, 9 B. & C. 241. 
 
 (1) Account Bender has been constantly brought in Pennsylvania, 
 and very liberally extended to meet the various cases arising from the 
 transactions between partners. There would have been no remedy un- 
 less this had been the case, there being no Courts of Equity in the State. 
 James V. Brotvn, 1 Dall. 339. The Act of 16th June, 1836, "relating 
 to the jurisdiction and power of Courts," (Sect. 13,) gives the Supreme 
 Court and tlie several Court? of Common Pleas " the Supervision and 
 control of partnerships." Pamp. Laws, 784.
 
 BETWEEN PARTNERS. 69 
 
 the mode of proceeding by bill, in a court of equity, 
 where a discovery by the defendant's answer upon oath 
 may be obtained.(l) It will therefore only be necessary 
 briefly to advert to the nature of the action. By the 
 common law, the action of account might be maintained 
 against a bailiff or receiver,(a) and in favour of trade 
 and commerce, by one merchant against another. But 
 because the account rested in privity, executors could 
 not in general sustain such an action :(b) how ever this 
 was remedied by the Stat. Westm. 2,(c) which gave the 
 action to executors, and according to Lord 
 Coke^d) the stat. of 31 Edw. 3, stat. 1, *c. 11, gave [ *70 ] 
 it to administrators. The stat. 25 Edw. 3, stat. 
 5, c. 5, has extended the same remedy to the executors 
 of executors. (2) So at the common law, this action did 
 not lie against the executors of the accountant ; but by 
 stat. 4 Ann. c. 16, s. 27,(3) an action of account may 
 be maintained against the executors or administrators 
 of a guardian, bailiff", or receiver. The relation of part- 
 ners has always been considered a sufficient privity to 
 give them the action of account ;(4) and it is laid down 
 
 (a) Co. Liu. 172, a. 
 
 (b) Sed vide F. N. B. 117. 11 Rep. 90, a. 
 
 (c) 13 Edw. 1, stat. 1, c. 23. 
 
 {d) Co. Litt. 89, b. 2. Instit. 404. 
 
 (1) The reason given can hardly be deemed a sufficient, or, indeed, 
 the true one ; for auditors, as Chancellor Kent has observed, suggest- 
 ing, at the same time, that he could not discern any good reason why 
 the action of account had so totally fallen into disuse, (in New Fork,) 
 have all the requisite powers ; — they can compel the parties to account, 
 and be examined under oath. Duncan v. Lyon, 3 Johns. Cha. Rep. 
 361. The power of controlling either partner by injunction, and the 
 benefits to be derived from the appointment of a receiver, after a disso- 
 lution of partnership is a more satisfactory ground for its prevalence in 
 England. 
 
 (2) These statutes are in force in Pennsylvania. Report of the 
 Judges. 3 Binn. 599. Roberts'' Dig. 11, 250, 249. 
 
 (3) The first thirteen sections are in force in Pennsylvania., and the 
 20ih and 27th sections. Roberts' Dig. 43. Griffith v. Willing et al. 
 3 Binn. 317. 
 
 (4) Griffith v. Willing et al. 3 Binn. 317. Duncan v. Lyon, 3 
 Johns. Cha. Rep. 361.
 
 70 
 
 LEGAL REMEDIES 
 
 by Lord Coke,[e) that if two joint merchants occupy 
 their stock, goods, and merchandise in common, to their 
 common profit, one of them, naming himself a merchant, 
 shall have an account against the other, naming him a 
 merchant, and shall charge him as receptor denariorura 
 ipsius B, ex guacwKjfue causa et contractu ad communem 
 utilittitem ipsorum A et B, provcnieii' sicut per legem mer- 
 catoriam rationahiliter monslrare poter>'t.(^\) There are 
 two judgments in this action : the first judgment is, that 
 the defendant do account,(/) usually termed a judgment 
 quod computet; this is in the nature of an award of the 
 court, interlocutory only and not definitive ;(^) (2) and 
 after such a judgment, the defendant usually ofliering to 
 account, the court assigns auditors to take and declare 
 the account between the parties. If the defendant be- 
 fore the auditors(A) plead any matter in discharge, 
 which is denied by the plaintiff, so that the parties are 
 at issue, the auditors must certify the record to the 
 court, who thereupon will award a venire facias to try 
 it ;(3) and if on the trial the plaintiff make default, he 
 will be nonsuited ; but, notwithstanding the nonsuit, he 
 may bring a sci?'e facias upon the first judgment. The 
 final or second judgment in account is,(i) that the plain- 
 tiff do recover against the defendant so much as he, the 
 defendant, is found in arrear.(4) 
 
 (e) Co. Liu. 172, a. 
 
 (/) Co. Ent. 46, b. Rast. Ent. 17. 
 
 (g) Metcalf's case, 11 Rep. 38, a. 
 
 (h) Bull. N. P. 128. 
 
 (i) Metcalf's case, supra. 
 
 (1) It has been decided in Connecticut, that an action of account 
 will not lie where the number of partners exceeds twOy the remedy be- 
 ing in Equity. Beach wHotchkhs, 2 Conn. Rep. 425, and Boardman 
 V. Seymour, there cited. Russell v. Green, 10 Conn. Rep. 270. But 
 the law in Pennsylvania is different, Griffith v. Tf'itling et al. 3 Binn. 
 317, where there were more than two defendants. 
 
 (2) Per Gibson, J., 4 Serg. <fe Rawle, 78. See Neivbold et al. v. 
 Sims, 2 Serg. & Rawle, 317. James v. Brown, 1 Dall. 339. 
 
 (3) If matter of fact — if matter oi law, the Court will decide it. 
 Crousillut V McCafl, 5 Binn. 433. 
 
 (4) Though it be doubtful whether, if auditors report a balance in 
 favour of the defendant, judgment may be lawfully entered for such
 
 BETWEEN PARTNERS. 70 
 
 A much more efficacious remedy for partners than 
 the action of account, and one more frequently resorted 
 to, is the action of covenant. If the articles by which 
 the partnership is constituted are under seal, damages 
 commensurate with the injuries sustained by the non- 
 performance of any covenant or engagement contained 
 in them may be recovered in such an action. For in- 
 stance, if, in the deed of co-partnership, the partners 
 covenant each to advance a stipulated sum as 
 capital, for the purpose of launching *the part- [ *71 ] 
 nership, an action to enforce payment, according 
 to the covenant, will lie by one partner against the 
 other, who fails to make the covenanted advance, and 
 the sum agreed upon will be the measure of dam- 
 ages.(A:)(l) So, if a sole trader covenants, in con- 
 sideration of a sum agreed to be paid by instalments, to 
 take two persons into partnership with him for a period 
 of eighteen years, and five months after the commence- 
 ment of the partnership, when only one instalment is 
 due, he becomes a bankrupt, still the admitted partners 
 must pay the remaining instalments, and the assignees 
 of the bankrupt can enforce payment of them at the 
 respective periods of their becoming due.(/) And if a 
 trader covenant to take a person into partnership, and 
 to assign to him a moiety of the interest in the house, " to 
 commence from and after a certain day then next, on 
 the terms and conditions following, viz. the said person 
 to pay to the said trader, on or before that day, a stated 
 sum as a premium or fee to be admitted into the part- 
 
 (k) Venning v. Leckie, 13 East, 7. 
 
 {I) Akhurst v. Jackson, 1 Swanst. 85. S. C. 1 J. Wilson, 47. 
 
 balance, yet the law is well settled, that the defendant may support an 
 action of debt against the plaintiff for the amount of the sum in wliich 
 he was found in surplusage. McCall v. Crousillat, 3 Serg. <fc Rawle, 7. 
 (1) Terrill v. Richards, 1 Nott &, McCord's Rep. 20. Where the 
 partnership consists of more than two persons, and they have contri- 
 buted severally, and in different proportions, and one of them with- 
 draws from the co-partnership, in violation of their mutual agreement, 
 each has his several remedy for the breach. Bwihamv. Gillis, 8 Mass. 
 Rep. 462. See Thomas v. Pyke, 4 Bibb's Rep. 418.
 
 71 
 
 LEGAL REMEDIES 
 
 nership, and the stock to be valued, and such person to 
 advance a sum equal to the value of the stock, and proper 
 articles of partnership, as soon as convenient, to be 
 made out;" he may maintain an action of covenant 
 upon this agreement for the nonpayment of the premium, 
 before the articles of partnership are prepared, or the 
 half interest in the premises is conveyed. (m) So if 
 pa,rtners covenant to account annually, or to adjust and 
 make a final settlement of the joint concerns at the ter- 
 mination of the partnership, a refusal by one partner to 
 perform these covenants respectively will vest in the 
 other a right of action which, when enforced at law, will 
 entitle him to a satisfaction co-extensive with the re- 
 sulting damage.(n) (1) And where a penalty is reserved 
 in case of breach of a partnership agreement, one partner 
 can recover on the covenant against his co-partner; and 
 if it is stipulated in the articles of partnership that one of 
 several partners shall sue for the penalty agreed on, and 
 divide the amount between his co-partners who have not 
 committed a breach of the articles, such agreement will 
 be binding, although the party appointed to sue, if he 
 incurred the penalty, could not sue himself; as where 
 
 several persons agreed to horse the several stages 
 [ *72 ] of a coach, and that in case of default one of *them 
 
 specified should sue the defaulter for a penalty to 
 be divided amongst the non-defaulters, an action brought 
 by one on the agreement was held good.(o) The same 
 rule applies to every other species of lawful covenant, 
 by which partners reciprocally and severally bind them- 
 selves inter se to the performance of any particular act 
 or thing. If the covenant be not performed by the co- 
 venantor, although its fulfilment cannot be enforced 
 
 (m) Walker v. Harris, 1 Anstr. 245, 
 
 {n) Moravia v. Levy, 2 T. R. 483. n. Foster v. Alanson, 2 T. R. 479. 
 
 (o) Radenhurst v. Bates, 3 Bingh. 463. 
 
 (1) Per Kent, Chanc. Duncan v. Lyon, 3 Johns, Cha. Rep. 362. 
 But covenant does not lie on an agreement of partnership to compel the 
 payment of a balance due to the partnership from one of the partners, 
 Niven v. Spickerman et al. 12 Johns. Rep. 401.
 
 BETWEEN PARTNERS. 72 
 
 specifically at law, yet the co-partners, upon showing 
 that they have performed their part of the articles, may 
 recover against him such damages as have been occa- 
 sioned by his want of faith. It seems, however, that an 
 action at law is not maintainable for the non-performance 
 of a covenant to refer disputes to arbitration; such a 
 covenant having a tendency to exclude the jurisdiction 
 of the superior courts. And independently of that ob- 
 jection, the covenant itself has been considered to be 
 nugatory and futile ; for as it could not appear on the 
 trial, that the plaintiff would have succeeded on the ar- 
 bitration, the court itself could not direct the jury on 
 what rule to proceed in assessing the damages. (/?) 
 Where a penalty is reserved on a breach of the partner- 
 ship articles, the payment of it may be enforced either 
 by an action of this description, or the same object may 
 be gained by an action of debt. 
 
 In addition to the legal remedies we have mentioned, 
 the action of assumpsit is, in many instances, and more 
 generally, adapted to the assertion of the rights of part- 
 ners inter se. Thus, this action may be supported by 
 one person against another for the breach of an agree- 
 ment to become a partner ; but in order to sustain such 
 an action, it will be necessary to prove the specific terms 
 of the intended partnership.(y) And where the contract 
 of partnership is verbal, or, being reduced into writing, 
 is not under seal, the various stipulations it embraces, 
 the conditions and engagements it contains, and the 
 duties it imposes, can be enforced in such an action alone ; 
 the remedy by action of covenant being confined ex- 
 clusively to those cases in which the original formation of 
 the partnership is by articles under seal. It may, there- 
 fore, be advanced as an indisputable proposition, 
 that, *in whatever instances an action of covenant [ *73 ] 
 is maintainable for the breach of a covenant com- 
 prised in a deed of co-partnership, in the same instances 
 an action of assumpsit can be sustained, if the partner- 
 
 {p) Tattersall v. Groote, 2 Bos. & Pul. 131. 
 
 Ig) Figes v. Cutler, 3 Stark. N. P. C. 139. And see Gale v. Leckie, 
 2 Stark. N. P. C. 107,
 
 73 
 
 LEGAL REMEDIES 
 
 ship, instead of being constituted by deed, were con- 
 tracted verbally or by writing only. If two persons 
 agree, in writing, to share the profit or loss upon goods 
 bought by one of them on their joint account, an action 
 of assumpsit may be maintained, founded on the agree- 
 ment, by the one against the other, for the payment of 
 his proportion of the original purchase, because, until 
 that is paid, there cannot be any account of profit and 
 loss between them.(r) (1) So, where A agreed to sup- 
 ply B with the manuscript of a work to be printed by 
 the latter, the profits of which were to be equally divided 
 between them, it was held that B might maintain an 
 action against A for refusing to supply manuscript, after 
 part of the work had been printed ; for such an action 
 has not for its object the division of partnership profits, 
 but is brought against the defendant for not contributing 
 his labour towards the attainment of profits to be subse- 
 quently divided between the parties, and is therefore 
 similar in principle to an action for not entering into 
 partnership according to an agreement.(s) 
 
 It is, however, a well-established rule, that between 
 partners, whether they are so in general, or for a parti- 
 cular transaction only, no account can be taken at 
 law.(/) (2) The rule is founded on this principle, that 
 before a right of action in respect of any partnership 
 item can be conferred, the partnership account must be 
 taken in order to ascertain whether the particular item 
 has been reduced in any and what degree, by the inter- 
 mediate gains or losses of the partnership business ; and 
 as it would be utterly impracticable for a jury to take 
 such an account, a court of law has not the means in 
 its power of administering substantial justice. (w) (3) 
 
 l: 
 
 ir) Venning v. Leckie, 13 East, 7. 
 («) Gale V. Leckie, 2 Stark. N. P. C. 107. 
 \t) Per Abbott C. J., Bovill v. Hammond, 6 B. & C. 151. 
 (w) Smith V. Barrow, 2 T. R. 476. Harvey v. Crickett, 2 Man. & 
 Selw. 340. Where A. being indebted in his individual capacity to a 
 
 (1) See 3 Johns. Cha. Rep. 362. 
 
 (2) Rogers v. Rogers, 1 Hall's Rep. 391. 
 
 (3) Rogers v. Rogers.
 
 BETWEEN PARTNERS. 74 
 
 Therefore, an action of assumpsit for money laid 
 out *in the partnership business, will not lie by [*74] 
 one partner against another, before an account 
 has been taken.(t)) So, where two parties agreed to 
 procure a cargo for a ship on certain commission to be 
 divided and received in equal moieties ; it was held, that, 
 being partners, the assignees of one, who had become a 
 bankrupt, could not maintain an action against the other 
 for his moiety, the balance not having been finally set- 
 tled, and that it made no difference that all the receipts 
 and disbursements had been made by the defendant, who 
 had stated an account to the ow^ners.(i^j) But the rule 
 applies only to an unadjusted partnership account, and 
 does not deprive a partner of his legal remedy where an 
 account has been taken, and the balance ascertained,(l) 
 
 house in trade, of which he was a partner, in a sum of money, the 
 amount of which could not be ascertained, covenanted to pay the firm 
 all his then debts, and such other debts as should subsequently accrue, 
 and died without having satisfied the original debt, and having con- 
 tracted further debts subsequent to the execution of the deed ; it was 
 held, in an action against his executors, two of whom were partners 
 in the house of trade, that, inasmuch as there was no adjusted balance, 
 the defendants could not plead either of these debts, either by way of 
 retainer, or as an outstanding specialty debt. De Tastet v. Shaw, 1 
 B. & A. 664. 
 
 {v) Holmes v. Higgins, 1 B. & C 74. 
 
 {w) Bovill V. Hammond, 6 B. & C. 149. Bayky, J. diss. 
 
 (1) Ozeas v. Johnson, adm. 1 Binn. 191. S. C. 4 Dall. 434. Walker v. 
 Long, 2 P. A. Browne's Rep. 125. Miirrayv.Bogert et al. 14 Johns. 
 Rep. 318. Beach v. Hotchkiss, 2 Conn. Rep. 425. Young et al. v. 
 Brick et al. 2 Penn. Rep. 663. Course v. Prince 1 Rep. Const. Ct. 
 413. Lamalere v. Caze, 1 Wash. C. C. Rep. 435; Kennedy v. 
 McFadon, et al. 3 Harr. & Johns. 194. The law is settled dif- 
 ferently in Massachusetts. Brigham v. Eveleth, Jones v. Har- 
 raden, 9 Mass. Rep. 538, 540. Bond v. Hays, 12 Mass. Rep. 
 34. Wilbey v. Phinney, adm. 15 Mass. Rep. 112; Fanning v. 
 Chadivick, 3 Pick. Rep. 420; Brinley v. Kupfer, 6 Pick. Rep. 
 179. JVilliams v. Henshaiv, 11 Pick. Rep. 79. Haskell \. Mams, 
 7 Pick. Rep. 59, will be found in conformity with the other decisions 
 if attentively considered. And after a trial and verdict for the de- 
 fendant, it is too late to object, that the subject matter of the suit was 
 a co-partnership contract between him and the plaintifT — the objection 
 should be made at the trial. Smith v. Mien, 18 Johns. Rep. 245. It 
 has also been held in Massachusetts, that whenever a partnership 
 
 14
 
 74 LEGAL REMEDIES 
 
 and an express promise to pay it has been made; in 
 such a case there arises a moral consideration, which 
 will clearly support an action of assumpsit. (^x) (1) So, 
 on the same principle, where the balance of a partner- 
 ship account has been ascertained by a colonial court of 
 equity, and a decree made for payment, a promise to 
 pay the debt ascertained by that decree will be pre- 
 sumed, and an action at law lie for the recovery of it.(y) 
 But in the case of an adjustment between the partners 
 themselves, the balance stated must be a final balance 
 of all the partnership accounts; for balances struck 
 during the continuance of the partnership, and which 
 are preparatory only to a final account, are not suffi- 
 ciently conclusive to be made the foundation of an 
 action. Therefore, where it appeared that two persons 
 had been engaged in running a coach, the one finding 
 horses for one part of the road and the other for 
 another, and that the profits of each party were calcu- 
 lated according to the number of miles covered by 
 his own horses, and that one of them received the fares, 
 and rendered an account thereof to the other every 
 week, in an action by the former against the latter upon 
 
 (x) Foster v. Allanson, 2 T. R. 479. 
 
 (y) Henley v. Soper, 2 Mann. & Ryl. 153. S. C. 8 B. & C. 16. 
 
 adopts a project within the principles of their agreement, for the pur- 
 poses of profit, it must be for the benefit of all the partners in propor- 
 tion to their respective interests in the concern; and if a majority of 
 the partnership should withhold from one of its members a share of 
 such profit, or any partnership privileges, he may maintain an action 
 on the case against the partnership for the injury. Gray v. The Fort- 
 land Bank, 3 Mass. Rep. 364. 
 
 (1) In New York and South Carolina it has been decided, that an 
 express promise is essential. Casey et al. v. Brush, 2 Caines' Rep. 
 293. Halstead et al. v. Schenelzell, 17 Johns. Rep. 80. Westerlo v. 
 Evertson, 1 Wend. Rep. 532. Atxvater v. Foider, 1 Hall's Rep. 180. 
 Course v. Prince, 1 Rep. Const. Ct. 416. But in Pennsylvania, where 
 accounts have been settled, and a balance struck, ( — which must be 
 the act of both parties. Gill v, Kuhn, 7 Serg. & Rawle, 333, the close 
 of Judge Gibson's opinion. Course v. Prince, 1 Rep. Const. Ct. 413 ; 
 Lamalere v. Caze, 1 Wash. C. C. Rep. 435 — ) the action may be 
 maintained. Ozeas v. Johnson, 1 Binn. 191. S. C.'4 Dall. 434. See 
 Jessup v. Cook, 1 Halst. Rep. 434. Fannins^ v. Chadivick, 3 Pick. 
 Rep. 420.
 
 BETWEEN PARTNERS. 74 
 
 a separate transaction, it was held that a balance, 
 which had been declared in favour of the latter upon 
 these weekly accounts, could not be set off.(z) 
 *Where a final balance is ascertained, it seems [ *75 ] 
 to have been considered that an express promise 
 is not essential to the support of the action, because the 
 law itself will raise a promise to pay ;(a) but the deci- 
 sion in which that principle was laid down has been im- 
 pugned ; and, in conformity with the prior authorities, 
 it has been said that the promise must be express.(6) 
 And it does not, in the case of a dissolution and an 
 express promise, affect the form of the action, that the 
 parties have covenanted under seal to settle accounts 
 at the expiration of the partnership, and therefore that 
 the plaintiff has a remedy of a higher nature, by an ac- 
 tion upon the covenant; for the dissolution and the 
 consequent settlement of accounts is of itself a sufficient 
 consideration for a promise to pay what may be ascer- 
 tained to be due.(c) And if the stated account is not 
 confined to matters affecting the partnership, but in- 
 cludes other articles for which covenant w ill not lie, it is 
 settled the action of assumpsit can be maintained ; .be- 
 cause by stating the account, and introducing other 
 items not relating to the partnership, the nature of the 
 demand is changed, and a new cause of action accrues, 
 independant of the covenant. (c?) So where, by agree- 
 ment between partners, part of the partnership funds 
 are expressly appropriated to the use of one of them as 
 a security against liabilities, which he is thereby induced 
 separately to undertake ; on the fulfilment of such lia- 
 bihties, he may, in an action for money had and re- 
 ceived, recover the amount so appropriated. Thus, A, 
 
 (z) Fromont v. Coupland, 2 Bingh. 170. It has been said, that, if 
 there are partnership dealings, and one item only remains unadjusted, 
 the difficulty as to one partner maintaining assumpsit disappears. Rob- 
 son V. Curtis, 1 Stark. N. P. C. 78. [Musner v. Trompfwitr, 5 
 Wend. Rep. 274.] 
 
 (a) Rackstraw v. Imber, Holt's N. P. C. 368. 
 
 lb) Fromont v. Coupland, ayite. 
 
 (c) Per Buller, J., Foster v. Allanson, ante. See also Moravia v. 
 Levy, there cited. But see Schack t". Anthony, 1 Mau. & Selw. 573. 
 
 (dy Foster v. Allanson, ante.
 
 75 
 
 LEGAL REMEDIES 
 
 B, and C, were jointly concerned in the sale of butters, 
 which A consigned to C, who sold them on the joint 
 account. B, being requested to accept bills in his own 
 name for the firm, refused to do so without . some 
 security, when C engaged, if B paid the bills, to repay 
 him out of the proceeds received for butters already 
 sold. B having accepted and paid the bills, it was held 
 
 that he might sue C for money had and received 
 [ *76 ] to his use.(c) When one partner retains a sum* 
 
 of money belonging to another, and not received 
 on account of the partnership subsisting between them, 
 quoad this sum, they are like any other two indifferent 
 persons, and an action of assumpsit may be maintained 
 to recovei- it. Thus, where a member of a firm had a 
 separate demand upon a debtor to the firm, and the 
 debtor compounded with his creditors, and the trustees, 
 under the deed of composition, remitted to the partners, 
 in their joint names, a bill of exchange, which was paid 
 to the partner, who was not a separate creditor, it was 
 determined that the other partner might maintain inde- 
 hitatus assumpsit for his share of the proceeds due on 
 account of the separate debt, because, as to that por- 
 tion, it was money specifically received by the one to 
 the use of the other partner.(/) So, each subscriber 
 to a scheme, who pays his subscription on a prospect 
 that the scheme will continue, and does no act rendering 
 himself liable to the expenses of attempting to bring it 
 into operation, may, if it afterwards proves abortive, or 
 is abandoned without any steps being taken towards 
 carrying it into effect, recover back the whole of the 
 money advanced by him, without the deduction of any 
 
 {e) Coffee v. Brian, 3 Bingh. 54. The declaration in this action 
 contained special counts on the bills, which alleged them to have been 
 drawn on account of A and C, whereas, in fact, they Avere drawn on 
 the account of A, B, and C. It was objected at the trial, and afterwards 
 insisted upon, on a motion to set aside the verdict, that this was a fatal 
 variance. The court, with the exception of Mr. Justice Burroiigh, 
 abstained from giving any opinion on the question, conceiving that, as 
 the contract was executed, the plaintiff might resort to the common 
 counts; but that learned judge thought the plaintiff could not have re- 
 covered on the special counts. 
 
 (/} Smith V. Barrow, 3 T. R. 476.
 
 BETWEEN PARTNERS. 76 
 
 part towards payment of the expenses incurred ; and, 
 under such circumstances, it seems, that the action may 
 be maintained, although the scheme would have been 
 open to the objection of illegahty, had it been effectuated. 
 Therefore, where a prospectus for establishing a scheme, 
 called the British Metropolitan Tontine, w^as circulated, 
 stating that the money subscribed was to be laid out at 
 interest, and that at the expiration of a year, every sub- 
 scriber should receive a shareholder's ticket, which 
 would be saleable or transferable ; and after some sub- 
 scriptions had been paid to the directors, in whom the 
 management of the concern was vested, but before any 
 part of the money was laid out at interest, and before 
 any shareholders' tickets had been delivered, the direc- 
 tors resolved to abandon the project ; it was determined 
 that each subscriber, in an action for money had and 
 received, might recover the full amount of his subscrip- 
 tion from the directors, because, until the money had 
 been laid out in execution of the proposed scheme, the 
 shareholders did not become jointly interested in the 
 funds of the concern, and consequently were not 
 partners ; and that the respective ^subscriptions [ *77 ] 
 were not subject to any deduction on account of 
 expenses ; for all expenses incurred for endeavouring to 
 bring an abortive scheme into actual operation must be 
 borne by the original projectors, and not by those who 
 advance their money on the faith of its going on.(^) 
 And the steward of a benefit club has been allowed to 
 maintain assumpsit against a person who had been a 
 member of the club, and w^ho, having possession of the 
 funds of the society, ran away with them, and converted 
 them to his own use. Nor was it considered any ob- 
 
 {g) Nockels V. Crosby, 3 B. & C. 814. In this case it was laid 
 down as a general principle, that where persons set a scheme afoot, 
 and assume to be the directors or managers, all the expenses incurred 
 before the scheme is in actual operation must, in the first instance, be 
 borne by them. When it is in operation, the expenses and charge of 
 management should be borne by the concern, and then it may be fair 
 and equitable that the preliminary expenses shoidd be paid in tlie same 
 way, inasmuch as the subscribers reap the full benefit of them. But 
 even then the previous expenses are not to be paid out of the concern, 
 unless they are adopted when it is in operation.
 
 77 
 
 LEGAL REMEDIES 
 
 jection to such an action, that the defendant, having 
 been a member at the time when the promise was laid 
 to have been made in the declaration, was a partner or 
 tenant in common ; for, in consideration of his imphed 
 promise to pay the money whenever it should be de- 
 manded, and his having left the society, he was held to 
 have treated himself as if he were no longer member, 
 and therefore liable in such an action.(A)(l) But w^here 
 one partner receives a bill of exchange in respect of a 
 particular partnership transaction, and indorses it to his 
 co-partner, and on its being dishonoured, promises the 
 indorsee, that if he will take it up, he will pay him one 
 half of the amount, it seems that, in respect of such 
 an insulated transaction, assumpsit cannot be main- 
 tained by the indorsee to recover the moiety.(2) (2) 
 Neither can one partner maintain an action against his 
 co-partners for work and labour performed on account 
 of the partnership, for the consequence of allowing it 
 would be a recovery by one joint contractor against 
 another, in which case the defendant w ould have a right 
 to call upon the plaintiff for contribution. Therefore, 
 
 (A) Sharp v. Warren, 6 Price, 131. 
 
 (z) Robson V. Curtis, 1 Stark. N. P. C. 78. 
 
 (1) The decision in Sharpe v. Warren may be sustained, on the 
 ground, that the Act of Parharaent vested the right to sue in the officers 
 of the Society, the 11th sect, providing " that the moneys, &;c. of the 
 Society shall be vested in the treasurer or treasurers (or other officers) 
 for all purposes of action and suit, and that it shall for those purposes 
 be taken to be the property of such officers, who are authorised to bring 
 actions in their own names.", The plaintiff's had been appointed 
 treasurers to the society previous to the commencement of the action, 
 to enable them to sue under the act of the 33 Geo. 3, c. 54, sec. 4. It 
 was the case of a most gross breach of trust ; and it is easy to collect, 
 from the report, how hard the Judges struggled to support the verdict ; 
 but it was a decision upon the pecuUar circumstances of the case, and 
 no general principle can be deduced from it independent of those cir- 
 cumstances. 
 
 (2) See Coffin v. Bain, 10 Moore's Rep. 341. A promissory note 
 given by one member of a commercial Company to another member, 
 for the use of the Company, will maintain an action at law by the 
 promisee in his own name, against the maker, notwithstanding both 
 parties were partners in that Company, and the money when recovered 
 would belong to the Company. Van Ness v. Forrest, 8 Cranch, 30.
 
 BETWEEN PARTNERS. 77 
 
 where a subscriber to a joint undertaking acted as sur- 
 veyor to the whole body of subscribers, it was held, that 
 he could not maintain an action for work done by him, 
 in that character, against all or any one of the other 
 subscribers.(^-) (3) So where, upon the dissolution 
 of a joint stock company, two of *the members [ *78 ] 
 were sued by a creditor of the concern, and they 
 employed the plaintiff, an attorney, and also a member 
 of the company, to defend the suit ; it was held that as 
 he himself derived a benefit from the defence, he could 
 not sue his late co-partners for the costs.(/) And where 
 bills were drawn on the defendants, not by name, but as 
 the directors of a company, and accepted by their se- 
 cretary " for the directors," it was determined that the 
 plaintiff, being a member of the company, could not re- 
 cover, because one partner could not draw on the whole 
 firm including himself.(m) In like manner, where a 
 member of a joint stock company was employed by the 
 company as their agent to sell goods for them, and re- 
 ceived a commission of two per cent, for his trouble, 
 and one per cent, del credere for guaranteeing the pur- 
 chaser : having sold goods on account of the company, 
 he drew on the purchaser a bill of exchange, payable to 
 his, the drawer's own order ; and, after it had been ac- 
 cepted, he indorsed it to the actuary of the company, 
 and the latter indorsed it to another member, who was 
 the managing director, and who purchased goods for the 
 company, the company being then indebted to him in a 
 
 ik) Holmes v. Hig^ins, 1 B. &; C. 74. 
 
 (I) Millburn v. Codd, 6 B. & C. 419. S. C. 1 Man. & Ryl. 238. 
 In Parkin v. Fry, 2 C. & P. N. P. C. 311, it was ruled, that a party, 
 who originally invited the defendant and others to form a joint stock 
 company, and acted himself as secretary to the committee, could not, 
 the scheme never taking effect, maintain an action for compensation for 
 services ; but, it might have been otherwise, if they had sent for and 
 employed him to assist them. 
 
 (in) Neale v. Turton, 4 Bingh. 149. In this case it was also said to 
 be necessary that the plaintiff should show that the secretary had an 
 express authority to accept the bills, as in general a secretary has not 
 such power. 
 
 (3) Causten v. Burke, 2 Har. & Gill. 295.
 
 78 
 
 LEGAL REMEDIES 
 
 larger sum than the amount of the bill. The acceptor 
 having become insolvent before the bill became due, the 
 drawer received from him ten shillings in the pound upon 
 the amount of the bill by way of composition ; and it 
 was held, that the indorsee, being a member of the com- 
 pany, could not sue the drawer upon the bill, inasmuch 
 as it was drawn by the latter on account of the com- 
 pany ; and that he could not recover the sum received 
 by the drawer on the bill, because that money must be 
 taken to have been received by him in his character of 
 a member of the company, and not on his own account.(7i) 
 But where the directors of a projected joint stock com- 
 pany contracted, in their ow n names, with a shareholder 
 for the purchase of a mine ; and after the formation of 
 
 the company, entered into further agreements 
 [ *79 ] with him respecting the *purchase, with a clause 
 
 exempting them from personal liability upon cer- 
 tain parts of the contract, it was held that the directors 
 might be sued by the shareholder upon those parts of 
 the contract to wiiich the exemption did not apply.(o) 
 
 The remedy by an action for contribution catinot be 
 extended to general partners without infringing on the 
 principle, which denies to a partner legal redress against 
 his co-partners in the case of an unsettled account. If, 
 therefore, one partner in a general partnership has any 
 claim for contribution against his co-partners, it seems 
 to be the proper subject of a bill in equity only.( jo) But 
 where persons are partners in a single transaction, one 
 of them may, in an action of assumpsit, for money paid 
 to his use, enforce from the other contribution towards 
 a debt, which he may have discharged, but to which they 
 were jointly liable.(</) It was formerly doubted whether 
 one of two joint contractors. who had paid the whole of 
 a joint debt could maintain an action against the other, 
 as for money paid to his use ; but the right of such an 
 action is now perfectly settled, and it has become fami- 
 
 (n) Teague v. Hubbard, 8 B. & C. 345. S. C. 2 Man. & Ryl. 369. 
 (o) Atlwood V. Small, 1 Mann. & Ryl. 246. 
 Ip) Per Buhy, J., Millburn v. Codd, 6 B. & C. 422. 
 ((/) Abbott V. Smith, 2 Blackst. 917. Per Lord Kenyan, Merry- 
 weather V. Nixon, 8 T. R. 186. Evans v. Yeatherd, 2 Bingh. 133.
 
 BETWEEN PARTNERS. 79 
 
 liar in practice.(r) This action is not, perhaps, to be 
 considered as founded upon contract, so much as on a 
 fixed principle of justice, and a settled rule of law, -which 
 requires equality, according to the maxim, qui sentit com- 
 modum seniire debet et onus.{s) (1) Therefore, if one of 
 two partners discharge a joint demand, or if the debt 
 and damages due on a joint judgment, founded on con- 
 tract, be levied against him separately, he may, in an 
 action for money paid to the use of his co-partner, re- 
 cover from him his proportion, because, both being in 
 quali jure, each ought equally to bear the burden.(/) 
 So, where the manager or agent of a company has 
 paid a debt due from the company, he may compel 
 all and each of the members to contribute their re- 
 spective proportions.(z^) And if two persons enter 
 into a joint contract with the owner of a vessel 
 to supply *her with colonial produce by a given [ *80 ] 
 time ; and the contract not being complied with, 
 the owner makes a demand on one of them for compen- 
 sation, who, without the knowledge or consent of the 
 other agrees to refer the amount of the damage sustained 
 to an arbitrator, and pays to the owner the whole sum 
 awarded to be due ; in an action for money paid he may 
 recover from his co-contractor a moiety of his disburse- 
 ment.(u) (2) But to enable one partner, who has paid a 
 joint debt, to recover contribution from his co-partner, 
 it is essential that the relation of partners, and the con- 
 sequent obligations, should exist inter se; for though 
 persons may make themselves partners by means of 
 their transactions with the world, and therefore be liable 
 upon any engagement that may arise out of that rela- 
 
 (r\ Wright v. Hunter, 5 Ves. 792. And see 1 East, 20. 
 
 m Deering v. Lord Winchelsea, 2 Bos. & Pul. 270. 
 
 (/) Per Lord Kenyan, Herries v. Jamieson, 5 T. R. 556. Bayley, 
 J., Ansell V. Waterhouse, 6 Mau. & Selw. 390. 
 
 (m) Carlen v. Drury, 1 Ves. &l Bea. 157. See Holmes v. William- 
 son, 6 Mau. & Selw. 158. 
 
 (v) Burnell v. Minot, 4 B. Moore, 340. 
 
 n) Campbell v. Mesier et al. 4 Johns. Cha. Rep. 33 i. 
 (2) See Noel v. Bowman, 2 Littel's Rep. 46. 
 15
 
 80 
 
 LEGAL REMEDIES 
 
 tion, yet it does not follow that, with respect to each 
 other, they are to be considered as partners, or that 
 where one has paid the whole of a debt for which both 
 were liable, any obligation attaches to the other to con- 
 tribute to it. Thus, the manager or servant of a part- 
 nership, who acts as one of the partners in the part- 
 nership, is responsible to third persons in the character 
 of partner, and, if sued to judgment by a joint credi- 
 tor, may be compelled to pay not his proportion alone, 
 but the whole of the joint debt; but, if he were so com- 
 pelled, he would have an indisputable right to be repaid 
 by the partnership whatever sum he may hate disbursed, 
 because, as between himself and the firm, he could not 
 be subject to the payment of any part of the joint debts; 
 and that being so, it is clear that if the payment were 
 made in the first instance by either of the actual mem- 
 bers of the firm, that member could not call upon the 
 manager to contribute to it.(z/;) So, two persons, en- 
 tering into a trading concern, may agree between them- 
 selves that neither shall be answerable for the acts or 
 losses of the other, but each for his own ; and, in such 
 a case, the one cannot be compelled to contribute any 
 proportion of a loss sustained by the other.(^) And 
 where a Fire Assurance Company was established on 
 the principle of mutual guarantee, and, by the articles 
 and policies granted, it was stipulated and declared that 
 the directors, who might execute the policies, should not 
 be personally responsible for loss, but that the company 
 should be liable for it to the extent of their funds ; it 
 
 was held, in an action on a policy against three 
 [ *81 ] directors who had subscribed it, to *which the 
 
 defendants pleaded several pleas imputing fraud 
 to the plaintiflf, which the jury negatived by finding a 
 verdict for him, that although no personal or individual 
 responsibility attached to them, yet as the plaintiff was 
 clearly entitled to recover from the funds of the society, 
 if they were sufficient to defray the amount of his loss, 
 and as the plaintiff averred that those funds were suf- 
 
 {w) Geddes v. Wallace, 2 Bligh. 270. 
 {x) Waugh V. Carver, 2 H. Bl. 235.
 
 BETWEEN PARTNERS. 81 
 
 ficient, which the defendants had not denied, there was 
 not any ground for arresting the judgment.(y) Besides 
 a joint obligation inter se, it is also requisite that a joint 
 legal liability should originally have existed, or at least 
 that the creditor should have had an equitable claim, in 
 respect of a joint debt, upon the party paying ;(z) a mere 
 voluntary pa3^ment by one partner, unconnected with 
 legal or equitable responsibility, being insufficient to 
 confer upon him any right, as against the other mem- 
 bers of the firm.(l) Therefore, where four persons, 
 being in partnership as carriers, entered into an agree- 
 ment, with a third person, to carry goods for him from 
 London to Frome^ where they were to be deposited in 
 the warehouse of the resident partner until the owner 
 should be ready to receive them into his own ; and cer- 
 tain goods, having been forwarded, were, after they had 
 been deposited in the partner's warehouse, destroyed 
 there by fire, it was determined, that, as the liability of 
 the partners, in their capacity of carriers, ceased on the 
 arrival of the goods at Frome, the resident party, who 
 had paid over the amount of the loss to the owner of 
 the goods, could not recover from his co-partners any 
 proportion of the sum he had paid. (a) But where two 
 partners executed a deed of dissolution of the partner- 
 ship, whereby it was stipulated that neither of them 
 should afterwards make any purchase to bind the other, 
 but that every subsequent purchase should be on the 
 private account of the purchaser, it was held, that if one 
 afterwards made purchases in the name of the firm, and 
 the other paid for them, he might maintain an action 
 against the former for money paid to his use, notwith- 
 standing the defendant had, by deed, assigned his pro- 
 perty to his creditors, who covenanted not to sue 
 him, and which latter deed the plaintiff himself sign- 
 
 (y) Andrewes v. Ellison, 6 B. Moore, 199 ; and see Ellison v. Big- 
 nold, 2 Jac. & Walk. 503. 
 
 (z) Hutton V. Eyre, 1 Marsh, 698. 
 (a) In re Webb, 2 B. Moore, 500. 
 
 (1) Murray v. Bogert et al. 14 Johns. Rep. 318.
 
 82 
 
 LEGAL REMEDIES 
 
 [ *82 ] ed.(6) And it is essential that the *debt itself 
 should be discharged by an actual payment, since 
 a mere extinguishment of it, by one joint-contractor 
 giving a higher security, will not entitle him to maintain 
 an action for money paid against his co-contractor. Thus 
 where one of the makers of a joint and several promissory 
 note, after the same had become due, gave his bond to the 
 holder for the amount, but, before the commencement of 
 the action, no money was actually paid on the bond, it 
 was held, that until he had paid the money, he could 
 not maintain an action to recover contribution against 
 any of the other makers of the original note.(c) 
 
 Where a joint liability existed, and the debt or de- 
 mand, in respect of which that liability was created, has 
 actually been discharged by one partner out of his sepa- 
 rate funds, he may nevertheless be precluded from call- 
 ing upon his co-partner to contribute his proportion of 
 the debt by the illegality of the original contract ; for, 
 if the agreement, out of which the debt or demand 
 originated, were contaminated with, or arose out of an 
 illegal transaction, the action for a contribution cannot 
 be sustained. Therefore, if partners are engaged in any 
 thing malum in se, one of them cannot acquire a right of 
 action by paying a sum of money which they may 
 jointly have promised to a third person in the course of 
 their immoral transactions. (rf ) So, w here the transac- 
 tion in respect of which the payment is made is not 
 malum in se, but only malum prohibitum, yet if the money 
 were advanced in the course of, and with the view of 
 furthering, the illegal contract, a claim of contribution 
 cannot be supported. For it is a maxim in law, that a 
 party must show that he stands on fair ground when he 
 calls on a court of justice to administer relief to him; 
 and as that is far from being the case with a suitor who, 
 as the foundation of his claim, discloses a transaction 
 which originated out of a matter prohibited by the mu- 
 
 (b) Hutton V. Eyre, 1 Marsh, 603. S. C. 6 Taunt. 289. 
 
 (c) Maxwell v. Jameson, 2 B. <fc A. 51 . Taylor v. Higgins, 3 East, 
 169. ace. Barclay v. Gooch, 2 Esp. N. P. C. 571. cont. See Ex parte 
 Sergeant, 1 Glyn &l James. 183. 
 
 {d) Per Heath, J., Aubert v. Maze, 2 Bos. & Pul. 371.
 
 BETWEEN PARTNERS. 82 
 
 nicipal regulations of the state, the rule of ex turpi causa 
 non oritur actio applies. Thus, if one of two partners 
 advance money in a smuggling transaction, he cannot 
 recover his proportion of it against his partner, because 
 the transaction is prohibited,(e) Although these points 
 have always been considered perfectly clear, con- 
 siderable *uncertainty seems for some time to [ *83 ] 
 have prevailed in those cases of mala prohibita^ 
 where the alleged right of insisting upon contribution 
 did not arise immediately out of the illegal contract itself, 
 but, to use the expression of Lord Chief Justice Eyre,(^f) 
 was one step removed from it, as if the money were 
 advanced by one, with the consent and by the direction 
 of the other party involved in the illegal concern. And 
 this distinction was drawn between the cases of partners 
 engaged in legal and illegal contracts ; in the former, if 
 one of the partners pay the whole of a partnership debt, 
 without any express promise from the other, the law, on 
 the ground that both were liable to pay, will give him a 
 right to recover back a moiety in an action for money 
 paid to the use of that other partner. But in the case 
 of illegal contracts, as the partners are not bound to 
 pay, one of them cannot acquire a right of action against 
 the other by paying the whole without his consent : if, 
 however, it be paid with his knowledge and consent, and 
 by his authority, the action for contribution may be 
 maintained, because then the action is not founded on a 
 promise arising by implication of law out of the illegal 
 transaction, but upon an express request subsequently 
 made. Thus, where two persons jointly engaged in ille- 
 gal stock-jobbing transactions with a third, and a loss 
 having arisen, one of them paid the whole, and took the 
 bond of the other for his proportion, the bond was de- 
 cided to be good ; for, being voluntarily given, it created 
 a new original duty, which could not be impeached, on 
 account of the illegality of the transactions, which gave 
 rise to the payment it was intended to secure.( g) So, 
 
 (e) Per Lord Kenyan, Petrie v. Hannay, 3 T. R. 418. Ex parte 
 Bell, 1 Mau. & Selw. 756. Biggs v. Lawrence, 3 T. R. 454. 
 {/) Mitchell V. Cockburn,2 H. Bl. 379. 
 ( g) Faikney v. Renous, 4 Burr. 2069.
 
 83 LEGAL REMEDIES 
 
 where two partners having sustained losses in similar 
 transactions, employed a broker to pay the differences, 
 and one of them repaid the broker the whole sum with 
 the privity and by the direction of the other, the majo- 
 rity of the judges of the Court of King's Bench, con- 
 trary to the opinion of Lord Kenyan^ determined, on the 
 authority of the preceding case, that an action might 
 be sustained for a moiety of the payment ; but, without 
 such direction, it was agreed that an action would not 
 lie ', for, in consequence of the illegality of the transac- 
 tions, the parties w ere under no legal obligation 
 [ *84 ] to make good their losses.(/?.) But the *sound- 
 ness of the distinction, established by the two 
 last decisions, between express and implied promises has 
 been much questioned, and the distinction itself may, 
 perhaps, be said to have been denied. (z) For where 
 persons engage in partnership in an illegal concern, 
 each of them must be considered as giving an authority 
 to the other to transact all business relating to the part- 
 nership, otherwise no profit could ever arise from the 
 undertaking. Indeed, if such an authority were not 
 impliedly conferred, the partnership must be terminated 
 the moment occasion arose for the first transaction in 
 it. The consequence, therefore, seems to be this, that 
 if a partnership be legal, the law raises an implied con- 
 sent to every payment ; and if it be illegal, yet if the 
 payment be made in the course of the partnership busi- 
 ness, an implied consent may be raised to that payment, 
 without which the partnership could not subsist an 
 instant. But, consistently with the rules of law, an im- 
 plied consent can, in no instance, be so raised as to con- 
 fer a right of action, where the consideration for it is 
 bottomed on an illegal contract, and the case of pay- 
 ments made in the course of an illegal partnership must 
 always be open to the objection of having an illicit foun- 
 dation ; for if there had been no partnership, a payment, 
 could not have arisen out of it. The distinction, there- 
 
 (A) Petrie v. Hannay, 3 T. R, 418. See the observation of Lord 
 Er shine in Ex parte Bulmer, 13 Ves. 319. ; and see Steers v. Leshley, 
 6 T. R. 61. Brown v. Turner, 7 T. R. 630. 
 
 (f) Aubert v. Maze, 2 Bos. k Pul. 371.
 
 BETWEEN PARTNERS. 84 
 
 fore, on which the decisions in Faikney v. Rejious, and 
 Pefrie v. Hannay proceeded, being untenable, the cases 
 themselves cannot be supported; and notwithstanding 
 there be an express request, the general principle, that 
 where one person pays money for another in the course 
 of an illegal transaction, he cannot recover it back, will 
 apply. And whatever diversity of opinion may formerly 
 have prevailed as to the legal effect of a loan of money^ 
 where the lender knew that the money was borrowed 
 for the purpose of being applied to an illegal purpose 
 not malum in se, it is now completely established, on 
 the ground that that which is malum prohibitum can- 
 not in this view be contradistinguished from that which 
 is malum in se, that the lender cannot resort to a 
 court of justice to give effect to any claim that may 
 arise out of the loan, even although the conduct 
 of the borrower be most unconscientious.(y) (1) 
 *Thus, in a modern case,(^) it was held that [ *85 ] 
 money lent for the express purpose of settling 
 losses on illegal stock-jobbing transactions, to which 
 the lender was not a party, and which was so applied 
 by the borrower, could not be recovered back. And if 
 before the late statute enabling partners jointly to un- 
 derwrite policies of insurance,(/) one of two partners, 
 who had engaged in such transactions, paid the whole 
 of the losses, he could not recover a moiety of the mo- 
 ney so paid from his co-partner,(m) although the losses 
 paid exceeded the premiums he received.(?i) Nor could 
 
 (j) Aubert v. Maze, supra. Webb v. Brooke, 3 Taunt. 6. Ex 
 parte Mather, 3 Ves. 373. JE.v parte Daniels, 14 Ves. 192. Ottley 
 V. Brown, 1 Ball & Beat. 366. Lightfoot v. Tenant, 1 Bos. &; Pul. 
 554. Langton v. Hughes, 1 Mau. & Selw. 594. Bensley v. Bignold, 
 5 B. &; A. 335. Evans v. Richardson, 3 Meriv. 470.; but see Ex 
 parte Bulmer, 13 Ves. 313. 
 
 [k) Cannan v. Bryce, 3 B. & A. 179 ; and see Amory v. Mery- 
 weather, 2 B. & C. 573. 
 
 (I) 5 Geo. 4, p. 1 14, s. 1; and see ante, p. 29. 
 
 (m) Aubert v. Maze, aiite. 
 
 [n ) Mitchell v. Cockburn, 2 H. Bl. 379. 
 
 (1) Griswold v. Waddington, 16 Johns. Rep. 486, 487. Beding 
 V. Pitkin, 2 Caines' Rep. 147, (2d edit.) and the Reporter's note.
 
 85 LEGAL REMEDIES 
 
 he maintain an action against the other for premiumis 
 received by him,(o) or to recover back advances, on 
 account of payments to be made on policies of in- 
 surance ; because such advances must have been made 
 in the very execution of the illegal contract.(p) In all 
 such cases, the claim of the plaintiff could not be estab- 
 lished, except through the illegal contract in which all 
 were concerned ; and it would therefore have been in- 
 consistent with the principles of justice, to have allowed 
 a particeps criminis to enforce such a claim in a court 
 of law. The same doctrine was recognised in a case 
 which was recently brought under the consideration of 
 the Court of Common Pleas. There A betted twenty- 
 five guineas with B on a horse-race, of which C, at his 
 own request, staked ten ; and A having won, paid C ten 
 guineas, in the expectation of receiving the whole 
 amount of the bet from B, but in which, in consequence 
 of B's death, he was disappointed. A having brought 
 an action to recover from C the ten guineas, as having 
 been paid on a consideration which had failed, the Court 
 of Common Pleas held that the action was not main- 
 tainable, because A could not make out his claim with- 
 out going into proof of the illegal transaction on account 
 of which it was paid.(y) In a case,(r) where one of 
 two joint underwriters had paid to a broker a moiety of 
 a loss sustained by them upon a policy, in an action 
 
 against the broker by the underwriter who had 
 [ *86 ] *discharged the whole loss, it was held that he 
 
 could not establish his right to the moiety so 
 paid over; and Lord Kenyon observed, that a party 
 could not appeal to a court of justice to enforce a con- 
 tract founded in a breach of the law. But the authority 
 of this determination has been subsequently shaken,(s) 
 
 (o) Booth V. Hodgson, 6 T, R. 405. 
 
 (p) Ex parte Bell, 1 M. & S. 752. 
 
 Iq) Simpson v. Bloss, 2 Marsh. 542. S. C. 7 Taunt. 246, and 
 Holt's N. P. C. 273. 
 
 (A Sullivan v. Greaves, Parke on Insur. 8. 
 
 (s) See Tenant v, Elliot, 1 Bos. & Pul. 3. Farmer v. Russel, Ibid. 
 296. Thomson v. Thomson, 7 Ves. 473. Where the money was not 
 actually paid, but only allowed in account between the broker and one 
 of the underwriters, in an action against the broker by the other under-
 
 BETWEEN PARTNERS. 86 
 
 and seemingly with reason; for although the underwri- 
 ter has a right to shelter himself under the invalidity of 
 such a contract, yet he may waive the benefit which, by 
 so doing, he would derive from its illegality, and con- 
 sider it as operative and bindin;^ upon him; and if he 
 do, it is irreconcilable with justice, that a person, who 
 is a mere instrument of transmission, should be allowed 
 to intercept and appropriate to his oWn use what he re- 
 ceives in execution of the engagement entered into by 
 the underwriters.(l) Besides, in the cases of contracts 
 rendered illegal by legislative prohibition, one partner 
 cannot in the action of assumpsit for money paid to the 
 use of his co-partner, or in any other action, recover 
 from him contribution, on a tort, for which both have 
 been sued, and a joint judgment being obtained against 
 them, the entire damages have been levied against one 
 individually. Thus, where (t) a sum of money had been 
 recovered against two defendants in an action for an 
 injury done to a mill, in which action was included a 
 count in trover for the machinery, one of the defendants, 
 against whom the whole had been levied, brought an 
 action against the other for a contribution of a moiety, 
 as for so much money paid to his use ; but the Court of 
 King's Bench, in affirmance of the opinion of Mr. Ba- 
 ron Thompson at Nisi Prius, determined that such an 
 action would not lie, since by law no contribution could 
 be claimed as between joint wrong-doers.(2) In a re- 
 cent case, however, which was an action for contribu- 
 tion by one of two defendants, coach proprietors, against 
 
 writer to recover the amount so allowed, the Court would not sustain 
 the demand; for, by so doing, they would have compelled the execu- 
 tion of an illegal contract, as if it were a legal one. Edgar v. Fowler, 
 3 East, 222. 
 
 (0 Merry weather ZJ. Nixan, 8 T. R. 186. See also Philips v. Biggs, 
 Hardr. 164. Lingard v. Bromley, 1 Ves. & Bea. 116, 17; and the 
 observation of Bayley, J., Ansell v. Waterhouse, 6 Mau. & Selw. H90. 
 
 ll) See ^^nderson v. Moncreiff, 3 Desaus. Cha. Rep. 125. 
 
 (2) Rose V. Oliver et al. 2 Johns. Rep. 365 — the close of Judge 
 Spencer's opinion. Nor would equity interpose. Peck v. £llis, 2 
 Johns. Cha. Rep. 131. 
 
 16
 
 86 LEGAL REMEDIES 
 
 the other, to recover a moiety of the costs and damages 
 recovered in an action for negligence, it was held that 
 
 upon its being proved that the plaintiff was not 
 [ *87 ] personally ^present at the time of the injury 
 
 complained of, and so in no personal default, he 
 was entitled to recover.(?<) 
 
 The action of assumpsit is in some instances a neces- 
 sary remedy to enforce rights, which may result to some 
 of the partners from the misconduct of the others, after 
 a general partnership has been dissolved or a single joint 
 transaction has been terminated. If, for instance, sub- 
 sequently to a dissolution, a bill of exchange be drawn 
 by a single partner in the partnership firm, and the 
 holder of the bill proceed against all the partners, and 
 obtain payment from those who were not privy to its 
 concoction, they, in an action for money paid to the use 
 of the actual drawer, may recover from him the sum 
 they have been compelled to pay in satisfaction of the 
 judgment obtained against them upon the bill.(r) But 
 to enable them to obtain repayment of the sum advanced 
 in a joint action, the payment must have been joint, and 
 consequently must have been made out of some joint 
 stock or fund ; and, generally speaking, such a fund 
 does not exist after a dissolution : where, however, the 
 attorney for the parties advanced part of the sum re- 
 quired on their joint credit, and borrowed the remainder 
 on their joint note, it was held that that created such a 
 fund as would entitle them to maintain a joint action. (if;) 
 But if the payment be not of the description from which 
 a joint cause of action can accrue, as if each individual 
 in the first instance contribute his proportion out of his 
 own separate funds, and with the aggregate the payment 
 be made, then each contributor must bring a separate 
 action for what he actually advanced, because quoad 
 that payment they were not partners.(a:) Therefore 
 where there were three assignees of a bankrupt's estate 
 who had acted in the commission, and two of them paid 
 
 («) Woolley V. Batte, 2 C. & P. N. P. C. 417. 
 
 (u) Osborne v. Harper, 5 East, 225. (tv) Id. Ibid. 
 
 {x) Id. Ibid.. Graham v. Robertson, 2 T. R. 282.
 
 BETWEEN PARTNERS. 87 
 
 the solicitor's bill, it was held that the two could not 
 maintain a joint action against the third for contribution, 
 but that each ought to sue separately .(y) So where 
 three had entered into a joint and separate bond of in- 
 demnity to a sheriff, for the protection of their separate 
 interests, and the sheriff had compelled two of them to 
 pay the whole sum, it was holdea that they could not 
 maintain a joint action against the third for con- 
 tribution.(z) The *rule, however, which requires [ *88 ] 
 a severance of actions where the payment is not 
 made out of, or in respect of any joint fund or credit, 
 does not apply where the payment in dispute has been 
 made by some on behalf of all the partners on a partner- 
 ship account, for in such a case the action for con- 
 tribution must be brought in the name of all those partners 
 on whose behalf the payment was made. Thus, where 
 five joint owners of a privateer and the owner of another 
 privateer cruised in company, under an agreement to 
 share prizes equally, and a prize being taken by the five 
 and condemned, a moiety of it was paid to the single 
 owner; but the sentence of condemnation being after- 
 wards reversed, and restitution ordered, the whole value 
 was repaid on the partnership account by three of the 
 five, after the bankruptcy of the other two ; it was de- 
 cided by the Court of King's Bench, that, as the pay- 
 ment was on account of the partnership, the three could 
 not maintain an action against the single owner, without 
 joining the assignees of the bankrupt partners.(a) (1) 
 An undertaking by two partners to pay a sum of money 
 
 (y) Brand v. Boulcott, 3 Bos. & Pul. 235. 
 
 (z) Kelly V. Vernon, 5 Esp. N. P. C. 194. In the case of Low v. 
 Copestake, 3 C. & P. N. P. C. 300, where three persons, not partners 
 in trade, had separately indorsed a bill for the accommodation of the 
 drawer, and, on its being dishonoured, had paid in equal portions the 
 amount to a party who had discounted it subsequently to their indorse- 
 ments, it was held that they might strike out their indorsements, and 
 proceed jointly as possessors of the bill against a previous indorser. 
 
 (a) Graham v. Robertson, 2 T. R. 382. 
 
 (I) Manahan v. Gibbons et al. Doremus v. Seldenet al. 19 Johns. 
 Rep. 109, 213, 426.
 
 88 LEGAL REMEDIES 
 
 to -a third equally out of their own private funds, is a 
 joint undertaking, and they can only be sued jointly upon 
 it.(b) Where and individual is a common partner in 
 two concerns, no legal contract can. arise between the 
 partnerships, and therefore no engagement entered into, 
 or debt incurred, by the one with or to the other can be 
 enforced.(c) (1) 
 
 The general rule applicable to a bill of particulars of 
 demand delivered under a judge's order is, that the 
 party shall be confined to his particular, and not ad- 
 mitted to give evidence of any additional demand ; but 
 under certain circumstances, in a case where the proofs 
 produced by the defendant himself established another 
 claim in his favour, the plaintiff has been allowed to 
 
 have the benefit of such evidence even beyond 
 [ *89 ] the contents of the ^particular. Thus, where an 
 
 action was brought by one partner against an- 
 other to recover a balance due on a statement of 
 accounts ; the plaintiff, by his bill of particulars, con- 
 fined himself to the balance due on separate accounts ; 
 in support of which he gave in evidence an account, in 
 which the defendant made himself debtor to a certain 
 amount ; and in answer to this evidence, the defendant 
 produced an account subsequently rendered by the plain- 
 tiff, according to which there appeared to be a balance 
 due to the defendant on the separate accounts ; but on 
 the opposite side of the page, there was a statement 
 also of the partnership accounts, on which the balance 
 was in favour of the plaintiff, and greatly exceeded the 
 balance on the separate account ; it was objected that 
 the plaintiff could not recover beyond his particular. 
 The court however said, that the defendant himself had 
 given the plaintiff a better case than he was at liberty 
 
 (b) Byers v. Dobey, 1 H. Bl. 286. 
 
 (c) Boisanquet t'. Wray, 2 Marsh. 319. S. C. 6 Taunt. 597. See 
 also Main waring v. Newman, 2 Bos. &, Pul. 120. De Tastet v. Shaw, 
 1 B. & A. 664. Neale v. Turton, 4 Bingh. 149. Teague v. Hubbard, 
 8 B. & C. 345. S. C. 2 Mann. & Ryl. 369.. Jones v. Yates, 9 B. 
 C. 532. Harvey v. Kay, Ibid. 356. 
 
 (1) Per Duncan, J., Griffith v. Chew's Ex. 8 Serg. & Rawle, 30.
 
 BETWEEN PARTNERS. 89 
 
 to make for himself, and that the plaintiff was entitled 
 to a verdict for all that had been proved to be due to 
 him.(c?) 
 
 One partner may maintain an action at law against 
 his co-partner, notwithstanding it has been agreed be- 
 tween them that the matter in dispute shall be deter- 
 mined by an arbitration ; because although a reference 
 depending, or made and determined, might be a bar, yet 
 a mere agreement to refer cannot oust the superior 
 courts of their general jurisdiction. (c) It has, indeed, 
 been said that many cases exist, in which, on a plea of 
 an award, or of a submission to a reference, the court 
 has gone into the merits.(y) And although partners 
 covenant that all differences arising between them, their 
 executors or administrators, shall be referred to the de- 
 cision of two indifferent persons to be elected by the 
 partners themselves, yet, on the death of one, an action 
 cannot be maintained by his representatives, against the 
 other, for refusing to nominate a referee.(^) 
 
 We have hitherto confined our investigation of the 
 legal remedies accommodated to the adjustment of part- 
 nership differences to those actions alone which 
 arise out of contract. The *only action of tort [ *90 ] 
 which, as between partners, can result from the 
 relation they have contracted, is the action of trover to 
 recover damages for the destruction of the joint proper- 
 ty ; but it may be doubted whether even such an action 
 can be sustained between general partners for the de- 
 struction of any specific article of the joint property. 
 However, it is settled that one joint-tenant, or tenant in 
 common, cannot maintain trover against his companion 
 for a thing still in his custody, because an unity of pos- 
 session subsists between them, the possession of one 
 being, in point of law, the possession of both, and the 
 
 ((/) Hurst V. Watkis, 1 Campb. 68. 
 
 (e) Kill V. HoUister, 1 VVils. 129. Thompson v. Charnock, 8 T. 
 R. 139. See also James v. David, 5 T. R. 141. 
 
 (/) Michell V. Harris, 4 Bro. C. C. 311. S. C. 2 Ves. jun. 129. 
 See Coxeter v. Anderson, 3 Vin. Abr. 134. pi. 19. 
 
 {g) Tattersal v. Groote, 2 Bos. & Pul. 131.
 
 90 LEGAL REMEDIES 
 
 defendant may take advantage of it on the general 
 issue.(A) (1) Thus, where the plaintiff and the defen- 
 dant C were members of a friendly society which levied 
 a fund by weekly contribution from each other, and the 
 aggregate sum was kept in a box deposited with the 
 plaintiff, who gave a bond for the safe custody of it, C 
 took the box away and delivered it to the other defen- 
 dant W, who was not a member of the society ; on an 
 action of trover being brought, the learned judge who 
 tried the cause nonsuited the plaintiff, and the Court of 
 King's Bench, on an application for a new trial, con- 
 firmed the nonsuit, and said, that as all the members of 
 the society had a joint property in the box and its con- 
 tents, they were therefore tenants in common, and it was 
 an undoubted rule that one tenant in common cannot 
 maintain trover against another. And, moreover, as it 
 was admitted that one of the defendants was a member 
 of the society, he had a general property in the box, and 
 therefore a special property, such as the plaintiff had 
 (the custody only having been committed to him, and 
 the general property still remaining in the society), 
 could not give a right in this action against a general 
 property .(«) (2) So, where after an act of bankruptcy 
 committed by one of two partners, joint effects were 
 sent aw ay, which came to the defendant's hands ; then 
 the solvent partner died, leaving the defendant his exe- 
 cutor, and afterwards a commission of bankrupt was 
 taken out against the surviving partner, and his estate 
 assigned to the plaintiffs ; it was holden, that they Avere 
 tenants in common with the solvent partner, and 
 after his decease with his representatives, by relation 
 
 {h) Co. Litt. 200. a. Brown v. Hedges, 1 Salk. 290. Bull. N. P. 34. 
 Brammel v. Jones, cited Sehv. N. P. (5th ed.) 1313. Com. Dig. Tit. 
 Estates, K. 8. 
 
 (i) HoUiday v. Camsell, 1 T. R. 658. 
 
 (1) Per Spencer, C. J., 2 Caines' Rep. 167. Cowan et al. v. 
 Buyers, Cook's Rep. 53. Chinn et iix. v. Respass, 1 Monroe's Rep. 
 29. Gilbert v. Dickerson, 7 Wend. Rep. 449. Farr v. Smith, 9 
 Wend. Rep. 338. 
 
 (2) Clay V. Gnibhs, 1 Ljltel's Rep. 22.
 
 BETWEEN PARTNERS. 91 
 
 from the act of bankruptcy ; and *consequently [ *91 ] 
 could not maintain trover against the defendant 
 claiming under such solvent partner.(A:) Upon the same 
 principle, where after an act of bankruptcy committed 
 by one of two partners the other delivered goods, part 
 of their joint property, to a creditor, for a joint debt, 
 and died, and afterwards a commission issued against 
 the surviving partner, it was holden that the creditor, 
 by virtue of such delivery by the solvent partner, be- 
 came tenant in common of the goods with the assignees 
 of the bankrupt by relation from the act of bankruptcy, 
 which was in the lifetime of the solvent partner, and, 
 consequently, that the assignees could not maintain tro- 
 ver against such creditor.(/) But if one joint-tenant, 
 or tenant in common, destroy the thing in common, the 
 other may bring trover against him, because that 
 amounts to a wrongful conversion. (??i) (1) Therefore, 
 where it appeared that one tenant in common of a ship 
 had forcibly taken it out of the possession of his com- 
 panion,^ and secreted it from him, so that he knew not 
 where it was carried, and changed the name of it, and 
 it afterwards got into the hands of a third person, who 
 sent it on a foreign voyage, where it was lost in a storm, 
 this was held by Lord King to be evidence of a destruc- 
 tion, and the jury, under his directions, found it to be 
 so.(w) (2) The preceding case proceeded upon the prin- 
 
 {k) Smith V. Stokes, 1 East, 363. 
 
 (Z) Smith V. Oriell, 1 East, 368. 
 
 im) Co. Lit. 200. a. 
 
 (n) Barnardiston i'. Chapman, Bull. N. P. 34, 35. S. C. cited m 
 Heath V. Hubbard, 4 East, 121. See also Penning v. Lord Grenvdle, 
 1 Taunt. 241. Cubitt v. Porter, 2 Mann. & Ryl. 207. S. C. 8 B. & 
 C. 257. Voyce v. Voyce, Gow's N. P. C. 201 . 
 
 (1) Per Spencer, C. J.,2Caines' Rep. 167. Coivan et al. v. Buyers, 
 Cooke's Rep. 58. Wiiat amounts to adestrucfion, Sheldon v. Skinner, 
 4 Wend. Rep. 525. So if he sell the whole of it. TrUson et al. v. 
 Feed, 3 Johns. Rep. 175. Thompson v. Cook, 2 South. Rep. 580. 
 But not if it be sold by a creditor for a debt due by one tenant in com- 
 mon. Bell V. Layman, 1 Monroe's Rep. 40. St. John v. Standring, 
 2 Johns. Rep. 468. Mersereau v. Norton, 15 Johns. Rep. 179. 
 
 (2) Lowthorp v. Smith, 1 Hayw. Rep. 255.
 
 92 LEGAL REMEDIES 
 
 ciple that there was a destruction of the subject matter, 
 and it is now estabUshed that one tenant in common 
 cannot recover for a chattel in trover against his com- 
 panion, without first proving a destruction of the chattel, 
 or something that is equivalent to it. Hence where one 
 of two tenants in conuiion of a whale cut it up and ex- 
 pressed the oil, it was determined that such alteration in 
 the form of the property did not amount to a tortious 
 conversion, so as to enable the companion to maintain 
 trover ; for the act done was an application of the whale 
 to the onjy purpose which could make it profitable to 
 the owners, and tended to preserve instead of destroy- 
 ing it, which one tenant in common was clearly entitled 
 to do ; and as the parties were clearly tenants in com- 
 mon of the whale, they became tenants in com- 
 [ *92 ] mon of the produce, *after it was converted into 
 oil.(o) It does not appear to be established 
 whether a sale by one tenant in common, or joint-tenant, 
 of the joint property is such a conversion as will entitle 
 the co-tenant to maintain an action of trover. There 
 may be cases, in which the indivisible nature of the pro- 
 perty held in common may raise an implied authority in 
 one to sell the whole, and such a power, as we have 
 already seen,( ;> ) is clearly vested in each member of a 
 firm. But unless there be an express or implied autho- 
 rity, a sale of the whole by one tenant in common is, it 
 seems, with respect to the other, a wrongful conversion 
 of his undivided part.(9') (1) 
 
 (o) Penning v. LorJ Grenville, ante. It was admitted in this case, 
 that the taking by the defendant, and the refusal to deliver on demand 
 made, was not any misfeasance in a tenant in common, and did not 
 give a right of action. See Martyn v^ KnowUys, 8 T. R. 146. 
 
 {jpi) See ante, p. 51. 
 
 {q) Barton v. Williams, 5 B. & A. 395. Jackson v. Anderson, 4 
 Taunt. 24. Heath v. Hubbard, 4 East, 110. The sale of the whole 
 of a ship by one who is only a part-owner, in exclusion of the right of 
 another, who is tenant in common with him, is not, it should seem, 
 equivalent to the destruction of the subject matter, mediately or imme- 
 
 (1) JFilson et al. v. Reed, 3 Johns. Rep. 175. Thompson v. Cooh, 
 2 South. Rep. 580. But a sale by a partner of all the partnership 
 effects would not be. Mountjoys v. Holden, Littel's Sel. Cases, 447.
 
 BETWEEN PARTNERS. 92 
 
 Notice by one partner that the partnership has been 
 dissolved, is evidence against that partner that it has 
 been dissolved by competent means, even by a deed, if 
 a deed be essential ;(r) and in such a case an ejectment 
 lies, upon the demise of one co-partner against another, 
 for a house agreed to be occupied jointly during the 
 partnership, without proof of a notice to quit.(s) 
 
 Where the parties contest the question of partnership 
 inter sc, it seems that such evidence as would be suffi- 
 cient to establish their partnership in a suit by a stranger 
 will raise a presumption of the fact of partnership as 
 amongst themselves.(0 ^"^ where A, who had been a 
 partner with B in a particular commercial adventure, 
 sent to B an account, stating a loss, and B, on applica- 
 tion being made to him for one moiety of such loss, 
 stated that he would call and settle with A, this was 
 held to be evidence of an adjustment of the amount 
 between the parties in an action by A to recover the 
 moiety.(i^) 
 
 SECTION IV. [ * 93 ] 
 
 Equitable Remedies between Partners. 
 
 Besides the legal remedies we have enumerated as 
 being open to partners for the redress of wrongs arising 
 inter se, relief is, in most instances of partnership dis- 
 sensions, administered in a court of equity. Where, 
 indeed, one partner has reason to complain of another 
 concerning pecuniary transactions, the most advisable 
 course to pursue is to file a bill praying a discovery, and 
 that the defendant may account. Such a dispute, which 
 
 diately, so as to enable his co-tenant to maintain trover against him for 
 it. Id. Ibid. Com. Dig. tit. Estates K. 8. See, also, Graves v. Sawyer, 
 T. Ravm. 15. 
 
 (r) Doc d. Waithman v. Miles, 1 Stark. N. P. C. 181. S. C. 4 
 Campb. 373. 
 
 («) Id. ibid. 
 
 It) Per Lord Ellmhorough, Peacock v. Peacock, 2 Campb. 45. 
 
 \ii) Clark V. Glennie, 3 Stark. N. P. C. 10. 
 
 17
 
 93 EQUITABLE REMEDIES 
 
 is often of a complicated nature, and rests only in the 
 knowledge of the party, is better adjusted in a court of 
 equity, which applies itself to the conscience of the de- 
 faulter, and purges him upon oath, with regard to the 
 truth of the transaction. The truth being once ascer- 
 tained, the judgment is generally the same in equity that 
 it would have been at law ; but, for this purpose, the 
 mode of administering justice in courts of equity, the 
 mode of proof, the mode of trial, and the mode of relief, 
 are found far better calculated for the adjustment of dif- 
 ferences of this description, than the ordinary remedies 
 afforded for the purpose at law. 
 
 Under the head of account^ it has been said, partnership 
 dealings form the subject of equitable cognizance.(a)(l) 
 The ground upon which courts of equity first interfered 
 in these cases, seems to have been, the difficulty of pro- 
 ceeding to the full extent of justice in the courts of com- 
 mon law.(6) Thus, though accounts may be taken 
 before auditors in an action of account in the courts of 
 common law, yet a court of equity, by its modes of pro- 
 ceeding, is enabled to investigate more effectually long 
 and intricate accounts in an adverse way, and to com- 
 pel payment of the balance whichever way it turns. 
 And, unless there be an admitted balance, we have 
 seen,(c) that partners cannot, in a court of law, obtain 
 any redress through the medium of an action of as- 
 sumpsit ;(c?) but, in such a case, the right to an 
 [ *94 ] account in ^equity is clear. However, to entitle 
 a partner to relief, it is now established, notwith- 
 standing a former decision to the contrary,(e) that the 
 partnership in respect of which the relief is prayed must 
 
 (a) 3 Black. Com. 437. 
 (6) Lord Redesdale's Tr. on PI. (3d ed.) 96. 
 (c) See ante, p. 74. 
 
 ((/) See, also, Rex v. Whitstable Company, 7 East, 353. Adley v. 
 Whilstahle Company, 17 Ves. 326. 
 ( e) Watts V. Brookes, 3 Ves. 612. 
 
 (1) Especially where other articles besides money must be taken 
 into account. Lansdale v. Brashear, 3 Monroe's Rep. 330 — the case 
 of a partnership in farming.
 
 BETWEEN PARTNERS. 94 
 
 be legal; if it be not, a bill for an account cannot be 
 sustained. Therefore, where two persons jointly en- 
 gaged in the business of underwriters, which was pro- 
 hibited by the act of parliament(/) in favour of the 
 chartered companies, a bill, filed by one against the 
 other, for an account of the profits, was dismissed.(^) 
 And if an unincorporated society act, or assume to act, 
 in a corporate character, or take upon itself the sem- 
 blance of a corporation, a court of equity will not inter- 
 pose its authority and grant relief inter sc.Qi) But where 
 partners embark in two species of trade, the one legal 
 and the other illegal, relief will be administered in respect 
 of the trade that is not tainted with illegality, although 
 with regard to the other it will be refused. Thus, where 
 persons united in business as brokers and underwriters, 
 on a bill being filed by the one against the other for a 
 general account, the court allowed it as to the broker- 
 age, but disallowed it as to the underwriting business.(z) 
 And this distinction has been taken: as between the 
 partners, no account, having reference to dealings pro- 
 hibited by law, can be enforced, for this would be giving 
 relief to a particeps criminis; but, after the decease of 
 one of the partners, his executor cannot, as against 
 creditors and legatees, refuse an account of profits made 
 by his testator in the course of such illegal transac- 
 tions.(^) Where the transactions, out of which the 
 application for relief arises, do not contravene the policy 
 of the common law, or the provisions of a statute, the 
 remedy will not be confined to private partnerships 
 alone, for a court of equity has jurisdiction against a 
 corporation, in the nature of a partnership, on a bill filed 
 for an account of the profits.(/) But the court, before 
 
 (/) 6 Geo. 1, c. 18, § 12. This prohibition has been removed by 
 the 5 Geo. 4, c. 114, § 1. 
 
 (,^) Knowles v. Haughton, 11 Ves. 168. Cousins v. Smith, 13 Ves. 
 542. 
 
 (/i) Vansandau v. Moore, and Kinder v. Taylor, coram Lord Eldon, 
 March, 1825. Lloyd v. Loaring, 6 Ves. 773. 
 
 (i) Knowles V. Haughton, supra. 
 
 [k) Joy V. Campbell, 1 Sch. & Lef. 328. Ottley v. Browne, 1 Ball 
 & Beat. 360. 
 
 {/) Adley «. Whitstable Company, 17 Ves. 315. S. C. 1 Meriv.
 
 94 EQUITABLE REMEDIES 
 
 it interferes with voluntary associations, will see 
 [*95] that it is under an obligation to act, and *that it 
 can eflectually act for the benefit of all the per- 
 sons interested; and where such associations have not 
 conformed to or observed the articles by which they 
 were formed, the court will not interpose. Therefore, 
 where a fire association was constituted on the principle 
 of mutual guarantee, and the business had not been con- 
 ducted consistently with the provisions of the deed of 
 settlement, nor had the different officers been appointed. 
 Lord Eldon refused to interfere on an interlocutory ap- 
 plication, until the deed had been acted upon, and the 
 parties invested with the characters they ought to have 
 according to the deed.(m) And in respect to partner- 
 ships in general, it was in a late case said,(yi) that there 
 was no instance of a partner being allowed to pray for an 
 account merely, and not for a dissolution of the partner- 
 ship; for, otherwise, a partner might file a bill annually 
 for an account, and, that a bill, to be sustainable, must 
 either show a dissolution of the partnership, or pray that 
 it may be dissolved. This doctrine, however, has in its 
 generality been denied, and it has been observed, that a 
 bill for an account is the only relief that a partner has; 
 and, as to the necessity of praying a dissolution, it is 
 required only in the case of an application for interim 
 management, which will hot be granted unless the bill 
 contain such a prayer.(o) 
 
 It is a general rule, that however numerous the per- 
 sons may be who are materially interested in the sub- 
 ject of a suit, they must nevertheless be all made parties, 
 
 107. Attorney General v. Governors of the Foundling Hospital, 2 Ves. 
 jun. 42. 
 
 (m) Ellison v. Bignold, 2 Jac. &. Walk. 50.3. 
 
 (n) Forman v. Homfray, 2 Ves. &; Bea. 329. See also, Waters v. 
 Taylor, 15 Ves. 10. 
 
 (o) Harrison v. Armitage, 4 Madd. 143 ; and see Marshall v. Col- 
 man, 2 Jac. & Walk. 266. Knowles v. Haughton, 11 Ves. 168. In 
 the late case of Kinder v. Taylor, Lord Eldon expressed an opinion, 
 that, where a partnership is limited as to time, unless a court of equity 
 was called upon to dissolve it, it would not interfere during its subsis- 
 tence for the purpose merely of directing periodical accounts to be 
 rendered.
 
 BETWEEN PARTNERS. 95 
 
 plaintiffs, or defendants, so that a complete decree may 
 be made between them ;(o) it being the constant aim of 
 a com-t of equity to do complete justice by embracing 
 the whole subject, and, by deciding upon and settling 
 the rights of all persons interested, not only to make 
 the performance of the order of the court perfectly safe 
 to those who are compelled to obey it, but to prevent 
 future htigation. When, therefore, one partner 
 is compelled to institute proceedings* in a court [ *96 ] 
 of equity with a view of enforcing an account 
 from his co-partners, or for any other purpose, he must, 
 to avoid an objection of a want of parties, make all the 
 partners parties to the record. For when the court is 
 called upon at the instance of one partner to direct the 
 partnership accounts to be taken, or to compel the other 
 partners to do or to abstain from doing specific acts, it 
 cannot administer the relief which is asked, in the absence 
 of any of those persons upon whom the decree is intended 
 to operate, because of its inability effectually to bind 
 t\iem.(p) And if all the partners are not made parties, 
 the defendants may either demur to the bill, or, when 
 the cause comes on to a hearing, they may object that 
 proper parties are wanting, or the court may refuse to 
 proceed to a decree, or if the court makes a decree, that 
 decree may be afterwards reversed.(9') But where one 
 of several partners agrees with a third person to give 
 him a moiety of his share, an account may be decreed 
 between them, without making the other partners par- 
 ties,(r) And the general rule, requiring all persons in- 
 terested to be brought before the court, is sometimes 
 relaxed. Thus, where a great many individuals are con- 
 cerned in the subject of the suit, the court will permit a 
 few to represent the whole, and sue on their behalf.(s) 
 
 (o) Lord Redesdale's Tr. on PI. 145. 
 
 ( p) Vansandau v. Moore, and Kinder v. Taylor, ante. See Legh 
 V. Thomas, 2 Ves. sen. 312. 
 
 (7) Pr. Reg. 299. ed. Wyatt. Coop. Tr. on PI. 33. A plea of 
 want of parties will also hold, Beames on PI. in Eq. 148. 
 
 (?•) Brown v. De Tastet, 1 Jac. 284, 
 
 (s) Lord Harwicke's MS. notes cited by Lord Eldon, 6 Ves. 779. 
 11 Ves. 429. Meux v. Maltby, 2 Swanst. 277.
 
 96 EQUITABLE REMEDIES 
 
 This was done in the cases of the Opera House, the 
 Royal Circus, and Drury-Lane Theatre.(/) And in the 
 case of the bubble,(M) in which many persons Avere in- 
 terested, and they delegated a fijeneral power and au- 
 thority to few only, the court, to avoid the inconvenience 
 of making the whole number parties, restrained them to 
 the particular persons who were entrusted with the gen- 
 eral power. With respect to this determination, it has 
 • been remarked, that if the whole was a bubble, it was 
 not necessary to make more of the members parties ; 
 
 for the interest of the society, instead of being 
 [ *97 ] simply regulated, would be declared *illegal, and 
 
 as all possessed the same interest in attempting 
 to prove the legality of the scheme, the presence of any 
 of them would be sufficient to enable the court to decide 
 that question.(v) But where the society, in respect of 
 which relief is asked, is not founded on such principles 
 as to render it a bubble, it seems doubtful whether any 
 departure from the general rule will be allowed in cases 
 of dissensions amongst the members themselves. Lord 
 Eldon has said that it is wholesome to apply the ordinary 
 rules to such cases equally with others, as that the same 
 parties shall be required as in another case, that the pre- 
 sence of parties shall not be dispensed with, and that 
 the same regularity of proceeding shall take place.(zfj) 
 This may be feasible where the number of members is 
 manageable, but in the case of a society whose num- 
 bers are so great as to render it almost impracticable to 
 introduce all of them on the record, an adherence to 
 the ordinary rules may have the effect of shutting out 
 the members of the society from all relief. And although, 
 generally, it is true that the difficulty arising from the 
 number of parties ought not to be allowed to baffle the 
 
 (t) 6 Ves. 779. But see Waters v. Taylor, 15 Ves. 10, 
 
 (w) Cited by Lord Harwiche in Vernon v. Blackerby, 2 Atk. 145. 
 
 ly) Per Lord Eldon, Kinder v. Taylor, ante. And see Cousins v. 
 Smith, 13 Ves. 542. Buckley v. Cater, 17 Ves. 15. Pearce v. Piper, 
 Ibid. 1. Beaumont v. Meredith, 3 Ves. &c Bea. 180. 
 
 {w) Waters v. Taylor, 15 Ves. 10. In Chancy v. May, Pre. in Ch. 
 592, part of the proprietors of the Temple Mills Brass Works were 
 were permitted to bring some others of them to account without mak- 
 ing all the members parties.
 
 BETWEEN PARTNERS. 97 
 
 means which a court of equity possesses of doing effectu- 
 al justice,(.r) yet it should not be forgotten that to con- 
 troversies in which the company may happen to be en- 
 gaged with third persons the ordinary rule applies ; for 
 in a suit by them as partners, they would be bound to 
 set forth the names of all their body when acting against 
 a stranger, and it would be equally incumbent on him 
 who prosecuted claims against them to bring all before 
 the court. The legislature, indeed, has frequently re- 
 medied the inconvenience of administering justice to 
 such numbers as those of whom a company usually 
 consists, by empowering them to sue, and rendering 
 them liable to be sued, in the name of their secretary, 
 or some other officer or servant of the company, and so 
 far it renders the company a quasi corporation ; but 
 even in those instances, suits amongst the members 
 themselves are not contemplated, nor is any pro- 
 vision made in the event of the society *being [ *98 ] 
 divided against itself. In a late case,(?/), in which 
 some of the members of the Be?ievoknt Union Society, on 
 behalf of themselves and the other members filed a bill 
 against the six defendants who were the trustees, praying 
 an account and injunction, and that the defendants might 
 be decreed to replace part of the stock of the society 
 which they had sold out, and it appeared that the num- 
 ber of members was limited to sixty-one, that the society 
 had been dissolved, and that forty-seven members, who 
 were not parties, had received their shares of the trust 
 funds. Lord Eldon refused to interfere until they were 
 brought before the court. So, where upwards of one 
 hundred persons formed themselves into a company for 
 procuring copper, under the management of a committee, 
 and agreeably to certain articles of co-partnership ; a 
 bill filed by three of the partners against the members 
 of the committee for inspection of the accounts, but not 
 filed in behalf of the other shareholders, was held not 
 sustainable ; for the court could not bind all the part- 
 ners as to the construction of the articles, on a matter 
 
 x) Adley v. Whitstable Company, 1 Meriv. 109. 
 2/) Beaumont v. Meredith, 3 Ves, &; Boa. 180.
 
 98 EQUITABLE REMEDIES 
 
 of general interest, where three only were plaintiffs, and 
 the committee, who were not authorised to represent the 
 partnership, were the only defendants. (2^) Indeed it has 
 been considered, that if some of the members of a com- 
 pany were allowed to file a bill on the behalf of all, 
 praying a dissolution, a difficulty must arise, if some of 
 those, on whose behalf the bill purports to be exhibited, 
 were desirous that the operations of the company should 
 be continued.(«) And where some of the members of 
 a mutual guarantee association are dissatisfied with the 
 conduct of those to whom the management is intrusted, 
 it seems that the court will not entertain a bill for relief 
 unless all the members are actually brought before it, 
 either in the characters of plaintiffs or defendants; because 
 each has an interest in the common fund, and is entitled 
 to be heard in every proceeding which may affect it. And 
 a bill filed in such a case by some on behalf of themselves 
 and all the other members of the association, will not be 
 free from objection ; for, the defendants being members, 
 the record would present them in the double, but opposite, 
 characters of plaintiffs and defendants, which are situa- 
 tions w^hich no man can sustain at the same time. 
 [ *99 ] Thus, *where four members of the Norwich Union 
 Fire Association (which was an institution estab- 
 lished on the principle of mutual guarantee, and con- 
 sisted of si-xty thousand members,) filed a bill on behalf 
 of all the members against the defendants, who were 
 the directors, treasurers, bankers, and secretary (and 
 also members) of the institution, praying relief and an 
 injunction. Lord Eldon, on the ground of want of par- 
 ties, refused to interpose on an interlocutory motion, 
 and suggested his doubts as to the possibility of bring- 
 ing proper parties before the court under such circum- 
 stances. (6) And in all cases in which an individual 
 member of a company files a bill, com|)laining of mis- 
 management on the part of its officers, and praying that 
 it may be dissolved, the whole number of the sharehold- 
 
 (z) Baldwin v. Lawrence, 2 Sim. &, Stu. 18. 
 (a) Carlen v. Diury, 1 Ves. & Bea. 154. 
 
 (6) Davis V. Fisk, stated in the Appendix to Mr. Farren's Treat, on 
 Life Assurance, p. 128.
 
 fiEtWEEN PARTNERS. 99 
 
 ers, must, it seems, be made parties ; because, as tbe ac- 
 counts of tbe company must, under such a bill, be taken, 
 the court, unless all the shareholders are before it, can- 
 not compel each to pay in his entire subscription, which 
 must necessarily be done before the accounts can be ad- 
 justed ; nor can the court, in the absence of any of the 
 members, dispose of their rights, or ultimately direct a 
 sale of the property of the company.(c) When, there- 
 fore, dissensions exist among partners, it is necessary 
 that all those who constitute the partnership should be 
 brought before the court; and where a bill is filed for an 
 account of partnership transactions, it is equally neces- 
 sary that each individual, introduced on the record as a 
 defendant, should sustain the character ascribed to him ; 
 for, if he do not, he may protect himself generally from 
 answer and discovery as to the subject of the suit, By 
 pleading that he is not a partner(c?)(l); and, in such a 
 case, the court will direct an issue to try whether a part- 
 nership exists or not; of which issue, if the result is that 
 he is not a partner, the bill will be dismissed.(e) But 
 if, in addition to the general charge of the existence 
 of the partnership, circumstances are alleged in the 
 
 (c) Vansandau v. Moore, and Kinder v. Taylor, coram Lord Eldon. 
 
 \d) V. Harrison, 4 Madd. 252, overruling the case of the 
 
 Marquis of Donegal v. Stewart, 3 Ves. 446, in which it was held that 
 a party might avail himself of such a defence by answer. ' See also 
 Drew V. Drew, 2 Ves. &l Bea. 159. Norway v. Roe, 19 Ves. 144. 
 In what cases a negative plea is good in equity, see Beames on PI. in 
 Eq. 120. et seq. 
 
 (e) Peacock v. Peacock, 16 Ves. 52. Binford v. Domraett, 4 Ves. 
 756. 
 
 (1) In New York it has been decided that a defendant may avail of 
 such a defence by his ansioer. Philips, v. Frevost, 4 Johns. Cha. 
 Rep. 205. Methodist Episc. Church v. Jaques, 1 Johns. Cha. Rep- 
 65. The rule laid down by the Vice Chancellor, in v. Harri- 
 son, seems now to be settled law in the Court of Chancery in Eng- 
 land, but the rule in the Exchequer is in conformity with the opinion 
 of Chancellor Kent ; — and therefore where a plaintiff stated a partner- 
 ship, and called for an account, and the defendant by his answer denied 
 the partnership, and set forth no account, the Court, on exception to 
 the answer, held it sufRcient. Jacobs v. Goodman, 2 Cox's Ca- 282. 
 S. C. 3 Bro. C. C. 488, n. {BeWs edit.) 
 
 18
 
 100 EQUITABLE REMEDIES 
 
 [*100] bill as evidence of it, a plea denying *the partner- 
 ship will not protect the defendant, unless it be 
 accompanied by an answer and discovery as to the mat- 
 ters specially charged as evidence of the plaintiff's title ; 
 because a defendant is bound to answer to all collateral 
 circumstances charged as evidence of the general face, 
 notwithstanding his denial of the fact itself.(/) 'Upon 
 a bill filed by three, on behalf of themselves and all other 
 holders of scrip on the Peruvian loan, it was held, that 
 having, if any, a several demand at law and in equity, 
 they could not file one bill to have their subscriptions 
 returned.(g) 
 
 A plea of a stated account is a good bar to a bill for 
 an account,(A) as a plea that the defendant hath fully 
 accounted with the plaintiff himself is a good plea at law 
 ^n discharge before auditors.(z) But the plea in equity 
 ^must show, that the account " was in writing, and like- 
 owise the balance in writing, or at least set forth what the 
 ^^balance was ;"(A:) at the same time, " there is no abso- 
 ' lute necessity that the account should be signed(l) by 
 ^;[j)the parties who have mutual dealings, to make it a sta- 
 ted account, as acquiescence in it without objection for 
 ^/^ length of time will render it a stated account."(/ )(2) 
 If error or fraud are charged, they must be denied by 
 the plea, as well as by way of answer ; and, if neither 
 error nor fraud be charged, the defendant must, by the 
 
 (/) Saunders v. King, 6 Madd. 61. S. C. cited by Sir John Leach 
 from a MS. note in Thring v. Edgar, 2 Sim. & Stu. 277. S. P. 
 Yorke v. Fry, Ibid. 65. In a suit for an account of partnership Trans- 
 actions, if the relief prayed applies to any period during which a de- 
 fendant disclaiming any beneficial interest was a partner, his disclaimer 
 is no reason why he should not be continued as a party to the suit ; a 
 party cannot disclaim his liability. Glassington v. Thwaites, 2 Russ. 
 462. 
 
 (g) Jones V. Garcia del Rio, 1 Turner & Russ. 297. 
 
 (h) Load Redesd. Tr. on PI. 210. (i) Syst. PL 130. 
 
 (k) Per Lord Hardwicke, Burk v. Brown, 2 Atk. 399. 
 
 (/) Per Lord Hardwicke, Willis v. Jernegan, 2 Atk. 252. 
 
 (1) Jessup V. Cook, 1 Halsted's Rep. 436. 
 
 (2) Lamalere v. Caze, Circuit Ct. jlpril Sess. 1806. 2 P. A. 
 Browne's Rep. 128, n. See 2 Conn. Rep. 428. 2 Caine's Rep. 297, 
 298. Heartt v. Corning, 3 Paige's Cha. Rep. 566.
 
 BETWEEN PARTNERS. 100 
 
 plea, aver, that the stated account is just and true, to the 
 best of his knowledge and belief.(m) As the delivery 
 of the vouchers to the plaintiff is, to use the expres- 
 sion of Lord Hardwicke, an affirmation, at least, that 
 the account between the parties was a stated one ; al- 
 though to make it so, it is not absolutely necessary they 
 should be delivered up when the account is settled ;{7i) 
 yet, when they have been delivered up, that fact consti- 
 tutes a proper averment in a plea of this nature.(o) 
 *It has been decided, that a verbal statement of [*101] 
 an account, and a receipt in full of all demands 
 for the balance, did not constitute a plea in bar to a bill 
 which sought to open the accounts, there being mistakes 
 in the transaction.(/)) And this distinction is taken in 
 a case in Freeman'' s Reports.(g) " If a man preferreth 
 a bill generally for an account, an account stated is a 
 good plea ; but if, in his bill, he setteth forth that there 
 was an account, and that there was a mistake, and 
 setteth forth the particular mistake, there an account 
 stated is no good plea." A pure plea of a stated account 
 would meet the first case fully, and be a complete an- 
 swer to it ; but such plea would not meet the second 
 case, as it would leave the allegation of the particular 
 mistake unanswered.(r) The same volume of Freeman 
 contains a short note of another case,(s) in which it is 
 laid down, that if there be any agreement to rectify 
 mistakes, an account stated shall not conclude, though 
 it be under hand and seal. On the ground of fraud ,(/) 
 a stated accouut has been opened after a considerable 
 lapse of time;(?/) but the court is not, generally speaking, 
 inclined to unravel an old account, notwithstanding it 
 
 (m) Lord Redcsd. Tr. on PI. 211. 
 
 (n) Willis V. Jernegen, ante. Wharton v. May, 5 Ves. 27. 
 
 (o) For. Rom. 57. Lord Redesd. Tr. on PI. 2n. 
 
 {p) Walker v. Consett, Forest's Rep. 167. Cliandler i'. Dorset, 
 Finch's Rep. 431. 
 
 (q) Anon. 2 Freem. 62. (r) Beanies on PI. in Eq. 224. 
 
 (s) Proud. V. Coombes, 2 Freem. 183. S. C. 1 Ch. Ca. 55. Nels. 
 Rep. 100. 3 Ch. Rep. 10. (t) Wharton v. May, 5 Ves. 27. 
 
 (u) Roberts v. Cuffen, 2 Atk. 113. Vernon v. Vawdry, Ibid. 119. 
 Beaumont v. Boultbee, 5 Ves. 485. S. C. 7 Ves. 599, and 1 1 Ves. 358.
 
 101 EQUITABLE REMEDIES 
 
 may have been settled upon an erroneous principle,(v) 
 a strong ground being necessary to impeach it.(w) Nor 
 will the court open a settled account, where it has been 
 signed, or a security taken on the footing of it, unless 
 for fraud, or errors distinctly specified in the bill,(a:) and 
 proved as specified.(t/) The reason stated for the ne- 
 cessity of charging some specific error is, that there 
 may be cases in which the opinion of the court may be 
 clear at the hearing that there was error, and yet, if the 
 fact were distincly put in issue, the court might be satis- 
 fied that transactions had taken place, upon which it 
 would be impossible to consider it error. The 
 [*102] expression of *" errors excepted," will not pre- 
 vent an account being a settled account ;{z) and 
 even where specific errors were alleged and proved, the 
 court has refused, after an acquiescence of eleven years, 
 to open the account entirely, but only allowed the plain- 
 tiff to surcharge and falsify.(a) In a case before Lord 
 Hardwicke^ his lordship observed, that " if one merchant 
 send an account current to another in a different country, 
 on which a balance is made due to himself, and the other 
 keeps it by about two years without objection, the rule 
 of this court and of merchants is, that it is considered as 
 a stated account."(6)(l) But, in a more modern case, 
 Sir Joh?i Leach held, that the naked fact of the delivery 
 of an account, without evidence of contemporaneous or 
 
 (u) Gray v. Minnethorpe, 3 Ves. 103. 
 
 (w) Chambers v. Goldwin, 5 Ves. 837. 
 
 [x) Dawson v. Dawson, 1 Alk. 1. Taylor v. Haylin, 2 Bro. C. C. 
 310. S. C. 1. Cox 435. Johnson v. Curtis, 3 Bro. C. C. 266. Lewis 
 V. Morgan, 3 Anstr. 769. 
 
 (y) Drew v. Power, 1 Sch. & Lef. 182. 192. Dunbar v. Len, 1 
 Bro. P. C. 3. Chambers v. Goldwin, 9 Ves. 265, 266. Kinsman v. 
 Barker, 14 Ves. 579. 
 
 (z) Johnson v. Curtis, 3 Bro. C. C. 266. 
 
 (a) Brownell v. Brownell, 2 Bro. C. C. 62. See also Twogood v. 
 Swanston, 6 Ves. 485. Lord Courteney v. Godschall, 9 Ves. 473. Ver- 
 non V. Vawdry, 2 Atk. 119. 
 
 {b) Tickel v. Short, 2 Ves. sen. 239. See 1 Ball & Beat, 428, 429. 
 Sherman v. Sherman, 2 Vern. 276. Willis v. Jernegan, 2 Atk. 252. . 
 
 (1) See 2 Caines' Rep. 298.
 
 BETWEEN PARTNERS. 102 
 
 subsequent conduct, afforded no sufficient legal pre- 
 sumption that the account was settled.(c) 
 
 The statute for limitation of actions(c?) is likewise, 
 where the fact admits of it, a good plea in bar to the 
 relief sought by a bill in equity for an account ;(e)(l) 
 because, where the account has been closed above six 
 years before the bill filed, without any demand upon it, 
 the statute, it seems, notwithstanding the exception,(y) 
 apphes, even in the case of merchants' accounts.(^) (2) 
 Therefore, where a bill was filed against the represen- 
 tative of a surviving partner, praying an account of 
 transactions that had taken place upwards of six years 
 anterior to the filing of the bill, it was determined that a 
 plea of the statute of limitations was an effectual bar to 
 the relief prayed.(A) (3) But although, where the 
 *account is settled or stated the statute is a bar ; [*103] 
 yet if the account be open or current^ it falls within 
 the exception of the statute, and consequently does not 
 furnish matter for a plea.(i) (4) 
 
 (c) Irvine v. Young, 1 Simons &; Stu. 333. {d) 21 Jac. 1 c. 16. 
 
 \e) Lord Redesd. Tr. on PI. 218. Wych. v. East India Company, 
 3 P. Wms. 309. Lacon v. Lacon, 2 Atk. 395. 
 
 (/) The enactment of the 3d section is, that " all actions of account, 
 and upon the case, other than such accounts as concern the trade of 
 merchandize between merchant and merchant, their factors and servants, 
 shall be commenced and sued within the time and limitation hereafter 
 expressed ; viz. the said attions upon the case, and the said actions of 
 account, &;c., within six years next after the cause of such actions or 
 suits, and not after." 
 
 {g) Welford v. Liddel, 2 Ves. sen. 400. Crawfurd v. Liddel, cited 
 6 Ves. 582. Bridges v. Mitchell, Gilb. Eq. Rep. 224. Barber v. 
 Barber, 18 Ves. 286. See also argument in Duff ». East India Com- 
 pany, 15 Ves. 205. 
 
 Ui) Barber v. Barber, supra. See also Foster v. Hodgson, 19 Ves. 180. 
 
 {i) Scudamore v. White, 1 Vern. 456. Sherman v. Sherman, 2 
 
 (1) Kane v. Bloodgood, 7 Johns. Cha. Rep. 90. Landsdale v. 
 Brashear, 3 Monroe's Rep. 322. Farnham v. Brooks, 9 Pick. Rep. 
 212. 
 
 (2) Ramchander v. Hammond, 2 Johns. Rep. 200. Coster v. 3Iur- 
 ray, 5 Johns. Cha. Rep. 522. Contra, Mandeville v. Jameson, 5 
 Cranch, 15. Davis v. Smith, 4 Greenl. Rep. 339. 
 
 (3) See Union Bank v. Knapp, 3 Pick. Rep. 112. 
 
 (4) Bass V. Bass, 6 Pick. Rep. 362. Stiles v. Donaldson, 2 Dall. 
 Rep. 264. 2 Yeates, 105.
 
 103 EQ,UITABLE REMEDIES 
 
 As a covenant or agreement to refer partnership dis- 
 putes to arbitration cannot be made the subject of a 
 bill for a specific performance,(A:) so it cannot be pleaded 
 in bar to a suit by one partner against another arising 
 out of such disputes.(/) An agreement of that descrip- 
 tion has as little operation in equity as we have shown(m) 
 it to possess at law. Thus,(w) where one partner filed 
 a bill against another for discovery and relief, and the 
 defendant pleaded an agreement, that in case any dif- 
 ference should arise between him and the plaintiff, it 
 was to be decided by arbitrators, Lord Hardwicke dis- 
 allowed the plea; for, as it was a bill to discover and be 
 relieved against frauds, the arbitrators could not examine 
 upon oath, which, by the agreement, they should have 
 had the power of doing.(o) This case, indeed, was 
 overruled by Lord Kenyan ., who, when Master of the 
 Rolls, allowed such a plea,(p) observing that the legis- 
 lature had countenanced agreements of reference by the 
 act passed in the reign of King William the Third,(9) 
 which was passed for facilitating the execution of them, 
 and that before a court of equity could be called upon 
 to interpose, an appeal must be made to the domestic 
 forum prescribed by the articles. However, the decision 
 of Lord Kenyon has been frequently impeached, and 
 Lord Hardwicke's doctrine has obtained the unqualified 
 sanction and support of succeeding judges. In appro- 
 
 Vern. 276. Welford v. Liddel, 2 Ves. sen. 400. Webber v. Tivill, 
 2 Wms. Saund. 124, 127, n. (6). In the Harcourt MS. Tables is the 
 following note : — " Currency of accounts prevents the statute of limi- 
 tations. Ormston v. Hamilton, 20th March, 1711." See also Beam, 
 on PI. inEq. 167. 
 
 {k) Price v. Williams, cited 6 Ves. 818. Milnes v. Gery, 14 Ves. 
 400. Gourlay v. Duke of Somerset, 19 Ves. 431. Rovve v. Wood, 
 
 1 Jacob & Walk. 346. 
 
 {I) Lord Redesd. Tr. on PI. 214. (m) See ante, p. 89. 
 
 (n) Wellington v. Mackintosh, 2 Atk. 570. 
 
 (o) With respect to this point, the opinion of Lord Hardwicke must 
 be misreported, as the parties could not give the arbitrators a power to 
 examine on oath. See dictum of Lord Kenyon, in Halfhide v. Penning, 
 
 2 Bro. C. C. 336. Street v. Rigby, 6 Ves. 820. 
 (/)) Halfhide v. Penning, supra. 
 
 (q) 9 <fe 10 W. 3. c. 15.
 
 BETWEEN PARTNERS. 104 
 
 bation of it, there are the concurrent opinions of 
 Lord *Thurlow,(r) Lord Rosslyn,(s) Lord El- [*104] 
 don,(t) and even of Lord Kenyon himself.(z^)(l) 
 As a general proposition, therefore, it is true, that an 
 agreement to refer disputes to arbitration will not com- 
 pel the parties even to submit to arbitration before they 
 apply to a court of equity for relief, although, in some 
 cases, where the agreement itself furnishes the means of 
 redress for the particular subject of complaint, it may 
 be used by the defendant as an objection to the sum- 
 mary interference of the court upon the subject matter 
 of such agreement. Thus, where the matter of dispute 
 was the management of the Opera House, and the ad- 
 justment of its accounts, (which was judged peculiarly 
 a subject for arbitration,) and where it was expressly 
 provided, that the matter should be referred, the court 
 recognised the principle, that an agreement to refer dis- 
 putes to arbitrators was, generally speaking, no objec- 
 tion to a suit in equity ; yet it refused, in this particular 
 instance, to interfere in the arrangement of the matter, 
 
 (r) Price v. Williams, 6 Ves. 818. 
 
 (s) Michell v. Harris, 4 Bro. C. C. 311. fe. C. 2 Ves. jun. 129. See 
 also Tattersall v. Groote, 2 Bos. & Pul. 131. 
 
 (t) Waters v. Taylor, 15 Ves. 10. Street v. Rigby, 6 Ves. 815. 
 Nicholls V. Chalie, 14 Ves. 270. 
 
 (u) Thompson v. Charnock, 8 T. R. 139. 
 
 (1) On a bill filed by surviving partners against the executor of a 
 deceased partner, to compel him to account ibr, and pay to them the 
 amount of the partnership goods sent by the deceased partner out of tlie 
 State, it appeared that partnership goods to a certain amount was sent, 
 with other goods, to the State of Georgia, and that the disputes be- 
 tween the surviving partners and the executor, were referred to arbitra- 
 tors, who awarded, that there being no possible means of identifying 
 the goods, or of recovering the posession thereof, by any process of 
 this State, {Maryland,} the surviving partners could only be considered 
 as creditors to the amount thereof, and entitled to payment in a regular 
 course of administration according to the laws of Georgia. The ques- 
 tions raised were, whether the surviving partners were entitled to their 
 goods, or their value ; and, whether they were precluded by the opinion 
 of the arbitrators, and the subsequent proceedings under their award, 
 the estate being overpaid under the administration in Georgia. Bill 
 dismissed. J. ^ R. Yates v. Petty' s Ex. 1 Harr. &l Johns. Rep. 58.
 
 104 EQUITABLE REMEDIES 
 
 till a reference to arbitration had been tried.(2;) So 
 where, in a firm consisting of several hundred members, 
 a committee of twelve was appointed to superintend the 
 conduct of the acting managers, and, if occasion re- 
 quired, to call a general meeting of the members to con- 
 sider the state of their affairs; half of the committee- 
 men filed a bill against the acting managers and the 
 other half of the committee, praying an account and 
 dissolution of the partnership, on the grounds of gross 
 mismanagement and neglect on the part of the man- 
 agers ; the court would not interfere until the remedy- 
 provided by the articles had been tried.(2^;) Nor, in the 
 case of an extensive partnership, a brewery for instance, 
 will a court of equity grant an account and dissolve the 
 partnership, until the parties have resorted to the pro- 
 ceedings for terminating disputes, for which provision is 
 made in the articles of partnership ;(.r) unless, indeed, 
 the means of redress chalked out by the articles are in- 
 efrectual.(i/) Where the power of adjusting the affairs 
 
 of the company is, by the deed of settlement, 
 [ *105 ] *vested in general meetings of the proprietors 
 
 to be convened at the discretion of the mana- 
 gers, the court, on the ground of its being casus omissus, 
 will compel the managers to appoint meetings.(z) 
 
 Where an account is to be taken, each partner is en- 
 titled to be allowed against the other every thing he has 
 advanced or brought in as a partnership transaction, 
 and to charge his co-partner in that account with what 
 he has not brought in, and with what he has taken out, 
 beyond the proportion to which he was entitled ; and 
 nothing is to be considered as his share but his propor- 
 tion of the residue in the balance of the account.(a) (1) 
 Partners, however, may, as amongst themselves, stipu- 
 
 {v) Waters v. Taylor, 15 Ves. 18. 
 
 [tv) Carlen v. Drary, 1 Ves. <fe Bea. 154. {x) Id. Ibid. 
 
 ly) Id. Ibid. See also Gourlay v. Duke of Somerset, 19 Ves. 431. 
 
 (z) Per Lord Eldon, Carlen v. Drury, ante. 
 
 \a) West V. Skip, 1 Ves. Sen. 242, S. C. 2 Swanst. 586. 
 
 (1) See Pierce v. Jackson, 6 Mass. Rep. 243.
 
 BETWEEN PARTNERS. 105 
 
 late that the accounts shall be adjusted in a particular 
 manner ; and, in that case, although the mode prescribed 
 interfere with the general rules laid down by the court 
 for the taking of such accounts, the court will abide by 
 and settle the account on the footing of such special 
 agreement.(l) But where partnership articles contain 
 special clauses for taking the accounts, on which the 
 partners have not acted, the articles are read in equity 
 as if those clauses were expunged, and the accounts will 
 be taken in the usual way.(6) It has been decided by 
 the Court of Exchequer,(c) that if two persons enter into 
 the wine trade, intending originally that both should 
 reside upon the premises, and one of them afterwards 
 removes to a separate dwelling, leaving the other in the 
 possession of the premises, and in the management of 
 the whole business, the latter, on taking the account, is 
 not entitled to be reimbursed usual and necessary ex- 
 penses he may have incurred in treating the customers, 
 where balances have been struck yearly, and no demand 
 in respect of them has been made.(2) To justify such 
 an allowance to the acting partner, it ought either to be 
 sanctioned by an universal custom in the trade, or should 
 
 (b) Per Lord Eldon, Jackson v. Sedgwick, 1 Swanst. 469 ; and 
 see Geddes v. Wallace, 2 Bligh. 270. Petty v. Janeson, 6 Madd. 146. 
 
 (c) Tliornton v. Proctor, 1 Anstr. 94. 
 
 (1) In settling the accounts of a mercantile concern, in a controversy 
 between the partners only, it is sufficient to examine and state the 
 hooks of the co-partnership, without requiring vouchers in support of 
 each specific item. Fletcher v. Pollard, 2 Hen. & Munf. 544. Brick- 
 house V. Hunter et al. 4 Hen. & Munf. 363. The entries are to be con- 
 sidered as prima facie correct, but either partner may show mistakes 
 or errons. Heartt v. Corning, 3 Paige's Cha. Rep. 566. The ordi- 
 nary presumption is, that all the partners have access to the partnership 
 books, and know the entries therein ; but this is a mere presumption 
 from the ordinary course of business, and may be repelled by any cir- 
 cumstances which lead to a contrary presumption. U. S. Bank v. 
 Binney, 5 Mason's Rep. 176. Withers v. Withers, 8 Peters, S. C. 
 Rep. 359. Where, for the purpose of taking an account the Court 
 order parties to produce books and papers before the commissioner, he 
 will be directed to disregard such parts of them as relate to the private 
 affairs of either party. Ccdlovjay et al. v. Tate, 1 Hen. & Munf. 9. 
 
 (2) Withers v. Withers, 8 Peters, S. C. Rep. 355. 
 
 19
 
 105 EQ.UITABLE REMEDIES 
 
 be made matter of express stipulation between the par- 
 ties themselves, by the articles of co-partnership, if, in 
 the first instance, it be intended that the active manage- 
 ment should devolve upon a single partner ; or, if that 
 
 be not so, and circumstances effect a change in 
 [*106] their original intention, by some ^subsequent 
 
 agreement. But, in the taking of an account, 
 interest will be charged upon money borrowed by one 
 partner of the firm upon his promissory note, though the 
 borrower had a greater sum in the joint stock than the 
 amount of the loan ; for the stock is only to be employ- 
 ed in augmentation of the trade for the mutual benefit 
 of all, and not for the private advantage of individual 
 partners.(c?) (1) In general, a partner, who, in his 
 answer to a bill filed for an account of partnership 
 transactions, insists that the balance of the account is 
 in his favour, is not obliged to bring into court what is 
 in his hands, unless the other partners do the same ; 
 but, if he have received money under circumstances 
 from which it can be inferred that he had agreed not to 
 receive it, he will then be ordered to bring it into court, 
 however large the balance due to him may happen to 
 be, because his conduct is not compatible with good 
 faith. Thus, where the defendant, a member of a firm 
 in the country, which it was the intention of the parties 
 to dissolve, stated that he must go to London to consult 
 a friend on the subject, before he could accede to the 
 terms of the dissolution, but on his journey went to 
 several debtors of the firm, and received from them 
 partnership debts, he was ordered to pay the money 
 into court.(c) 
 
 {d) Beecher v. Guilburn, Moseley. 3. 
 
 (e) Foster v. Donald, 1 Jacob & Walk. 252. 
 
 (1) See Stoughton v. Lynch, 1 Johns. Cha. Rep. 467. 2 Johns. 
 Cha. Rep. 209. Simpson v. Peltz, 1 McCord's Cha. Rep. 220. But 
 where the articles of co-partnership permit the partners to withdraw 
 certain sums annually, without containing any stipulation as to interest 
 thereon, interest will not be allowed. Miller v. Lord, 11 Pick. Rep. 
 11. See the doctrine on the subject of interest on partnership accounts 
 as stated by Judge Story in Dexter v. Arnold, 3 Mason's Rep. 284.
 
 BETWEEN PARTNERS. 106 
 
 Where one partner discharges a partnership debt out 
 of his own individual funds, equity will enforce a contri- 
 bution.(/)(l) Formerly, contribution was always ob- 
 tained through the medium of a bill in equity, although, 
 the right to the satisfaction being posit^^^e, actions at 
 law between partners for a contribution have latterly 
 become frequent.(^) (2) This concurrent exercise of 
 jurisdiction does not, however, oust courts of equity of 
 the power they originally possessed of entertaining cog- 
 nizance of such subjects, since the fact, that courts of 
 law have assumed jurisdiction, can afford no reason why 
 the equitable authority should not be maintained. In 
 some cases, as if there were ten persons severally bound 
 to contribute, the equitable relief would be more readily 
 obtained, and at a less expense than any legal redress ; 
 for in a court of equity all the persons from whom con- 
 tribution is claimed might be comprehended in a 
 single suit; * whereas, at law, a separate action [*107] 
 must be brought against each for his propor- 
 tion. (A) And if one of the parties jointly bound be 
 insolvent, contribution for his share cannot at law be 
 recovered against the others, but it is the subject matter 
 of a proceeding in equity only ; for the legal remedy is 
 founded upon the principle, that one pays that to which 
 all are liable.(i) 
 
 A court of equity will hkewise interfere to protect a 
 party upon whom a fraud has been practised; and 
 where a premium has been fraudulently obtained from 
 
 (/) Wright V. Hunter, 5 Ves. 792. Abbott v. Smith, 2 Blackst- 
 947. Deering v. Lord Winchelsea, 2 Bos. & Pul. 270. 
 
 (ff) Wright V. Hunter, supra. S. C. 1 East, 20. But see ante, 
 p. 79. 
 
 {h) Wright V. Hunter, ante. S. C. 1 East, 20. 
 
 (i) Per Holroyd, J., in Collins v. Prosser, 1 B. & C. 688. See also 
 Cowell V. Edwards, 2 Bos. & Pul. 251. Ex parte Hunter, Buck, 
 552. Ex parte Smith, Ibid. 492. Madox v. Jackson, 3 Atk. 406. 
 Cockburn v. Thompson, 16 Ves. 326. Sainstry v. Grammer, 2 Eq. 
 Ca. Abr. 165. pi. 6. 
 
 (1) See Sells v. HubbeWs Mm. 2 Johns. Cha. Rep. 397. 
 
 (2) .See Peck v. Ellis, 2 Johns. Cha. Rep. 136.
 
 107 EQ.UITABLE REMEDIES 
 
 a person as a consideration for entering into partner- 
 ship, it will order the premium to be returned, treating 
 the articles of partnership as a nullity, in consequence 
 of the fraud.(^) Thus, where A, an attorney, prevailed 
 on B to become a partner with him, and B paid a pre- 
 mium : but, before fourteen months had expired, A sued 
 out a commission of bankruptcy against B, and thus 
 dissolved the partnership : this was held to be a fraud 
 upon B, and A was decreed to return part of the pre- 
 mium which had been paid, and to deliver up a bond 
 given to secure the remainder ; but an allowance was 
 directed to be made in respect of the time the partner- 
 ship subsisted. (/) So where, on the retirement of one 
 of two partners from trade, it was left to arbitrators to 
 determine, amongst other things, what was to be paid 
 to the retiring partner for the goodwill of the trade ; 
 and they, on an understanding that the retiring partner 
 would not set up the trade in the same street, or its 
 vicinity, awarded a certain sum as the share of the re- 
 tiring partner for the goodwill, which was paid ; but no 
 restraint being expressly placed upon him in that respect 
 by the award, he afterwards set up the trade, in the 
 same neighbourhood ; the Court of Chancery, on parol 
 evidence of the understanding on which the award was 
 made, enjoined him, on the. ground of fraud, from car- 
 rying on the trade in that neighbourhood. (m) (1) And 
 
 {k) Per Lord Mdon, Tattersall v. Groote, 2 Bos. & Pul. 131. 
 
 (/) Hamil v. Stokes, 1 Daniell, 20. S, C. 4 Price, 166. And see 
 Ackhurst v. Jackson, 1 Swanst. 89. Ex parte Broome, 1 Rose, 71. 
 
 (m) Harrison v. Gardner, 2 Madd. 198. See also Williams v. 
 Williams, 2 Swanst. 253. Kennedy v. Lee, 3 Meriv. 441. 
 
 (1) Where an indenture of partnership for a term of years contained 
 a proviso, " that either party might, if he were desirous of quitting 
 the trade, determine the partnership, by giving six months notice, and 
 that the party receiving such notice should, after the end of said six 
 months continue the business on his own account, and have the benefit 
 of the remaining part of the lease of the premises," it was held, that 
 one partner could not, by giving the notice, dissolve the partnership 
 and then set up the trade elsewhere, but must either continue the part- 
 nership or entirely give up the trade. Cooper v. Watlington, 2 Chit. 
 Rep. 451. The marginal abstract of the case is totally incorrect.
 
 BETWEEN PARTNERS. lOS 
 
 where the plaintiffs and the defendants, being 
 *carriers, agreed to horse certain portions of [ *108 ] 
 the road, but that no partnership should exist 
 between them, but each to be considered as carrying on 
 within their limits an exclusive business ; and one agreed 
 with the mint, for himself and the other parties, to carry 
 coin to places on the line of road, and afterwards made 
 another agreement with the mint to carry to other 
 places not on the road ; it was held, that it appearing 
 that the officers of the mint dealt with him partly on the 
 policy of the old agreement, and that he did not apprize 
 them he was dealing exclusively on his own account, the 
 other parties were entitled to share in the profits.(/i) 
 Another head of fraud, which a court of equity will not 
 sanction or permit, is that of one partner unduly pledg- 
 ing the partnership firm in discharge of his own indivi- 
 dual debt, or in a transaction wholly unconnected with 
 the common interest of all the partners.(o) Thus, where 
 one partner indebted to the partnership, and unable to 
 pay his separate bill holden by his bankers, substituted 
 by negotiation with them a partnership security, with- 
 out the knowledge or consent of his partners, and of 
 which the bankers were also aware, an injunction to re- 
 strain the bankers from negotiating it was granted.(/)) 
 So, if one partner make the partnership liable for his 
 separate debt, and his executrix confess judgment, a 
 court of equity will restrain proceedings under the judg- 
 ment.(9') It will also restrain one partner from using 
 the name of both in an improper manner, as from ac- 
 cepting or negotiating bills of exchange for or in the 
 name of the partnership, unless the same be accepted 
 or negotiated for the purpose of the partnership.(r) 
 And in a case(s) where a partner, under parol agreement 
 for a partnership, filed a bill against his co-partner, 
 
 (n) Russell v, Austwick, 1 Sim. 52. 
 
 (o) Ex parte Agace, 2 Cox, 316. 
 
 Ip) Hood V. Aston, 1 Russel, 412. 
 
 (y) Anon. Ca. in Ch. 58. S. C. 16 Vin. Abr. 242. 
 
 (r) Williams v. Bingley, 2 Vern. 278. n. 
 
 (s) Master v. Kirton, 3 Ves. 74.
 
 108 EQUITABLE REMEDIES 
 
 charging him with misconduct and praying a dissolution, 
 account, and injunction against executing securities in 
 the name of the firm ; the defendant demurred, upon the 
 ground, that as the partnership existed only by the fact 
 of the partners' acting together, the prayer that the 
 court would do what they had a right to do themselves 
 was nugatory; but the court overruled the demurrer, 
 because of the mischief which the defendant might effect 
 
 by using the partnership name, and receiving the 
 [ *109 ] partnership debts, without accounting* for them. 
 
 But to entitle a partner under such circum- 
 stances to relief, by an interposition of the peculiar pre- 
 ventive process of injunction, he must disclose a case 
 which completely exculpates him from all imputation ; 
 for if it appear that he has been guilty of any breach of 
 good faith, a court of equity, if it do not refuse to in- 
 terfere, will at least hesitate before it interposes in a 
 summary manner. Thus, where on a bill filed by one 
 partner against his co -partner, imputing acts of miscon- 
 duct, and praying a dissolution, and an injunction against 
 receiving debts, or drawing, or accepting negotiable se- 
 curities, the charges of misconduct being denied, and it 
 being in consequence doubtful whether the partnership 
 could be dissolved, the Court of Exchequer refused an 
 injunction before answer, and in doing so, the court was, 
 in a great measure, governed by the fact that the plain- 
 tiff had taken away the partnership books, an act which 
 deprived him of any claim to its favour.(/) And it has 
 been decided, that a court of equity will not, on the 
 application of the executor of a deceased partner, re- 
 strain the surviving partners from using the name of 
 the deceased in the firm of their trade, because, by con- 
 tinuing his name in the partnership firm, no liability can 
 be entailed upon his estate ; and although it may be a 
 fraud upon the public, yet that circumstance will not 
 entitle the executor to an injunction.(z/) Where a party 
 has paid a deposit on a scheme which turns out to be 
 
 {t) Littlewood v. Caldwell, 1 1 Price, 97. 
 (u) Webster v. Webster, 3 Swanst. 490. n.
 
 BETWEEN PARTNERS. 109 
 
 a mere bubble, he may sustain a bill in equity to re- 
 cover it back.(v) 
 
 The Court of Chancery will also entertain a bill for 
 the specific performance of an agreement for a partner- 
 ship. In a case which came before Lord Hardwicke,(w) 
 , his lordship is represented to have said, that if two part- 
 ners enter into an agreement to carry on a trade to- 
 gether, and it be specified in the agreement that articles 
 shall be drawn up pursuant to it, and before they are 
 prepared the agreement is abandoned by one of the 
 partners, upon a bill brought by the other for a specific 
 performance, it ought to be decreed, notwithstanding 
 the agreement was in relation to a chattel in- 
 terest.(ar) However, to entitle the ^complainant [ *110 ] 
 in such a case to a specific performance, it 
 seems generally to be essential that the partnership con- 
 tract should be of some definite duration ; for, if it be in 
 the power of the defendant to render the decree abor- 
 tive by an immediate dissolution of the partnership, the 
 court will not interfere. For instance, if three persons 
 engage in partnership for seven years, with a covenant, 
 that if either of them, after the expiration of that term, 
 continue to carry on the trade, either alone, or in part- 
 nership with any other person, until one or more of the 
 parties shall have a legitimate or illegitimate son, who at- 
 tains the age of sixteen, and whom the father, by writing 
 or by will, desires to have introduced into the business, 
 the party continuing the trade shall take such son ap- 
 prentice for five years, and, when he attains twenty-one, 
 shall admit him as a partner, but not until twenty years 
 after the date of the agreement ; a court of equity, it 
 has been determined, will not compel a performance of 
 such agreement upon a bill filed by an illegitimate child 
 to be admitted an apprentice, in pursuance of an ap- 
 pointment by his father ; because, were a specific per- 
 formance of the agreement decreed, the partnership 
 
 (v) Green v. Barrett, I Sim. 45; and see Colt r. WoUaston, 2 P. 
 Wms. 154. 
 
 {w) Buxton V. Lister, 3 Atk. 383. 
 (x) See also Anon. 2 Ves. sen. 629.
 
 110 EQUITABLE REMEDIES 
 
 would be dissoluble instanter at the will of either par- 
 ty.{y) As a general proposition, however, this distinc- 
 tion between the definite and indefinite limitation, in 
 point of endurance, of a partnership contract, must be 
 received, it is presumed, not without qualification. In 
 many such cases, though the partnership could be imme- 
 diately dissolved, the performance of the agreement 
 (like the execution of a lease after the expiration of the 
 term),(z) might be important, as investing the party 
 with the legal rights for which he contracted.(l) Where 
 the specific performance of such an agreement is de- 
 creed, the court will not direct an account of the profits 
 of the trade from the time the party ought to have beeii 
 admitted, for that would, in effect, be awarding damages 
 
 for not admitting him earlier ; and whatever he 
 [*lll]was entiled to in that respect the *plaintiflr 
 
 might have recovered, if he had availed himself 
 of his legal remedy.(a) 
 
 Courts of equity will likewise interfere where a breach 
 of any of the covenants contained in the articles of 
 partnership has been committed, if the breach be so im- 
 portant in its consequences as to authorise the party 
 complaining to call for a dissolution of the partnership. 
 
 {y) Hercy v. Birch, 9 Ves. 357. In the late cases of Vansandau v. 
 Moore, and Kinder v. Taylor, Lord Eldon repeatedly stated the set- 
 tled doctrine of the court to be, that a specific performance of a con- 
 tract for a partnership would be decreed, provided the partnership were 
 to continue for a certain time, but that the court would not assist in ex- 
 ecuting the contract, if the partnership could be dissolved at a moment's 
 notice. 
 
 (z) Nesbit v. Meyer, 1 Swanst. 226, See Downham v. Mathews,, 
 cited in Doddington v. Hallett, 1 Ves. sen. 497. 
 
 {a) Anon. Ves. sen. 629. 
 
 (1) Therefore, an agreement to build a Tavern in partnership, at the 
 joint expense and risk, and for the joint benefit, of the contractintr 
 parties, to be held by them in fee simple, will be decreed to be speci- 
 fically performed, at the instance of the partner who furnished the 
 ground, and had fully performed the contract on his part; not- 
 withstanding many of the partners were unwilling to carry it into 
 effect, because, in their opinion, a change of circumstances had ren- 
 dered the scheme unprofitable. Birchet ct al. v. Boiling, 5 Munf. 
 442.
 
 BETWEEN PARTNERS. Ill 
 
 One case of constant occurrence, falling under this head 
 of equitable relief, is that of a partner raising money 
 for his private use on the credit of the partnership firm; 
 in a case so circumstanced, the court interposes, because 
 there is a ground for dissolving the partnership ; but 
 then the impending danger must be such, there must be 
 that abuse of good faith between the members of the 
 partnership, that the court will try the question, whether 
 the partnership should not be dissolved in consequence.(6) 
 Thus, where it has been covenanted that all contracts 
 entered into by any of the firm, and all checks, bills, 
 and receipts for money, should be signed in the joint 
 names of all the partners, a court of equity will restrain 
 one partner from entering into any engagement in the 
 name of " himself and company," or " himself and par- 
 ners," or will dissolve the partnership.(c) Were the 
 court not to lay down this rule for its guidance, sepa- 
 rate suits might be successively instituted, praying for 
 perpetual injunctions in respect of the breach of each 
 particular covenant, which is a species of jurisdiction 
 the court has never decidedly entertained.(c?) So, if one 
 partner exclude another from the benefits of the con- 
 cern, the court will interfere and dissolve the partner- 
 ship ; and it assumes a jurisdiction on this ground, that 
 if the partners will not allow the partnership to be car- 
 ried on in the manner in which it ought to be, it is a 
 reason for putting an end to it altogether.(c) Neither 
 will a court of equity assist in the management of the 
 aflfairs of a company during its existence ; but if a suffi- 
 cient case is made out to justify its interposition, it will 
 appoint a manager in the interim^ for the purpose of 
 winding up and putting an end to the concern. (y) But 
 although the general principle of the court is not to in- 
 terfere in a partnership concern unless the bill prays a 
 dissolution, yet there are cases of partnerships for a 
 term of years, in which it has been said the court will 
 
 (6) Marshall v. Colman, 2 Jacob & Walk. 268. (c) Id. ibid, 
 
 {d) Id. ibid. (e ) Per Lord Elclon, Kinder v. Taylor MSS. 
 
 (/) Carlen v. Drury, 1 Ves. &L Bea. 154. Waters v. Taylor, 15 
 Ves. 10. 
 
 20
 
 112 EQ,U1TABLE REMEDIES 
 
 [*112] interpose during *the term, notwithstanding a 
 dissolution be not prayed. Thus, where some 
 of the members of a partnership or company seek to 
 embark one of their body in a business which was not 
 originally part of the partnership concern, and they are 
 unable to show that such partner either expressly or 
 tacitly acquiesced in the proposed extension of the con- 
 cern, a court of equity would, it is apprehended, restrain 
 them from proceeding in the execution of their intention, 
 without dissolving the partnership or company.(^) So, 
 where a member of a firm neglected to enter the receipt 
 of partnership money in the books, and did not leave 
 the books open for the inspection of the other partner, 
 equity interfered without dissolving the partnership ;(^) 
 or where there has been a studied, intentional, prolong- 
 ed, and continued inattention to the application of one 
 partner calling upon the other to observe the "contract of 
 partnership, the court will grant an injunction against 
 the breach of it;(i) and, in general, circumstances of the 
 latter description must be disclosed, to induce a judicial 
 interference on a breach of the articles of partnership, 
 unless a dissolution be prayed. Therefore, where part- 
 ners covenanted that their business should be carried on 
 in their joint names, and that all contracts and engage- 
 ments entered into by any of the parties on account of 
 the trade, and all checks and drafts drawn by them, and 
 all receipts for money paid, should be in the joint names 
 of all of them, and some of the partners afterwards re- 
 fused to comply with the covenant, and to add the name 
 of the plaintiff to certain contracts entered into by the 
 firm. Lord Eldon, on a bill being filed which did not 
 pray a dissolution of the partnership, refused to grant 
 an injunction, on the ground that the covenant had not 
 been infringed for any length of time, and that the ap- 
 plication of the plaintiflf to have his name added was re- 
 cent.(/:) And where two persons agreed to work a coach 
 from London to Bristol, the one to provide horses for a 
 
 (g) Natusch V. Irving, Appendix, post. 
 
 (h) Goodman v. Whitcomb, 1 Jacob & Walk. 592. 
 
 (i) Marshall v. Colman, ante. {h) Id, ibid.
 
 BETWEEN PARTNERS. 112 
 
 part of the road and the other for the remainder ; and, in 
 consequence of the horses of one having been taken in 
 execution, the other provided horses for the whole hne of 
 road and claimed the whole profits of the journey ; the 
 court, on the application of the debtor under the execu- 
 tion, who alleged that his own horses were ready at the 
 usual times and places, refused to interfere by 
 injunction, and to restrain *his co-partner from [* 113 ] 
 continuing to provide horses.(/) Neither will 
 the court interfere by injunction, where the case made 
 in support of it is merely a temptation to the abuse of 
 the partnership property. For instance, in the absence 
 of a covenant of restraint, a partner who has adventur- 
 ed in the concern of one newspaper, will not be re- 
 strained from engaging as a partner in the concern of 
 another newspaper ; because, although the temptation 
 thereby held out, of using the information obtained at 
 the expense of the one for the benefit of the other, forms 
 a powerful objection to such an engagement, yet inas- 
 much as the common partner does not necessarily place 
 himself in a situation in which he is required to betray 
 his duty to either concern, the objection seems to be 
 founded on the principle of policy and discretion, against 
 which the parties may protect themselves by contract ; 
 and if they omit that precaution, neither law nor equity 
 have a right to impose a restraint which the parties 
 themselves, if they intended it should be imposed, might 
 have expressed.(m) But a partner cannot be permitted, 
 in pursuit of his private advantage, to place himself in 
 a situation which gives him a bias against the due dis- 
 charge of the trust and confidence he owes to his co- 
 partner ; where, therefore, he had purchased partnership 
 stock in exchange for his own separate shop-goods, it 
 was held that his partner was entitled to share in the 
 profit of such barter.(w) 
 
 Where a bill is filed by one partner in relation to a 
 partnership transaction, the existence of the partnership 
 must be apparent to the court before it will determine 
 
 (I) Smith V. Fromont, 2 Swanst. 330. 
 
 (m) Glassington v. Thwaites, 1 Sim. <fc Stu. 124. 
 
 (n) Burton v. Woolley, 6 Mad. 367.
 
 113 EQUITABLE REMEDIES 
 
 the question submitted to its consideration. There- 
 fore,(o) where a solvent partner filed a bill against his 
 co-partner, who had become bankrupt, and his assignees, 
 praying an account of the joint property, and of the 
 debts upon the footing of the partnership, and the as- 
 signees, by their answer, stated that they believed a 
 partnership did not exist. Lord Alvanley refused to ad- 
 judicate the rights of the parties until the fact of the 
 existence of the partnership was established at law ; al- 
 though, in that case, the whole of the evidence was in 
 favour of the claim of the plaintiff.(l) However, if, af- 
 ter the cause is canvassed, it is perfectly clear that a 
 
 partnership does exist, an issue will not be di- 
 [ *114 ] rected. In a case of this decription. Lord *Ross' 
 
 lyn, in refusing an issue, observed, that if the 
 verdict found the parties were not engaged in partner- 
 ship, he would not allow such a verdict to stand.(j9) 
 
 Independently of the administration of relief by a 
 court of equity in the cases to which we have alluded, 
 it will, it seems, in some instances, interpose ; and, dur- 
 ing the continuance of a partnership, appoint a receiver 
 of the joint effects. But to authorise a party to call for 
 the appointment of a receiver of the stock of a subsist- 
 ing partnership, he must be prepared to show a case of 
 the grossest abuse, and of the strongest misconduct, on 
 the part of the managing partner; for, except under 
 such xiircumstances, the court will not interfere, inas- 
 much as the probable result of its interposition is the de- 
 
 o) Binford v. Dommett, 4 Ves. 756. 
 p) Foster v. Hale, 5 Ves. 322. 
 
 (1) But where A. and B. carried on trade, as partners, with the funds 
 of A., in the name of B., and without any dissokition of the partner- 
 ship, or rendering any account to A.; B., afterwards, without the con- 
 sent of A., entered into a partnership with C, and carried into the new 
 concern all the funds of the former partnership ; and A., on the death 
 of B., filed a bill against his administratrix, and C, his surviving part- 
 ner, for a discovery and account; and C. demurred to so much of the 
 bill as sought an account from him of the transactions and profits of the 
 partnership between him and the intestate, and of the personal estate of 
 the intestate in his hands, the demurrer was over-ruled. Long v. Ma- 
 jestre, 1 Johns. Cha. Rep. 305.
 
 BETWEEN PARTNERS. 114 
 
 struction of the trade.(9) Nor will a receiver be appoint- 
 ed upon a summary application, where there is a cove- 
 nant to refer, and no attempt has been made to submit 
 the matter in dispute to arbitration.(r) But if, in the 
 ordinary course of trade, any of the partners seek to ex- 
 clude another from taking that part in the concern which 
 he is entitled to take, the court will grant a receiver, 
 because such conduct warrants a dissolution.(s) (1) 
 The principle, indeed, upon which the Court of Chan- 
 cery interferes between partners, by appointing a re- 
 ceiver, is merely with a view to the relief, by winding 
 up and disposing of the concern, and dividing the pro- 
 duce, but not for the purpose of carrying on the partner- 
 ship.(0 Therefore, a receiver of a partnership will not 
 be appointed upon motion, unless it appear that the 
 plaintiff will be entitled to a dissolution at the hearing ; 
 for otherwise the court might make itself the manager 
 of every trade in the kingdom.(?/) And where it seems 
 absolutely necessary that a receiver should be 
 appointed of ^partnership property, the court [*115] 
 will always pause before it takes a step likely 
 to be so ruinous to the parties.(v) A court of equity, 
 on an application properly substantiated, will appoint a 
 
 {q) Oliver v. Hamilton, 2 Anstr. 453. Milbank v. Revett, 2 Meriv. 
 405. In a note to the case of Glassington v. Thwaites, 1 Sim. & Stu. 
 130, it is questioned by the learned reporters, whether the court will 
 ever interfere on an interlocutory application for a receiver or injunc- 
 tion, in the case of a partnership occasioned by the acts of the parties, 
 unless on circumstances clearly established of fraud, entire exclusion, 
 or gross misconduct. 
 
 (r) Waters v. Taylor, 15 Ves. 10. 
 
 (s) Wilson V. Greenwood, 1 Swanst, 481. S. C. 1 J. Wilson. 223. 
 See also Read v. Bowers, 4 Bro. C. C. 441. Charlton v. Poulter, 19 
 Vos. 148. n. (c). 
 
 (t) Waters v. Taylor, supra. 
 
 (u) Goodman v. Whitcomb, 1 Jacob & Walk. 589. Chapman v. 
 Beach, ibid. 594. Harrison v. Armitage, 4 Madd. 143. 
 
 (u) Waters v. Taylor, ante. Peacock v. Peacock, 16 Ves. 57. 
 
 (I) The course in New York is, as stated by the Chancellor, to ap- 
 point a receiver when the parties cannot agree as to the mode of wind- 
 ing up the affairs. Martin v. Fan Schaick, 4 Paige's Cha. Rep. 479. 
 Laiv v. Ford, 2 Paige's Cha. Rep. 310. See 1 Desaus. Cha. Rep. 429.
 
 115 EqUITABLE REMEDIES 
 
 receiver of a mine or colliery, as well as of an ordinary 
 partnership in trade ; because, where persons have diffe- 
 rent interests in such a subject, and manufacture and 
 bring to market the produce of the land as one conmion 
 fund, to be sold for their common benefit, it is to be re- 
 garded rather as a species of trade or partnership than 
 as a mere tenancy in common in the land.(:c) But if the 
 claimant to an equitable interest in such a concern, 
 knowingly suffers great expense and risk to be incurred 
 before he asserts his equitable right, and keeping aloof 
 while the undertaking is hazardous, seeks the interposi- 
 tion of the court only when it is attended with a profit- 
 able result, the court will not interfere by appointing a 
 receiver on motion, and it is doubtful whether it would 
 interpose in such a case, even by decree.(^)(l) In parti- 
 cular cases, equity will restrain the improper conduct of 
 a partner without appointing a receiver.(z) Where, by 
 the partnership agreement, the concern was to be ma- 
 naged by a committee, the share of each proprietor 
 dying or retiring, to be first offered to the committee, to 
 be purchased for the general body, it was held that the 
 whole concern could not be sold but with the consent of 
 all ; and that where all but two out of thirty-one had 
 agreed, and sold the concern, such sale did not pass the 
 
 {x) Jefferys v. Smith, 1 Jacob & Walk. 298. Story v. Lord Wind- 
 sor, 2 Atk. 630. Crawshay v. Maule, 1 Swanst. 518. S. C. 1 J. Wills. 
 181. Williams v. Attenborough, 1 Turner, 73. Fereday v. Wight- 
 wick, 1 Taralyn, 250. 
 
 (y) Norway v. Rowe, 19 Ves. 144. Senhouse v. Christian, cited 
 ib. 157. 
 
 (z) Seeley v. Boehm, 2 Madd. 176. ; but see Smith v. Fromont, 3 
 Swanst. 330, and Glassington v. Thwaites, 1 Sim. & Stu. 124. 
 
 (1) Where a partnership has expired by effluxion of time, and in a 
 suit for an account, &c. a receiver has been appointed before decree, 
 the court will not compel the defendant to deliver up to the receiver, 
 for the purpose of making out bills of costs, partnership books and ac- 
 counts, which have remained in his hands, and title deeds belonging to 
 a third party, which came into the possession of the co-partners as so- 
 licitors, such defendant offering to the receiver free access thereto, and 
 to assist in making out the bills. Dacie v. John, McClell, & Young's 
 Rep. 206.
 
 BETWEEN PARTNERS. 115 
 
 share of such two ; but in such a case there need be no 
 previous offer to the committee.(a) 
 
 ^CHAPTER III. [*116] 
 
 SECTION 1. 
 Legal Remedies for Partners against Strangers. 
 
 In the foregoing chapter we had occasion to consider 
 the rights of partners as to property in possession, whe- 
 ther personal or real, and also to investigate the legal 
 and equitable remedies to which they may resort for the 
 adjustment of differences arising amongst themselves. 
 We will now proceed to enquire into their rights as to 
 the other great division of things, viz. choses in action; 
 and at the same time point out what remedies the law 
 has afforded them for the assertion of such rights, when 
 they are invaded by persons unconnected in interest 
 with them. 
 
 Rights of the latter description arise chiefly from the 
 executory contracts partners enter into with third persons. 
 Of the general nature of contracts, of the consideration 
 necessary to a valid promise of the provisions of the 
 statute of frauds upon this subject, and of the manner in 
 which agreements are to be construed, it would be fo- 
 reign to our present purpose to inquire. With regard 
 to such points, it is immaterial whether there be only two 
 individual parties to the contract, or any greater num- 
 ber ; and it is the object of this treatise to point out what 
 is peculiar and characteristic in the transactions of part- 
 nerships. 
 
 A promise or undertaking to one of several partners 
 in the course of business, is construed by law to be made 
 to all of them, and all are entitled to take advantage of 
 
 (a) Chappie v. Cadell, Jac. 537.
 
 116 LEGAL REMEDIES FOR PARTNERS 
 
 it ; whether the promise be express or implied^ the legal 
 consequence will be the same. Thus an agreement to 
 sell a cargo of coals to either of two coal merchants in 
 partnership, would be held a contract with both jointly ; 
 in the same manner as the law Avould raise the implied 
 promise of a customer purchasing a part of the coals 
 from one of them, to be for the benefit of both. In cases 
 of doubt the criterion to determine the nature of the 
 promise, must be the nature of the consideration ; if the 
 consideration proceeds from the partnership, the promise 
 
 will be inferred to be to the members jointly, 
 [*117] *and vice versa. As for instance, if goods are 
 
 sold belonging to the partnership, or if goods 
 are bargained for to be paid from the partnership funds, 
 there a joint action would lie to recover the price of the 
 first goods, and damages for the non-delivery of the 
 others ; but if work and labour be performed by the 
 separate servant of one partner, or this one partner has 
 paid a sum of money for the repairs of his own dwelling- 
 house, it is clear that he alone is interested in these 
 contracts, and that he alone can sue upon them ; at the 
 same time, though contracts in the course of business 
 with part of a firm are considered as for the benefit of 
 all the members composing it, still the partnership is in- 
 capable of treating as a corporation or body politic. It 
 has no continuance independent of the particular indi- 
 viduals of whom it is formed ; rights are not vested in it, 
 but in them ; so that there is no transmission of rights 
 to successions in a mercantile house, and all running 
 agreements with a partnership, we shall presently see, 
 cease when any change takes place by death, the re- 
 tiring of one partner, or the admission of another, into 
 the set of partners existing at the time the agreements 
 were concluded. 
 
 It never could, however, be doubted, that contracts in 
 themselves immoral and illegal afford no right of action, 
 either to the person entering into them or his co-partners ; 
 and it is settled that where the knowledge of any parti- 
 cular circumstance vitiates a contract which otherwise 
 would' be valid, the knowledge of one is considered as 
 the knowledge of all, as completely as if the circum-
 
 AGAINST STRANGERS. 117 
 
 Stance had been actually communicated to them. Thus, 
 an action cannot be maintained by several partners for 
 goods sold by one of them living in Gvernscij^ and pack- 
 ed by him in a particular manner for the purpose of 
 smuggling, though the other partners, who resided in 
 England^ knew nothing of the sale ; for it is a contract 
 by subjects of this country, made in contravention of the 
 laws ; and such a case must be considered in the same 
 light with respect to the whole firm, as if all the partners 
 had lived in Englancl.{ci) With reference to personal 
 torts, they can seldom be sustained jointly by persons 
 who are united together as partners. Injuries of this 
 description are mostly of a separate nature, affecting 
 only a single individual ; and where this is the case, the 
 injured person can alone assert the remedy 
 ^applicable to the injury sustained. However, [*118] 
 slander, which is a species of personal tort, may 
 jointly affect partners, if (as by a false representation 
 of their solvency) it have relation to the trade in which 
 they are engaged. It has, therefore, been decided, that 
 if defamatory words be spoken of two partners, affecting 
 them in their trade, they may maintain a joint action for 
 the slander, where it is attended with special damage.(i) 
 But Mr. Serjeant Williams has expressed his opinion to 
 be, that the statement of special damage is not a neces- 
 sary ingredient to the support of the action ; for that if 
 the words are actionable, because they are spoken of 
 partners in the way of their trade, a joint action may be 
 maintained, although the partners have not sustained any 
 special damage by reason of the speaking them.(c)(l) 
 And in perfect conformity with this opinion, it has 
 
 («) Biggs V. Lawrence, 3 T. R. 454. See also Cliigas v. Penaluna, 
 
 4 T. R. 466. Hodgson v. Temple, 5 Taunt. 181. Waymill v. Read, 
 
 5 T. R. 599. 
 
 {b) Cook V. Batchellor, 3 Bos. & Pul. 150. January v. Spires, 
 cited ibid. See also Mailland v. Goldney, 2 East, 426. Worton v. 
 Smith, 6 B. Moore, 110. Solomons v. Medex, 1 Stark. 191. Furni- 
 val V. Weston, 7 B. Moore, 356. 
 
 (c) See the note on Cory ton v. Lithebye, 2 Saund. 117, a. Bro- 
 
 (1) But in a joint action for a libel by two partners, damages cannot 
 
 21
 
 118 LEGAL REMEDIES FOR PARTNERS 
 
 since been held, that where a co-partnership is libelled, 
 and the libel contains something which particularly 
 affects the character of one of the firm, a joint action 
 may be maintained against the hbeller; and that it is 
 not necessary to show what proportion of interest each 
 partner had in the joint business ; nor to set out any 
 special damage.(cr) But although partners, in their col- 
 lective capacity, are furnished with the same remedies 
 which individuals possess for the assertion of their rights, 
 cases have occurred, in which, notwithstanding a loss 
 has been sustained, the law has, of necessity, been com- 
 pelled to deny a remedy to redress it. The class of 
 cases to which allusion is made is that in which the 
 same person being engaged in two different firms, a con- 
 tract is made by the one concern with the other, or the 
 negotiable paper of the one gets into the possession of 
 the other concern. Where such an occurrence takes 
 place, damages cannot be recovered at law for a breach 
 of the contract, nor can payment of the negotiable in- 
 strument be enforced by any legal remedy. The indi- 
 viduality of the person of the common partner cannot 
 be severed ; no man can contract with himself, nor can 
 he bind himself, in the society of one set of persons 
 
 to another in which he is also a partner. In 
 [*119] *an action founded, either on a breach of the 
 
 contract or on the security, he must join, al- 
 though at the same time, and in an ordinary case, he has 
 incurred that responsibility which subjects him to be called 
 upon to fulfil the identical engagement he himself must 
 seek to enforce. It would, indeed, be an anomaly in 
 the law, if the same person could, in the same suit, 
 sustain the twofold character of a plaintiff and a defend- 
 ant ; or, in different words, could, in concurrence with 
 
 mage v. Prosser, 4 B. & C. 247. It is actionable to say, of a banking 
 partnership, that they have suspended payment, Foster v. Lawson, 3 
 Bingh. 452, 
 
 {d) Foster v. Lawson, supra. 
 
 be given for any injury to their private feelings, but only for such in- 
 jury as they may have sustained in their joint trade or business. Hay- 
 thorn et al. V. Lawson, 3 Carr. & Payne, 196.
 
 AGAINST STRANGERS. 119 
 
 Others, attempt to enforce reparation for a breach of 
 contract jointly committed by himself and those with 
 whom he has associated. In equity, perhaps, the con- 
 tract and the negotiable security, if the latter have the 
 appropriate stamp, might be enforced as equitable agree- 
 ments,(e) but neither of them can be made the founda- 
 tion of an action at law.(/)(l) Thus, where one of 
 three partners made a promissory note, payable to hiin- 
 self and partners, who indorsed it to another firm, in 
 which one of the original payees was a partner, on as- 
 sumpsit by the indorsees against one of the indorsers, 
 the latter pleaded in bar that one of the plaintiffs was 
 liable with him as an indorser, and on special demur- 
 rer, this plea was held good.(^) So, in a later case, the 
 Court of Common Pleas, on the ground of the legal disa- 
 bility of a partner to contract with the firm, held, that 
 the partners in one house of trade could not maintain an 
 action against the partners in another house of trade, of 
 which one of the partners in the plaintiffs' house was 
 also a member, for transactions which took place while 
 
 (e) See diet, of Lord Eldon, in Mainwaring v. Newman, 2 Bos. & 
 Pnl. 120. See also diet, of Gibhs, C. J., in Bosanquet v. Wray, 2 
 Marsh. 234. 
 
 (/) Id. Ibid. See also Moffat v. Van Milligen, cited 2 Bos. & Pul. 
 120. De Tastet v. Shaw, 1 B. & A. 664. Neale v. Turton, 4 Bingh. 
 149. Teague v. Hubbard, 8 B. & C. 345. S. C. 2 Mann. &i Ryl. 
 369. Harvey v. Kay, 9 B. & C. 356. In a late case, where A, a 
 partner in two concerns, was indebted to one of them, and before the 
 dissolution of that partnership, and unknown to his partner in the other 
 concern, indorsed a bill and paid over money belonging to the latter 
 concern in discharge of the private debt due from himself to the former 
 partnership, and immediately afterwards indorsed the same bill to a 
 creditor of that partnership : the last-mentioned partnership having been 
 dissolved, it was held that neither A and his partner in the one con- 
 cern, nor their assignees (they having become bankrupts), could main- 
 tain trover against the members of the other concern for the bill, or as- 
 sumpsit for the money paid by A out of the funds of the one in dis- 
 charge of his private debt due to the other partnership. Jones v. Yatea, 
 9 B. &; C. 532. 
 
 [g) Mainwaring v. Newman, supra. 
 
 (1) In Scotland, debts between companies in which the same indi- 
 vidual is partner, are every day sustained as quite unexreplionahle. 
 BelVs Comm. vol. 2. p. 620.
 
 119 LEGAL REMEDIES FOR PARTNERS 
 
 he was a partner in both houses.(A) And the objection, 
 which goes to the root of the contract, applies as forci- 
 bly against the representatives of the common 
 [ *120 ] partner. *It, therefore, can make no difference, 
 whether the action be brought in the lifetime or 
 after the decease of the latter, because, as no legal cou- 
 tract ever existed, it cannot, in any event, be rendered 
 available at law.(i) But the surviving partners of the 
 one house may sue the surviving partners of the other 
 house, upon transactions which have taken place subse- 
 quently to the decease of the common partner ; for, as 
 regards such transactions, they sustain merely the char- 
 acter of strangers, possessing no identity of interest.(A:) 
 Analogous in principle, is the case of one firm, partly 
 composed of a common partner, attempting to enforce a 
 security against a stranger, after satisfaction for the se- 
 curity has been obtained by the other firm. In such a 
 case, the money received by the one firm, being paid and 
 accepted in satisfaction of the security, the common 
 partner will not be permitted to contravene the receipt 
 of it for that purpose, nor w ill he be allowed to sue upon 
 a bill, which as regards himself has been already satis- 
 fied, although he be ignorant of the circumstances which 
 constitute the satisfaction. Therefore, where A was a 
 partner with B, in one mercantile house, and with C in 
 another, and, after the former house had indorsed a bill 
 of exchange to the latter, B, acting for the firm of A and 
 B, received securities to a large amount from the drawer 
 of the bill, upon an agreement by B, that the bill should 
 be taken up and liquidated by B's house, and, if not paid 
 by the acceptors when due, should be returned to the 
 drawer, the Court of King's Bench held, that the depo- 
 sited securities being paid, and the money, therefore, 
 being received by B in satisfaction of the bill, A was 
 bound by this act of his partner B in all respects, and 
 therefore could not, in conjunction with C, his partner in 
 the other house, maintain an action, as indorsees and 
 holders of the bill, against the acceptors, after such satis- 
 
 (A) Bosanquet v. AVray, supra. 
 
 (i) Bosanquet v. Wray, 2 Marsh 319. S. C. 6 Taunt. 597. 
 
 (k) Id. Ibid.
 
 AGAINST STRANGERS. 120 
 
 faction received through the medium of, and by agree- 
 ment with B, in discharge of the same.(/) And it is a 
 good defence to show that one of several plaintiffs 
 cannot recover, notwithstanding he may have been 
 guilty of fraud against the rest. Thus, where one of 
 three partners, unknown to the others, undertook to pro- 
 vide for a bill of exchange, drawn by the three upon and 
 accepted by a fourth person, although such engagement 
 was made in fraud of his copartners, yet it was 
 held that no action *could be maintained upon [*121 ] 
 the bill against the acceptor.(m) So, where one 
 of several partners in a banking-house drew a bill m his 
 own name upon a third party, who accepted the same, 
 upon condition that the drawer should provide for it 
 when due, it was held that as he having failed in per- 
 forming the condition could not have sued the defendant, 
 his partners being bound by his acts could not maintain 
 a joint action.(«) Neither can partners assert a right 
 accruing to them in their collective characters, where 
 some of the members of the firm are under a legal inca- 
 pacity to sue. For instance, if one of two partners, 
 though an Englishman, be resident and carry on trade 
 in an enemy's country, a joint contract entered into with 
 the firm cannot be enforced by the other partner, be- 
 cause his copartner, residing under the allegiance and 
 protection of an hostile state, for all commercial purpo- 
 ses, is to be considered to all civil purposes as much an 
 alien enemy as if he were born there.(o)(l) But if his 
 residence in an enemy's country be for the purpose of a 
 trade licensed by the government of this country, it does 
 
 (/) Jacaud v. French, 12 East, 317. 
 
 (m) Riclimond v. Heapy, 1 Stark. N. P. C. 202. S. P. Johnson 
 V. Peck, 3 Stark, on Evid. 1068. S. C. 3 Stark. N. P. C. 66 ; and 
 see Hunter v. Richardson, 6 Madd. 89. 
 
 (n) Sparrow v. Chisman, 9 B. & C. 241. 
 
 (o) McConnel v. Hector, 3 Bos. & Pul. 113. See also O'Meally 
 V. Wilson, 1 Campb. 482. Albrecht v. Susraan, 2 Ves. <fe Bea. 323. 
 
 (1) Per Story, 2 Gallis. Rep. 130. See The Ann Green, The Jo- 
 seph, The Francis, I Gallis. Rep. 274. 545. 614. Griswold v. Jfad- 
 dington, 16 Johns. Rep. 438.
 
 121 LEGAL REMEDIES FOR PARTNERS 
 
 not constitute a disability. (jo) Neither is the legal right 
 of partners affected by the residence merely of one of 
 the members of the firm in a hostile country, if such re- 
 sidence be unconnected with an adherence to the ene- 
 my.(y) Where one of three partners, the other two 
 being neutrals, obtained a license as broker on behalf of 
 several British merchants to trade to an enemy's coun- 
 try, and before action brought the two neutrals became 
 enemies, it was held that the broker might maintain an 
 action on a policy of insurance, to recover the value of 
 the joint interest of the three.(r) 
 
 Partners sometimes seek to enforce a guarantee given 
 to secure the repayment of an advance to be made by 
 the firm. In such a case the action must necessarily be 
 brought by all the partners to whom the guarantee is 
 given, and by whom the advance is made. And where 
 
 a contract of that description is apparently 
 [ *122 ] *entered into in favour of one partner only, yet 
 
 if in fact it be intended as an indemnity to the 
 firm in respect of an advance to be made by them, a 
 joint action may be maintained. Thus, in the late case 
 of Garrett and another v. Handley^{s) which was an 
 action on a guarantee by two as the survivors of a firm 
 of three partners, it appeared that the guarantee was 
 addressed to one of the partners only, but evidence was 
 produced which established that the advance, to secure 
 which the guarantee was entered into, was made by the 
 firm, and that the guarantee was given for their joint be- 
 nefit and not to indemnify the single partner only : it was 
 objected at nisi prius, and afterwards insisted upon on a 
 motion to enter a nonsuit that there was a misjoinder, 
 for as the guarantee was in terms given to one partner, 
 to whom alone the promise could be construed to have 
 been made, the action should have been brought by him 
 only ; but the Court of King's Bench held, that as the 
 guarantee was proved to have been intended for the 
 
 (p) Ex parte Baglehole, 18 Ves. 525. S. C. 1 Rose, 271. See 
 alsoUsparicha v. Noble, 13 East, 332. Flindt. v. Scott, 5 Taunt. 674. 
 (q) Roberts v. Hardy, 3 Mau. & Selw. 533. 
 (r) De Tastet v. Taylor, 4 Taunt. 233. 
 (s) 4 B. & C. 664.
 
 AGAINST STRANGERS. 122 
 
 benefit of the firm, the action was properly brought by 
 the surviving partners. And, under such circumstances, 
 it is not competent to the partner, to whom the gua- 
 rantee may have been addressed, to treat the advance 
 as one made by himself on his individual account, and in 
 that character to support a separate action. This was 
 determined in a previous action on the same guarantee, 
 and in which the plaintiff declared that in consideration 
 that he would advance a sum of money to A B, the 
 defendant promised that provision should be made for 
 repaying the plaintiff. At the trial it appeared that the 
 defendant had given to the plaintiff the guarantee stated 
 in the declaration, and that the latter was a partner with 
 two other persons in a banking-house, and that the firm 
 had advanced the money, and charged A B in account 
 with the same ; and it was held that the averment in 
 the declaration that the plaintiff had advanced the money 
 was not sustained by the proof, there being no evidence 
 to show that the money had been advanced to the plain- 
 tiff by the firm, and by him to A B.(t) It is not to be 
 collected from either of the two preceding cases, nor 
 was it in fact necessary to determine whether the partner 
 to whom the guarantee was actually given could have 
 maintained a separate action upon it, provided his de- 
 claration so truly and correctly stated the facts as not 
 to have been open to the objection of a variance 
 between *the allegation and the proof. But ['123j 
 judging from analogy to the rule applicable to a 
 policy of insurance, which allows the action to be 
 brought either by the party for whose benefit it was 
 effected, or in the name of him who eflfected it,(i^) it 
 would seem that that partner, as being the party with 
 
 (t) Garrett v. Handley, 3 B. & C. 462. 
 
 (u) See Bell v. Ansley, 16 East, 141 ; and the observation of 
 Bayley, J., 4 B. & C. 666. In an action on a policy, a material vari- 
 ance between the interest averred in the declaration and that proved at 
 the trial will be a ground of nonsuit. Thus, where the interest was 
 alleged to be in a single person, and the policy purported to be made 
 on his account, where in fact several were jointly interested, and the 
 policy was made on their joint account, the variance was held to be 
 fatal. Bell v. Ansley, supra. And see Cohen v. Hannam, 5 Taunt. 
 101. Carruthers u. Sheddon, 1 Marsh. 416. S. C. 6 Taunt. 14.
 
 123 LEGAL REMEDIES FOR PARTNERS 
 
 whom the contract was made, might have supported 
 such an action. 
 
 Actions are also not unfrequently brought by partners 
 against a third person, who has guaranteed the honesty 
 and fidehty of a clerk or servant in their employ. In 
 such cases, attempts have been made to establish the 
 guarantee, as an indemnity to the liouse of trade, rather 
 than to the members composing it. But, after many de- 
 cisions upon the subject, the principle applicable to such 
 instruments seems to be this : that, as every partnership 
 ceases to be the same if any alteration is made in the 
 parties of which it is composed, so the prospective ope- 
 rations of a guarantee given to a partnership will cease 
 upon any change, either by the death or withdrawing of 
 any of the partners, or the addition of a new one, unless 
 the guarantee itself contain some provision contemplat- 
 ing such change, and continuing its operation to the 
 succeeding partnership. In the first case affording a 
 solution of this principle, it was decided that a bond 
 given to a sole trader, as a security for the conduct of 
 liis clerk, did not render the surety responsible for any 
 defalcation committed by the clerk after the obligee had 
 entered into partnership with a third person.(y) So, a 
 promise to three partners to pay for goods to be fur- 
 nished to a particular individual, does not extend to 
 goods furnished by two of them after the third partner 
 has retired from the business.(.r) The responsibility of 
 the surety likewise terminates on the death of any one 
 of the partners with whom the engagements of surety- 
 ship was formed.(y) And if the frame and 
 [*124] *constitution of any society or partnership be 
 otherwise materially altered, the prospective 
 effect of a guarantee, previously given, will cease.(l) 
 
 {v) Wright V. Russell, 3 Wils. 530. S. C. 2 Bl. Rep. 934. 
 
 {x) Myers v. Edge, 7 T. R. 254. 
 
 {y) Strange r. Lee, 3 East, 484. Weston v. Barton, 4 Taunt. 673. 
 S. P. In a modern case, where a person, by bond, became surety for 
 such sums as should be advanced to meet bills drawn by two partners 
 or either of them, it was held, from the language of the condi- 
 
 (1) Crcmcr v. Higginson ^' Perkins, 1 Mason's Rep. 323.
 
 AGAINST STRANGERS. 124 
 
 Thus, where a bond had been given by the defendant's 
 testator to the plaintiff and several other persons, since 
 deceased, governors of the Society of Musicians, pa?/a6/e 
 to them and their successors as governors,, conditioned for 
 the fidelity of one J. H. as their collector, and the society 
 was afterwards incorporated, it was held, that the exe- 
 cutors of the obligor were not liable, since, after the 
 charter of incorporation, the society constituted a per- 
 fectly new body of persons, in the judgment of the law.(2') 
 But an engagement may be framed to meet a change or 
 alteration in the partnership, and be afterwards binding 
 upon the person who may guarantee either the payments 
 or fidehty of another. This was expressly laid down by 
 Mr. Justice Lawrence,(a) who said, "A bond may be 
 drawn with the condition now insisted on in argument, 
 for the obligor to be answerable, not only to the present, 
 but to all future partners in the house ; but that has not 
 been done here." The bond of indemnity in the case of 
 Barclay v. Lucas(h) was regarded by the Court of King's 
 Bench as an engagement of that description. There the 
 court considered the undertaking as having been given 
 to the house, and not to the individual members of it, 
 and, therefore, they held, that it was not discharged by 
 any change of partners. But how far the wording of 
 the engagement in that case fairly admitted the con- 
 struction put upon it by the court, is a question that has 
 admitted of some doubt.(c) The same point came under 
 discussion in a later case,(c?) in which a bond had been 
 given to the plaintiff and four others, trustees for the 
 Globe Insurance Company^ conditioned for the honesty 
 and faithful service of one A. B. to the said Company, 
 and it Avas determined, that this was an engagement for 
 the faithful service of the party to such persons, who, 
 
 tion, that its operation was confined to debts contracted during the joint 
 lives of the partners. Simson v. Cooke, Bingh. 452. 
 
 (z) Dance v. Girdler, 1 New Rep. 34. 
 
 (a) Strange v. Lee, 3 East, 491. 
 
 (6) 1 T. R. 291. note (a). See Kipling v. Turner, .5 B. & A. 261. 
 
 (c) See the judgment of Lord EUenborough in Strange v. Lee, supra. 
 
 (d) Metcalf j;. Bruin, 12 East, 400. S. C. 2 Campb. 422. 
 
 22
 
 125 LEGAL REMEDIES FOR PARTNERS 
 
 for the time being, should constitute the Globe 
 [*125] Insurance Company. In conformity *with the 
 
 principle established by the preceding cases, it 
 has been decided, that where a guarantee or security is 
 given on the behalf of one person, or of certain persons, 
 constituting a partnership firm, and another or others 
 are afterwards introduced, or other material change 
 takes place, after which the parties, to whom the secu- 
 rity is given, continue their dealings, knowing of the 
 change, there is an end of the security .(e) In a late 
 case it was doubted whether a mortgage to partners, 
 their heirs and assigns, to secure debts due or to become 
 due to them or the survivor, was available to a new 
 partnership formed by the addition of another, in whose 
 time the debt accrued.(/) But where title-deeds are 
 deposited by way of security with a firm, upon a verbal 
 agreement, the deposit may be extended by a subsequent 
 verbal agreement for the security of a new sum upon a 
 change of par tners.(^) And in a recent case, an agree- 
 ment, by way of deposit of title-deeds, with a firm of 
 five, one of whom was a nominal partner only, was ex- 
 tended by subsequent agreement to the actual partner- 
 ship of four.(A) 
 
 (e) Bellairs v. Hobsworth, 3 Campb. 53. 
 
 In Parker v. Wise, 6 Mau. & Selw. 239, which was an action of 
 debt on bond, the defendant pleaded that, after the making of the bond, 
 the partnership of obligees was dissolved, and a new partnership form- 
 ed, by the retiring of one of the old partners and admitting a new 
 partner, with which new partnership the parties for whom the defen- 
 dant was surety, with the privity of the retired partner, kept an account, 
 and that at the time of the dissolution of partnership the sum secured 
 was due from those parties to the partnership for such overdrawing, but 
 the partnership did not at any time demand payment of it, but, on the 
 contrary, at and after the dissolution, discharged them from making 
 such payment, and consented that the balance should be, and it was 
 transferred to the account between them and the new partnership, and 
 became incorporated in their account ; and it was held on demurrer that 
 the plea was bad, for an assignment of a chose in action is no discharge 
 of an obligation. 
 
 (/) JEx parte Watson, 19 Ves. 459. 
 
 (o-) Ex parte Kensington, 2 Ves. & Bea. 79. Ex parte Lloyd, 1 
 Glyn & James. 389. 
 
 (A) £x parte Alexander, 1 Glyn &, James. 409. Fide also Ex 
 parte Marsh, 2 Rose, 239. Ex parte Browne, lb. n. But the doc-
 
 AGAINST STRANGERS. 125 
 
 In actions ex contractu^ or actions founded upon con- 
 tract, the general rule is, that if the cause of action be 
 joint, all the joint contractors, if living, must concur and 
 join in bringing the action ;(i) or if some are dead, the 
 action must be brought by the survivors.(A:) 
 Partners, therefore, in actions instituted to *en- [ '*126 ] 
 force contracts made with them, must all join. 
 This principle is bottomed on practical convenience, to 
 prevent a multiplicity of actions in a case in which the 
 rights of the parties are capable of adjustment in a sin- 
 gle suit: indeed, if several were allowed to bring sepa- 
 rate actions for one and the same cause, the court itself 
 would be in doubt for which of them to give judgment.(/) 
 It may also be beneficial to the defendant to have the 
 action brought by all the parties interested, for he may 
 possibly have a defence against them all which may not 
 be available against one or more of them.(m) The rule 
 therefore established is, that all those who are alive 
 must join, and if they do not, the plaintiflf will be non- 
 suited or have a verdict against him.(n) (1) And where 
 
 trine of equitable mortgage by deposit has been refused to be extended 
 to subsequent advances after a legal mortgage. Lord Eldon observed, 
 that there never was a case where a man having taken a mortgage by a 
 legal conveyance was afterwards permitted to liold that estate as further 
 charged, not by a legal contract, but by inference from the possession 
 of the deed. Ex -parte Hooper, 19 Ves. 477. 1 Meriv. 7. 2 Rose, 328. 
 
 [i) Lambert's case, Godb. 244. Cabell u. Vaughan, 1 P. Wms. 
 Saund. 291. b. (4). 
 
 ik) Webber v. Tivill, 2 Wms. Saund. 122. (1). 
 
 (/) Per Lord Kenyan, Anderson v. Martindale, 1 East, 497. See 
 also Slingsby's case, 5 Rep. 18. 
 
 (th) Per Baley, J., Petrie v. Bury, 3 B. & C. 356. 
 
 (n) CabeU v. Vaughan, 1 Wms. Saund. 291. f. 1 Chitt. Rep. 71. 
 2 Stra. 820. 
 
 (1) Dob v. Halsey, 16 Johns. Rep. 34. Coffee v. Eastland, Cooke's 
 Rep. 159. Wilson v. Wallace's Ex. 8 Serg. &i Rawle, .53. The 
 United States v. Kennan, 1 Peters' Rep. 168. Halliday v. Doggelt 
 et al. 6 Pick. Rep. 359. And actions to be properly brought, must be 
 commenced and prosecuted in the proper Christian and Sir-names of 
 the parties, and not in the name of the Company or firm. Seely v. 
 Schenck ^- Denise, Crandall v. Fr. Denny if Co. 1 Penn. Rep. 75, 
 137. Bently et al. v. Smith, 3 Caines' Rep. 170, (2d edit.) Burns v. 
 Hall, 2 Penn. Rep. 984. Tomlinson v. Burke et al. 5 Halst. Rep.
 
 126 LEGAL REMEDIES FOR PARTNERS 
 
 A declared upon an account stated with him of monies 
 due to him and a third person, after verdict judgment 
 was arrested, on the ground that the promise, whether 
 express or imphed, must, in point of law, be considered 
 as made lo both the persons whose debt it was, and 
 therefore they ought to have joined in the action.(o)(l) 
 The same principle was recognized and acted upon in a 
 late case.(jo) There a father had opened a bank, appa- 
 rently on the joint account of himself and his infant son, 
 in whose names the accounts with the customers were 
 headed in the banking books ; and it was determined by 
 the Court of King's Bench, that the father could not sue 
 alone for the balance of an account overdrawn by a cus- 
 tomer of the house, without giving distinct proof that 
 the son, though a minor, had neither property in the 
 banking fund, nor a share in the business as a part- 
 ner. And it has been ruled, that if a trader have a 
 clerk at a fixed salary, whom he holds out to the 
 
 (o) 7 Mod. 116. Yelv. 177. See also Vernon v. Jeffreys, 2 Stra. 
 1146. Garrett v. Handley, 3 B. & C. 462. 
 (p) Teed t;. Elworthy, 14 East, 210. 
 
 295. But in the case of two or more partners of the same sir-name, 
 if the sir-name be not added to every eliristian name, it is not error. 
 Chance v. Chambers, 1 Penn. Rep. 384. In Virginia, however, it 
 has been decided, that a declaration in behalf of a mercantile company, 
 by the name of the firm, without mentioning the names of the part- 
 ners, is good after a verdict for the plaintiff upon the general issue. 
 Pale V. Bacon et al 8 Munf. 219. Totty's Ex. v. Donald ^' Co. 4 
 Munf. 430. Barnet v. Watson, 1 Wash. Rep. 372, And in Penn- 
 sylvania, in an action on a single bill, declared on as given to A. B. & 
 Co., if the defendant goes to trial on the pleas of non est factum and 
 '■'■payment,'''' he cannot avail himself at the trial of the objection, that 
 all the company who are plaintiffs are not named in the writ. Porter 
 V. Cresson et al. 10 Serg. & Rawle, 257. As to whether a judgment 
 by default could be sustained against a mercantile company — the suit 
 being against the firm — if the names of the partners be omitted in the 
 writ and declaration, see Scott tSf Co. v. Dunlap <^- Co. 2 Munf. 349. 
 
 (1) But where a debt is due to a partnership, which is afterwards 
 dissolved, and the debt is afterwards assigned to one of the partners, it 
 is competent for such partner to maintain an action in his own name 
 for the debt, by proving that the debtor, with a knowledge of such as- 
 signment, promised to pay it ; and such a promise may be implied from 
 the acts of the debtor, as well as expressly proved. Barger v. Collhis, 
 7 Harr. & Johns. 213.
 
 AGAINST STRANGERS. 126 
 
 world as a partner, an action upon a bill of exchange, 
 drawn in the name of the trader and clerk, cannot 
 be maintained by the trader 3i\one.(q) So, 
 *where, at the time of forming a joint stock [ *127 ] 
 company, the names of the plaintiffs were enter- 
 ed in a book as original subscribers, and scrip receipts 
 issued by the directors, which they afterwards sold be- 
 fore the company's deed was executed, and which was 
 never signed by the plaintiffs, it was held, that they 
 must still be deemed partners in the concern, and could 
 not therefore recover on a note by the defendant, paya- 
 ble to themselves on account of the company. (r) The 
 existence of this rule was acknowledged, and the reason 
 of it admirably explained, by Lord C. J. Eyre, in his 
 elaborate judgment in the case of Scott v. Godwin :(s) 
 "There is," said that learned judge, " an essential differ- 
 ence between the cases, where the objection is that other 
 persons ought to be made co-defendants, and where it is 
 that there are not the proper parties plaintiffs in the suit. 
 Many plaintiffs can have but one right, having but one 
 interest, and one cause of action, which ought to be, 
 and is, indivisible, admitting of but one satisfaction. But 
 if in the nature of the thing, if on principles of law or 
 authorities, it could be that a man should derive a seve- 
 ral interest out of a joint obligation to himself and others, 
 and that plaintiffs could sue separately for their por- 
 tions of one right, it is most obvious that it must vex 
 and harass defendants extremely. I take it to have been 
 solemnly adjudged in several cases, and to be the known 
 received law, that one co-covenantce, one co-obligee, or 
 one joint contractor by parol, cannot sue alone ;(/) a 
 breach of a joint contract with two or more cannot be 
 joint and several. In the last case it is common expe- 
 rience, that where a joint contract appears in evidence 
 
 (q) Guidon v. Robson, 2 Carapb. 302, 
 
 (?•) Perring v. Hone, 4 Bingh. 20. 
 
 (s) 1 Bos. & Pul. 67. See also Nathan v. Buckland, 2 B. Moore, 
 153. 
 
 (/) SUngsbyls case, 5 Rep. 18. Where a covenant is made witli 
 three persons, and one only seals the deed, but the others do not ex- 
 pressly dissent to it, an action cannot be sustained upon the covenant 
 by that one alone. Petrie v. Bury, 3 B. & C 3.53.
 
 127 LEGAL REMEDIES FOR PARTNERS 
 
 on the general issue, the plaintiff is nonsuited ; and there 
 are many cases in the books, in which it has been held 
 to be error, for one co-obligee, or one co-covenantee to 
 sue alone." Nor is it a sufficient answer to the objec- 
 tion, arising from a non-joinder of parties, that the 
 partner omitted is either bankrupt or an infant. If a 
 bankrupt, the solvent partner must sue jointly with his 
 assignees, upon whom, by law, the interest of the bank- 
 rupt partner in all contracts devolves :(ii) (1) in 
 [ *128 ] such a case, where the action brought *in the 
 names of all the partners, the bankruptcy of the 
 one might be pleaded in bar.(tj) (2) And if the partner 
 omitted be an infant, his minority forms no excuse for 
 his not being joined; for he, as well as an adult, falls 
 equally within the rule, requiring all those who are le- 
 gally interested in the subject matter of the action to 
 join as plaintiffs.(z^;) But with respect to dormant part- 
 ners, it seems to have been considered, that an action on 
 a contract may be maintained either in the name of the 
 persons with whom the contract was actually made, or 
 in the name of the parties really interested. Therefore 
 a dormant partner may join in an action instituted by 
 the firm, as being one of the parties really interested in 
 the suit,(a;) but his nonjoinder does not appear to be 
 a ground of nonsuit, or to be objectionable in any 
 way.(^) (3) Thus, if the ostensible proprietor of mate- 
 
 (w) Thomason v. Frere, 10 East, 418. 
 
 {v) Eckhardt v. Wilson, 8 T. R. 140. 12 Mod. 446. 
 
 (w) Teed v. El worthy, 14 East, 211 ; and see the cases there cited 
 by Mr. Topping in argument. 
 
 {x) Skinner v. Stocks, 4 B. & A. 427. See Steel v. Western, 7 B. 
 Moore, 31. ' 
 
 {y) Lloyd v. Archbowle, 2 Taunt. 324. ; and see Brassington v. 
 Ault, 2 Bingh. 177. 
 
 (1) Per Kent, Chancellor. Murray v. Murray, 5 Johns. Cha. 
 Rep. 70. 
 
 (2) The Court were equally divided upon the question, in the case 
 of Bird et al. v. Pierpont, 1 Johns. Rep. 118. Foreign assignees can- 
 not sue in their own names ; they must use the name of the foreign 
 bankrupt. Bird et al. v. Caritat, 2 Johns. Rep. 342. 
 
 (3) Per Duncan, J., Wilson v. Wallace'' s Ex. 8 Serg. & Rawle, 55.
 
 AGAINST STRANGERS. 128 
 
 rials enter into a contract for work to be done thereon, 
 it is not necessary that, in an action brought on the 
 contract, another, who has secretly purchased a share 
 of him, but is no party to the contract, should be joined 
 as a co-plaintifr.(z) (1) So, where two brought an action 
 as partners (with whom the defendant had dealt,) and at 
 the trial it appeared that, at the time of the contract, a 
 third person, not joined, was a dormant partner, and that 
 he had since withdrawn from the firm. Lord Kenyan 
 refused to nonsuit the plaintiffs.(a) However, if a dor- 
 mant partner join, it does not form any objection at the 
 trial, that the defendant is thereby deprived of his right 
 of set off against the ostensible partners, because the 
 statutes of set-off do not prevent the action from being 
 maintainable in the names of all the parties interested. 
 If the introduction of the dormant partner, as a plaintiff, 
 make any diflference in fact to the defendant, by affect- 
 ing his right of set-off, the court in which the action is 
 commenced would, perhaps, on application, grant him 
 relief.(6) Neither is it requisite to the maintenance of 
 an action commenced by the real members 
 of a firm, that a nominal member ^should be [*r29] 
 joined, if it be made to appear that he has no 
 interest as a partner :(c) (2) for, although, as against 
 creditors, a nominal partner is to be considered bona 
 fide a partner, yet that is not the case with respect to 
 
 Iz) Mawman v. Gillett, 2 Taunt. 325. n. 
 
 [a) Leveck v. Shaftoe, 2 Esp. N. P. C. 468. 
 
 (6) Skinner v. Stocks, supra. 
 
 (c) Harrison v. Fitzhenry, 3 Esp. N. P. C. 238. 
 
 Mitchell V. Doll, 2 Harr. & Gill 159. Clarkson v. Carter^ 3 Cow. 
 Rep. 85. 6 Pick. Rep. 352. Clark v. Miller, 4 Wend. Rep. 628. 
 Boardman v. Keeler, 2 Verm. Rep. 65. 
 
 (1) Barstow v. Gray, 3 Greenl. Rep. 409. 
 
 (2) Bernard v. Wilcox, 2 Johns. Ca. 374, is to be supported upon 
 the principle stated in the text, as will be readily perceived by attending 
 to the facts of the case. The two cases cited by Ch. Justice Lewis, in 
 his opinion, delivered as that of the court, will be found upon reference 
 to them, to have no bearing upon the question before the court; and the 
 legal result of both is most incorrectly stated. The reporter's marginal 
 abstract is also incorrect, being a mere repetition of the two general 
 principles stated by the Chief Justice.
 
 129 LEGAL REMEDIES FOR PARTNERS 
 
 debtors.(d') Therefore, where an action was brought 
 by a father, whose son's name was introduced into the 
 business as a co-partner, on an objection that the father 
 could not sue alone, it was held that the son might be 
 called to show that he had no interest, and consequently 
 that the action was rightly brought in the name of the 
 father only.(e) (1) And in a late case it is stated to 
 have been held, that an ostensible partner, who is proved 
 not to be a bona fide partner, need not join in an action 
 on a contract with the supposed firm.(y') 
 
 Although the cause of action be originally joint, the 
 party himself who contracts with the firm may, by his 
 own acts, render it so far separate as to entitle a single 
 member to sue alone. Thus, where three persons em- 
 ployed the defendant to sell some timber for them, in 
 which they were jointly interested, and the defendant 
 paid to two of them their proportionate shares, and took 
 receipts, it was objected, on an action being brought by 
 the third party for his share, that as the employment was 
 a joint employment by three, one alone could not bring 
 his action ; but Lord Mansfield ruled that where there 
 had been a severance one alone might sue.(^) (2) So 
 where the action was for the use and occupation of a 
 house, and it appeared that the house was the property 
 of six several tenants in common, to all of whom, except 
 the plaintiff, the defendant had paid his rent, and the 
 action was for his share of the whole rent ; it was ob- 
 jected that one tenant in common alone could not bring 
 
 {d) Ex parte Alexander, 1 Glyn. & James, 409. 
 
 (e) Parsons v. Crosby, 5 Esp. N. P. C. 199. See also Teed v. El- 
 worthy, 14 East, 210. Page v. Hiscox, cited Ibid. arg. Glossop v. 
 Colman, 1 Stark. N. P. C. 25. 
 
 (/) Davenport v. Rackstraw, 1 Carr. & Pay. 89. 
 
 [g) Garret v. Taylor, 1 Esp. N. P. 144. See also Judgment of 
 Lawrence, J. in Sedgworth v. Overend, 7 T. R. 279. 
 
 (1) Atkinson v. Laing, Dow. & Ryl. N. P. C. 16. 
 
 (2) See Austin v. Walsh, 2 Mass. Rep. 401. Bunn et al. v. 
 Morris et al. 3 Gaines' Rep. 54. Blair v. Snover, 5 Halst. Rep. 153. 
 There was, however, in these cases an express promise. See Baker 
 V. Jewell, 6 Mass. Rep. 460.
 
 AGAINST STRANGERS. 129 
 
 this action, that all ought, to join; but Lord Mansfield 
 overruled the objection, and the plaintiff recovered.(/t) 
 And the general rule applies only where t'le object of the 
 partners in suing is the enforcement of an original debt or 
 duty to the firm ; for if, by any subsequent arrangement 
 with the debtor, the nature of the debt or duty is 
 changed, and a new and independent cause of 
 action, in respect of it, accrues to an ^individual [ *130 ] 
 partner, he alone can enforce it. Therefore, 
 where one partner, in the name of himself and his co- 
 partner executed a deed of composition, whereby, in 
 respect of a partnership debt, he agreed to take from 
 the debtor a stipulated composition, and the defendant 
 covenanted to pay the amount of the composition by 
 instalments to the parties to the deed, or to their res- 
 pective partners; in an action of covenant for non- 
 payment of an instalment by the partner alone who 
 subscribed the deed, to which the defendant demurred, 
 the court held that the action was properly brought, for 
 the right of action being constituted by the deed, and 
 the other partner not being a party to it, he could not in 
 joint covenant. (i) So, a dcclaraton of the acting partner, 
 made contemporaneously with the formation of a con- 
 tract, being evidence against all the partners, may disable 
 them from jointly asserting a right Avhich ought, in re- 
 ality, to have accrued to them in a collective character. 
 Therefore, were a contract was made by one of several 
 partners, in his individual capacity, who at the time, 
 declared that the subject-matter of the contract was his 
 property alone, it was held that the partners could not 
 sue jointly upon 'ii.{k) (1) Where, in an action of eject- 
 
 (/*,) Kirkham v. Newstead, 1 Esp. N. P. 145. 
 
 (i) Metcalf v. Rycroft. 6 Mau. &; Selw. 75. See Petrie v. Bury, 
 3 B. & C. 353. In Biggs v. Fellows, 2 Mann. &l Ryl. 453., Holroyd 
 J. said, " One partner may take a security for both in his own name, 
 and he will be a trustee." . 
 
 {k) Lucas V. Delacour, l Maul. & Selw. 249. 
 
 (1) So if two joint owners of merchandise consign it to a merchant 
 for sale, and inform him that each owns one moiety, and they give 
 separate and variant instructions, each for his own moiety, one of the 
 
 23
 
 130 LEGAL REMEDIES FOR PARTNERS 
 
 ment, it appeared that A demised but that he gave 
 receipts for the rent in his own name and those of B 
 and C, his partners, it was held that a new tenancy was 
 not thereby created, but that A might recover on a de- 
 mise stated to have been made by himself alone. (/) 
 
 A misjoinder, or the joinder of more persons in an 
 action than those with whom the contract was actually 
 made, is as objectionable as a nonjoinder, the rule of law 
 upon this subject requiring that all, but no more than the 
 parties really interested in the contract at the time it 
 w^as entered into, should join. Therefore, if one of two 
 attorneys in partnership is appointed, and singly act as 
 replevin clerk to a sheriff, he alone can maintain an 
 action for the expense of preparing a replevin bond, 
 although the bond was executed in the office where the 
 attorneys carried on their joint business ; and if his co- 
 partner join with him in the action, they will be non- 
 
 suited.(m) So if a firm admit a new member 
 [*131 ] upon an agreement *that he shall be deemed a 
 
 partner from a previous day, an action for a 
 partnership debt, contracted before the day when the 
 new member was actually admitted, must be brought in 
 the name of the old firm ; and if the new member be 
 joined, a nonsuit will be the consequence, since with him 
 there was not any contract.(n) 
 
 The joinder of all the parties, to whom the cause of 
 action accrued, may be rendered impossible, by the sub- 
 sequent death of one or more of the partners. In such 
 a case the legal remedy to recover damages for the 
 breach of a contract, or to enforce payment of a debt, 
 vests in the surviving partners, and not in them jointly 
 with the executors or administrators of the deceased 
 
 (/) Doe V. Baker, 2 B. Moore, 189. 
 
 (m) Brandon v. Hubbard, 4 B. Moore, 367. S. C. 2 Brod. & 
 Bing. 11. 
 
 (n) Wilsford v. Wood, 1 Esp. N. P. C. 182. See also Osborne v. 
 Harper, 5 East, 225. 
 
 consignors alone may maintain a separate action against the consignee 
 for a violation of his separate instruction. Hall v. Leigh et al. 8 
 Cranch, 51.
 
 AGAINST STRANGERS. 131 
 
 partner.(o)(l) And although the right of action which, 
 in such an event, is transferred to the survivors, is to be 
 exercised not only for the benefit of themselves, but like- 
 wise for that of the representatives of the deceased, yet 
 the executor or administrator of the latter must resort to 
 a court of equity to obtain from the survivor the testa- 
 tor's share of the sum recovered, since at law the claim 
 cannot be effectually enforced.(2) Formerly it was con- 
 sidered that a surviving partner might declare generally 
 upon a contract entered into with him and his deceased 
 partner, as upon a contract made with himself alone ;(/?) 
 but the rule is now different. For, as it would be a va- 
 riance and a good defence upon the general issue, were 
 one of two joint contractors to sue, both being alive, so 
 it seems to be reasonable, that where a surviving joint 
 contractor sues, the fact of his being survivor 
 should appear in the declaration.(y)(3) *But [*132] 
 
 (o) Anderson v. Martindale, 1 East, 497. Martin v. Crompe, 1 Ld. 
 Raym. 340. S. C. 1 Show. 189. Com. Dig. Tit. Merchant (D). 
 Vin. Abr. Tit. Partner (D). 
 
 (p) Ditchburn v. Spracklin, 5 Esp. N. P. C. 51. 
 
 {q) Jell V. Douglas, 4 B. & A. 374. Webber v. Tivill, 2 Wma. 
 Saund. 121, n. 1. Israel v. Simmons, 2 Stark. N. P. C. 356. Fitz- 
 gerald V. Boehm, 6 B. Moore, 332. A distinction subsists between 
 cases of express contract, for instance a sale of goods by a firm, and the 
 contract which the law implies in favour of partners who are the indor- 
 
 (1) Peters V. Davis, 7 Mass. Rep. 2.57. Wallace v. Fitzsimons, 1 
 Dall. 248. McCarly v. Nixon, 2 Dall. 65, n. See McJilister v. 
 Montgomery, 3 Hayw. Rep. {Tenn.) 96. 5 Serg. & Rawle, 86. 
 Barney v. Smith, 4 Harr &l Johns. 485. 
 
 (2) 5 Serg. & Rawle, 86. 6 Cow. Rep. 443. " Though, in some 
 cases of partnership, the right of liability may beneficially serve for or 
 against the executors of the deceased partner, yet, at law, the legal 
 right and liabditv entirely survive against and for the surviving part- 
 ners, who alone can at law sue and be sued." Per curiam, Golding 
 V. Vaughan, 2 Chitt. Rep. 437. And the surviving partner may main- 
 tain detinue against the representative of the deceased partner, for the 
 books of account, and other evidences of debt belonging to the co-part- 
 nership, although the partnership were dissolved by mutual consent 
 during the lifetime of the deceased partner. Murray v. Mumford, 6 
 Cow. Rep. 441. Smyth v. Haivthorn, 3 Rawle, 355. See Egbert v. 
 Woods, 3 Paige's Cha. Rep. 517. 
 
 (3) Holmes et al v. De Camp, 1 Johns. Rep. 34. But where one 
 of several partners dies, and the survivors continue to trade \inder the
 
 132 
 
 LEGAL REMEDIES FOR PARTNERS 
 
 in an action at the suit of a surviving partner, he 
 may inchide a count for a debt due to himself in his 
 ovi^n right.(r)(l) And where money is owing to two 
 partners, and after the death of one it is paid to a third 
 person, the survivor may maintain an action for money 
 had and received to his use.(s) On the death of the last 
 surviving partner his executor or administrator alone can 
 
 sees in blank of a bill of exchange. In the former case, if one of the 
 members of the firm die subsequently to the making of the contract, it 
 is necessary that that fact should be stated in the declaration, because 
 the gist of the action is founded on a previous contract, and another 
 cannot be implied. But where a bill of exchange is indorsed in blank 
 to a firm it becomes transferable by delivery, and in case one partner 
 dies or withdraws from the firm, the others become the holders of such 
 an instrument in point of law, and it is quite clear that they may sue in 
 their own right as indorsees, as it is not incumbent on them to prove 
 their joint title to sue on the bill by showing that they were partners at 
 the time of such indorsement, or by proving a transfer to them jointly. 
 If, however, a bill of exchange be indorsed specially to a firm, the same 
 rule applies, in the event of the death of a partner, which governs cases 
 of express contract. See Attwood v. Rattenbury, 6 B. Moore, 579. 
 Ord V. Portal, 3 Camb. 239. . Rordasnz v. Leach, 1 Stark. N. P. C. 
 446. (r) 3 T. R. 443. 5 T. R. 493. 6 T. R. 532. 
 
 (s) Smith V. Barrow, 2 T. R. 476. 
 
 co-partnership name, and an account is stated afterwards, by a debtor, 
 admitting a balance due by him, for goods sold in the lifetime of the 
 deceased, the surviving partners may recover such balance on an insi- 
 mul computus sent, without stating the death of the other partner — the 
 stating of the account is in the nature of a new promise to the survivors. 
 Jbid. Where plaintiffs issued a writ against a defendant in their own 
 names, and declared in their own right, but described themselves in the 
 affidavit to hold to bail as surviving partners, the variance was held to 
 be fatal ; and the Court ordered the bail bond to be cancelled, and re- 
 fused to permit the plaintifl^s to amend their writ and declaration, on 
 payment of costs, Atwood et al v. Rattenbury, 6 Moore's Rep. 209. 
 But where the plaintiffs commenced an action against the defendants as 
 administratrixes, and the pleas were, the statute of limitations, and that 
 the plaintiffs were not administratrixes of the deceased at the time of 
 the commencement of the suit, and the letters of administration were 
 not taken out till after the action was brought, and the statute of limita- 
 tions would have been a bar to a new action, the plaintiflis being survi- 
 ving partners as well as administratrixes of the deceased, the Court al- 
 lowed the writ and declaration to be amended by describing them in 
 their former character, on payment of costs by the plaintiffs, and allow- 
 ing the defendants to plead de novo. Taylor et al. Mm. v. Lyon, 2 
 Moo. & Payne's Rep. 586. 
 
 i^\) Stafford V. Gold, 9Vick.Tle.i>. 533.
 
 AGAINST STRANGERS. 132 
 
 sue, and the personal representatives of the partner who 
 first died ought not to be joined.(l) 
 
 We have before stated that pubhc companies, not in- 
 corporated, are considered in the nature of ordinary part- 
 nerships, and consequently the rules and doctrines v^^hich 
 regulate the Joinder of parties in an action brought by 
 the one, must apply with equal force to the other. When, 
 ^therefore, such a company sues for the recovery of its 
 rights, the adverse party may, generally speaking, avail 
 himself of the objection, that there are many members 
 who are not joined as plaintiffs, in the same manner as 
 a defendant, in an action instituted by a common part- 
 nership, may do.(^) The general rule in both cases 
 must be the same ; but inasmuch as companions would 
 constantly be exposed to great difficulty in establishing 
 their rights, if it were incumbent upon them to join all 
 the members in a suit, they are in most instances, either 
 by their own compact, or by the act of the legislature, 
 relieved from the necessity of doing so. Thus, on the 
 formation of a company, the adventurers in it may, as it 
 seems, lawfully stipulate that two of them only shall 
 carry on the projected trade, and that all actions on the 
 behalf of the company shall be brought in their names. 
 Such a stipulation will confer upon the parties nomina- 
 ted the right of suing as nominal plaintiffs, but a subse- 
 quent alteration in the original stipulation, made with- 
 out the consent of all the members of the company, will 
 not enable any one member alone to bring actions on 
 the behalf of the company. (m)( 2) And where the for- 
 mation of the company is authorised by an act 
 of *parliament, the legislature, in giving its sane- [ *133 ] 
 tion, invariably remedies the inconvenience that 
 may arise in recovering debts due to the company, by 
 
 {I) See Cousins v. Smith, 13 Ves. 542. 
 
 (u) Davies v. Hawkins, 3 Man. & Selw. 433. In the case of Raden- 
 hurst V. Bates. 3 Bingh. 403., it was said that the members of a firm 
 cannot, by agreement, give an authority to any one of them to bring an 
 action in his name against persons not members of the firm. 
 
 (1) Per Story J., Childress v. Emory, 8 Wheat. 669. 
 
 (2) Livingston v. Lynch, 4 Johns. Cha. Rep. 673.
 
 133 LEGAL REMEDIES FOR PARTNERS 
 
 enabling them to sue in the name of their secretary for 
 the time being, and in such a case it will of course suf- 
 fice if the course prescribed be adopted. But as such 
 acts of parliament are in effect private acts, and as they 
 give to individuals certain powers over others, they must 
 be construed strictly ; and therefore if it be intended to 
 extend the remedy beyond suits, the parties who bring 
 in the act should be careful to use such language as 
 plainly includes all the cases to which they mean it to 
 apply, for a court of law will not go beyond the words 
 of an act unless the meaning of the legislature very 
 clearly justifies it in doing so. Therefore, where a pri- 
 vate act of parliament, entitled " An act to enable a cer- 
 tain Insurance Society to sue and be sued in the name 
 of their secretary," enacted that they might commence 
 all actions and suits in his name as nominal plaintiff*; it 
 was held, that this did not enable the secretary to peti- 
 tion, on the behalf of the society, for a commission of 
 bankruptcy against their debtor.(?;) 
 
 Actions ex delicto^ or actions arising out of some 
 wrongful injury committed by a stranger affecting part- 
 nership property, are of less frequent occurrence than 
 those which result from a breach of contract. The rule, 
 however, which in actions on contracts requires the 
 joinder of all the parties, appears to be equally applicable' 
 to actions founded upon a tort ; although, as will be seen 
 hereafter, it is less rigidly enforced. It is laid down, as 
 clearly established law, that for an injury to the joint 
 property all the parties ought to join ',{w) but, if too 
 many persons be made co-plaintiffs, the objection, if it 
 appear on the record, may be taken advantage of either 
 by demurrer, in arrest of judgment, or by writ of er- 
 ror ;(.r) and, if the objection do not appear on the face 
 of the pleadings, it will be a ground of nonsuit at the 
 trial. If one or more of the partners die after the injury 
 
 (v) Guthrie v. Fisk, 3 B. & C. 178. And see Ex parte Guthrie, 1 
 Glyn & James, 245. 
 
 {iv) Bac. Abr. Tit. Joint Tenant, (K). Sedgworth v. Overend, 7 T. R. 
 R. 279. Co. Litt. 198. a. Bloxam v. Hubbard, 5 East, 407. 
 
 (a?) Cook V. Batchellor, 3 Bos. & Pul. 150. Coryton v. Lithebye, 
 2 Wms. Saund. 116. a. Cro. Eliz. 473.
 
 AGAINST STRANGERS. 133 
 
 is committed, the action must be brought in the name of 
 the survivor, and the executor or administrator of the 
 deceased cannot be joined, nor can he sue sepa- 
 rately; and therefore, to *an action of trover [* 134 ] 
 brought by the survivor of three partners' in 
 trade, it cannot be objected that the two deceased part- 
 ners and the plaintiff' were joint merchants, and conse- 
 quently that, in respect of the lex mcrcatoria, the right 
 of survivorship did not exist ; for the legal right of ac- 
 tion survives, though the beneficial interest does not.(y) 
 It remains now to be inquired, what are the conse- 
 quences of a non-joinder of the parties, in relation either 
 to an action ex contractu, or an action ex delicto, and in 
 what manner, in each case, advantage is to be taken of 
 it by a defendant. Where the right of action is joint, as 
 founded on a joint contract, the objection that the action 
 is brought by one of several parties, who ought to have 
 sued jointly, may be made available, either by demurrer, 
 or on motion in arrest of judgment, or by writ of error, if 
 it appear on the record; and, though the objection do not 
 appear on the pleadings, yet, if the contract is alleged 
 as several, the defendant may plead in abatement, or 
 may avail himself of the nonjoinder at the trial, as a 
 ground of nonsuit upon the plea of the general is- 
 sue.(^) (1) In the event of a death, the declaration by 
 one partner must show the death of the other, which 
 
 y') Kemp V. Andrews, Carth. 170. S. C. 3 Lev. 290. 1 Show. 188. 
 z) 1 Chit, on Plead. 7- 
 
 (1) Jordan v. Wilkins, 3 Wash C. C. Rep. 110. In Baker v. Jew- 
 ell, 6 Mass. Rep. 460, Chief Justice Parsons said, " the want of the 
 proper plaintiffs in actions on contiact, is an exception to the merits, 
 and is to be taken advantage of, either on demurrer, or on the general 
 issue, bnt not by plea in abatement," — and in Zelic et at. v. CampljelVs 
 Ex. 2 Johns. Ca. 383, Kext, C. J. stated the rule applicable to all 
 joint contracts, as well as to those arising particularly from mercantile 
 partnerships, to be " that if all who ought to be plaintiffs are not joined, 
 it is ground for a non suit ; if any are omitted as defendants, it is only 
 in abatement." See Dob v. Balsei/, 16 Johns. Rep. 34. 8 Serg. & 
 Rawle, 55. Halliday v. Doggett 'et al. 6 Pick. Rep. 359. Lepage v. 
 McCrea, 1 Wend. Rep. 164. Coffee v. Easton, Cooke'rf Rep. ^159. 
 Kinsman v. Dallam, 5 Monroe's Rep. 384.
 
 134 LEGAL REMEDIES FOR PARTNERS 
 
 cannot be presumed.(a) And if an action is brought 
 by the executors of the survivor, it is necessary to aver 
 that their testator survived the others ; it not being re- 
 quisite, as it is in the case of persons jointly hable, that 
 the exception should be taken by plea in abatement. In 
 this, however, there seems some incongruity ; and Mr. 
 Serjeant Williams, in a note(&) to his very valuable edi- 
 tion of Saimder's Reports, at the same time that he has 
 admitted the rule to prevail, has observed, that " as to 
 assumpsit by one only, at the time when most of the 
 cases upon this subject were decided, the same rule ex- 
 tended as well to defendants as to plaintiffs. The rule 
 in both cases was founded upon the same reason, that 
 the contract proved was not the same with that in the 
 declaration.(c) But as soon as it was decided, in the 
 case of Rice v. Shute,(d) and the other cases which 
 
 followed it, that leaving out one of the joint con- 
 [* 135 ] *tractors did not vary the contract, one would 
 
 have thought that the same principle would be 
 applied to the case of persons with whom the contract 
 was made. If the contract be still the same, notwith- 
 standing one of the persons, who ought to be joined, is 
 omitted, upon what principle is it that the contract is 
 not the same, if one of the persons who ought to join 
 be omitted ? Perhaps it may be objected, that, by this 
 means, the plaintiff and the defendant are not upon 
 equal terms ; that in an action against one only, he ne- 
 cessarily knows all the persons liable ; but in actions hj 
 one only, the defendant may often not know, nor be able 
 to know, what persons ought to join. But, in answer to 
 this, it should always be remembered that the rule is 
 founded upon the supposed variance between the contract 
 proved and the contract laid, and not upon any conveni- 
 ence or inconvenience to the parties. As tp the know- 
 ins: of the persons, the cases respecting defendants have 
 decided that this circumstance is immaterial ; and as to 
 
 (a) Scott V. Godwin, 1 Bos. & Pul. 67. Jell v. Douglas, 4 B. & 
 A. 374. Eccleston v. Clipsham, 1 Wms. Saund. 154. n. 1. 
 {h) Cabell v. Vauglian, 1 Wras. Saund. 291.(g-) 
 (c) Skin. 640. 2 Stra. 820. 
 \d) 5 Burr. 2611. S. C. 2 Blacks. Rep. 695.
 
 AGAINST STRANGERS. 135 
 
 the convenience or inconvenience of the thing, it should 
 seem more convenient that the parties should, after issue 
 joined, proceed upon the merits, than that the defendant 
 should be allowed to nonsuit the plaintifFupon a mere mat- 
 ter of form." However, the rule is general, not applicable 
 solely to actions of assumpsit on parol contracts, but 
 affecting alike every species of action bottomed on con- 
 tract, such as debt or covenant. In an action of debt 
 upon a bond or a covenant for payment of money, or in 
 an action of covenant brought to recover damages for the 
 non-performance of a covenant, if it appear, for the first 
 time, at the trial, that in the former instance, the bond 
 or covenant, or, in the latter, that the covenant only 
 were delivered and entered into in favour of the plaintiff 
 jointly with another person, and the nonjoinder of that 
 person is not excused by the plaintiff by an averment of 
 his death, the defendant may, under a plea of non est 
 factum, avail himself of the objection, and the plaintiff 
 will be nonsuited; but, if the objection is apparent, 
 otherwise than at the trial, as if the pleadings themselves 
 disclose it, the defendant, as in actions of assumpsit, 
 may take advantage of it, either by demurrer, in arrest 
 of judgment, or by writ of error.(e) A defendant may, 
 likewise, avail himself of the objection, by pleading in 
 abatement.(y) 
 
 *With respect to actions ex delicto, or actions [ *136 ] 
 of trespass, or of tort, brought by partners, the 
 rule is different from that which prevails in actions 
 founded upon contract. Notwithstanding all the several 
 parties who are jointly concerned in interest ought, 
 when a joint injury is sustained, regularly to join in an 
 action for its redress,(l) still, if all of them have not 
 joined, the defendant must plead the omission in abate- 
 ment,(^) (2) and cannot otherwise take advantage of the 
 
 (c) Cabell v. Vaughan, 1 Wms. Saund. 291. f. 
 (/) Com. Dig. Tit. Abatement, E. 12. 
 
 (g) A plea in abatement is that which, without denying that the 
 plaintiff has such a cause of action as is alleged, asserts that in some 
 
 (1) Patten etal. v. Gurney et al. 17 Mass. Rep. 182. 
 
 (2) Wheelright v. Depeyster, 1 Johns. Rep. 471. 
 
 24
 
 137 LEGAL RE3IEDIBS FOR PARTNERS 
 
 objection.(A) (3) This rule has been long estabUshed ; 
 for so far back as the time of Lord Hale we find this 
 doctrine laid down by him : " If a tenant in common 
 bring a personal action without his fellow joining in the 
 suit, the defendant ought to take advantage of it in 
 abatement ; but if he plead not guilty, it shall be good ; 
 but then he shall recover damages only for a moiety ."(i) 
 The opinion of Lord Ch. J. King is in perfect con- 
 cordance with Lord Hale's : " If one tenant in common 
 of a personal indivisible chattel bring trover against a 
 stranger, if the stranger doth not plead the tenancy in 
 common in abatement, he can have no benefit of it in 
 evidence under the general issue."(A:) Neither can it, 
 according to modern decisions, avail a defendant who 
 neglects to plead the nonjoinder in abatement, that the 
 defect appears on the face of the declaration, although 
 consistently with the older authorities,(/) if the defective 
 title were disclosed by the record, it was a ground to 
 arrest the judgment.(m) The law upon this 
 [*137] subject was very *fully and ably considered in 
 
 incidental respect the action is improperly brought : and the object of 
 it is not to defeat the claim, but to delay the prosecution of it. The 
 character generally ascribed to it is, that it must give the plaintiff a 
 better, writ ; but this, although generally, is not universally true ; for 
 sometimes the right of delaying the claim by a plea in abatement is 
 founded on a temporary disability of the plaintiff, to sue, as, that he is 
 an outlaw or an alien enemy. There are several rules by which these 
 pleas are held to much greater strictness than those which go to the 
 merits of the action ; but a more particular exposition of their nature 
 and effects would be foreign to the present purpose. 
 
 {h) Bloxam v. Hubbard, 5 East, 420. Cabell v. Vaughan, 1 Wms. 
 Saund. 291, h. 
 
 (i) 1 Mod. 102. See also Skinn. 640. 
 
 (A:) Barnardiston v. Chapman, cited 4 East, 121. See also Brown v. 
 Hedges, Salk. 290. Cro. Eliz. 554. Evidence of a joint tenancy, or 
 tenancy in common, between the plaintiff and a third person, cannot be 
 received under the general issue in bar of the action ; but as the plain- 
 tiff can only recover damages for the value of his share of the property, 
 such evidence is admissible for the purpose of ascertaining the amount 
 of damages. Nelthorpe v. Dorrington, 2 Lev. 113. Bull. N. P. 35. 
 
 (/) See Hamon v. White, Sir W. Jones, 142. S. C. Latch. 152. 
 
 {m) Uabell v. Vaughan, 1 Wms. Saund. 291. h. 
 
 (3) Wheelright v. Depeyster. 
 
 4
 
 AGAINST STRANGERS. 137 
 
 the case of Addison v. Overend,(ji) in which the Court 
 of King's Bench determined, that if one of several part- 
 owners of a chattel sue alone for an injury done to it, 
 the defendant can only take advantage of the objection 
 arising from the nonjoinder of the other by a plea in abate- 
 ment, and that the circumstance of the defect in parties 
 appearing on the face of the declaration does not form 
 a ground for arresting the judgment. And if a defendant 
 does not avail himself of the opportunity afforded to him 
 of pleading in abatement of the action first brought by a 
 single partner, or part-owner of a chattel, he is precluded 
 from taking the same objection to an action brought by 
 the other partner or another part-owner of the same 
 chattel; because by omitting to plead in abatement in 
 the first instance, he must be taken to have assented to 
 the severance of the actions. Therefore, it has been 
 decided,(o) that if one part-owner has sued alone and 
 recovered, the defendant, not having availed himself of 
 his plea in abatement, cannot plead to the action of a 
 second part-owner, that the first, who has already re- 
 covered a satisfaction, ought to have joined ; and Mr. 
 Justice Lawrence has expressed his opinion, that if there 
 had been several remaining tenants in common, the de- 
 fendant could never have objected to the severance of 
 the actions after omitting to plead in abatement in the 
 first action,(l) 
 
 As in actions brought by individuals, the defendant is 
 allowed to set off" what is due to him from the plaintiff 
 in reduction or extinguishment of the demand made 
 against him, so in those which are instituted by partners 
 the defendant has the same right of set off. This is al- 
 
 (n) 6 T. R. 766. In the case of Snellgrove v. Hunt. 1 Chitt. Rep. 
 71. S. C.2 Stark. N. P. C. 424., where one or two assignees of a 
 bankrupt sued in trover, the nonjoinder was held to be a ground of 
 nonsuit under a plea of the general issue ; and Lord Tenterden observed, 
 that he did not recollect any case where such a nonjoinder had been 
 pleaded in -abatement. 
 
 (o) Sedgworth v. Overend, 7 T. R. 279. 
 
 (1) So if he settle the demand by a reference. Baker v, Jewell, 6 
 ass. Ren. 460. 
 
 Mass. Rep. 460
 
 137 LEGAL REMEDIES FOR PARTNERS 
 
 lowed to prevent a circuity of actions, by an investiga- 
 tion of the counter-claims to settle and adjudicate the 
 rights of the different parties in one and the same suit. 
 The right of set-off we will consider, first, as it respects 
 actions brought by all the partners, and secondly, as it 
 regards those actions in which the survivor of the part- 
 ners alone appears as a plaintiff. Where the action is 
 
 brought by all the partners, nothing is capable 
 [ *138 ] of being set against their demand, except a *debt 
 
 jointly due from them to the defendant ; for, to 
 admit of a set-off, there must not only be a mutuality of 
 debt, but whatever is due must be a debt due in the same 
 right. (/>) Therefore, a separate debt due from an indi- 
 dividual partner is not the subject of set-off against the 
 joint demand of a firm;(l) unless, indeed, the parties 
 renounce this right and deal under an agreement ex- 
 pressly admitting of such a set-off.(9) (2) But money 
 due for advances made by bankers to their customer 
 upon a bond given by the customer to one of the part- 
 ners, in trust for the rest, may be set off against a del)t 
 from the firm.(r) And any bona fide demand contracted 
 by one partner in the name of the partnership may be 
 set against a debt incurred to the firm.(s) And it will 
 
 {jp) See 2 Geo. 2. c. 22. s. 13,, made perpetual by 8 Geo. 2. c. 24. 
 s. 4. At Common Law, a set-off is not allowable at all. May v. 
 Brown, 3 B. & C. 134. 
 
 (9) Kinnerley v. Hossack, 2 Taunt. 170. 
 
 (r) Crosse v. Smith, 1 Maule & Selw. 545. 
 
 {s) Teed t;. Elworthy, 14 East, 210. 
 
 (1) Scott V. Trent, 1 Wash. Rep. 77. Armistead v. Butler's Mm. 
 1 Hen. and Munf. 176. Howards v. WarfieWs Adm. 4 Har. & 
 McHen. 21. Poivrie et al. v. Fletcher et al. 2 Bay's Rep. 146. 
 Ladue v. Hurt, 4 Wend. Rep. 583. See 7 Cranch, 567, 8. And 
 although a person having a claim against a mercantile company cannot 
 set off such claim against a debt due from himself to one of the part- 
 ners, yet it is competent for him to charge that partner in Equity (in 
 extinguishment of the said debt,) for so much of the surjplus of the 
 partnership property, as may be due to such partner on a settlement of 
 the partnership accounts ; for the purpose of which settlement, and 
 also for that of ascertaining and adjusting his own claim against the 
 Company, all the partners should be made defendants to his Bill. Dun- 
 bar V. Buck et al. 6 Munf. 54. 
 
 (2) Lovel et al. v. Whitridge, 1 McCords Rep. 7.
 
 AGAINST STRANGERS. 138 
 
 not, in such a case, affect the debt proposed to be set-off, 
 that it was incurred by a mere nominal partner, who was 
 uninterested in the profits ; because although, as between 
 themselves, they may not be partners, yet strangers who 
 are not cognizant of their private arrangements must be 
 guided by external indications.(^) So a debt on a bond 
 purportmg to be a joint and several bond, but executed 
 only by one of the obligors, may be set against a demand 
 made by the obligor who has executed it(ii) And if a 
 person make and remit a promissory note to his bankers, 
 who indorse it to an individual partner in respect of a 
 debt due to him from the firm, in an action by such in- 
 dorsee against the maker of the note, the latter may set 
 any debt due to him from his bankers against the de- 
 mand on the note ; because the holder being a partner 
 in the banking-house, the members of that firm could 
 not, as between themselves, divert the note to another 
 purpose, and leave the whole of the defendant's debt 
 outstanding.(v) In like manner, if an action be brought 
 by an ostensible and a dormant partner, the defendant, 
 it has been said, may set off a debt due to him from 
 the ostensible partner. Thus, where a single partner 
 was permitted by his co-partners to appear as solely in- 
 terested in a business, in an action by all the 
 partners to recover a joint debt, it was held *that [ *139 ] 
 the defendant might set against it a debt due to 
 him from the single partner.(w) (1) So, if a factor, who 
 sells goods for a firm under a del credere commission, 
 sells them as his own, and the buyer knows nothing of 
 
 (t) Teed v. El worthy, 14 East, 210. 
 
 [ii) Fletcher v. Dyche, 2 T. R. 32. Elliott v. Davis, 2 Bos. & 
 Pul. 338. 
 
 {y) PuUer v. Roe, Peake's N. P. C. 197. 
 
 {iv) Stacy V. Decy, 1 Esp. N. P. C. 469. S. C. 7 T. R. 3G1. n. 
 But see Lloyd v. Archbowle, 2 Taunt. 234. Skinner v. Stocks, 4 B. 
 & A. 437. Grant v. The Royal Exch. Ass. Comp. .5 Maule & 
 Selw. 439. 
 
 (1) See and consider Rose v. Murchie, 2 Call's Rep. 409 ; and ob- 
 serve the reasoning of the Court in Lord v. Baldwin, Pick. Rep. 348. 
 See also 10 Conn. Rep. 40; and Evernghim \. Ensimrth, 7 Wend, 
 Rep. 320.
 
 139 LEGAL REMEDIES FOR PARTNERS 
 
 the owners, he may set off a debt due to him from the 
 factor against the demand of the owners of the goods.(ar) 
 But in an action by a solvent member of a firm and the 
 assignees of his partner, against whom a commission of 
 bankruptcy had issued, to recover payment of a sum 
 transferred by the bankrupt after he had committed an 
 act of bankruptcy, the defendant, il was held, could not 
 set off a debt due to him from the firm.(y) Where the 
 action is brought by a surviving partner, the defendant 
 may set a debt due from him as surviving partner, 
 against a debt due from himself to the plaintiff in his 
 own right.(z) (1) And, e converso, a debt due to the 
 defendant, as surviving partner, may be set against a 
 demand on the defendant in his own right.(a) (2). 
 
 Having considered the various remedies which the law 
 has furnished to partners for the infraction of their rights 
 by strangers, it now remains to inquire into the requi- 
 site evidence in actions brought by partners. Where the 
 contract, which is the foundation of their action, has 
 been expressly made with all the members of the firm, it 
 will be suflScient for them to prove it, and the breach of 
 it, without entering into evidence to show that they are 
 partners, or have a joint interest in the subject-matter.(6) 
 But if the action is brought upon a contract, which was 
 made by the joint agent of all, or by one partner in be- 
 
 {x) George v. Clagett, 7 T. R. 359. 
 
 (y) Thomason v. Frere, 10 East, 427. See Smith v. Goddard, 3 
 Bos. & Pul. 469. Stainforth v. Fellowes, 1 Marsh. 184. 
 iz) French v. Andrade, 6 T. R. 582. 
 (a) Slipper v. Stidstone, 5 T. R. 493. 
 \b) See Evans v. Mann, Cowp. 569. 
 
 (1) Header v. Scott, 4 Verm. Rep. 26. Per Gibson, J., Wain, surv. 
 partn. v. Hewes, 5 Serg. & Rawle, 470. But where a surviving part- 
 ner has obtained judgment, being insolvent and having previously made 
 an assignment, and the stale of the partnership accounts does not ap- 
 pear, the defendant will not be allowed to set off a debt due to him by 
 judgment obtained against the plaintiff personally, on motion. Ibid. 
 And it has been held that in an action against one partner for a debt due 
 by the partnership, a receipt by the plaintiff to the defendant for goods, 
 may be set off, the defendant being sued alone. Purtnance v. Suther- 
 land, kddis. Rep. 291. Sed quaere. 
 
 (2) Lewis V. Culbertson, 1 1 Serg. & Rawle, 48.
 
 AGAINST STRANGERS. 139 
 
 half of all, and their names have not been expressly men- 
 tioned, it will be incumbent on them to prove a joint in- 
 terest, arising by implication, as by evidence that they 
 are partners, and jointly interested in the particular sub- 
 ject. It must be proved that all the persons who sue 
 were partners at the time of the contract ; one, who has 
 been subsequently admitted into the firm, though under 
 an agreement to share in profit and loss, from a 
 time ^antecedent to the contract, ought not to [ *140 ] 
 be joined ;(c) neither ought any of those, who 
 were partners when the contract was made, to be omit- 
 ted.(d) The evidence of partnership usually consists in 
 the oral testimony of clerks, or other agents or persons, 
 who know that the alleged partners have actually car- 
 ried on business in partnership ; it is unnecessary, even 
 in criminal cases, to produce any deed or other agree- 
 ment by which the copartnership has been constituted.re) 
 And where a witness, called by the partners to prove the 
 fact of partnership, is unable, at the moment, to specify 
 the several names of the partners, a number of names, 
 containing those of the partners amongst others, may be 
 suggested to him, for the assistance of his memory.(y) 
 When partners sue as indorsees of a bill of exchange, 
 and the bill has been indorsed to them in blank, it will 
 not be necessary for them to prove that any are in part- 
 nership, or that the bill was delivered to them joint- 
 ly ;(^)(1) but if the bill is made payable or indorsed 
 
 (c) Wilpford V. Wood, 1 Esp. N. P. C. 128. 
 
 ((/) Leglise v. Charapante, 2 Stra. 820. In one case, where an ac- 
 tion was brought in the names of two persons, with whom the defen- 
 dant had dealt as partners, and it appeared that, at the time of the con- 
 tract, 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 objected that the dormant partner ought to have been 
 joined. Lord Kenyon is reported to have refused to nonsuit the plain- 
 tiffs. Leveck v. Shaftoe, 2 Esp. N. P. C. 468. See ante, p. 128. 
 
 (e) 3 Stark, on Evid. 1067. Alderson v. Clay, 1 Stark. N. P. 
 C. 406. (/) Acerro v. Petroni, 1 Stark. N. P. C. 100. 
 
 (g-) Ord V. Portal, 3 Campb. 239. Rordasnz v. Leach, 1 Stark. N. 
 P. C. 446. Attwood v. Rattenbury, 6 B. Moore, 584. 
 
 (1) Declaration by indorsee against acceptor of a Bill of Exchange 
 averred, that the bill had been indorsed to certain persons trading under
 
 140 LEGAL REMEDIES FOR PARTNERS 
 
 specially to them, strict evidence must be given that the 
 partnership consists of the parties named on the re- 
 cord.(A)(l) And it is stated to have been held, that if a 
 bill, indorsed in blank, is sent to a particular house, and 
 an action is afterwards brought thereon by some of the 
 members of that house, and additional parties, there 
 must be some evidence that that house transferred the 
 bill to the plaintiffs, or consented to their suing upon it; 
 and that this evidence must be given, though the bill 
 was sent to the house for the benefit of the persons who 
 sue.(/)(2) Persons, who sustain the characters of part- 
 ners, may, in some instances, be admitted as witnesses in 
 actions instituted on behalf of the firm, to which they are 
 
 not made parties, and the interest they may pos- 
 [ *141 ] sess in *the event will not disqualify them from 
 
 giving their testimony. Thus, a man who, without 
 having an interest in the capital of a partnership or its 
 profits, suffers his name to be used as a partner, is a com- 
 petent witness in an action commenced by the actual pro- 
 prietor of the concern, to prove a contract made with such 
 
 (h) Ord V. Portal, supra. 
 
 {i) Machell v. Kinnear, 1 Stark. N. P. C. 499. 
 
 the firm of Habgood 4- Fowler, and that Habgood 8f Fowler had in- 
 dorsed the bill by procuration of one John Dickson to Cowie, from 
 whom plaintiff derived title. In proof, it appeared that the firm of 
 Hab-^ood (S;- Fowler had ceased to exist for ten years prior to the in- 
 dorsement, but that a new firm of Habgood ^' Co. had been established, 
 and that Dickson, one of the members thereof, was in the habit of in- 
 dorsing bills by procuration in the name of Habgood 4' Fowler, but 
 that all other transactions in trade were carried on in the name of Hab- 
 o-ood fy Co. only : Held, that as between innocent indorsee and ac- 
 ceptor there was sufficient evidence to satisfy the allegation in the de- 
 claration. Tfllliamson v. Johnson, 2 Dowl. & Ryl. Rep. 281. See 
 Ardley v. Russell, 1 P. A. Browne's Rep. 145. 
 
 (1) McGregor et ul v. Cleveland, 5 Wend. Rep. 475. 
 
 (2) If several persons, not partners in business, separately indorse 
 for the accommodation of the drawer, a bill of exchange, Avhich has 
 been previously indorsed by another person, and, on being dishonored, 
 pay the party who has discounted it in equal proportions, they may 
 strike out their own indorsements, and bring a joint action against such 
 previous indorser, to recover the amount of the bill. Low et al. v. 
 Copestake, 3 Carr. &- Payne, 300. 
 
 I
 
 AGAINST STRANGERS. 141 
 
 proprietor in the joint name.(y) And, in an action on a 
 contract, a dormant parlner not being one of the con- 
 tracting parties, and who has had no privity of commu- 
 nication with them on the subject of the contract, is 
 competent to prove the contract.(^)(l) So a party is 
 competent, although he has purchased from the plaintiff 
 an interest in the contract on which the action is 
 brought.(/) And, on the ground that agents are from 
 necessity competent witnesses for their principals, it has 
 been held that a person who was employed to sell goods, 
 and was to receive for his trouble whatever money he 
 could procure for them beyond a stated sum, was a com- 
 petent witness to prove the contract between the seller 
 and buyer ; and that there was not any difference, in 
 /point of interest, between a person who sold upon com- 
 mission and one who was to have a share of the pro- 
 fit.(m) So, if upon the dissolution of a partnership 
 there be an agreement that each of the partners shall 
 receive certain debts, either partner is competent in an 
 action by the other partner against a debtor to the firm, 
 to prove payment to him according to the agree- 
 ment.(7i) (2) And, as we have before seen, in an action 
 
 {j) Parsons v. Crosby, 5 Esp. N. P. C. 199. Glossop v. Colman, 
 1 Stark. N. P. C. 25. 
 
 {k) Mawman v. Gillet, 2 Taunt. 325. n. (/) 3 Stark on Evid. 1084. 
 (m) Benjamin v. Porteus, 2 H. Bl. 590. per Heath and Booke Js. 
 (n) Evans v. Silverlock, Peake's N. P. C. 21. 
 
 (1) Barstow v. Gray, 3 Greenl. Rep. 409. See Curcier v. Pennock, 
 14 Serg. & Rawle, 51; Clarkson v. Carter, 3 Cow. Rep. 84. There 
 were releases in the two last named cases, as the parties offered as 
 witnesses were parties at the time oi the making of the contracts. 
 
 (2) A. and B. jointly ship goods, aijd consign them to the master for 
 sales and returns, A. only being known to the master. After the ship's 
 departure, A. and B. agree to sever their interest in the adventure, and 
 A. gives B. a written direction to the master to acco,unt with B. for a 
 moiety. Upon the ship's return, B. shows the direction to the master, 
 and demands payment of him. The master, not having brought the 
 proceeds in the ship, refuses to account with B., but at the same time 
 says, he was ready to account with the right owner, and when the 
 proceeds should arrive, he would pay them to B. if they belonged to 
 him. This was a sufficient promise to support an action of assumpsit 
 by B. against the master for the moiety, and in such an action A. is a 
 
 25
 
 141 
 
 LEGAL REMEDIES FOR PARTNERS 
 
 by several partners against the defendant for the non- 
 performance of an agreement, a declaration by one of the 
 partners, that the goods to which the agreement related 
 were his separate property, and had been alloted to him 
 out of the partnership stock, is evidence against the 
 plaintiffs suing as upon a joint contract.(o) Upon the 
 same principle, one of the partners, although party to 
 the suit, may, if the defendant waives all objection to his 
 testimony, and with his consent, be admitted as a witness, 
 to disprove the defendant's hability to the demand made 
 
 upon him, notwithstanding he at the same time 
 [ *142 ] *defeats the claim of those who jointly sue with 
 
 him ; for, as evidence of a declaration against 
 his interest out of court would be admissible, the proof 
 cannot be less credible, if he declares the same thing 
 upon oath at the time of the trial.(^9) Where it ap- 
 peared on the record that the agreement, out of which 
 the cause of action arose, was made by the plaintiff on 
 behalf of himself and other proprietors, it was held 
 that declarations made by one of such proprietors were 
 admissible evidence on the part of the defendants. (^) 
 
 A defendant may be held to bail upon an affidavit 
 made by one partner without the consent of the others, 
 if the deponent swear positively to the debt, and express- 
 ly negative any tender of bank-notes having been made 
 to himself, or to either of his partners, to the best of 
 his knowledge and be]ief.(r) It remains to be observed, 
 that where one partner resides abroad, and the others in 
 England, an action upon a contract made with the firm 
 must, to avoid a plea of the statute of hmitations, be 
 brought within six years after the cause of action 
 arises.(s) 
 
 (o) Lucas V. Delacour, 1 Mau. & Sehv. 249. 
 (p) Norden v. Williamson, 1 Taunt. 378. 
 (f/) Kemble v. Farren, 3 C. <fc P. N. P. C. 523. 
 (r) Stacey v. Frederici, 2 Bos. & Paul, 390. See also Saville v. 
 Roberts, 1 Ld. Raym. 374. 
 (s) Perry v. .Tackson, 6 T. R. 516. 
 
 competent witness for the plaintiff. Austin v. Walsh, 2 Mass. Rep. 
 401.
 
 AGAINST STRANGERS. JL42 
 
 SECTION II. 
 
 Equitable Remedies for Par triers against Strangers, 
 
 The equitable remedies possessed by partners for the 
 vindication of their rights against strangers, are analo- 
 gous to those which may be resorted to as between in- 
 dividuals ; nor are there any striking peculiarities to be 
 remarked in the prosecution of a suit in equity by them. 
 In such cases, the pleadings are much the same as when 
 there is only one individual on each side. All the partners 
 ought to join in the suit, and a plea of want of parties goes 
 both to discovery and relief where relief is prayed ; 
 though the want of parties is no objection to a bill for a 
 discovery merely.(/) But an objection for want 
 of parties will not *be allowed, where a sufficient [ *143 ] 
 reason to excuse the defect is suggested by the 
 bill ; as where the party omitted is resident out of the 
 jurisdiction of the court, and the bill charges that fact ; 
 unless the defendant should controvert the excuse made 
 by the bill, by pleading matter to show it false, (li) And 
 the .rule that all persons interested in the suit must be 
 parties admits of exception, and yields when justice re- 
 quires it, in the instance either of plaintiffs or defendants. 
 Where a bill is filed by the partners or proprietors of 
 any great adventure, the rigid enforcement of the rule 
 would lead to perpetual abatements, and therefore a 
 court of equity has long held, that there is, of necessity, an 
 exception to the general rule when a failure of justice 
 would ensue from its too strict application. Thus, where 
 it is impracticable, from their number, to make all the 
 proprietors of a joint undertaking parties by name, and 
 a sufficient number are brought before the court to re- 
 present the absentees, an objection for w^ant of parties 
 will not be suffered to prevail.(v)(l) But the members 
 
 {t) Lord Redesdale's Tr. on Plead. 226. 
 
 \ii) Lord Redesdale's Tr. on Plead. 226. and p. 134.s Beamcs on 
 PI. in Eq. 15L 
 
 {v) Chancey v. May, Prec. in Cha. (ed. Finch) 592. Meux v. 
 
 (1) Wendell V. Van Rensselaer, Wiser v. Blackly, I Johns. Cha.
 
 143 EQUITABLE REMEDIES FOR PARTNERS 
 
 who sue cannot do so in their individual capacities ; their 
 right of suing is only qua members, and they must ask 
 for relief not for themselves only but for all the other 
 members of the society. Therefore, v^here to a bill for 
 the specific performance of an agreement, for a lease 
 entered into by the trustees of a numerous company, for 
 the use of the company, the defendant demurred, on the 
 ground that it did not appear by the bill that the plain- 
 tiffs were members of the company, and that none of the 
 members were made parties, the demurrer was allow- 
 ed, [id) And where the plaintiffs sued on behalf of them- 
 selves and others, being subscribers to a joint stock 
 company, and who had assigned to them their interests 
 in the concern, with powers to sue and otherwise act for 
 them, but upon condition that after payment of all ex- 
 penses the plaintiffs should hold any thing recovered in 
 trust for the said others ; a demurrer, ore tenus, that such 
 
 other persons were not parties to the suit, pre- 
 [ *144 ] vailed.(j:) *There is one species of suit in equity 
 
 peculiar to partners, namely, a bill to be quieted 
 in the possession of the partnership property, where the 
 seperate creditor of an individual partner has taken the 
 joint effects in execution. The person claiming under an 
 execution, founded on a judgment for such a debt, is only 
 entitled to the undivided share of the indebted partner, 
 and that subject to an account between him and the part- 
 nership. The solvent partners may, therefore, on a bill 
 filed for the purpose, obtain an injunction to stay pro- 
 ceedings under the execution, until the proper accounts 
 are taken, and it is ascertained what interest the debtor 
 
 Maltby, 2 Swanst. 277. Cousins v. Smith, 13 Ves. 542. Where a 
 private act of Parliament enables a company to commence all actions and 
 suits in the name of their secretary, as nominal plaintiff, it seems that 
 they are at liberty to file a bill in equity in his name. Per Holroyd, J. 
 Guthrie v. Fisk, 3 B. & C. 185. See ante, p. 95. 
 
 {w) Douglas V. Horsfall, 2 Sim. & Stu. 184. 
 
 [x) Blair v. Agar, 1 Sim. 37. 
 
 Rep. 350, 437. See Fan Vechten et al. v. Terry ct al. 2 Johns. Cha. 
 Rep. 197.
 
 AGAINST STRANGERS. 144 
 
 has in the partnership stock(y); and, if it appears that 
 he has not any interest, the injunction will be made per- 
 petual.(2) After judgment obtained at law against a 
 partnership firm for a debt, a court of equity will not, it 
 seems, at the instance of one partner, grant an injunction 
 to stay execution on the ground that he had retired from 
 the partnership long before the debt was incurred, and 
 that the plaintiff at law was apprised of it, because 
 such circumstances would constitute a good legal de- 
 fence.(a)(l) 
 
 *CHAPTER IV. [*145] 
 
 SECTION I. 
 
 Legal Remedies against Partners. 
 
 Our inquiries have hitherto, been engaged in ascer- 
 taining what are the remedies possessed by partners for 
 the adjustment of differences existing between them- 
 
 (y) Taylor v. Fields, 4 Ves. 396. S. C. 15 Ves 559: n. Barker 
 V. Goodair, 11 Ves. 85. 
 
 (z) Taylor v. Fields, supra. 
 
 (a) Protheroe v. Forrnan, 2 Swanst. 227. 
 
 (1) There is no case to be found in the English Reports, in which 
 an injunction has been obtained, upon a bill by the solvent partner 
 against an execution creditor and the partner whose interest in the con- 
 cern is sought to be affected by the execution. The cases cited by 
 Mr. Gow, who has stated the doctrine of the Court of Chancery as it 
 has been stated by Mr. Maddock, (Mad. Chan. vol. i. page 136, 2d 
 Am. edit.) and Mr. Eden (Treat, of Inj. page 50, 51. Lond. edit.) by 
 no means warrant the conclusion, that in such a case the proceedings 
 under the execution will be stayed by injunction until the proper 
 accounts are taken. The case of Moodij v. Payne, 2 Johns. Cha. Rep. 
 548, presented the very question, and Chancellor Kext — stating that he 
 knew not that the Court of Chancery had ever undertaken to stop an 
 execution in such a case, and that it would be too much for him to 
 assume to do so without a precedent — dissolved the injunction wliich 
 had been obtained. See 2 Conn. Rep. 524.
 
 145 LEGAL REMEDIES 
 
 selves, and likewise those which are furnished to them 
 for the vindication of their rights when violated by 
 strangers; we will now endeavour to explain what are 
 the legal liabilities they incur to third persons, which, 
 both as they regard the partners themselves, and those 
 who have dealings with them, are of the utmost impor- 
 tance. In this investigation, and under this head, we 
 must, to avoid repetition and unnecessary prolixity, in- 
 corporate, in a great measure, the power impliedly 
 granted by law to one partner, of binding his co-part- 
 ners, which we have before at length explained. It 
 scarcely need be observed, that, in the exercise of that 
 power, any partner will render the firm responsible, so 
 long as the person, with whom he contracts, deals with 
 him on the footing of his being one of its constituent 
 members, without being, either directly or indirectly, 
 apprised of a revocation of the authority presumptively 
 arising from his relative situation. The very constitution 
 of the relationship of co-partners furnishes a presumption 
 that each individual is an authorised agent for the rest, 
 but this presumption has no operation, where a party 
 who would rely upon it, has received express notice to 
 the contrary, or where the transaction between himself 
 and the individual partner is a fraud upon the rest. 
 With the exception of the power so possessed by each 
 of binding the others, the responsibilities which, as a 
 body, partners incur, differ not essentially, with regard 
 to contracts, from those that may be created between 
 individuals. Of torts, they can seldom, perhaps in no 
 instance, be actually guilty in their joint capacity ; but, 
 where an injury has been inflicted through the negligent 
 
 management of a carriage or vessel belonging 
 [*146] to persons *jointly, although the law does 
 
 not, as a consequence of that act, ascribe to 
 each proprietor the character of trespasser,(a) yet, on 
 the ground of the joint ownership, it holds all liable to 
 repair the injury sustained, whether the person appointed 
 to drive the carriage, or to steer the vessel was or was 
 not one of themselves. The task of deciding in what 
 
 (a) Moreloii v. Ilardern, 4 B. & C. 223.
 
 AGAINST PARTNERS. 146 
 
 instances partners are responsible is easy, when the 
 question of liabihty arises in a case in which they have 
 all concurred; but it becomes comparatively difficult, if 
 the subject of dispute originated not in the act of all, but 
 of a single partner. Perplexity has, likewise, arisen 
 where juclgment has been obtained against an individual 
 partner for his separate debt, and the writ of execution, 
 consequent upon the judgment, has been executed against 
 the separate interest of that partner in the joint effects. 
 The right with which, in such a case, the law invests the 
 judgment creditor, we will, in its proper place, consider. 
 The subject of inquiry which now presents itself is, in 
 what instances a joint responsibility to third persons is 
 brought upon partners, either by the concurrent act of 
 the tirm, or the separate act of a single partner. 
 
 When the contract attempted to be enforced against 
 a firm is one which, in its inception, received the sanction 
 and countenance of each partner, the joint obligation, 
 attaching upon them to perform it is plain and manifest. 
 Each individual member of the firm is necessarily pre- 
 sumed to participate in the benefit resulting from such a 
 contract ; and to countervail that advantage, the joint 
 duty, obliging them to fulfil it, is imposed. In substance 
 and effect, an engagement so made by a firm is in no 
 respect dissimilar from the single engagement of an in- 
 dividual. The difterence is only in the number of the 
 parties to it ; but the consequences and responsibilities 
 which ensue a breach of it are precisely the same. 
 Similar, in every respect, are contracts entered into by 
 one partner on the behalf of the firm, in a transaction 
 connected with the partnership. For such a purpose 
 each partner separately is, to all intents, the authorised 
 and legally recognised agent and representative of the 
 whole firm; and his acts, therefore, referable as they like- 
 wise are to the character of principal, which to a certain 
 extent he sustains, are as binding upon the firm, as if they 
 obtained, at the time, their express and unequivocal rati- 
 fication. In simple contracts, therefore of every 
 *dcscription, in the purchase of stock on the [*147] 
 joint account, in the making, drawing, accept- 
 ing, or indorsing of promissory notes or loills of ex-
 
 147 LEGAL REMEDIES 
 
 change, one partner can, by his own act, in a transac- 
 tion in its nature joint, pledge the credit of the firm in 
 as effectual a manner as the partners tliemselves, when 
 acting in concurrence, can do; audit is no answer to a 
 claimant upon the firm that the debt which he seeks to 
 recover was fraudulently contracted by the partner, or 
 that it arose from a dishonest and criminal misapplication 
 of money received by him, if the debt were incurred, and 
 the money received in the course of business, notwith- 
 standing that, in the latter case, the single partner gives 
 his separate receipt for the money.(6) That the fraudu- 
 lent conduct of one partner does not aftbrd to his co- 
 partner a legitimate excuse for the non-fulfilment of a 
 joint contract entered into by the former, is strongly ex- 
 emplified by a recent decision. In that case,(c) A having 
 employed B and C, who were partners as wine and spirit 
 merchants, to purchase wines, and sell the same upon 
 commission, C, the managing partner, represented that 
 he had made the purchases, and that he had sold a part 
 of the wines at a profit, the proceeds of which supposed 
 sales he paid to A, and rendered accounts, in which he 
 stated the purchases to have been made at a certain 
 rate per pipe. In fact, however, C had neither bought 
 nor sold any wine ; the transactions were wholly ficti- 
 tious, of which B was utterly ignorant. Upon the 
 whole account a larger sum had been repaid to A, as 
 the proceeds of that part of the wine alleged to be re- 
 sold, than he had advanced; but the other part of the 
 wine, which C represented as having been purchased, 
 remained unaccounted for. It was determined by the 
 Court of King's Bench, that B was responsible for the 
 false representations of his partner, and that A was not 
 only entitled to retain the money which had been paid 
 to him upon these fictitious sales, but that he might 
 maintain an action for money had and received, to re- 
 cover the specific sums advanced for the number of pipes 
 of wine unaccounted for. So, where a firm of bankers, 
 
 (b) Willeti) Chambers, Cowp. 814. 
 
 (c) Rapp. V. Latham, 2 B. & A. 795. A partnership cannot acquire 
 properly in goods obtained by the fraud of one of the partners, to which 
 the rest are not privy. Kilby v. Wilson, 1 Ryan & Mood. 178.
 
 AGAINST STRANGERS. 147 
 
 employed to receive dividends in the funds (of which one 
 of the firm was a co-trustee) had in their own books 
 credited their employers with the dividends as re- 
 ceived, and had allowed them to draw without 
 *having any other funds in their hands, the [*148] 
 bankers were held to be bound by the entries 
 so acted on, although not communicated: and they 
 could not set up as a defence, that the entries had been 
 fraudulently made by one of the partners, the money 
 never having been received by the house, but converted 
 to that partner's own use.(c?) And where one of three 
 trustees of stock in the funds, being also a partner in a 
 banking-house, under a forged power effected the sale of 
 the stock, the produce of which was paid by their agent 
 into the house generally, and was never appropriated to 
 any particular account ; it was held, that it being the 
 duty of the house to have placed it to the credit of the 
 trustees, and subject to their order, the latter was en- 
 titled to recover it ; and that if the transfer had been 
 made without authority, or by any wrong act, they might 
 waive the wrong and demand the money ; and it was 
 also determined, that although a party cannot sustain 
 an action against a felon, or sue with him when the 
 claim is founded on the felony of one of the defendants, 
 yet after the conviction of the felon, the parties who 
 have received the money cannot protect themselves 
 against the demand for it, by showing the felony on the 
 part of one of their niembers.(e) Even by a guarantee, 
 the power of signing which is not necessary or indispen- 
 sable to the conduct of the trade, we have seen(/) that 
 one partner may, in some instances, implicate the firm. 
 Nor is it to transactions only, which strictly and actually 
 partake of a joint character, that the power of a single 
 partner to bind the firm extends. In matters not affect- 
 ing the partnership, he may, in some cases, exercise this 
 implied authority, and the contracts or engagements into 
 which he may enter will be binding upon the firm, if the 
 
 {(l) Hume V. Bolland, 1 Ryan &i Mood. 371. 
 
 (e) Stone v. Marsh, 6 B. & C. 551. S. (:!. 1 Ryan & Mood. 364. 
 
 (/) See ante, p. 50. 
 
 26
 
 148 LEGAL REMEDIES 
 
 person with whom he contracts, be at the time ignorant 
 of the fact of their disconnection with the partnership, 
 and deal with the single partner in the full confidence 
 and honafide expectation, that what he does individually 
 will receive the subsequent sanction and confirmation 
 of the firm. Thus, as we have in a preceding chapter(^) 
 stated, in the ordinary case of discount, one partner 
 may pledge the name of the firm to a bill of exchange, 
 and if there be no mala fides on the part of the discounter, 
 
 the firm will be responsible notwithstanding 
 [*149] *the discount of the bill was procured by the 
 
 single partner with the fraudulent and dishonest 
 view of appropriating the produce to his own private 
 purposes ; and the produce was afterwards so applied. 
 So an application by a single partner of a joint security 
 in discharge of his individual debt will, in some instances, 
 be operative against the firm, if there be no collusion, 
 and the transaction on the part of the creditor be fair 
 and open ; because it is not necessarily to be inferred, in 
 such a case, that the application is fraudulent as it res- 
 pects the co-partnership. The individual partner may, 
 for a valuable consideration, or in virtue of some ar- 
 rangement with his co-partners, have become the sole 
 proprietor of the security, so as to be authorised to deal 
 with it as his own.(A) But a disclaimer of the partner- 
 ship, by one of several partners made to any given indi- 
 vidual, will have the effect of saving that partner from 
 being bound by any contract to be afterwards made by 
 the other partners with the same individual, even though 
 made conformably to the express terms of partnership 
 agreed upon. Thus, three persons entered into partner- 
 ship in the trade of sugar-boiling, and agreed that no 
 sugar should be bought without the consent of the ma- 
 jority. One of them afterwards made a protest that he 
 would no longer be concerned in the partnership with 
 them; the two other persons subsequently contracted 
 for sugars, the seller having notice that the third had 
 disclaimed the partnership ; and it was held that he 
 
 («•) See ante,\> . 46. 
 
 (h) Per Lord Ellenhorongh, Ridley v. Tajior, 13 East, 175. 
 
 II
 
 AGAINST PARTNERS. 149 
 
 should not be charged.(z) And where, previously, to the 
 dissolution of a partnership, an order for goods was 
 given by two partners, and a bill for the amount was 
 drawn on them, but was accepted only by one, who car- 
 ried on a separate trade, and the goods were delivered 
 to him, it was held that no claim could be made upon 
 the other partner.(^) So if the person with whom the 
 single partner deals is, at the time conscious of the mis- 
 conduct of that partner in pledging the joint name to a 
 separate transaction, he cannot enforce against the firm 
 any claim that may arise to him out of such dealings. 
 Neither can he call upon the firm to fulfil a contract 
 which has been made by one partner, if he be privy to a 
 private agreement between the partners themselves, the 
 effect of which is to throw the responsibility 
 *upon the single partner alone. Therefore, [*150] 
 where four persons are partners in a coach con- 
 cern, but one by agreement provides the coaches at a 
 certain rate per mile, he alone is responsible for repairs 
 done to the coach, by a person cognisant of this arrange- 
 ment, although the names of all four appear on the vehi- 
 cle.(/) (1) So, if it be notorious that the proprietors 
 have separate departments and separate interests, they 
 must be sued separately by the tradesmen who may 
 supply each with goods.(m) But the body of pro- 
 prietors are jointly liable to a passenger, or a person 
 who sends goods by their conveyance; and they are 
 equally responsible for any damage that may be sus- 
 tained through the negligence of a servant engaged by 
 any one of them, whilst he is in the prosecution of the 
 
 {i) Vin. Abr. Tit. Partners, A. 11.; and see Willis u. Dyson, 1 
 Stark. N.P. C. 164. 
 
 (/c) Ex parte Harris, 1 Madd. 583. ; and see Finder v. Wilks. 1 
 Marsh. 248. S. C. 5 Taunt. 612. 
 
 (/) Hiard u. Bigg. cor. Holroyd, J., Winchester Springy Ass. 1819. 
 Mann. N. P. Ind. 220. 
 
 (m) Barton v. Hanson, 2 Taunt. 49. S. C. 2 Campb. 97. 
 
 (1) See Wetmore et al. v. Baker et al. 9 Johns. Rep. 307.
 
 150 LEGAL REMEDIES 
 
 joint business.(n)(l) And where one of several de- 
 fendants, partners as carriers, together with the coach- 
 office keeper, had agreed with a party to carry at the 
 ordinary rates, notwithstanding the notice, and there had 
 been subsequent accounts settled upon the footing of 
 such contract, it was held that the carriers were liable, 
 and not only the partners at the time, but all who might 
 afterwards become so, until special notice given of an 
 intention to rescind the contract.(o) In cases that are 
 destitute of any intrinsic circumstances operating the 
 discharge of the innocent partners from responsibility 
 under a contract fraudulently entered into by the single 
 partner for his own benefit, it is incumbent upon the 
 party with whom he deals to observe the most inge- 
 nuous conduct ; for if he can be considered as apprised 
 of the nature of the transaction, or, still more, if it 
 be manifest that the transaction has only a separate 
 relation to the individual partner, it will be unavailing in 
 him to attempt to affect the firm, unless he can show that 
 the single partner had the authority of his co-partners to 
 pledge their credit. If, indeed, he has obtained from the 
 individual partner a joint negociable security, under a 
 consciousness at the time of the misapplication, he may, 
 by sending it into circulation, render it available against 
 
 the firm. Because, although in his hands, were 
 [*151 ] he to attempt to put it in suit, the *instrument 
 
 would be void; yet if, by negociation, it get 
 into the hands of a bona fide holder for value, who w as 
 not privy to the fraud originally practised, it would be 
 just as operative against the firm, as if it had been free 
 from primary imperfection. The firm may likewise be 
 rendered responsible for the act of a single partner, al- 
 though unconnected with, and having no relation to, the 
 business in which they have jointly adventured, if it be 
 
 (n) Barton v. Hanson, 2 Taunt. 49. S. C. 2 Campb. 97. And see 
 Wayland v. Elkins, 1 Stark. N. P. C. 272. S. C. Holt, N. P. C. 227. 
 Fromont v. Coiipland, 2 Bingh. 170. 
 
 (0) Helsby v. Mears, 5 B. & C. 504. S. C. 8 D. & R. 289. 
 
 (1) Dwight V. Brewster, 1 Pick. Rep. 50. Helsby et al v. Mears 
 et al. 5 Barn. & Cresw. 505.
 
 AGAINST PARTNERS. 151 
 
 done with their joint authority, either express or im- 
 
 phed.(;?)(l) 
 
 A joint contract, however, entered into by one or 
 more individuals, is binding only upon those who have 
 a joint interest in it at the time of its inception ; for no 
 subsequent act by any person, who may afterwards be- 
 come a partner, not even an acknowledgment that he is 
 liable, will entail upon that person the obhgation of ful- 
 filling such a contract, if it clearly appear that a part- 
 nership did not exist at the time the contract was made. 
 The joint interest must be contemporaneous with the 
 formation of the contract itself to superinduce the cor- 
 responding liability to perform it. If it were otherwise 
 the law would, in fact, create a supposed contract, when 
 the real contract, between the parties was consummated 
 before the joint interest and consequent joint risk was m 
 existence. Thus(9r) where several persons agreed upon 
 a maritime adventure, and to provide a cargo of goods, 
 which should, in the judgment of the majority, be proper 
 for the voyage; and permission was given to the super- 
 cargo (who was to have a proportionate profit and bear 
 an equal loss with the respective adventurers) to ship, on 
 the joint account, as many goods as he might think fit ; 
 such goods being first approved by a majority of the per- 
 sons concerned in the adventure, as proper for the voy- 
 age ; and it was afterwards agreed, that each party was 
 to hold no other share or proportion in the adventure 
 than the amount of what each separately ordered and 
 shipped ; and that the orders given for the cargo and 
 outfit of the ship were to be separately paid, and that 
 
 ( p) Sandilands v. Marsh, 2 B. & A. 673. 
 (q) SaviUe V. Robertson, 4 T. R. 720. 
 
 (1) During the continuance of a partnership, the only ostensible 
 partner carried on the business of the partners in the same name as that 
 in which he transacted his private business, and in that name contracted 
 a debt for money borrowed ; but it did not appear whether the money 
 was borrowed for the partnership, or his private use ; held that m the 
 absence of evidence, the presumption of law was, that the loan was 
 made on the credit of the partnership business. Mifflin v. Smith et at. 
 17 Serg. <fe Rawle, 165.
 
 151 LEGAL REMEDIES 
 
 one was not to be bound for any goods or stores ordered 
 or shipped by the other ; and that the supercargo should 
 have free hberty to ship what goods were suitable to the 
 voyage, over and above the ship and outfit, leaving room 
 
 for those ordered by the adventurers, and that 
 [ 152 ] the *ship should be made over in trust for the 
 
 general concern : it was held, that if the super- 
 cargo afterwards purchased goods, as part of the cargo, 
 and the ship sailed with the goods so purchased, he alone 
 was liable for them, and not his co-adventurers jointly 
 with him. The reason on which this determination pro- 
 ceeded seems to have been, that after the purchase of the 
 goods made by the several adventurers, there was still, 
 before they became joint property, a further act to be 
 done, which was the putting them on board the ship in 
 which they had a common concern for the joint adven- 
 ture, and, until that further act was done, the goods pur- 
 chased by each remained the separate property of the 
 purchaser. The partnership in the goods did not arise 
 until their admixture in the common adventure.(l) So 
 where one person purchases goods, and another is after- 
 wards permitted to share in the adventure, the vendor 
 cannot maintain an action against the latter for the price 
 of the goods.(r) But where two or more persons are to 
 share in goods to be purchased, and, by virtue of a pre- 
 vious agreement, a joint interest in the goods attaches 
 the instant they are purchased, there, although one of 
 them make the purchase, concealing at the time the 
 names of the others, or, in fact, without any express 
 authority from them to purcliase on the joint account, it 
 
 (r) Young V. Hunter, 4 Taunt. 582. In Greenslade v. Dower, 7 
 Barn, & Cres. 635., Bayley, J. observed, that there was a great differ- 
 ence between a bill accepted by one partner in the name of the partner- 
 ship in the course of their trading, and one drawn for the purpose of 
 founding the partnership. " Originally, each partner would have to 
 bring in his proportion of the capital, and it would be very unjust to let 
 the acceptance of one for the capital bind all the others ; no authority 
 of that nature can be implied, nor does it arise by operation of law, the 
 debt not being a partnership debt." 
 
 (1) See Sims v. TVilling et al. 8 Serg. & Rawle, 103. Post v. 
 Kimherly, 9 Johns. Rep. 470.
 
 AGAINST PARTNERS. 152 
 
 is nevertheless the same as if all the names had been 
 announced to the seller, and therefore all are liable for 
 the value of them. This question arose in a late case,(s) 
 M^here it appeared that a creditor, having been jointly con- 
 cerned with his debtor in a foreign adventure, in respect of 
 the advances on which the latter became indebted to the 
 former, the creditor, with a view to liquidate his demand, 
 agreed with his debtor to join with him in a similar ad- 
 venture, of which he was to have a moiety, and to bear 
 his proportion of the loss; and it was likewise agreed 
 that the debtor should purchase and pay for goods for the 
 adventure, and the returns should be made to the creditor 
 to go in liquidation of his debt : under, and in further- 
 ance of this agreement, the debtor purchased 
 *goods for the adventure on credit, and it was [*153 ] 
 decided by the Court of King's Bench, in an ac- 
 tion brought by the seller against both the creditor and 
 debtor, that inasmuch as the goods were purchased in 
 pursuance of the agreement for the adventure, in which 
 it was stipulated and arranged that the creditor was to 
 have an interest, he was jointly answerable for their 
 price.(/) (1) It is not, however, sufficient to constitute 
 a joint liability for the capital brought into the trade 
 that there is to be a subsequent participation in the profit 
 derived from it. In such a case the right to participa- 
 tion can only take its origin from the time of the intro- 
 duction of the capital; and, although communion of 
 profit is a strong circumstance to explain a contract in 
 itself doubtful, and to show, as the legal presumption is, 
 that a partnership existed at the time amongst the par- 
 
 (a) Gouthwaite v. Duckworth, 12 East, 424. 
 
 {t) In the case of Young v. Hunter, 4 Taunt. 583, Gibbs, .T. , is re- 
 ported to have said, " I am by no means of opinion that there may 
 not be a case where two houses sliall be interested in goods from the 
 beginning of the purchase, yet not be both liable to the vendor : as if 
 the parties agree amongst themselves that one house shall purchase the 
 goods and let the other into an interest in them, that other being un- 
 known to the vendor ; in such a case, the vendor could not recover 
 against him, although such other person would have the benefit of the 
 goods." 
 
 (1) SeeFelichy v. Hamilton, 1 Wash. C. C. Rep. 491.
 
 153 LEGAL REMEDIES 
 
 ticipants ; yet, where the nature of the contract clearly 
 appears, it cannot have such a retrospect as to alter it, 
 and to substitute the responsibility of several for that of 
 an individual contractor. Therefore, if several persons 
 agree to form a partnership, and that each shall contri- 
 bute a certain share of the capital, and any of the per- 
 sons borrow or purchase the share, which is by him af- 
 terwards brought into the common stock, the liability 
 for payment to the lender or vendor is not joint but per- 
 sonal.(w) (1) Nor can a liability as partner attach 
 where there is neither a communion of profit nor a joint 
 interest in the article purchased, but the purchase is 
 made by one person upon an agreement between him 
 and other persons, that each shall have a distinct share 
 of the whole. Thus, where several different persons 
 separately employed a broker to make purchases of tea 
 at the hidia House, and the broker, upon payment of the 
 usual deposit, made the purchases and took joint war- 
 rants for the whole, which he pledged to a banker as a 
 
 security for monies advanced ; it was held, that 
 [*154] such an employment did not constitute a *part- 
 
 nership amongst the employers, so as to render 
 them either jointly or separately liable for the loan.(i?) (2) 
 
 (m) Per Lord Kenyan and Grose, J., in Saville v. Robertson, 4 T. 
 R. 720. See also Gouthwaite v. Duckworth, 12 East, 421. Green- 
 slade V. Dower, 7 Barn. & Cres, 635. 
 
 [v) Hoare v. Dawes, 1 Dougl. 371. 
 
 (1) Per Thompson, J. Post v. Khnberly, 9 Johns. Rep. 489. See 
 Sylvester v. Smith, 9 Mass. Rep. 119. And if a co-partner take mo- 
 ney out of the funds of the co-partnership, and carries it into a new 
 concern or trading house, which becomes bankrupt, the fund cannot be 
 followed specifically, so as to give the former co-partnership a priority 
 over the other creditors of the bankrupt house. McCauley v. McFar- 
 lane et al. 2 Desaus. Cha. Rep. 239 And where partners pay mo- 
 ney on a business foreign to the partnership concern, though With 
 their joint funds, this is pro tanto a severance of their funds; and if 
 paid as sureties, the law implies a promise to each according to his 
 several interest. Gould v. Gould, 8 Cow. Rep. 168. S. C. 6 Wend. 
 Rep. 263, in error, judgment affirmed. 
 
 (2) Holmes v. The United States Ins. Company, 2 Johns. Cas. 
 329. United States Ins. Company v. Scott et al. 1 Johns. Rep. 106, 
 See Jackson v. Robinson, 3 Mason's Rep. 138.
 
 AGAINST PARTNERS. 154 
 
 The same rule applies to a contract made by one person 
 for the purchase of goods, and a sub-contract made by 
 him Avith others for taking particular shares ; this sub- 
 division of his beneficial interest, under the original con- 
 tract, does not render the persons claiming under him 
 responsible jointly with himself for the performance of 
 the contract.(z^5) For instance, where tbree persons 
 entered into an agreement to purchase goods in the 
 name of one only, and to take aliquot shares of the pur- 
 chase, but it did not appear that they were jointly to 
 resell the goods, the Court of Common Pleas held, that 
 on the failure of the ostensible buyer, the others were 
 not answerable as partners with him.(.r) And, in addi- 
 tion to the possession of a joint interest, it is requisite, 
 to render a firm responsible, that credit should be given 
 to them collectively ; for if the separate liability of a 
 single partner is alone originally regarded, the joint re- 
 sponsibility cannot afterwards be substituted. Therefore, 
 where one of two partners drew bills of exchange in his 
 own name, which he procured to be discounted by the 
 same banker who had discounted other bills drawn in 
 the joint name, it was held that the banker had no 
 remedy against the partnership, either upon the bills so 
 drawn by the single partner, or for money had and re- 
 ceived through the medium of such bills, the proceeds 
 being carried to the partnership account; and that it 
 made no difference, that the banker, at the time he dis- 
 counted, conceived that all the bills were drawn on the 
 partnership account, since the money was advanced, by 
 way of discount, solely on the security of the par- 
 ties whose names were on the bills, and not by way 
 of loan to the partnership.(y) So where in an ac- 
 ' tion for the supply of articles to be used in mines, 
 whereof the defendant was a shareholder, it 
 *appeared, that the defendant had only paid [*155] 
 for the shares to a person calling himself trea- 
 
 [tv) Coope t'. Eyre, 1 H. Bl. 37. {x) Id. Ibid. 
 
 (t/) Emly V. Lye, 1.5 East, 7. See also Siffkin v. Walker, 2 Camb. 
 :^08. JEx parte Boliiho, Buck. 100. Where, with the privity of one 
 partner, a bill is drawn by the other upon the firm, but it is not accept- 
 ed, and the payee discounts it, and the proceeds are applied to partner- 
 
 27
 
 151 LEGAL REMEDIES 
 
 surer, and received a certificate purporting to be exe- 
 cuted " by order of the directors ;" that she was a pro- 
 prietor in certain shares, and her name duly registered, 
 <Sz;c., and that she was entitled to the profits of such 
 shares; and it also appeared that, at the time of the 
 supply, the plaintiflf had no knowledge or reason to sup- 
 pose the defendant in any way interested in the mine, nor 
 had he supplied the goods on her personal credit ; it was 
 determined that he could not maintain the action against 
 her.(2-) And where previous to the actual formation of 
 a company, a prospectus signed by the defendant was 
 issued, indicating that it was in contemplation to form 
 the company; and it appeared the defendant solicited 
 others to become shareholders, and was present at a 
 meeting of subscribers when it was proposed to take 
 certain premises for the purpose of carrying on the con- 
 cern, which were afterwards taken, but he never paid his 
 subscription ; it was determined he was not chargeable 
 as a partner for goods supplied to the company, the 
 prospectus not importing that he had become a partner 
 in a partnership then formed.(a) But Lord Tenterden 
 has ruled, that where one member of a club ordered 
 goods for the benefit of all, every member, who either 
 concurred in the order, or subsequently assented to it, 
 
 ship purposes, he may sue both partners for money lent, or money had 
 and received, notwithstanding they are not jointly liable on the bill. 
 Denton v. Rodie, 3 Campb. 493. But where a firm, consisting of 
 several, carry on business in the name of an individual partiier, the 
 whole firm will be bound by his acceptance or indorsement in tne way 
 of the joint business. South Carolina Bank v. Case, 8 B. & C. 427. 
 S. C. 2 Mann. & Ryl. 459. 1 Dans. & Lloyd, 103. (1) 
 
 {z) Vice V. Viscountess Anson, 7 B. & C. 409. ^. C. 1 Mann. & 
 Ryl. 113. 
 
 (a) Bourne v. Freeth, 9 B. & C. 632. 
 
 (1) See Doitgal v. Coivles et al. 5 Day's Rep. 511. It was decided 
 in this case, that the act of drawing a bill of exchange by one partner, 
 in his own name, upon the firm for the use of the partnership concern, 
 was, in contemplation of law, an acceptance of the bill by the drawer 
 in behalf of the firm ; and that the holder of the bill might sustain 
 an action thereon, as for a bill accepted. Van Reimsdyk v. Kane 
 et al. 1 Gallis. Rep. 630.
 
 AGAINST PARTNERS. 155 
 
 was liable, although the member who ordered the goods 
 was made the debtor in the tradesman's books ; unless it 
 clearly appeared that the tradesman meant to give credit 
 to that member only.(6) And in a late case, in which it 
 was proved that A had contributed to the funds of a 
 building society, and had been present at a meeting of 
 the society, and party to a resolution that certain houses 
 should be built ; the Court of King's Bench held, that 
 this made him liable for work done in building the 
 houses, without proof that he had any actual interest in 
 them, or in the land on which they were built.(c) So 
 where in an action against two, for goods supphed to a 
 mining company, originated in fraud, but of which the 
 jury found the defendants to have been ignorant, it ap- 
 peared, that they had never signed the partner- 
 ship deed, and had ^transferred their scrip be- [*156] 
 fore the action brought ; but both had attended 
 a meeting of the company, and it was held that they 
 were hable.(rf) And where the two requisites of a joint 
 interest and a joint credit concur, nothing but actual 
 satisfaction, or the extinguishment of the original con- 
 sideration, by the acceptance of a higher security from 
 an individual partner, can invalidate the claim which the 
 creditor possesses against the firm.(l) The partners, by a 
 private arrangement, as is most frequently done in cases 
 of dissolution, may stipulate that one of them only shall 
 discharge the joint demands; but such an arrangement 
 is not binding upon the creditor, even although he as- 
 sents to it, and, in confirmation of his assent, takes col- 
 lateral securities from the individual partner for the joint 
 debt. For the acceptance of a security, not under seal, 
 from a debtor, on account of his debt, does not extin- 
 
 (6) Delauney v. Strickland, 2 Stark. N. P. C. 416. ; and see Wil- 
 liams V. Nunn, 1 Taunt. 270. 
 
 (c) Braithwaite v. Skofield, 9 B. & C. 401. 
 
 [d) Ellis V. Schmoeck, 5 Bingh. 521. ; and see Perring v. Hone, 4 
 Bingh. 28. 
 
 (1) Sneed v. Weister et al. 2 Marsh. Rep. (Kentucky,) 285, 286.
 
 156 LEGAL REMEDIES 
 
 guish or affect the debt, but the creditor is still entitled 
 to sue for it, provided he does not receive the money, for 
 which the security is given, upon the security. Where 
 indeed, after a joint security has been given, the credi- 
 tor, without the knowledge of one partner, renews it, 
 and consents to take the separate security of the other 
 partner in discharge of the joint debt,(e)(l) or where 
 the other members of the firm sustain a detriment by the 
 creditor's dealing with a single partner, as if, on the faith 
 of such dealing, they permit the single partner to receive 
 monies which otherwise they would have withheld ;(y ) 
 in such cases, it seems, the joint liability would be ex- 
 tinguished. But except in those, and similar instances, 
 nothing but payment can controul the right of the cre- 
 ditor to enforce his demand against all the members of 
 the firm. Thus, where one of two partners apphed trust 
 money in the trade, with the privity of the other partner, 
 and having afterw^ards separated, the partnership effects 
 were assigned to the former partner, who undertook 
 to discharge the joint debts ; it was held that this private 
 arrangement did not operate to discharge the retiring 
 partner, but that both were liable to reimburse the trust 
 money.(^)(2) So where, on the dissolution of 
 [ *157 ] a ^partnership, it was agreed between two part- 
 ners, that one should take upon himself to dis- 
 
 (e) Evans v. Diummond, 4 Esp. N. P. C. 89. But see Ex parte 
 Hodgkinson, 19 Ves. 295. 
 
 (/) Reed v. While, 5 Esp. N. P. C. 122. ; and see Wyatt v. The 
 Marquis of Hertford, 3 East, 147. 
 
 {g) Smith V. Jemeson, 5 T. R. 601. 
 
 (1) Harris et al. v Lindsay, 4 Wash. C. C. Rep. 98. 271. A. hav- 
 ing an account on book against B. and C. who were partners, received 
 from them a bill of exchange, which, when paid, was to be in full of 
 the account ; this bill being protested, B., after the dissolution of the 
 partnership, took it up with A.'s receipt thereon in these words — " Re- 
 ceived the within amount by bill on J. A." Held, in an action against 
 B. and C. on the original demand, no evidence was admissible to show 
 that the latter bill had not been paid. Anderson v. Henshaw 2 Day's 
 Rep. 272. 
 
 (2) See Mortimer v. Caldwell et al. Kirby's Rep. 53.
 
 AGAINST PARTNERS. 157 
 
 charge a debt due to a creditor, who was informed of it, 
 and expressly undertook to exonerate the other partner 
 from all responsibility ; it was, nevertheless, determined 
 that, as there was no consideration for the promise of 
 the creditor, this arrangement did not constitute any de- 
 fence to any action brought by him against both part- 
 ners, the debt not being satisfied by the one, nor any 
 new security having been given.(A)(l) And where one 
 of three partners, after a dissolution of partnership, un- 
 dertook by deed to pay a particular partnership debt on 
 two bills of exchange, which was communicated to the 
 holder, who consented to take the separate notes of the 
 one partner for the amount, but with a strict reservation 
 of his right against all the three partners, and a reten- 
 tion of the original bills; the separate notes having 
 proved unproductive, it was held that he might still re- 
 sort to his remedy against the other partners, and that 
 the taking under these circumstances the separate notes, 
 and even afterwards renewing them several times suc- 
 cessively, did not amount to satisfaction of the joint 
 debt.(f)(2) In like manner, where one of three partners 
 retired, and notice was given to a creditor of the firm 
 that the remaining partners had assumed the funds, and 
 would discharge the partnership debts, the creditor as- 
 sented to this agreement, and transferred the debts due 
 from the old firm to the credit of the new firm, and af- 
 terwards drew on the new firm for a part of his balance, 
 which was paid; but the new firm subsequently be- 
 coming insolvent, he brought an action for the remain- 
 der against all the members of the old firm, and it was 
 held that the retiring partner was liable for all debts in- 
 curred before the dissolution of the partnership.(^) On 
 the same principle, where a firm of four partners were 
 indebted on a dishonoured bill of exchange, and having 
 
 (h) Lodge V Dicas, 3 B. & A. 611. 
 
 (i) Bedford v. Deakin, 2 B. & A. 210. S. C. 2 Stark. N. P. C. 178. 
 
 (k) David v. Ellice, 5 B. & C. 196. S. C. 7 D. & R. 690. 
 
 (1) Barker et al. v. Blake, 11 Mass. Rep. 16. 
 
 (2) f^mith et al. v. Posters et al. 17 Johns. Rep. 340.
 
 157 LEGAL REMEDIES 
 
 afterwards dissolved the partnership, a new firm was 
 formed of three of them, and the holder of the bill in- 
 dorsed it over to the latter firm, in order, if possi- 
 ble, to obtain payment of it ; and whilst the bill was in 
 their possession, the three settled their accounts with 
 the fourth partner, saying that the bill had been satisfied 
 by them, but the bill itself was not produced to, or seen 
 
 by, the fourth partner at the time of such settle- 
 [ *158 ] ment : it was held, that this *was no defence to 
 
 the fourth, in an action by the holder against 
 all the partners, the bill not having been, in fact, satis- 
 fied by the persons to whom it had been indorsed and 
 handed over.(/) Neither is the responsibility attaching 
 upon partners, when once it is incurred, varied, or alter- 
 ed, by the secession of some of the old, and the admis- 
 sion of new members, although the creditor continue to 
 deal with the newly constituted firm for a length of time 
 without notice to the retiring partners that he holds 
 them responsible. For instance, a person depositing 
 money with bankers, and taking their accountable re- 
 ceipts, does not, by continuing to leave his money in the 
 bank, after a dissolution of the original firm and the 
 constitution of a new one, which consists of some of the 
 members of the old bank, and other persons, discharge 
 the partners who have seceded, although he receives 
 interest^ regularly from the new firm, gives them no 
 notice, and continues to transact business with them in 
 the usual and ordinary course, for a period of four years, 
 until they become insolvent.(m)(l) In the exposition of 
 the statute 5 Eliz. c. 4, it has been determined, that, if 
 a person qualified to trade, by having served as an ap- 
 prentice, unite himself in partnership with an unqualified 
 
 (/) Featherstone v. Hunt, 1 B. & C. 113. 
 
 (m) Gough V. Davies, 4 Price, 200. And see Sleech's case, 1 
 Meriv. 563. It seems that the old firm would continue liable although 
 the old debt was carried, with the privity of the customer, into the 
 books of the new firm, and placed as an item in their account to the 
 credit of the customer. Gough v. Davis, supra. 
 
 (1) David V, Ellice et al. 7 Dowl. & Ryl. 690. S. C. 5 Barn. & 
 Cresw. 196. 1 Carr. & Payne, 368.
 
 AGAINST PARTNERS. 158 
 
 person, whenever exercises the trade, but only shares 
 the profits and the risks of the partnership ; such un- 
 quahfied person is not subject to the penalties imposed 
 upon a party who carries on a trade without having 
 served as an apprentice.(?0 In a former part(o) of this 
 work it has been observed, that where there are several 
 partnerships consisting partly of the same members, 
 carryinii on business under the same name, and entering 
 into negotiable securities under the same signature, the 
 holder of one of such securities, without notice that it 
 was issued by either of the partnerships in particular, 
 has a right to elect against which firm he will enforce 
 it. And it may here again be remarked, that a nominal 
 partner who is excluded from a participation in profit, 
 and stipulates for an indemnity against loss, will 
 not be responsible, in his character of * partner, [ *159 ] 
 to such claimants upon the firm as are apprized 
 of the stipulation. (/?) 
 
 In an action against an individual, he cannot object 
 that the contract, attempted to be enforced, is rendered 
 illegal by reason of the existence of a secret partnership 
 between himself and another person. For instance, if, 
 before the late statute, the name of a single under-writer 
 appeared upon a policy of insurance, the insurer would 
 not have been allowed, if a loss happened, to defeat a 
 bona jide insurance, by urging, in answer to an action 
 brought by the assured upon the policy, that a secret 
 partnership existed between himself and another at the 
 time of its subscription, and consequently that it was 
 void.(9) Where, indeed, a person professing to engage 
 only his own individual capital, pledged himself as such 
 to the assured, it would be unjust, if he had been per- 
 mitted to set up a secret partnership in avoidance of the 
 policy subscribed by himself singly.(r) Neither can a 
 
 (n) Rayiiard v. Chase, 2 Wils. 40. S. C. 1 Burr. 2. 
 
 (o) See ante, p, 48. 
 
 (p) Aklerson v. Pope, 1 Campb. 408. 
 
 Iq) Sullivan v. Greaves, Park on Insur. 8 
 
 (r) See dicta of Lord Kenyan and Lawrence, J., in Booth v. Hodg- 
 son, 6 T. R. 405. See also dictum of Heath, J., in Mitchell v. Cock- 
 burn, 2 H. Bl. 379. Partners cgin now jointly underwrite a policy of 
 insurance. See 5 Geo. 4. c. 114., and ante, p. 29.
 
 159 LEGAL REMEDIES 
 
 partner set up a known partnership in abatement of a 
 demand made upon himself individually, in a case in 
 which his conduct has been fraudulent, both as regards 
 his co-partners, and the person who endeavours to fix 
 him singly. Therefore where, to an action against one 
 of several partners for not delivering goods with a count 
 for money had and received, the defendant pleaded the 
 non-joinder of his co-partners, and it appeared that the 
 defendant, being in partnership, made the contract indi- 
 vidually, but in the joint name, and for the sale of joint 
 property, and that, in fraud of his partners, he received 
 the money and applied it to his own use, it was held that 
 though the bill drawn for the amount of the goods was 
 in the joint name, yet the plaintiff might recover the 
 money paid in discharge of the bill under the common 
 count.(s)(l) 
 
 The responsibility of partners to third persons is not 
 alone confined to cases of contract. In actions quasi 
 ex contractu, and in actions of tort, they are in some in- 
 stances jointly answerable to the injured party in 
 [ *160 ] damages. In the former species of action, *which 
 is, in its form, an action of tort, although sub- 
 stantially an action founded upon a contract, partners 
 are clearly responsible. Thus, in the common case of 
 a co-partnership amongst persons as carriers, if, in the 
 course of their business, they receive a parcel to be 
 carried by them for hire, and the parcel be lost, they 
 are unquestionably liable in an action upon the implied 
 contract, that they would safely and securely carry it. And 
 it can make no difference, as it regards their liability, if 
 the owner, instead of considering the loss as forming a 
 breach of promise, implied from the consideration of 
 hire, chooses to allege his gravamen, as consisting in a 
 breach of duty arising out of an employment for hire, 
 and to consider that breach of duty ^as tortious negli- 
 
 (s) Hudson V. Robinson, 4 Man. &l Selw. 475. 
 
 (1) See Sylvester et al. v. Smith, 9 Mass. Rep. 119. Clark \, 
 Holmes, 3 Johns. Rep. 148.
 
 AGAINST PARTNERS. 160 
 
 gence.(^) The principle in either case is the same ; and, 
 although the form of action which is adopted cannot 
 vary or alter the liability of the partners, it has given 
 rise to questions which we shall have occasion hereafter 
 to discuss.(l) 
 
 Actions of tort may likewise, in some cases, be effec- 
 tually sustained against partners. Their responsibility 
 in actions of this description may be exemplified by the 
 familiar instances of actions brought against them for 
 driving against carriages or running down ships. In 
 those cases, if the carriage or ship, occasioning the in- 
 jury be the joint property of partners, it is immaterial 
 whether it be under the direction or guidance of one of 
 the partners or of their servant, because the maxim of 
 law is qui facit per alium facit per se ; and partners, 
 like individuals, are responsible for the negligence of 
 their servants.(w) (2) And where it appeared that A and 
 B were partners in the business of public carriers, and that 
 by agreement between them, A provided horses and 
 drivers for certain stages, and B for the re- 
 mainder; *it was holden, that, notwithstand- [*161] 
 
 (t) Govett V. Radnidge, 3 East, 62. Powell t;. Layton, 2 New Rep. 
 372. Boson v. Sandlbrd, Skin. 278. S. C. 3 Lev. 258. Garth. 58 ; 
 but more fully reported 2 Show. 478. 
 
 (m) Mitchell v. Tarbutt, 5 T. R. 649. Where damages are sought 
 to be recovered against partners for an injury sustained through the 
 negligent conduct of their servant, the proper remedy is an action on 
 the case. Morley v. Gaisford, 2 H. Bl. 442. Huggett v. Montgomery, 
 2 N. R, 446. ; and, if the cause of the mischief be negligence, such an 
 action will lie against all the partners, although one of them be per- 
 sonally present and acting in that which occasions it. But where the 
 injury is inflicted by the wilful act of one of the partners, trespass is 
 the proper form of action against him ; and if under the circumstances 
 any action will be against the other partners, case only can be sus- 
 tained. See Leame v. Bray, 3 East, 593. Ogle v. Barnes, 8 T. R. 
 188. Rogers v. Imbleton, 2 N. R. 17. Moreton v, Hardern, 4 B. & 
 C. 223. 
 
 (1) Walcott v. CanfieU et al. 3 Conn. Rep. 194. 
 
 (2) So for falsely and fraudulently recommending an insolvent per- 
 son as worthy of credit, whereby the plaintifls (who were also part- 
 ners) were induced to trust him with goods, which the defendants 
 immediately atlachod. Patten ct al. v. Gurncy ct al. 17 Mass. Rep. 
 182. See Hacljicld v. Jameson, 2 Munf. 53. 
 
 28
 
 161 LEGAL REMEDIES 
 
 ing this division of the concern between them, they 
 were responsible for the misconduct and neghgence of 
 their drivers and servants throughout the whole distance ; 
 and that it was not any defence to B that the servant, 
 through whose negligence an injury had been committed, 
 had been hired and was paid by A alone.(v) So, in an 
 action of trover, it is not necessary that there should be 
 a joint conversion in fact, in order to implicate all the 
 partners ; for such a conversion may arise by construc- 
 tion of law. Thus, an assent by some of the partners 
 to a conversion by the others will make them WTong- 
 doers equally with the rest, provided the conversion was 
 for their use and benefit, and that they were in a situa- 
 tion to have originally commanded the conversion ; in 
 such a case the rule of omnis ratihabitio retrotrahitur et 
 mandato mquiparatur applies.(w^) (I) And if co-partners 
 are engaged in smuggling, which is a species of tort, on 
 an information filed for the penalty, they are jointly, as 
 well as separately, liable.(:c) Indeed, in the instance of 
 libels, an anomalous case, a bookseller or the proprie- 
 tor of a newspaper is answerable for the acts of his 
 agent or co-partner, not only civilly but criminally.(2/) 
 But, except in these cases, partners are not generally 
 responsible for the wrongs of each other. If they all 
 join in one trespass or tort, of course they may all be 
 sued, and compelled to make compensation for the in- 
 jury they have committed : but an action for such a mis- 
 feasance would arise from their personal misconduct, and 
 not from the relation of partnership subsisting between 
 
 (u) Weyland v. Elkins, Holt's N. P. C. 227. S. C. 1 Stark, N. 
 P. C. 272. 
 
 {w) 4 Instit. .317. Cora. Dig. Tit. Trespass, C. 1. And see Nicoll 
 V. Glennie, 1 Mau. & Selw. 588. 
 
 (a;) Attorney- General v. Burges, Bunb. 223. See also Rex v. Man- 
 ning, Com. Rep. 616. 
 
 {y) Rex V. Almon, 5 Burr, 2686. Rex v. Pearce, Peake's N. P. 
 C. 75. Rex V. Tophara, 4 T. R. 126. Per Littledale, J., Rex r. 
 Marsh, 2 Barn. & Cres. 723. 
 
 (1) Nisbet et al. v. Patton et al. 4 Rawle, 120. See Moreton v. 
 Harding et al. 6 Dowl. & Ryl. 275. 4 Barn. & Cresw. 223.
 
 AGAINST PARTNERS. 161 
 
 them. With regard to matters quite unconnected with 
 the partnership trade or business, there cannot be a doubt 
 but that a joint responsibihty would not be incurred for 
 a tort committed by an individual partner. And, in 
 general, acts done in the course of the partnership trade 
 or business, in violation of the law, will only implicate 
 those who are guilty of them. If one of two bankers 
 in partnership should commit usury in discounting bills ; 
 or if one of two surgeons in partnership should wantonly 
 ill-treat a patient, the innocent co-partners would not 
 be liable to an action for penalties or damages. 
 But if *an attorney be in partnership with another [ *162 ] 
 who has not taken out his certificate, and their 
 joint names are put on their papers in causes in their 
 office, it has been ruled, that either of them is liable to 
 the penalties imposed(z) for practising as an attorney 
 without obtaining a certificate : though it appear that, 
 by a private arrangement, the party sued was to derive 
 no benefit from the suit, in respect of prosecuting which 
 the qui tam action for the penalty is brought.(a) The 
 consequence is, and it has accordingly been determined, 
 that two attornies or proctors cannot be sued together, 
 as for one oflfence, for practising without a certifi- 
 cate, (i) 
 
 We have hitherto considered the liabilities attaching 
 upon partners, as aflfecting solely those partners who are 
 ostensible. The same rule, however, applies to a dor- 
 mant partner. When he is discovered, he is equally 
 liable as if his name had appeared in the firm, although 
 unknown to be a partner at the time of furnishing the 
 subject matter of the debt;(c) (1) and an action may be 
 maintained against him alone upon a joint contract, if 
 
 (z) See 37 Geo. 3. c. 90. s, 26. 
 [a) Edmonson v. Davies, 4 Esp. N. P. C. 14. 
 h) Barnard v. Gostling, 1 New. Rep. 245. S. C. 2 East, 569. 
 (c) Robertson v. Wilkinson, 3 Price, 538. Saville v. Robertson, 4 
 T. R. 725. 
 
 (1) 2 Munf. 66. 8 Serg. & Rawle, 55. 4 Mass. Rep. 426. But 
 the law merchant respecting dormant partners does not extend to spe- 
 culations in land. Pitts v. Waugh, 4 Mass. Rep. 424.
 
 162 LEGAL RE3IEDIES 
 
 he do not avail himself of the legal objection arising 
 from the nonjoinder of the ostensible partner, by plead- 
 ing in abatement.(c?) The liability of the parties depends 
 upon their being partners at the time the contract is 
 made, and a dormant partner cannot set np the plain- 
 tiff's ignorance of his being a partner to obviate such 
 liability. Neither is it any security to him, more than 
 to an ostensible partner, that he stipulated that his co- 
 partner should carry on the trade at his own separate 
 risk, and that he should not be answerable for any of 
 the joint debts or engagements. (e) Even those acts 
 done by a creditor, such as selecting one partner, ac- 
 cepting new bills, &c. which are usually held to operate 
 the discharge of the other partners, will not liberate an 
 unknown dormant partner, if they were done by the cre- 
 ditor during the time of his concealment,(y) (1) But 
 
 (t?) Per Lord Kenyan, Saville v. Robertson, 4 T. R. 724. 
 (e) Hubert v. Nelson, Davies' B. L. 8. 
 (/) Robertson v. Wilkinson, 3 Price, 538. 
 
 (1) The plaintifF, Sheehy, sold certain goods to Robert B.Jamesson, 
 and took his note for the amount, which he put in suit, and prosecuted 
 to a judgement. Afterwards, supposing Joseph Mandeville to be a 
 secret partner, he instituted a suit against Mandeville ^' Jatnesson. 
 The declaration contained three counts ; the first upon the note, charg- 
 ing it to have been made by the defendants under the name and style of 
 Robert B. Jamesson — the second and third counts were for goods, 
 wares, and merchandize sold and delivered to the defendants trading 
 under the firm of Robert B. Jamesson The defendant, Mandeville, 
 who alone appeared, pleaded two pleas in bar. The first went to the 
 whole declaration ; but the second applied to the first count only, and 
 pleaded the judgment obtained upon the note against Jamesson in bar. 
 The plaintifl[' demurred specially to these pleas. The Supreme Court 
 of the U)iited States gave judgment for the plaintiff on the first count, 
 being of opinion that the several suit and judgment against Jamesson, 
 was no bar to a joint action against both Mandeville and Jamesson 
 upon the same note. Sheehy v. Mandeville, 6 Cranch, 253. The 
 reasoning of Chief Justice Marshall, who delivered the opinion of the 
 Court in that case, has been met with great force by Chief Justice 
 Spencer in delivering the opinion of the Supreme Court of Neiv York, 
 in the case of Robertson v. Smith et al. 18 Johns. Rep. 459. In that 
 case, the plaintifli" brought an action of assumpsit against S. and S. as 
 partners under the firm of S. & S. <fe Co. and makers of a promissory 
 note, and recovered a judgment, which was unsatisfied; and afterwards 
 discovering that P. & V. were also partners in the firm at the time the
 
 AGAINST PARTNERS. 162 
 
 in transactions unconnected with the joint trade, no ha- 
 bility will be entailed on a dormant partner, where his 
 responsibility was not originally regarded, and the fact 
 
 note was given, he brought an action against the four, as makers of the 
 same note : and it was held, that the judgment recovered against two 
 of the defendants, on the note was a bar to the subsequent suit against 
 the four defendants, for the same cause of action. See also Penny v. 
 Martin, 4 Johns. Cha. Rep. 586. Willings et al. v. Consequa, 1 
 Peters' Rep. 301. McFall v. Williams, 2 Serg. & Rawle, 280. 
 Smith v. Black, 9 Serg. & Rawle, 142. Doivney v. The Bank of 
 Green Castle, 13 Serg. & Rawle, 288. Hortetter v. Kaufman, 11 
 Serg. & Rawle, 1 46. In Virginia, it has been decided that in equity 
 it is competent for a creditor to prove that his claim was due from a 
 partnership, notwithstanding he may have taken a note from one of the 
 partners in his individual name. The ground, however, upon which 
 the creditor was enabled to proceed in a Court of Equity was, the 
 absence from the State of one of the partners, which prevented the com- 
 plainant from proceeding at law against them both upon the original 
 cause of action for which the note was given, and gave him a riglit to 
 proceed in equity under the act of 11th Feb. 1819, (1 Rev. Code of 
 1819, p. 474) "directing the mode of proceeding in Courts of Equity 
 against absent debtors, and other absent defendants." Williams v. 
 Donaghe's Ex. 1 Rand. Rep. 300. In Maine it has been decided, 
 that if one oi two joirit promissors have neither property nor doraicil in 
 the state, a separate action may be maintained against the other, who 
 cannot plead in bar, that judgment has been recovered in another state 
 against his partner, upon the original contract. Dennet v. Chick, 2 
 Greenl. Rep. 121 — a case which much resembles Sheehy v. Mande- 
 ville. In Pennsylvania, by a late act of Assembly, entitled " An act 
 for the furtherance of justice between obligors and obligees, and other 
 creditors and debtors," passed 6th Apiil, 1830, (Pamph. Laws, 277) 
 the following provisions are made, viz. : 
 
 Sect. I. In all suits now pending, or hereafter brought in any court 
 of record in this commonwealth, against joint and several obligors, co- 
 partners, promissors, or the indorsers of promissory notes, in which 
 the writ or process has not been, or may not be served on all the 
 defendants, and judgments may be obtained against those served with 
 process, such writ, process, or judgment shall not be a bar to recovery 
 in another suit against the defendant or defendants not served with 
 process. 
 
 Sect. II. From and after the passing of this act, in all cases of ami- 
 cable confession of judgment by one or more of several obligors, co- 
 partners, or promissors, or the endorsers of promissory notes, such 
 judgment shall not be a bar to recovery in such suit or suits as may 
 have to be brought against those Avho refuse to confess judgment. 
 
 The proceedings in Neiv York against joint debtors, where all are 
 not brought into court are regulated by 1 R. L. 520, S. 13. See Leg- 
 get^ et al. V. Boyd et al. 6 Wend. Rep. 500. Mason v. Benison, 11 
 Wend. Rep. 612.
 
 163 LEGAL REMEDIES 
 
 of his being a partner was unknown at the time 
 [ *163 ] the *claim arose. Therefore, where one partner 
 
 accepted a bill in the name of his firm, but not 
 in a partnership transaction, it was held that an indorsee 
 could not maintain an action on such acceptance against 
 a dormant partner, whose name did not appear, and who 
 was not known to be a partner, nor the bill taken on his 
 credit.(^) 
 
 An action being instituted against partners, if those 
 who are sued neglect to appear, the object of the plain- 
 tiff must be, to compel their appearance, since, until all 
 appear, or those who do not appear are outlawed, he 
 cannot proceed in his action. Where the process is 
 bailable, and all are arrested under it, if the defendants 
 do not appear according to the exigency of the writ, 
 after bail to the sheriff has been given, the plaintiff may 
 either take an assignment of the bail-bond, and proceed 
 thereon against the defendants and their bail, or he may 
 rule the sheriff to return the writ and bring in the bodies 
 of the defendants. Where, however, bail for their ap- 
 pearance is not given, but the defendants remain in the 
 custody of the sheriff, they may, notwithstanding their 
 neglect to appear be proceeded against as prisoners.(A) 
 And if the process, instead of being bailable, be service- 
 able only, the plaintiff may, under the statute,(i) proceed 
 to judgment against them all, provided it be duly served 
 upon each individual defendant,(^) and they do not ap- 
 pear in pursuance of its mandate. But, where some of 
 the defendants are resident abroad, and therefore, being 
 without the jurisdiction of the court, are not capable of 
 the effectual service of its process, a difficulty arises in 
 enforcing their appearance. If the partner who is served 
 and appears chooses to enter an appearance for his copart- 
 ners, he may do it, and his act will be binding upon them ;(/) 
 but he cannot be compelled to do so. However, in the 
 event of his refusal to enter a joint appearance, the plain- 
 
 (g) Lloyd V. Ashby, 2 Car. & Pa. N. P. C. 138. 
 (h) See the mode of proceeding in such cases, Tidd's Pract. (7th 
 ed.) 342. etseq. 
 
 (i) See 12 Geo. 1. c. 29. and 5 Geo. 2. c. 27. {k) Pr. Reg. 301. 
 [l) Harrison v. Jackson, 7 T. R. 207. Diet. Dumpier, arg.
 
 AGAINST PARTNERS. 163 
 
 tiff is not destitute of compulsory means to enforce obedi- 
 ence to his writ. He may either proceed to outlaw those 
 who do not appear, or he may distrain(m) the 
 joint effects in this country, *and thereby endea- [ *164 ] 
 vour to compel an appearance. If joint property 
 can be found, the latter is the more speedy process, and 
 courts are more disposed to favour it than the remedy 
 by outlawry. In one case(n) where an appearance was 
 attempted to be enforced by distress, the Court of Com- 
 mon Pleas decided, that if three partners (two of whom 
 reside abroad and one in England) be sued for a part- 
 nership debt, and the partner resident in England appear 
 to the action, but refuse to appear for his partners 
 who are abroad, the sheriff, under a distringas against 
 the two partners, may take partnership effects, though 
 paid for solely by the partner in this country, to whom 
 the partnership was largely indebted. But if no joint 
 effects are to be found, the only mode of proceeding for 
 this purpose is by outlawing the defendant who is 
 abroad, since the partner here is not bound to appear 
 for him, nor can the separate property of the one be 
 attached under a writ of distringas issued with the view 
 of enforcing the appearance of the other partner.(o) 
 We have already observed, that before a plaintiff can 
 proceed solely against the defendant who may have 
 appeared, he must carry the action on through the 
 whole line of process to an outlawry against those upon 
 whom, either in consequence of their absconding, or 
 their residence abroad, the writ cannot be executed. (/?) 
 And courts of law have shown an inclination to assist a 
 
 (m) Where a defendant is abroad, a plaintiff may, notwithstanding 
 the Stat. 51 Geo. 3. c. 124, issue a distrirtgas for the purpose of com- 
 pelling his appearance thereby. Nicholson v. Bownass, 3 Price, 263. 
 S. P. Dwerryhouse v. Graham, Id. 266. n. Even where one partner 
 is absent on business, and not for the purpose of avoiding the action, a 
 plaintiff may issue a distringas for default of appearance, after the usual 
 service on the other partner. Macmurdo v. Birch, 5 Price, 520. 
 
 hi) Morley v. Strombom, 3 Bos. & Pul. 254. 
 
 \o) Goldsmith v. Levy, 4 Taunt. 299. 
 
 Ip) See Tidd's Pract. (7th ed.) 148. and the cases there cited. Dar- 
 went V. Walton, 2 Atk. 510.
 
 LEGAL REMEDIES. 
 
 plaintiff who is reduced to the necessity of proceeding to 
 such an extremity against one or more of his joint 
 debtors. Therefore, where, on a writ against three, one 
 was arrested and lay in gaol, and the other two ab- 
 sconded, the Court of King's Bench refused to discharge 
 the prisoner, notwithstanding, according to the practice 
 of the court, the time for declaring, against him had ex- 
 pired; observing, that he must appear for all, or lie in 
 goal until the other two were outlawed.(«/) In such a case, 
 
 however, the plaintiff must move the court, or 
 [ *165 ] apply to a judge, for time *to declare against the 
 
 prisoner, until the outlawry or appearance of 
 the other defendants ;(r) and must show that he is 
 using all due diligence in proceeding against them.(s) 
 
 Having seen what responsibilities partners incur to 
 third persons, either by their own joint acts, or by the 
 act of an individual member of the firm, and having also 
 pointed out the method to be adopted to compel the ap- 
 pearance of partners to an action instituted against 
 them, we will now inquire, what is the consequence of a 
 nonjoinder of any one or more of the partners, when a 
 joint contract or security is attempted to be enforced. 
 In this respect, the case of partners, who have to sus- 
 tain the character of plaintiffs, differs essentially from 
 that, in which they appear upon the record as defen- 
 dants. In the former instance we have explained,(^) 
 that although a defendant may plead the nonjoinder of a 
 copartner in abatement, he is not compelled to do so ; 
 he may reserve his objection, and avail himself of it in 
 any stage of the proceedings. But in the latter case, 
 partners must take advantage of the objection, that all 
 the contracting parties are not sued, by a plea in abate- 
 ment, and it is available in that way only, though the 
 plaintiff knew and even contracted with the other part- 
 ners. Formerly, and especially in cases of contract, the 
 
 (q) Per Cur. E. 12 Geo. 3. K. B. 2 Cromp. 9. Barnes, 396. 
 401. 2 Blacks. Rep. 759. 
 
 (r) Per Cur. E. 12 Geo. 3 K. B. 2 Cromp. 9. Barnes, 396. 401. 2 
 Blacks. Rep. 7.59. Sykes v. Bauwens, 2 New Rep. 404. Morton v. 
 Grey, 9 B. & C. 544. 
 
 (s) Tidd's Pract. (7th ed.) 428. (t) See ante, p. 134.
 
 AGAINST PARTNERS. 155 
 
 law was otherwise, and on the mistaken and unfounded 
 assumption that such matter could not be pleaded in 
 abatement,(w) it was held, that if it appeared at the trial 
 that there was a joint contract, and only one of the con- 
 tracting parties was sued, it was a decisive ob- 
 jection against the plaintiff's action, *the rule [*166] 
 then being unconditionally, as it is now restric- 
 tively, that in actions upon contracts, every partner must 
 be a defendant.(f) The adherence to that rule, and 
 the mode in which the objection was allowed to be 
 taken, namely, by giving it in evidence under the plea 
 of non assumpsit^ occasioned many nonsuits, much vex- 
 ation, and a great hindrance to justice. The rule itself 
 must have been introduced originally from the semblance 
 of convenience, that there might be one judgment against 
 all who were liable to the plaintiff's demand : but expe- 
 rience has shown that convenience, as well^as justice, 
 lies the other way. A creditor knows with whom he 
 deals, but he may not know the secret partner. He 
 might therefore, under the practice as it formerly pre- 
 vailed, have been subjected to many nonsuits before he 
 ascertained who all the partners were; or might indeed 
 have been driven to the necessity of a suit in equity for 
 a discovery of the persons constituting the firm. That 
 
 {u) That the nonjoinder of a joint contractor was the proper subject 
 of a plea in abatement, appears from the year books. Mich. 35 Hen. 
 6. 38. If one brings debt against another, and declares for the price 
 of a horse, it is a good plea in abatement to say, that the defendant and 
 another bought the said horse. S. C. cited Bro. Tit. Briefe, 37. So 
 T^r. 9 Edw. 4, 24. b. writ of debt against B, and plaintiff declares on a 
 contract ; the defendant says that the contract w^s made by him and 
 one C, still living, and not named in the writ ; upon which the writ 
 abated. Afterwards C dies, and a new writ is brought against B. upon 
 the same contract, he shall be received to wage his law, although he 
 hath before acknowledged the contract, for he may have since dis- 
 charged it. And again Pasch. 10 Ed. 4, 5. In writ of account against 
 me as receiver, it is a good plea that I and another were the receivers 
 who is still living ; judgment of the writ. For thereby I sliall compel, 
 the plainti-flf to charge another as well as me; and besides he may 
 have some matter of discharge of which I have no knowledge. — See 
 the judgment of Mansfield, C. J., in Powell v. Layton, 2 New Rep. 
 365. 
 
 (y) Boson v. Sandford, Skin. 278. S. C. 3 Lev. 258. Carth. 58. 
 2 Show. 478. See also Sheppard ». Baillie, 6 T. R. 329. 
 
 29
 
 166 LEGAL REMEDIES 
 
 rule, in its application, was consequently attended with 
 the greatest hardship, since a bona fide creditor was 
 burthened with the expense of nonsuits, in favour of a 
 defendant, who was certainly liable to pay his whole 
 demand, and who could not be injured by being sued 
 singly, because, whatever he paid, he must have had 
 credit for in his account with the partnership. The in- 
 justice of such a rule, and the great inconvenience of 
 such a mode of htigation, founded, not upon the merits 
 of the case, but upon the form of proceeding, did not 
 escape the acute penetration of Lord Mansfield. For 
 him it was reserved to abolish the unjust and oppressive 
 practice which had obtained the sanction of his prede- 
 cessors, and by the substitution of a rule more consonant 
 to the principles of justice, and more salutary in its 
 effects, to defeat the endless vexation to which creditors 
 were exposed. For the convenience of suitors, he there- 
 fore laid down, that a defendant must take advantage of 
 the objection at the beginning of the suit, by pleading it in 
 abatement ',{iv) and this rule has universally obtained the 
 
 approbation of and has been adopted by succeed- 
 [*167] ing judges.(^-) *Debts, therefore, contracted by 
 
 partners in trade, are joint debts, for which an ac- 
 tion can only be maintained against all the partners, or 
 the surviving partners jointly, provided the exception, in 
 the event of a nonjoinder, is properly taken by a plea in 
 abatement. But the objection is available only by a plea 
 in abatement, and advantage cannot be taken of it under 
 the general issue, the omission to plead in abatement 
 being considered as an absolute waiver of the objec- 
 tion. (y) Nor is there any injustice in this rule. An 
 
 {w) Rice V. Shute, 5 Burr. 2611. S. C. 2 Blacks. Rep. 695. 
 
 \x) Abbott V. Smith, 2 Blacks. Rep. 947. Buddie v. Wilson, 6 T. 
 R. 369. Scott V. Godwin, 1 Bos. & Pul. 67. Govett v. Radnidge, 3 
 East, 62. Powell v. Layton, 2 New Rep. 372. Byers v. Doby, 1 H. 
 Bl. 236 Sutton v. Clarke, 6 Taunt. 29. See also 1 Wras. Saund. 
 290. Cases of fraud are necessarily excepted out of the general rule. 
 Therefore, where one partner fraudulently makes a contract in the 
 joint name, in an action against himself singly, he cannot plead the 
 nonjoinder of his copartners in abatement. Hudson v. Robinson, 4 
 Mau. & Selw. 475. 
 
 [y) Id. Ibid. See also Wright v. Hunter, 1 East, 20.
 
 AGAINST PARTNERS. 167 
 
 opportunity is afforded to the defendant of insisting that 
 the CO- contractors shall be joined with him in the suit, 
 but at the same time, it is so regulated as to avoid the 
 delay and expense of a trial. The creditor is also pro- 
 tected against the consequences resulting from the former 
 practice ; for as a plea in abatement must give the plain- 
 tiff a be'.ter v^^rit or count, and must be certain in every 
 particular, the defendant is bound to plead the whole 
 truth of the case, and disclose on the face of his plea, 
 who are the persons liable. He cannot turn the plaintiff' 
 round more than once, by setting up fresh partners in 
 abatement of every new action. If his plea be untrue in 
 point of fact, as if he plead a partnership between him- 
 self and another, and he has two partners, the plaintiff' 
 may take issue on the plea, and if it be found that he 
 has two partners, the plaintiff will be entitled to judg- 
 ment, since the plea which imports that he has only one 
 is disproved.(^) And the plea to be sustainable must 
 answer the whole of the writ or declaration ; for although 
 it professes to answer the whole, yet if, in fact, it answers 
 only a part, there must be judgment of respondeat ouster. 
 Therefore, where, on a writ in debt for a certain sum, 
 the plaintiff declared in the first count for part of it bor- 
 rowed by the defendant of the plaintiff, and in a second 
 count for the residue of the sum for interest of money 
 lent by the plaintiff to the defendant, and the defendant 
 pleaded in abatement of the writ that " the said sum of 
 money in the said writ mentioned, and thereby supposed 
 to be borrowed from plaintiff," was borrowed by defen- 
 dant and others, and not by defendant separately ; 
 on demurrer, because the plea answered *only [*168] 
 the cause of action mentioned in the first count, 
 the court held the plea bad. (a) So a plea in abatement 
 for nonjoinder will not be upheld, where, by the evidence 
 adduced in the cause, it appears that the defendant has 
 treated the demand made upon him as one for which he 
 was individually and not jointly responsible. Thus, 
 
 {z) Abbot V. Smith, 2 Blacks. 947. Godson v. Good, 6 Taunt. 
 587. S. C. 2 Marsh. 299. 
 
 (a) Herries v. Jameson, 5 T. R. 553. ; and see Thomas v. Hea- 
 thorn, 2 B. «fc C. 477.
 
 168 LEGAL REMEDIES 
 
 where, in an action of assumpsit, the defendant pleaded 
 that the promise was made jointly by himself and two 
 others who were alive, and after the defendant had 
 proved that he had two partners, the plaintiff produced 
 several letters from him, which were signed in his own 
 name, and in which he individually promised to pay the 
 debt in question, without making any mention of his 
 partners, Lord EUeiihorough held the letters conclusive 
 evidence that the debt was due from the defendant indi- 
 vidually, and not from the partnership, and would not 
 permit him to show, that it was due jointly from himself 
 and his partners. (6) And where an action was brought 
 against one defendant who pleaded a similar plea, it was 
 held that an account kept by the defendant only in a 
 pass-book between him and the plaintiff at the bankers 
 of the former, was strong evidence to show that the 
 credit was given to the defendant alone.(c) But in sup- 
 port of such a plea, it is said to have been ruled at Nisi 
 Prius, and afterwards to have been decided upon a mo- 
 tion for a new trial, that where the plaintiff's particular 
 contains items which are owing from the defendant 
 jointly with the partner who is not sued, the defendant 
 will be entitled to a verdict, although the plaintiff should 
 be prepared to prove that some of the items were fur- 
 nished on the credit of the defendant only.(c?) Pleas of 
 this description, being considered as dilatory, are not 
 much favoured by the courts ; and in one case(e) where 
 a defendant pleaded in abatement, that others were 
 jointly liable with himself, and the plaintiff applied to the 
 defendant's attorney to give the places of abode and 
 additions of those persons, which he refused to do 
 unless the action were discontinued, the Court of King's 
 Bench intimated, that if the defendant persevered in 
 such refusal, the plea should be set aside. But, to 
 proceed to the discussion of the rule itself, it is not 
 confined to actions on simple contracts, but 
 [*169 ] ^applies as forcibly where specialties or instru- 
 
 {b) Murray v. Somerville, 2 Carapb. 99. n. 
 (c) Robey v. Howard, 2 Stark, N. P. C. 555. 
 {d) Colson t'. Selby, 1 Esp. N. P. C. 452. - 
 (e) Taylor v. Harris, 4 B. & A. 93.
 
 AGAINST PARTNERS. 169 
 
 merits in writing, either under or not under seal, exe- 
 cuted or made jointly by two or more are put in suit. 
 The reason indeed is analogous in both cases. If it do 
 not appear on the face of the declaration, that the instru- 
 ment declared upon created a joint obligation, the record 
 is not falsified if; ut the trial, the obligation be proved to 
 have been joint. In such a case there is no variance, 
 the contract proved and the contract laid being the 
 same, and the objection being merely, that the persons 
 making it are different, which is precisely the case con- 
 templated by Lord Mansfield when he refoiMned the 
 former practice.(y^) Therefore, if a bill of exchange, 
 stated to be accepted by three persons, be proved to 
 have been accepted by the three jointly with a fourth ;(^) 
 or if, being alleged to have been drawn by the defendant 
 singly, it be shown to have been drawn by him and 
 another,(A) there is not in either of these cases such a 
 variance between the allegation and proof, as will be 
 available to the defendant at the trial, if he have neglect- 
 ed to plead the nonjoinder in abatement. So where the 
 plaintiff declared on a bond made by the defendant, to 
 which non est factum was pleaded ; the jury found 
 specially that the bond was a joint bond, made by the 
 defendant and another to the plaintiff, and it was ad- 
 judged that the plaintiff should recover: "because when 
 two men slyo jointly bound in one bond, although neither 
 of them is bound by himself, yet neither of them can say 
 that the bond is not his deed ; for he has sealed and de- 
 livered it, and each of them is bound in the whole. "(i) 
 Proving that another person contracted, does not nega- 
 tive that the defendant himself contracted. And it is 
 now indisputably settled, that in all cases of a joint obli- 
 gation or deed, or a joint contract in writing or by 
 parol, if one only be sued he must plead the matter in 
 
 (f) Germaine v. Frederick, cited 1 Williams' Saunders, 291. (c). 
 
 (g) Mountstephen v. Brooke, 1 B. & A, 224. See Rex v. Powell, 
 1 Ryan & :Mood. 101, 
 
 (/t) Evans v. Lewis, cited 1 Williams' Saunders, 291. (d), Wilson 
 V. Reddall, Gow N. P. C. 161. 
 
 (i) Whelpdale's case, 5 Rep. 119. See also South v: Tanner, 2 
 Taunt. 256.
 
 169 LEGAL REMEDIES 
 
 abatement, and cannot take advantage of it afterwards 
 upon any other plea, or in arrest of judgment, or give it 
 in evidence at the trial as a bar to the action.(A:) Even 
 to contracts raised in invitum of the contractors the rule 
 / extends. Thus in an action of debt on the 
 [ *170 ] statute of *AnneQ) by the toser to recover 
 money lost at play, the defendant may plead 
 that all the winners are not joined with him, and his 
 plea will be available, because the statute gives the 
 action on the idea of there being a contract which the 
 act of parliament itself raises.(m) 
 
 But although a contract may be declared upon as 
 separate, and it will, notwithstanding, be supported, if it 
 be proved to have been joint, provided the variance does 
 not appear on the declaration, or any other pleading of 
 the plaintiff; yet it will be error if a joint contract is 
 set forth in the pleadings, and it appears from thence 
 that the co-contractors, who are omitted as defendants, 
 are alive. There a difference appears upon the face of 
 the record ; the plaintiff himself shows that another 
 ought to be joined : he has a better writ, according to 
 his own statement, and it would therefore be absurd to 
 call upon a defendant to plead an admitted fact in 
 abatement, the sole object of which plea is merely to in- 
 troduce on the record some new additional fact, which 
 gives to the plaintiff a better writ.(n) In such a case, a 
 defendant, not being permitted to plead the variance be- 
 tween the writ and the declaration (for a plea in abate- 
 ment of the writ could not be sustained), (o) may take 
 advantage of the omission by demurrer, or he may move 
 in arrest of judgment, or sustain a writ of error.(^) But 
 where the instrument, which is the foundation of the 
 action, is a joint bond or deed, it must, to enable the de- 
 fendant to take advantage of the nonjoinder, otherwise 
 than by a plea in abatement, appear upon the record, 
 not only that the co-obligor or co-covenantor is alive, 
 
 (k) Cabell v. Vaughan, 1 Wms. Saund. 291. (b). 
 (l) 9 Ann. c. 14. (wi) Bristow v. Jamts, 7 T. R. 257. 
 
 (n) Scott V. Godwin, 1 Bos. & Pul. 67. (o) Id. Ibid. 
 
 (p) 1 Chitt. on PI. 32. Anderson v. Martindale, 1 East, 497. 
 South V. Tanner, 2 Taunt, 254.
 
 AGAINST PARTNERS. 170 
 
 but that he sealed or executed the bond or deed.(y) 
 Those are facts which, if the defendant plead in abate- 
 ment, are absolutely necessary to be averred by him 
 in his plea ; and unless the plea in abatement is render- 
 ed unnecessary by the admission of the plaintiff, in his 
 pleadings, of the facts which ought and must be pleaded, 
 the defendant cannot avail himself of the objection, ex- 
 cept in the ordinary method. There are, indeed, two cases 
 which seem to militate against this rule, in which it neither 
 appeared that the co-obligors sealed the bonds, or were 
 alive at the commencement of the suit ; but the 
 actions were *nevertheless, considered respec- [ *171 ] 
 tively abateable, on account of the nonjoinder. In 
 the one(r) where, to an action of debt on bond, the defen- 
 dant pleaded a release, the plaintiff prayed oyer ; and, on 
 oyer, it appeared that the plaintiff had released the defen- 
 dant from all bonds, except one for £40, wherein defendant 
 and one T. O. stood bound; and the plaintiff replied, that 
 the excepted bond, and the bond declared upon, were 
 the same bond : the court, on demurrer, said, that the 
 plaintiff himself having admitted, by his deed, that two 
 were bound, ought to have brought his action against 
 both. But this determination is impeached by Sir Wil- 
 liam Joties,(s) who says that there was no resolution 
 upon that point, and that the Chief Justice was absent. 
 In the other case,(/) a scire facias was brought against 
 two defendants, stating that they, and two other persons^ 
 by bond sealed with their seals, became jointly and seve- 
 rally bound to the king in a certain sum of money, stating 
 non-performance, &;c. ; and the court were of opinion, 
 that as abateable matter appeared on the scire facias^ it 
 was not necessary for the defendant to plead in abate- 
 ment, and they gave judgment that the scire facias should 
 be quashed. However, notwithstanding these cases, the 
 better opinion seems now to be, that, unless the facts 
 necessary to be pleaded are disclosed and admitted by 
 the plaintiff in his pleadings, the defendant is not entitled 
 
 {q) Horner v. Moore, cited 5 Burr. 2611. 
 (r) Hickmott's Case, 9 Rep. 52. b. 
 («) Sir W. Jones, 304. See 8 Mod. 242. 
 (0 Rex t-. Young, cited 6 T. K. 769.
 
 171 LEGAL REMEDIES 
 
 to take an objection to the nonjoinder otherwise than 
 by a plea in abatement.(M) In the case of a joint con- 
 tract there is this objection to the nonjoinder of one or 
 more of the several parties liable, that if judgment be 
 obtained against one, in a separate action against him 
 upon such contract, the plaintiff may experience diffi- 
 culty in afterwards proceeding against the parties omit- 
 ted .(z?) Where a plaintiff, by reason of the statute of 
 limitations, or of the 9 Geo. 4. c. 14. (which declares 
 even a written acknowledgement of a debt made by one 
 partner insufficient to revive it against the others), is 
 barred of his remedy against the firm, but is entitled to 
 recover against a single partner by virtue of a new ac- 
 knowledgment or promise in writing, he may either 
 
 maintain an action against that partner alone ; 
 [*172] and if the ^nonjoinder of the others should be 
 
 pleaded in abatement, entitle himself to judg- 
 ment by taking issue on the plea ; or he may sue all the 
 partners, in which case the court is empowered to give 
 judgment and allow costs for the plaintiff as to such de- 
 fendant against whom he shall recover, and for the other 
 defendant or defendants against him.(w) 
 
 Where one of the joint contractors dies, subsequently 
 to the making of the contract, the survivor is alone re- 
 sponsible at law, the personal representatives of the 
 deceased partners being discharged from hability.(a:) 
 And, if the executor be sued, he may either plead the 
 survivorship in bar, or give it in evidence under the 
 general issue.(i/) In declaring against a surviving part- 
 ner, it was in an old case,(z) said by Lord Holt, that 
 " if there be two partners in trade, and one of them bay 
 goods for them both, and the other dieth, the survivor 
 may be charged by indebitatus assumpsit generally, with- 
 
 {u) Cabell v. Vaughan, 1 Wms. Saund. 291, b. 1. Chitt. on 
 PI. 32. 
 
 (v) Com. Dig. Tit. Action, K. 4. L. 4. 1 Chitt. on PI. 32. See 
 also Godson v. Smith, 2 B. Moore, 157. 
 
 {w) 9 Geo. 4. c. 14. s. 1, 2. 
 
 {x) Godson V. Good, 2 Marsh. 302. S. C. 6 Taunt. 587. Bac. 
 Abr. Tit. Obligations, D. 4. Vin. Abr. Tit. Obligation, P. 20. 
 . (y) Postan v. Stan way, 5 East, 261. 
 
 (z) Hyat V. Hare, Comb. 383.
 
 AGAINST PARTNERS. 172 
 
 out taking notice of the partnership, or that the other is 
 dead and he survived." In practice, however, this rule 
 appears to have been subsequently departed from ; for 
 when one of several joint contractors dies, the party 
 suing usually declares on a contract with the deceased 
 and the survivors, and not with the survivors alone(a) ; 
 and where a debt accrues from a defendant as surviving 
 partner, it is more proper, as far as convenience is 
 concerned, to declare against him in that character, 
 because the forms of declaration ought, as near as 
 can be, to be made subservient to the information of 
 the party charged. But, although such is the practice, 
 it is not essentially necessary to the maintenance of 
 the action that the contract should, in the declaration, 
 be stated to have been joint; for if all the partners 
 had been alive, and one only had been sued, that cir- 
 cumstance could be taken advantage of by a plea in 
 abatement alone, and would be no defence upon the 
 general issue ; but inasmuch as, where one is dead, there 
 cannot be any plea in abatement, the rule of cessante 
 ratione cessat lex applies. It has, therefore, been held 
 that, under a declaration containing only one set of 
 counts, charging the defendant in his own right, 
 the plaintiff may recover *one demand due from [ *173 ] 
 the defendant individually, and another due from 
 him as surviving partner.(^) On the death of the last 
 surviving partner, the right of action results against his 
 representatives, and not against them jointly with those 
 of the other deceased partners. Therefore, where A, 
 the partner of B, signed an agreement on the behalf of 
 the house of A and B, and B survived A, it was deter- 
 
 (a) Spalding v. Mure, 6 T. R. 365. Per Le Blanc, J., Bovill v. 
 AVood, 2 iMau. & Selw. 25. 
 
 (6) Richards v. Heather, 1 B. &■ A. 29. Calder v. Rutherford, 7 
 B. Moore, 158. Jell v. Douglas, 4 B. & A. 374. Fitzgerald v. 
 Boehm, 6 B. Moore, 332. Tissard v. Warcup, 2 Mod. contra. A 
 commission of bankruptcy against a person, as surviving partner of 
 another, although a statute execution against joint and separate estate 
 is strictly a joint commission; and if the petitioner be a joint creditor, 
 he must claim against the joint estate. Ex parte Barned, 1 Glyn. & 
 James, 309. See the 6 Geo. 4. c. T.6. s. 62. 
 
 30
 
 173 LEGAL REMEDIES 
 
 mined that an action on the agreement could be main- 
 tained against the executors of the survivor only .(c) 
 
 Similar in its consequences, in some respects, to an 
 actual death, is the civil death of one of several joint 
 contractors. A civil death is the legal effect of an out- 
 lawry ; for an outlaw, being extra legem positiis, is, in 
 legal contemplation, dead as regards all civil purposes. 
 Where, therefore, one of two partners is outlawed, the 
 fact of the outlawry affords the plaintiff an excuse for a 
 separate proceeding against the other. An original joint 
 liability is, indeed, assumed, although, as one necessary 
 result of the outlawry, it cannot be jointly enforced. The 
 plaintiff, therefore, in declaring against one partner on 
 a joint contract, must, under such circumstances, state 
 the contract to have been joint, and allege the outlawry 
 of the other as a reason why the proceeding is separate. 
 In a declaration of this description, it has been held to 
 be insufficient to aver, that the outlaw was in due man- 
 ner outlawed, without adding that he was outlawed m 
 that suit.{d) And where, in a joint action against two, 
 it appeared that one of the defendants had been outlaw- 
 ed upon different process from that by which the other 
 was brought into court, and no connection was shown 
 between the several writs of capis against each, as refer- 
 able to the same original ; as where one was outlawed 
 upon process by original, tested the 10th of April, re- 
 turnable on the first return of Easter term, and continued 
 regularly down to the time of the outlawry, and the 
 
 other was arrested on a special testatum capias, 
 [ *174 ] issued on the *24th of April in Hilary vacation, 
 
 to which bail was put in, and the plaintiff de- 
 clared against him alone, alleging the outlawry of the 
 other defendant in the same suit; the Court of King's 
 Bench set aside the declaration for irregularity .(e) But 
 an allegation that a co-defendant was, by due course of 
 law, outlawed at the suit of the plaintiff, in this plea and 
 suit, is sufficient without a prout patet per recordum, be- 
 
 (c) Calder v. Rutherford, 3 Brod. & Bingh. 302. 
 {d) Saunderson v. Hudson, 3 East, 144. But see Co. Litt. 128. b. 
 352. b. (c) Haigh v. Conway, 15 East, 1.
 
 AGAINST PARTNERS, 174 
 
 cause the very record before the court verifies that 
 averment.(y) To a declaration against one, upon joint 
 promises by him and another, whom the plaintift' avers to 
 be outlawed, the defendent may plead mil tiel record of 
 outlawry; but such a plea must conclude in abatement, 
 and not in bar.(^) On the subject of the outlawry of one 
 co-contractor it may here be remarked, that it has not 
 the effect of altering the nature of the contract in any 
 other respect, than as it empowers the plaintiff to en- 
 force it against the other contractor. The contract 
 being still joint, if the latter die, the remedy survives 
 against the outlaw, and cannot be enforced against the 
 personal representative of the deceased. Thus, where 
 the plaintiff brought an action against two defendants, 
 and, having proceeded to outlawry against one, prose- 
 cuted the action against the other, who died after inter- 
 locutory and before final judgment, the Court of King's 
 Bench held, that he could not have a scire facias against 
 his administrator; for, notwithstanding the outlawry, 
 the action remained joint, and therefore survived against 
 the other defendant.(^) And it has been determined 
 that a judgment of outlawry against two of three joint 
 debtors, does not make the debt a separate one, so as 
 to enable the creditor to prove it under ^ separate com- 
 mission againt the third debtor.(i) In an action against 
 three on a promissory note, two of whom are stated to 
 be outlawed, the third may take advantage of the mis- 
 nomer of his companions, upon the general issue, on the 
 ground of a variance between the contract declared 
 upon, and that proved. (yt) 
 
 But, notwithstanding the death or outlawry of a joint 
 contractor, where true in fact, is sufficient to enable the 
 plaintiff to proceed separately, in the one case against 
 the survivor, and in the other against the co- 
 contractor, yet the bankruptcy of a *partner has [ ' 175 ] 
 not the same effect, if the objection to his not 
 
 (/) McMichael v. Johnson, 7 East, 50. 
 {g) Nowlan v. Geddes, 1 East, G34. 
 [h) Fort V, Oliver, 1 Mau. & Sehv. 242. 
 (i) Ex parte Dunlop, Buck, 25.1, 
 (/f) Gordon v. Austin, 4 T. R. 611.
 
 175 LEGAL REMEDIES 
 
 being joined in the action be taken by a plea in abate- 
 ment. This was decided by the Court of King's Bench 
 in a late case,(/) in which it was held, that as joint con- 
 tractors must be all sued, it is no reason for not joining 
 a person, with whom the contract was made, that he 
 has become a bankrupt, and has obtained his certificate ; 
 because as the bankrupt, if joined, might renounce the 
 protection which the certificate affords him, the plaintiff 
 ought not to be at liberty, in the first instance, to antici- 
 pate what may ultimately perhaps prove to be a dis- 
 charge. But if the bankrupt be joined, and plead his 
 certificate, the plaintiff may enter a nolle prosequi as to 
 him, and proceed against the others.(m) And, subject 
 only to a plea in abatement, it seems, that counts upon 
 a promise by the defendant and another, since become a 
 bankrupt and certificated, may, in an action against the 
 solvent partner alone, be joined with counts on promises 
 made by the defendant solely, since the other became a 
 bankrupt.(w) 
 
 Where one of the partners or joint contractors, is a 
 minor, it does not seem to be clearly established, whether, 
 in an action against the partnership firm, it is necessary 
 to join him. In one case,(o) it was said that he must be 
 joined ; but, consistently w ith more modern determina- 
 tions, that dictum seems to be questionable, if it be con- 
 sidered as applicable to all cases in which an infant is a 
 joint contractor. Where the action is brought against 
 the adult members of the firm solely, and they plead in 
 abatement that there is another co-contractor not joined, 
 the plaintiflf", it appears, may reply, that the contractor 
 mentioned in the plea is an infant, and the rephcation 
 
 (Z) Bovill V. Wood, 2 Mau. & Selw. 22. 
 
 (m) Noke v. Ingham, 1 Wils. 89. If, to enable a joint creditor, who 
 has proved under a separate commission, to recover from the solvent 
 partners, it is necessary to join the bankrupt in the action, the creditor, 
 where he refuses to enter a nolle prosequi, must indemnify the bankrupt 
 ao-ainst all the expenses of the action, and cannot take advantage of the 
 judgment as against him. Ex parte Read, 1 Ves. & Bea. 346. S. C. 
 1 Rose, 460. See Emmett v. Butler, 7 Taunt. 599. S. C. 1 B. 
 Moore, 332. 
 
 (n) Hawkins r. Ramsbottom, 6 Taunt. 179. 
 
 (o) Ex parte Henderson, 4 Ves. 164.
 
 AGAINST PARTNERS. 175 
 
 will be a good answer to the plea.(^) Such a replica- 
 tion excludes the idea of a concurrent liability having 
 ever existed ; and, being a negation of the joint contract 
 attempted to be raised, affirms the contract to 
 *be such as it is in legal effect. It would, in- [ *176 ] 
 deed, be an intolerable hardship, and a palpable 
 injustice if a plaintiff, who sued the adult debtor, should, 
 by a plea in abatement, be compelled to proceed against 
 the other, and having done so should be defeated (for 
 that the infant can avoid the contract no doubt can be 
 entertained) for want of substantiating that joint con- 
 tract and joint responsibihty which is requisite to main- 
 tain his declaration. So a plaintiff, who neglects to 
 reply the infancy of the co-contractor, may show that, 
 at the time of the contract being made, the alleged con- 
 tractor was an infant, and that he has, subsequently, 
 avoided the contract. (9^) But if, instead of replying 
 infancy, the plaintiff join issue on the plea in abatement, 
 and is unable to establish an avoidance of the contract 
 by the infant, he must be nonsuited, because the only 
 fact then in issue is the existence or non-existence of a 
 joint contractor, and that, it seems to have been con- 
 sidered, is proved by showing an infant co-contractor.(r) 
 It has been laid down by Lord Ch. J. Gibbs, that where 
 goods are sold to a minor upon a false and fraudulent 
 representation by his father, that he has relinquished his 
 business in favour of the son, the father is liable either 
 as principal vendee, or as partner with his son.(s) And 
 although the law, considering it against good policy that 
 
 {p) Gibbs V. Merrill, 3 Taunt. 313. Burgess v. Merrill, 4 Taunt. 
 469. Anon. cor. Le Blanc, J., in Banc, at Lancaster, cited 2 Po- 
 thier on Oblig. (ed. Evans) 63. n. a. See also 2 Vin. Abr. p. 68. 
 Tit. Actions, Joinder, (D. d.) pi. 8. 
 
 {q) Gibbs v. Merrill, ante. S. C. cited 14 East, 214. See also 
 Berridge v. Merrill, cited ibid. By the 9 Geo. 4. c. 14. s. 5. it is en- 
 acted, that no action shall be maintained whereby to charge any person 
 upon any promise, made after full age, to pay any debt contracted 
 during infancy, or upon any ratification after full age of any promise or 
 simple contract made during infancy, unless such promise or ratification 
 shall be made by some writing signed by the party to be charged there- 
 with. 
 
 (r) Gibbs v. Merrill, 3 Taunt. 313. 
 
 (s) Biddle v. Levy, 1 Stark. N. P. C. 20.
 
 176 LEGAL REMEDIES 
 
 an infant should be allowed to bind himself by contracts 
 made for goods for the purposes of trade, throws a pro- 
 tection around him, by holding that such contracts, 
 entered into during his minority, shall be absolutely void 
 and not voidable; and thence it follows that, if he be- 
 comes a member of a firm, he may avail himself of that 
 protection by repudiating all those partnership contracts 
 which may have been concluded during his nonage ; yet 
 the privilege necessarily ceases with the minority, and 
 therefore if, on attaining full age, he do not disaffirm the 
 partnership, and notify that disaffirmance to those with 
 whom the firm previously had dealings he will be liable 
 upon contracts afterwards made in the joint name. 
 Thus, where an infant represented himself as in 
 [*177] *partnership, and continued to act in the cha- 
 racter of a partner till within a short period of 
 his coming of age, it was determined, notwithstanding 
 there was not any proof of his doing any act as a partner 
 after he attained the age of majority, that it was his 
 bounden duty to have notified his disaffirmance of the 
 partnership on arriving at that age ; and, as he had ne- 
 glected to do so, he was responsible to persons who had 
 subsequently trusted his partner with goods on the credit 
 of the partnership.(?) Within what period a minor, 
 after attaining majority, should repudiate the contract of 
 partnership, does not appear to be settled by decision ; 
 but it seems to be universally agreed, that the election, 
 to - abide by or renounce it, should be made within a 
 reasonable time after he comes of age. And, although 
 no precise line, as to what shall be reasonable time, has 
 been drawn ; yet, by analogy to other cases, and from 
 what fell from the court on a late occasion, (?/) it may be 
 inferred, that a week or a fortnight would be considered 
 as reasonable. We have hitherto assumed, in the case 
 
 {t) Goode V. Harrison, 5 B. & A. 147. 
 
 (m) Doe d. Bromfield, v. Smith, 2 T. R. 436. See also Holmes v. 
 Blogg, 1 B. Moore, 466. S. C. 2 B. Moore, 552. Under a clause in 
 articles of partnership, providing for the admission into the'firm of a de- 
 ceased partner's representatives, .Alexander, C. B.,has considered three 
 months a reasonable time within which the representatives should make 
 their election. Pigott v. Bagley, 1 McClel. & You. 569.
 
 AGAINST PARTNERS. 177 
 
 of a member of the firm, who is a minor, that he is not 
 made a party to the suit ; but if the action be brought 
 against him jointly with the others, and he pleads his 
 minority in bar, to which the plaintiff replies, that he 
 ratified the contract after he came of age, it will be in- 
 cumbent on the plaintiif, in order to sustain his repli- 
 cation, to prove a ratification before the commencement 
 of his action ; for the adoption by the minor, after he 
 comes of age, is binding upon him solely on the ground 
 of his taking upon himself a new hability, upon a moral 
 consideration existing before, but it does not admit the 
 perpetual existence of the contract so as to revive it ab 
 initio against him.(u) And if a defendant, being a minor, 
 plead a similar plea, and the plaintiflT is unable to 
 establish a ratification of the contract, he cannot by en- 
 tering a nolle prosequi as to him, continue the suit against 
 the other defendants ; because having, in his declaration, 
 stated the contract to be a joint one entered into by 
 several persons, by one of whom it is avoided, it would, 
 were he to obtain a verdict against the others, be error 
 on the record, an action, arising out of contract, 
 which is brought *against several, and cannot [*178] 
 be supported against all, failing wholly, because 
 the contract proved and established differs from that 
 declared upon an assumed : he must, therefore, discon- 
 tinue and bring a new action against the adult members, 
 as being the sole contracting parties, according to the 
 legal effect of the contract.(i^) (1) An infant partner is 
 
 (v) Thornton, v. lUingwonh, 2 B. & C. 824. 
 {w) Jaffray v. Fairbain, 5 Esd. N. P. C. 47. S. P. Chandler v. 
 Parkes, 3 Esp. N. P. C. 76. 
 
 (1) It has been decided in New York, in opposition to the cases of 
 Jaffray v. Fairbain, and Chandler v. Parkes, that where a plaintiff 
 declares against several defendants, and one of them pleads infancy, 
 or gives it in evidence, under the general issue, at the trial, the plaintiff 
 may enter a nolle prosequi as to the infant and proceed to judgment 
 against the other defendants. Hartness et al. v. Thompson et al. 5 
 Johns. Rep. 160. 18 Johns. Rep. 478. Ex parte Nelson, 1 Cowr. Rep. 
 417. See also Walmsley v. Lindenberger ^- Co., and Cole v. Pennell, 
 2 Rand. Rep. 478. 174. So also in Massachussetts, Woodward v. 
 Newhalls, 1 Pick. Rep. 500.
 
 178 LEGAL REMEDIES 
 
 not compelled to plead his infancy specially, but may 
 give it in evidence under the general issue. (^^) (1) 
 
 A plea in abatement, that there is a dormant partner 
 not joined in the suit, who is concerned in interest with 
 the defendants, will not, in all cases, be available ; be- 
 cause, generally speaking, the right of the creditor to 
 proceed against such a partner is elective and not com- 
 pulsory, he being under no obligation to consider the 
 dormant partner as his dehtOT.{y) Thus where, to an 
 action of assumpsit, the defendant pleaded in abatement 
 that one who jointly promised was not joined, it was 
 held that the plea was not supported by the evidence of 
 a secret partnership, of which the plaintiff had no know- 
 ledge, the goods having been ordered by the defendant 
 alone.(^) So where the part-owner of a ship orders 
 supplies in his own name, he cannot plead the non-joinder 
 of co-partowners of whose existence the creditor was not 
 apprized.(a) And if the members of whom the firm ap- 
 parently consists are expressly named, as if it be repre- 
 sented to be composed of A and B, a creditor, dealing 
 with them in ignorance of a dormant partner, cannot be 
 compelled in an action against them to join C, on account 
 of a secret interest he may possess as partner. In such 
 a case the creditor has the option of joining him or not, 
 as he thinks proper : he may proceed against him when 
 he is discovered, notwithstanding he was unknown to 
 be a partner at the time of furnishing the subject matter 
 of the debt ; but he is not bound to do it, inasmuch as 
 
 (a;) Season v. Gilbert, 2 Lev. 144. Hewlett v. Haswell, 4 Carapb. 
 
 118. 
 
 (2/) Grellier v. Neale, Peake's N.P. C. 146. Robertson v. Wilkin- 
 son, 3 Price, 538. Ex parte Matthews, 3 Ves. & Bea. 126. 
 
 {z) Stansfeld v. Levy, 3 Stark, N. P. C. 8. In this case it was also 
 held that the plaintiff was not called upon to go into his evidence upon 
 the plea ; but after proof of the supply of the goods, he might reserve 
 it in reply to the defendant's case. 
 
 (a) Baldney v. Ritchie, 1 Stark. N.P. C. 338. S. P. Doa v. Chip- 
 penden, Abbott, L. S. part 1. c. 3. s. 8. 
 
 (1) Hartness et al. v. Thompson et al. 5 Johns. Rep. 160. See 
 Stanshury v. Marks, 4 Dall. 130. Wailing v. Toll, 9 Johns. 141. 
 Vasse v. Smith, 6 Cranch, 231.
 
 AGAINST PARTNERS. 178 
 
 the dormant partner was not only not an ostensible 
 contracting party, but his interest was pur- 
 posely *and professedly concealed.(6) (1) But [*179] 
 where the firm is described as consisting of A 
 and company^ which of itself indicates that some other 
 or others besides A are interested, and a creditor deals 
 with that firm, without inquiring who are the actual 
 partners, there, as he might have ascertained the fact 
 had he used due diligence, the partners who are sued 
 may perhaps insist on a dormant partner being joined 
 with them.(c) (2) And in a late case, it was held, that 
 unless the interest of the parties is materially altered by 
 the plea, and the defendant subjects the plaintiff to no 
 other inconvenience but that of joining another person, 
 a dormant partnership may be pleaded in abatement :(rf) 
 and it was also laid down, that there is not any injus- 
 tice in admitting such a plea for the purpose of a set- 
 off ;(e) but hord .Eldon has frequently expressed his 
 disapprobation of this decision, and his determination 
 not to adhere to it.(/) And its authority has been fur- 
 ther impugned in a recent case, in which it was held, 
 that the non-joinder of a dormant partner cannot be 
 pleaded in abatement, but it is for the jury to say with 
 what parties the contract was intended to be made.(^) 
 Where goods were consigned to two, for sale by com- 
 mission, on a dissolution of partnership the sale was 
 
 (b) Ex parte Layton, 6 Ves. 438. Ux parte Hamper, 17 Ves. 412. 
 Hoare v. Dawes, 1 Dougl. 371. 
 
 (c) Ux parte Layton, supra. Davies v. Hawkins, 3 Man. &, Selw. 
 433. See Robertson v. Wilkinson, 3 Price, 538. 
 
 (d) Dubois V. Ludert, 1 Marsh. 248. S. C. 5 Taunt. 609. 
 
 (e) Id. ibid. 
 
 (/) Ex parte Hodgkinson, 19 Ves. 294. S. C. Coop. Ca. 101. 
 Ex parte Norfolk, 19 Ves. 458. Ex parte Watson, lb. 462. 
 {g) Mullett V. Hook, 1 Mood. &: Malk. 88. 
 
 (1) But See 8 Serg. & Rawle, 55. 
 
 (2) So if, by the direction of the plaintiff, the writ be served on one 
 only of two partners in trade, when the declaration shows, that the 
 plaintiff knew the names of both, and he obtains a verdict upon the 
 plea of non assumpsit, pleaded by the partner upon whom the writ 
 was served, judgment will be arrested. Shields v. Oney, 5 Munf. 550. 
 
 31
 
 179 LEGAL REMEDIES 
 
 assumed by one, and it was held, that after the sale he 
 was rightly sued for money had and received, which 
 action could not have been maintained against both, 
 although an action for not accounting would have lain 
 against both.(A) 
 
 The rule of law, that the action ought regularly to be 
 brought against all the persons who contracted with the 
 plaintiff, applies with equal force to an unincorporated 
 company ; and therefore to an action against some of 
 the members of such a company, upon a contract legally 
 made M^ith the whole body, the defendants may generally 
 plead the non-joinder of the other members in abate- 
 
 ment.(i) And, it is apprehended, that if the 
 [*180] *defendants do not, on the face of their plea, 
 
 disclose all the persons hable, and the plaintiff 
 is induced to discontinue and begin de novo, joining all 
 the parties in conformity to the plea, as the plea would 
 not help him to prove them to be alone jointly con- 
 cerned, it will still be competent to them, in abatement 
 of the second action, to plead, that there are other con- 
 tractors not joined, and those other contractors, if they 
 are afterwards sued, may in like manner avail them- 
 selves of a similar plea. But a plaintiff may always 
 secure himself against a repetition of such pleas, if true 
 in fact ; for, as the plea by the defendants to the action 
 originally brought, that they jointly with certain others 
 contracted, imported that they jointly with those others, 
 and no more, contracted,(/:) the plaintiff, by controvert- 
 ing the truth of that plea in his replication, would entitle 
 himself to a verdict ; because the defendants to estab- 
 lish it, must prove that the persons named, and no 
 others, jointly contracted with them. And we have 
 already seen, that a court of law will assist a plaintiff 
 whose claim is attempted to be defeated by a plea of 
 this degcription, and, as the condition of allowing the 
 
 (/i) Wells V. Ross, 7 Taunt. 403. 
 
 (i) In Cousins v. Smith, 13 Ves. 542, Lord Eldori seems to have 
 been of opinion, that in an action by the committee of a voluntary 
 society, the plaintiffs would not be liable to a nonsuit at law, and that 
 an action against such a committee could not be defended on the ob- 
 jection that all the members were not joined. 
 
 [k) Godson V. Good, 6 Taunt. 587. S. C. 2 Marsh. 299.
 
 AGAINST PARTNERS. 180 
 
 plea to stand, will order that the particulars of the places 
 of abode and additions of those, whose non-joinder forms 
 the subject of the plea, shall be furnished to him.(/) 
 Joint stock companies, however, frequently obtain from 
 parliament the privilege of being sued by their secretary ; 
 but whenever that privilege has, in modern times, been 
 conferred, the legislature, with the view of assisting the 
 plaintiff with the remedy he previously possessed at 
 common law against each of the members of the com- 
 pany, has been careful to provide that execution upon a 
 judgment against the nominal defendant may be 
 taken out against any member of tlie society, and 
 that the names of the members shall be enrolled.(?n) 
 
 {I) Taylor v. Harris, 4 B. & A. 93. 
 
 (w) In the acts of parliament granted to several of the more recent 
 institutions, the legislature has caused the following provisions to be 
 inserted, viz. 
 
 " That execution upon any judgment in any action obtained against 
 the person acting as chairman of the society or partnership for the time 
 being, or against the person acting as secretary of the society or part- 
 nership for the time being, whether as plaintiff or defendant, may be 
 issued against any member or members for the time being of the society 
 or partnership : provided always that every such chairman or secre- 
 tary, in whose name any such action or suit shall be commenced, pro- 
 secuted, or defended, and every such member or members against 
 whom execution upon any judgment obtained in any such action shall 
 be issued as aforesaid, shall always be reimbursed and paid, out of ihe 
 funds of the society or partnership, all such costs and charges as by the 
 event of any such proceedings he or they shall be put unto or become 
 chargeable with." 
 
 " That a memorial of the names of the several persons being mem- 
 bers of the society or partnership, in the form expressed in the schedule 
 annexed, shall be enrolled upon oath in the High Court of Chancery, 
 within three months after the passing of the act; and when any trans- 
 fer of any share or shares of any member of the society or partnership 
 shall be made, a memorial thereof shall in like manner be enrolled 
 as aforesaid, in the form and to the effect expressed in the said sche- 
 dule." 
 
 " That until such memorial as before mentioned shall have been 
 enrolled in the manner herein directed, no action shall be brought by 
 the society or partnership under the authority of the act ; and all ilie 
 members whose names shall be expressed in the last enrolment, sbull 
 continue liable to all actions, suits, judgments, and executions, until a 
 memorial or memorials of transfer shall have been enrolled as afore- 
 said." 
 
 " That nothing in the act cantained shall extend, or be deemed, con- 
 strued, or taken to extend to incorporate the society or partnership, or
 
 181 LEGAL REMEDIES 
 
 [*181] *But the provision respecting enrolment does 
 not exempt a member, whose name is not en- 
 rolled, from the liabilities that would otherwise attach 
 to him ; for, if that were so, non-observance of the act 
 would free the party, neglecting to observe it, from re- 
 sponsibility ; that provision only negatives proceedings 
 by the company under the authority of the act until there 
 has been an enrolment.(?2) 
 
 In actions ex quasi constructu it is not clearly estab- 
 lished whether a plea in abatement for the non-joinder 
 of parties can be pleaded. Formerly it was considered 
 that it might, and the authorities on the subjuct were 
 uniform and unimpeached until a late case,(o) in which 
 it was held, that such a plea was not tenable ; but the 
 propriety of this decision has been questioned,( ;?) and 
 the majority of authorities are in favour of such a plea.(l) 
 The Court of King's Bench, in the leading case on this 
 subject,(^) were agreed that, at some stage of 
 [ *182 ] the proceedings, *the defendant may object that 
 the suit is not against all the partners, although 
 three of the judges(r) mistakenly supposed that, in an 
 action against one, the circumstance of the contract 
 declared upon being joint could not be made the ground 
 of a plea in abatement. It has, indeed, been objected to 
 the authority of this case, that the case itself has, by 
 subsequent decisions, been shaken to its foundation in 
 
 to relieve or discharge the society or partnership, or any of the mem- 
 bers thereof, or subscribers thereto, from any contract, duty, obligation, 
 or responsibility whatsoever, which by law they now are, or at any 
 time hereafter may be subject or liable to, either as between such 
 society or partnership and others, or among themselves, or in any 
 manner whatsoever." See 54 Geo. 3. c. 79. s. 2, 3, 4. and 7. 
 
 (n) Natusch v. Irving, Appendix, post. 
 
 (o) Govett t>. Radnidge, 3 East, 62. 
 
 (p) Powell V. Layton, 2 N. R. 372. Max v. Roberts, ib. 454. 
 
 (^r) Boson V. Sandford, 2 Show. 478; reported also in Skin. 278. 
 3 Lev. 258. Garth, 58. Salk. 440. 3 Mod. 321. 1 Show. 29. 101. 
 
 (r) According to the report of this case in 3 Mod. 321., Mr. Justice 
 Dolben was the only judge who thought this matter could be pleaded in 
 abatement. 
 
 (1) Walcott v. Canfield, 3 Conn. Rep. 198.
 
 AGAINST PARTNERS. 182 
 
 the main points which it assumed to determine; for that 
 the omission to join all the partners or part-owners is a 
 matter pleadable in abatement, and which, in that mode 
 only, and not by giving the matter in evidence, could be 
 taken advantage of; both which points were however 
 otherwise holden in that case.(5) But it may be doubted 
 whether such an argument successfully impeaches its 
 authority, when it is remembered that, at the time that 
 decision took place, a plea in abatement for the non- 
 joinder of joint contractors was not used in actions of 
 assumpsit. For that form of action such a plea was not 
 introduced imtil the time of Lord Mansjield,{t) although 
 formerly, when it was usual to declare in debt on a sim- 
 ple contract, such pleas have been known. (w) It seems 
 also to be conjectural what the form of the action in that 
 case was. Lord EUenhorough considers it to have been 
 an action of assumpsit ',{y) Lord Kenyan has said that it 
 was treated by the whole court as an action for a breach 
 of contract •,{w) while Mr. Justice Chamhre{x) imagines 
 that it was considered by all the parties as an action on 
 the case, and conceives it impossible for Lord Ch. J. 
 Holt to have denominated it quasi ex contractu, if, in truth, 
 it was contract. But whatever may have been its form, 
 it has been regarded and acted upon as an authority, 
 estabhshing, that advantage may be taken of the non- 
 joinder of all the parties in actions upon a matter founded 
 in contract, though the form of the action be case for 
 malfeasance or nonfeasance, and the plea not guilty; 
 and later cases, not without contradiction, have decided, 
 that the mode in which that advantage shall be 
 *taken must be by a plea in abatement. (t/) In [ 183 ] 
 
 (s) Per Lord Ellenborough, Govett v. Radnidge, supra. 
 
 [t) Rice V. Shute, 5 Burr. 2611. S. C. 2 Blacks. 695. See also 
 an/e, p. 166. 
 
 (w) Powell V. Layton, 2 N. R. 372. 
 
 Iv) Govett V. Radnidge, supra. 
 
 {iv) Mitchell V. Tarbutt, 5 T. R. 649. 
 
 {x) Powell V. Layton, supra. 
 
 (y) See Com. Dig. tit. Abatement, F. s. lb. Action on the case for 
 negligence, C. See also D'Anvers Abr. tit. Action, p. 8, in which the 
 case of Boson v. Sandford is referred to as law ; and in Dale v. Hall, 1 
 Wils. 282., Mr. Justice Denison approves of it.
 
 183 LEGAL REMEDIES 
 
 the case of Buddie v. Wilson^{z) although the point 
 did not necessarily come in judgment, the court gave 
 a clear intimation of opinion that to an action against a 
 carrier, in case on the custom of the realm, for not safely 
 carrying goods, the defendant, where the gist of the 
 action is founded in contract, may plead in abatement 
 the non-joinder of his partners. So, in a still later 
 case,(a) which was an action on the case in the form of 
 iort^ against one of several ship-owners for not safely 
 conveying goods which had been delivered to him by 
 the plaintiff for the purpose, the declaration having 
 stated a particular employment without alleging the ship 
 to be a general ship carrying the goods of all who chose 
 to send them, and the defendant having pleaded, in 
 abatement, that there were other part-owners not joined, 
 the Court of Common Pleas, on demurrer to the plea, 
 decided, that the plea was maintainable, and gave judg- 
 ment for the defendant. And in a subsequent case(6) 
 the Court of Common Pleas, adhering to their former 
 determination, decided, that a plaintiff who had failed in 
 proving all the defendants to be part-owners, must fail 
 altogether. A writ of error was brought on this latter 
 judgment, which was argued before the twelve judges, 
 and it was understood that much difference of opinion 
 existed among them ; but the cause was ultimately dis- 
 posed of on a different ground.(c) To these authorities, 
 indeed, is to be opposed the determination to which we 
 before adverted.(^) That was an action against three, 
 wherein the plaintiff declared, that they had the loading 
 of a hogshead of treacle of the plaintiffs, for a certain 
 reward to be paid to one of them, and a certain other 
 
 (z) 6 T. R. 369. 
 
 (a) Powell V. Layton, supra. In this case it was insisted in argu- 
 ment, that if the plea in abatement state the loss to have arisen in con- 
 sequence of the joint negligence of all the co-contractors, the plaintiff 
 may reply, that it was through the several negligence of one ; but Lord 
 Ch. J. Mansfield thought otherwise, and observed, that such a replica- 
 tion was never known. 
 
 (6) Max V. Roberts, 2 N. R. 454. (c) Id. in error, 12 East, 89. 
 
 ((/) Govett V. Radnidge, 3 East 62. See also Perry v. Hunwicks, 
 cited 6 T. R. 371. Ansell v. Waterhouse, 1 Chit, on PI, 78. n. b. 
 S. C. 2 Chit. Rep. 1; and 6 Mau. &l Selw. 385.
 
 AGAINST PARTNERS. 183 
 
 reward to the other two, and that the defendants 
 so negUgently conducted *themselves in the [*184] 
 loading, &c., that the hogshead was damaged, 
 and it was decided that the gist of the action was the 
 tort, and not the contract, out of which it arose; and 
 therefore, that, on the plea of not guilty, two being ac- 
 quitted, judgment might be had against the third, who 
 was found guilty. But, in another case which came 
 under the consideration of the Court of King's Bench(e), 
 wherein the declaration expressly alleged a bargain, and 
 complained of a deceitful warranty in the nature of a 
 wrong, the action being against two persons, and the 
 plaintiff proving a sale by one alone, that court held 
 that he could not succeed against that one, but must 
 wholly fail.(/)(l) This last case, however, is not to be 
 considered as weakening the authority of Govelt v. Rad- 
 nidge, or as adopting that of Powell v. Layton. For the 
 case of Weal v. King was matter of contract merely, 
 and was only formally turned into a tort. The main 
 question, therefore, still remains undecided.(2) 
 
 But whatever may be the existing difference of opinion 
 as to the necessity of joining all the partners in actions 
 of the description we have just noticed, where the de- 
 fendant who is singly sued pleads in abatement, yet in 
 actions arising ex delicto, or for torts unconnected with 
 contract, such as trespass, trover, case for malfeasance, 
 and the like, no such difference of opinion exists, the 
 rule being clear and uniform, that in such actions a 
 
 (e) Weal v. King, 12 East, 452. 
 
 (/) See also Green v. Greenbank, 2 Marsh. 485. 
 
 (1) Walcott V. Canjield et al. 3 Conn. Rep. 194. «cc. In Alabama, 
 the act of Feb. 7th, 1818, sect. 12, provides " that where any suit shall 
 be instituted against two or more persons as partners in any firm, if 
 one or more persons not partners in said firm, shall have been sued as 
 such, the Court before whom such suit is or shall be pending, shall 
 discontinue said suit against such person or persons as shall appear not 
 to be partners in said firm, and proceed to judgment and execution 
 against all or any of the defendants in such action who shall appear to 
 be partners. Toulinin''s Dig. 449. 
 
 (2) See, however, Bank of Orange v. Brown et al. 3 Wend. Rep. 
 158.
 
 157 LEGAL REMEDIES 
 
 plaintiff may, at his option, consider the tort or trespass 
 as being either joint or several, and accordingly sue all 
 or any of the tortfeasors or trespassers.(^)(l) In such 
 a case there is a right of action for the whole damage 
 against any one of the persons liable, a separate tort or 
 trespass attaching upon each of the wrong-doers indi- 
 vidually; and if sued alone, he cannot plead the non- 
 joinder of the others in abatement or in bar, or give it 
 in evidence under the general issue ; for a plea in abate- 
 ment can only be adopted in those cases where regularly 
 all the parties must be joined, and not where the plaintiff 
 may join them all or not at his election.(A) There- 
 fore,(i) to an action on the case against the defen- 
 dants, part-owners of a ship, for the negligence 
 [*185] *of their servant in running down a ship laden 
 with sugar belonging to the plaintiff, whereby 
 the sugar w^as lost, the defendants, it was decided, could 
 not plead in abatement, that there were other part- 
 owners not joined in the suit, because the action being 
 ex delicto^ the trespass was several. And in an action 
 on the case against common carriers, charging them 
 with a breach of duty imposed by the custom of the 
 realm, or, in other words, by the common law, and 
 which, therefore, being a breach of the law, does not 
 require the aid of a contract to support it, a verdict 
 may be found for some and against the rest of the de- 
 fendants, and if judgment be entered accordingly it is 
 not erroneous.(j) Nor in such an action is it material 
 whether the tort were committed by the partners per- 
 
 {g) Rice «. Shute, 5 Burr. 2611. Bristow ». James, 7 T. R. 257. 
 Attorney-General v. Burges, Bunb. 223. Co. Lit. 232. a. Morrow v. 
 Belcher, 4 B. <fe C. 704. 
 
 (A) Child V. Sands, Carth. 294. Cabell v. Vaughan, 1 Wras. 
 Saund. 291. c Leshe v. Wilson. 6 B. Moore, 426. 
 
 (i) Mitchell V. Tarbutt. 5 T. R. 649. 
 
 (j) Bretherlon v. Wood, 6 B. Moore, 141. In an action of tort 
 against several, there cannot be a nonsuit as to one, and a verdict against 
 the others. Revett v. Browne, 2 Moore & Payne, 18. 
 
 (I) Per Kent, C. J., Livingston v. Bishop, 1 Johns. Rep. 290. 
 Rose V. Oliver et al. 2 Johns. Rep. 365.
 
 AGAINST PARTNERS. 185 
 
 sonally or by their servant in the prosecution of their 
 business ; since, in the latter case, the rule of law, qui 
 facit per alium facit per se, applies, and renders them, or 
 each of them, responsible for the consequences. And 
 this is not a mere formal distinction: it applies sub- 
 stantially as regards the person who is the object of the 
 suit ; for if damages be recovered against him, and he 
 be enforced to pay them, he cannot afterwards compel 
 his copartners to contribute their proportion of his dis- 
 bursement, since, in actions founded in tort, each wrong- 
 doer being separately responsible, a contribution cannot, 
 by law be claimed as between them.(i?:)(l) It has been 
 said, that if the plaintiff himself, on the face of his de- 
 claration, state that others beside the party who is sued 
 committed the trespass, his action abates ;(/) but there 
 does not seem any good ground for this distinction.(m) 
 Independently of a plea in abatement, of which, when 
 not jointly sued, we have seen partners may avail them- 
 selves, every other defence which may be urged by an 
 individual in answer to an action commenced against 
 him, is open to persons who are called upon jointly to 
 perform a contract. If any thing operating as a bar to 
 the action exists, it is equally conclusive when propound- 
 ed by many defendants, as it is when pleaded 
 by one *who is singly sued. Partners, there- [*186] 
 fore, like individuals, may plead whatever bars 
 the plaintiff's action or reduces his demand. For in- 
 stance, a release to one partner may be pleaded in bar 
 of an kction against the others ; for there being but one 
 duty extending to all, a release to one inures to the 
 benefit and is a discharge of all the partners. And it is 
 
 {k) Merry weather v. Nixan, 8 T. R. 186. Lingard v. Bromley, 1 
 Ves. & Bea. 117. But see Woolley v. Batte, 2 C. & P. N. P. C. 
 417.(2) and ante, p. 87. 
 
 (/) Brickhead v. York, Hob. 199. 
 
 (w) Cabell v. Vaughan, 1 Wras. Saund. 291. c. 
 
 (1) Peck V. Ellis, 2 Johns. Cha. Rep. 131. 2 Johns. Rep. 269. 
 
 (2) The marginal abstract of the case contains a statement not war- 
 ranted by the report. 
 
 32
 
 186 LEGAL REMEDIES 
 
 immaterial whether the release be by deed or by opera- 
 tion of law ;(n)(l) for a personal action once suspended 
 by the voluntary act of the party entitled to it, is for 
 ever gone and discharged. By the civil law, a release 
 to one joint debtor was considered as operating the dis- 
 charge of the others ; si ex pluribus obligatis imi accepto 
 feratur^ non ipse solus liberaiur, sed et hi qui secum obli- 
 gmitur ; nam cum ex duohus pluribusque ejusdem obliga- 
 iionis participibus uni accepto fertur^ cceteri quoqiie liberan- 
 tur ; 71071 quonia7n ipsis accepto latinn est, sed quoniam 
 velut solvisse videtur is, qui acceptilatioTie solutus est.(6) 
 In conformity with this, and according to the law of 
 England, if two or more are jointly and severally bound 
 in a bond or personal obligation, a release to one dis- 
 charges the other or others ; for, in such a case, the 
 joint remedy being extinguished, the several remedy is 
 likewise destroyed.(/9)(2) The same rule holds in the 
 case of all joint and several contracts, a release to one 
 of many joint and several debtors of his or any part of 
 his liability being equally available to the others as it is 
 to the party actually released. In a very old case,(9) it is 
 laid down, that if two receive a sum of money jointly, and 
 each of them binds himself to account for the whole, and 
 afterwards a writ of account is brought against them by 
 divers prcecipes, and they are counted against severally 
 as receivers of the said sum, a release made to one of 
 them of all debts and accounts shall be a release to the 
 other also. So, if several persons commit a joint tres- 
 pass, a release to one is a discharge to the all the 
 others.(r) And even if the release be to one, with a 
 
 (n) Cheetham v. Ward, 1 Bos. & Pul. 630. 
 
 (o) Inst, lib. 16. fF. de. tit. 
 
 (p) Co. Litt. 232. a. Bac. Abr. tit. Release, G. 
 
 {q) 2 Ed. 3. 40 b. Vin. Abr. tit. Release, G. a. pi. 7. 2. Rol. Abr. 
 412. 
 
 (r) Co. Litt. 232. a. Hob. 66. 2 Roll. Abr. 412. Vin. Abr. tit. 
 Release, G. a. pi. 1. 
 
 \ 
 
 (1) Robertson v. Smith et at. 18 Johns. Rep. 459. 
 
 (2) Witlings et al. v. Consequa, 1 Peters' Rep. 301. Rowley v. 
 Stoddart, 8 Johns. Rep. 207.
 
 AGAINST PARTNERS. 186 
 
 proviso that the other shall not take advantage of it, it 
 has been said that the proviso would be void and 
 the release would discharge *both.(5) This rule [*187 ] 
 prevails in equity,(^) as well as at law ; but it 
 does not apply in every case of a personal discharge, 
 since the legal effect of a release may be countervailed 
 by express declaration, and when the release is special 
 and personal in its nature it must be construed accord- 
 
 (s) Lit. Rep. 190. The following note by Lord Nottingham on 
 this .«!ubject is inserted in Mr. Margrave's edi'tion of Co. Lit. 232. a. — 
 26. H. 6. T. Barre, 37 : — Obligee made an acquittance to one obligor, 
 which was dated before the obligation, but was delivered afterwards ; 
 the other obligor pleads this in bar, and it was adjudged a good plea in 
 bar. Nota, each was bound in the entirety, therefore it was joint and 
 several. 34. H. 6. So in the case of the king ; if he releases to one of 
 the obligors, the other shall take advantage of it. 5 Rep. 56. contra. — 
 And as a release in deed to one obligor discharges the other, so of a re- 
 lease in law, as 8 Rep. 136. Needhavi's case. A woman obligee mar- 
 ries the obligor, that is another sort of discharge, 264. b. But 17 Car. 
 B. R. two were bound jointly and severally. The plaintifl' sued both, 
 and afterwards entered a retraxit against one ; whether that discharged 
 the other was the question. Berkeley said it was, for it amounts to a 
 release in law, as the plaintiff confesses thereby that he had not cause 
 of action, and therefore he cannot have judgment, as in HickmoCs case, 
 9 Rep. and retraxit is a bar to an action ; and the plaintiff by his own 
 act has altered the deed from joint to several, and therefore the other 
 shall have advantage of it. Coke .Just., contra ; for retraxit is only in 
 the nature of an estoppel ; and therefore the other shall not have ad- 
 vantage ; neither is it a release, though it be in the nature of a release ; 
 and if the obligee sues both, and then covenants with one not to sue 
 farther, that is in the nature of a release, but the other shall not take ad- 
 vantage of it; and in 21 H. 6. it is said, that there must be an actual 
 release to one obligor to discharge the other. See March. Rep. 165. — 
 Pas. 18. Car. Hannan v. Roll. The obligee releases to one obligor; 
 the other, in consideration of the forbearance, undertakes to pay, and in 
 an action upon the case the matter was found specially ; and Rolls 
 argued, that the matter was not absolutely discharged, but only sub 
 modo, viz. if the other can have the release to plead, and because the 
 forbearance was a good consideration. But the court was of opinion, 
 that the debt was absolutely discharged, and therefore the consideratton 
 was insufficient. — See Hob. Rep. 70. Parker v. Sir John Laivrence. 
 In trespass against three, they divided on the pleading. Judgment 
 against one. Then he entered a noli prosequi against the two others ; 
 it was held to be no discharge to him against whom judgment was 
 had ; for as to him, the action was determined by the judgment, 
 and the others are divided from him, and not subject to the damages 
 recovered against him ; but a noli prosequi, or nonsuit before judgment 
 against one would discharge all. 
 
 {t) Bower v Swadlin, 1 Atk. 294. See Ex parte Slater, 6 Ves. 146.
 
 187 LEGAL REMEDIES 
 
 ing to the particular purpose and intent for which it was 
 made. For instance, where one of two partners obtained 
 from a creditor a general release by deed, in which it 
 was expressly provided that its operation should not ex- 
 tend to prejudice any demands which the creditor had 
 either separately or jointly against the other partner, 
 nor should it affect his claims against the joint effects ; 
 
 and there was a further stipulation, that the cre- 
 [ *188 ] ditor might commence an action at law *against 
 
 the partners jointly, for the purpose of en- 
 abling him to recover payment from the joint estate 
 or from the separate estate of the other partner; a 
 joint action having been commenced, the party re- 
 leased pleaded the release, to which the plaintiff re- 
 plied, that he sued him only in order to recover against 
 the other; and, on demurrer, the replication was held 
 good.(?/)(l) A similar operation and effect is ascrib- 
 able to a covenant not to sue one of several partners 
 or joint debtors. Such a covenant does not extin- 
 guish the covenantor's right of action against the other 
 debtors,(2) although, if there had been a single debtor 
 only, the covenant would have been tantamount to 
 and would have operated as a release. (v)(3) Thus 
 if a creditor covenant never to sue a debtor, this cove- 
 nant may be pleaded by the debtor by way of release 
 and in bar of the action, because the sum which the 
 debtor may be compelled to pay would be the exact 
 
 (w) Solly V. Forbes, 4 B. Moore, 448. S. C. 2 Brod. & Bing. 38. 
 In what cases the general words of a release are restrained by a parti- 
 cular recital or purpose, see Morris v. Wilford, 2 Show. 47. 2 Roll. 
 Abr. 409. Payler v. Homersham, 4 Mau. Si Selw. 423. Twopenny 
 V. Young. 3 B. & C. 208. (4) 
 
 {v) Per Gibbs, Ch. J. Hutton v. Eyre, 1 Marsh. 608. And see 
 diet, of Holroyd, J. in Thomas v. Courtney, 1 B. &; A. 8. 
 
 (1) See Clement v. Brush, 3 Johns. Ca. ISO. Stewart v. Eden, 2 
 Caines' Rep. 121. 
 
 (2) Per Thompson, J., delivering the opinion of the Court in Eow- 
 ley V. Stoddart, 7 Johns, Rep. 210. 
 
 (3) Cuyler v. Cuyler, 2 Johns. Rep. 186. See also Phelps v. 
 , Johnson, 8 Johns. Rep. 43. 
 
 (4) Tfllkes et al. v. Ferris, 5 Johns. Rep. 335, Munro v. Allaire, 2 
 Caines' Ca. 327.
 
 AGAINST STRANGERS. 188 
 
 measure of damages for an infraction of the covenant, 
 and consequently to admit a right of action would be a 
 mere circuity ,(w) but if two be bound jointly and seve- 
 rally, and the creditor covenant with one of them not to 
 sue him, it has been held that it shall not operate a re- 
 lease, but shall be a covenant only ; for a covenant is 
 not a release in its nature; but only by construc- 
 tion, to avoid circuity of action ; and where a creditor 
 covenants not to sue one only of his debtors, he has 
 still a remedy against the other, and therefore the 
 objection of circuity cannot apply.(^) In a late case,(y) 
 where a creditor joined in a deed of composition 
 with the other creditors of one of two obhgors by 
 a joint and several bond, the Court of King's Bench 
 held that the other obligor could not avail himself of this 
 as a release. The case o^Lacy v. Kynaston being 
 *cited Lord Kenyan said, that, to be sure, it re- [ *189 ] 
 moved all difficulty on the subject, and was a 
 direct authority in favour of the plaintiff; he had only 
 been doubting in his own mind on the strict law of the 
 case, for that the honesty and justice of it were with the 
 plaintiff could not be doubted; and even if the defendant 
 had succeeded at law, a court of equity would have given 
 the plaintiff full relief. Indeed, where several are liable, 
 and the creditor covenants with one of them only not to 
 sue him, it seems difficult to imagine how it could have 
 been presumed, that the intention of the person cove- 
 nanting was to produce a collateral effect with respect 
 to the others, when a distinct and reasonable effect might 
 be produced, by giving the party, claiming the benefit 
 of the covenant, redress for any injury which he might 
 personally sustain from the infraction of it. The credi- 
 
 {w) Smith V. Mapleback, 1 T. R. 446. Cro. Eliz. 623. In those 
 cases where a covenant not to sue shall be construed to inure as a re- 
 lease to avoid circuity of action, the covenant not to sue must be a per- 
 petual covenant, that is, a covenant not to sue at all ; for a mere cove- 
 nant not to sue within a particular time will not have this effect. Deux 
 V. JefTeries, Cro. Eliz. 352. S. C. 1 Rol. Abr. 939. Ayliffv. Scrom- 
 shire, 1 Show. 46. S. C. Salk. 573. 
 
 [x) Fitzgerald v. Trant. 11 Mod. 254. Lacy v. Kynaston, 1 Ld. 
 Raym. 690. S. C. 12 Mod. 551. 2 Salk. 575. Holt's Rep. 178. 
 
 (y) Dean v. Newhall, 3 T. R. 108.
 
 189 LEGAL REMEDIES 
 
 tor in these cases must, for the sake of conformity, join 
 all the partners or debtors in an action to recover his 
 debt, since if all are not sued, it will be good ground for 
 a plea in abatement; and the covenantee cannot plead 
 the covenant not to sue himself in bar; but if the judg- 
 ment be enforced against him, or he sustain any other 
 damage, he must have recourse to his remedy against 
 the creditor on his covenant.(2') Partners may also 
 plead a tender of the sum due in bar of the action 
 brought against them : but if to such a plea the plaintiff 
 reply that he subsequently demanded the sum tendered, 
 and that the defendants refused payment of it, the repli- 
 cation will be supported by evidence of a demand from 
 one of the partners and a refusal by him to pay, because 
 a refusal by one is equivalent to a refusal by both.(a) 
 We have stated that partners may likewise avail them- 
 selves of any thing which goes in reduction of the de- 
 mand made against them. This right, however, is not 
 unlimited and undefined, but is regulated by those prin- 
 ciples which govern the law of set-off in ordinary cases. 
 Therefore, a separate debt due to an individual partner 
 cannot be set against a joint demand upon the firm,(6)(l) 
 unless there be an express agreement between the par- 
 ties renouncing the general law, and stipulating that in 
 
 such case a set-off shall be allowed.(c)(2) But 
 [ *190 J a debt on a joint and several bond may be set *oj3* 
 
 by the obligee in an action brought against him 
 
 (z) Dowse V. Jefferies, And. 307. pi. 316. S. C. Crow. Eliz. 352. 
 Turner v. Davies, 2 Wms. Sauncl. 150. n. 2. 
 
 (a) Pc'Tse V. Bowles, 1 Stark. N. P. C. 323. A tender to one part- 
 ner is a good tender to all, and ought to be so pleaded. Douglas v. 
 Patrick, 3 T. R. 683. 
 
 (6) 2 Geo. 2. c. 22. s. 13. (c) Kinnerley v. Hossack, 2 Taunt. 170. 
 
 (1) Ritchie et al. v. Moore, 5 Munf. 388. Browti's Ex. v. Thomp- 
 son et al, Coxes's Rep. 2. TVilliams et al. v. Hamilton, 1 South. 
 Rep. 220. In Pennsylvania, two defendants sued jointly, may set off 
 a debt due by the plaintiff to one of them. Bohinson v. Beall, 3 Yeates, 
 267. Childcrsfon v. Hammon, 9 Serg. & Rawle, 68. Steivart et al. 
 V. Coulter, 12 Serg. & Rawle, 3.52. 445 
 
 (2) Lovel et al. v. Whittridge, 1 McCord's Rep. 7. See 1 South. 
 Rep. 220.
 
 AGAINST PARTNERS. 190 
 
 by the obligor who executed.(^) And where a firm is, 
 by death, reduced to a single member, the joint debts 
 due to the firm become separate debts belonging to the 
 survivor ; and therefore, in an action for a debt due from 
 him in his individual capacity, he may set against it a 
 partnership debt due to himself as sui-viving partner.(e)(l) 
 In actions against partners, as in all other cases, the 
 contract declared upon must be proved, and it must be 
 shown to have been a joint contract entered into by all 
 those who are sued. For, in such an action, unlike one 
 that is founded on a tort, it is not sufficient to establish 
 -a demand against a single defendant. There cannot 
 be a severance ; the contract as it is alleged must be 
 established, both in its terms, and as it affects all the 
 defendants, who are charged and called upon to fulfil it. 
 If the plaintiff" fail to substitute it in part, by an inability 
 to implicate and connect all the defendants with the con- 
 tract he has stated to have been made by them, he fails 
 in toto, and must institute a new action agains those 
 whom he can implicate.(2) These observations naturally 
 
 {d) Fletcher v. Dyche, 2 T. R. 32. See also Elliot v. Davis, 2 
 Bos. & Pul. 338. 
 
 (e) Slipper v. Stidstone, 5 T R. 493. S. C. 1 Esp. N. P. C. 47. 
 See also French v. Andrade, 6 T. R. 582. 
 
 (1) Per Gibson, J., PFaln, surv. part. v. Hemes, 5 Serg. &.Rawle, 
 470. Header v. Scott, 4 Verm. Rep. 26. 
 
 (2) One of Jive partners executed bonds to the United States, for 
 duties on goods imported on account of the partnership, and as their 
 property, and T. became surety in the bonds. The co-partner who 
 signed the bond died, and afterwards the surety paid part of the bonds, 
 and after another of the partners died the surety paid the residue of the 
 bonds. T. brought his action against one of the surviving partners, 
 who had resided in the state of Connecticut, and had previously been dis- 
 charged from his debts by an insolvent act of that state, for money paid, 
 laid out, and expended for the use of the co-partners, (fcc, in the life 
 time of the deceased. In the declaration the implied promise was laid 
 as made by all the partners, in the life time of the deceased partners. 
 It was held that proof of payment of money for the surviving partners, 
 after the death of a co-partner, would not support a declaration on an 
 implied promise by all the partners ; that the claim of the United 
 States against the co-partnership became extinguished by the bond of 
 the individual, who~^ alone was responsible ; and that the surety who
 
 190 LEGAL REMEDIES 
 
 lead us to inquire, what proof it is requisite that a 
 plaintiff should adduce in an action which arises, not out 
 of a contract expressly made with all the defendants, but 
 out of the fact of their partnership, to establish that the 
 defendants are legally invested with the characters as- 
 cribed to them ; we will afterwards consider the effect 
 of an admission made by one partner, as it regards the 
 joint interest of all, whether made by a partner who is, 
 or is not, a party to the particular suit in which it is 
 offered as evidence, or whether made pending the part- 
 nership, or after its dissolution ; and then we will point 
 out the instances in which a partner cannot, and those 
 in which he may be admitted a witness in an action, 
 either for or against his co-partners. Where an action 
 is brought against several upon a contract on which they 
 are liable as partners, the evidence usually given to es- 
 tabUsh the partnership consists in showing that they 
 have acted as partners in the particular business. In such 
 a case the plaintiff is not bound down to the same strict- 
 ness of proof which is required from partners when they 
 
 had paid the money, had a right of action against the partner only who 
 had signed the bond. Tom v. Goodrich et al. 2 Johns. Rep. 214. 
 
 In a lat^ case, B. & I. being indebted to the United States for 
 duties, B. executed a bond for the debt, in his separate name. B. & I. 
 afterwards made a vohintary assignment of tiieir property to the de- 
 fendants for the use of their creditors ; and B. assigned his estate for 
 the use of his separate creditors. Before the bond was given, B. & I. 
 authorized, in writing, each to execute Custom House bonds for duties, 
 each one of the partners agreeing to be bound for the payment of the 
 bonds, as if executed by both. An action of indebitatus assumpsit 
 was instituted against the assignees of B. & I. to recover from them the 
 amount of the bond given by B. to the United States, out of the partner- 
 ship effects of B. & I. Held that the bond was not evidence of a debt 
 due by B. & I. because not signed by them ; nor of a debt due by 
 I. because not signed by him ; and that the bond, although given by- 
 one partner extinguished the debt for which it was given, and made it 
 the separate debt of B. The United States v. Astley et al. 3 Wash. 
 C. C. Rep. 508. See Sale v. Dishman's Ex. 3 Leigh's Rep. 548. 
 
 It is provided by the 23d section of the act of Congress of 20th April, 
 1818, (Pamph. Laws, 62) "that any bond to the United States, en- 
 tered into for the payment of duties by a merchant belonging to a firm, 
 in the name of such firm, shall equally bind the partner or partners in 
 trade, of the person or persons by whom such bond shall have been 
 executed."
 
 AGAINST PARTNERS. 191 
 
 appear as plaintifFs. There no reason exists 
 *for relaxing the rules of evidence; for, by the [*191 ] 
 very act of suing jointly, they assume that they 
 have a joint title to sue, and they are necessarily cog- 
 nisant of all the means by which the fact is capable of 
 being proved: but where partners are sued as defen- 
 dants, the plaintiff may not be able to ascertain the real 
 connection between them, it is sufficient for him to show 
 that they have acted as partners, and that, by their 
 habit and course of dealing, conduct, and declarations, 
 they have induced those with whom they have dealt to 
 consider them to be partners.(/) Thus, in an action 
 upon an agreement for letting premises, signed in the 
 names of a partnership, it has been held, that proof of 
 the defendants being in partnership under that firm, and 
 both acting in it, was sufficient to bind both, though it 
 was not shown, from the absence of the attesting wit- 
 ness, in whose hand-writing the agreement was sign- 
 ed.(^) And evidence that they have acted as partners 
 is admissible, although the partnership may have been 
 constituted by deed.(A) (1) So, a witness called to 
 prove the fact of the defendants having so acted may 
 properly be asked, whetlier the one defendant has inter- 
 fered in the business of the other, without the question 
 being open to the objection of leading.(i) And to prove 
 that the defendants are partners, it has been held that a 
 verdict on an issue, directed by a court of equity, on a 
 bill filed by one of them against the other, for the pur- 
 pose of trying, and which established the fact of a part- 
 nership, is conclusive evidence of its existence ; because, 
 although the plaintiff was no party to the suit out of 
 
 (/) 3 Stark, on Evid. 1070. But to charge a dormant partner, dis- 
 tinct evidence must be given that he has such an interest as to raise a 
 liability, or that he was engaged in the particular transaction which is 
 the subject of the action. Gibbons v. Wilcox, 2 Stark. 43. 
 
 {g) Evans v. Curtis, 2 C. & P. 206. 
 
 (h) Alderson v. Clay, 1 Stark, N. P. C. 406. 
 
 (i) Nicholls V. Dowding, Ibid. 81. 
 
 (1) Widdifield et al. v. Widdijield, 2 Binn. 245. See Drake et al. v. 
 Elwyn, et al. 1 Caines' Rep. 184, 1st edition. 
 
 33
 
 191 LEGAL REMEDIES 
 
 which the issue arose, yet both the defendants having 
 been parties in that suit, the record, as regarded them, 
 could not properly be deemed a matter inter alios acta, 
 since it was competent to either, by any evidence, to 
 rebut the idea of a partnership.(Q So the fact of part- 
 nership may be proved by any acts or declarations of 
 the defendants themselves, which indicate or acknow- 
 ledge its existence. Therefore, if the defendants, 
 [*192] *when sued as partners, produce a release, exe- 
 cuted by all of them, in order to render a wit- 
 ness competent in the cause, such instrument is to be 
 considered as in evidence for all purposes whatsoever, 
 and is alone sufficient to establish the fact of a partner- 
 ship.(/) And the declaration or admission of each indi- 
 vidual member of a firm, that he is a partner, is conclu- 
 sive evidence to charge himself in that character. Thus, 
 if a person has represented himself to be a partner, and 
 has been trusted as such, he is bound by that represen- 
 tation, and it is no defence for him to show that he was 
 not, in fact, a partner ;(m) but if a particular transac- 
 tion only be under discussion, and one person acknovj^- 
 ledge himself to be the partner of another in it, he will 
 not be bound by a contract unconnected with the parti- 
 cular obiect.(?0 So, where a bill of exchange, drawn 
 upon a firm, is accepted by an individual member in the 
 joint name, the fact of the acceptance is evidence to 
 charge the acceptor as a partner.(o) In like manner, 
 an entry made according to the statute, at the Excise 
 Office, by one partner, in the names of himself and co- 
 partners, as dealers in beer, is prima facie evidence of 
 
 (A:) Whateley v. Menheim, 2 Esp. N. P. C. 608. And see Low- 
 field V. Bencroft, Bull, N. P. 40. 2 New Rep. 371. 
 
 (1) Gibbons i'. Wilcox, 2 Stark. N. P. C. 43. Where a person, for 
 the purpose of counteracting a report that he was in partnership with 
 another, subscribed a notice of dissolution with a view to its insertion 
 in the Gazette, Lord Eldon considered it as prima facie evidence of 
 the existence of the partnership, but directed an issue to try the fact. 
 Ex parte Matthews, 3 Ves. & Bea. 123. 
 
 (m) De Berkom v. Smith, 1 Esp. N. P. C. 29. And see Ex parte 
 Matthews, 3 Ves. & Bea. 12.5. Parker v. Barker, 1 Brod. & Bing. 9. 
 S. C. 3 B. Moore, 226. Biddle v. Levy, 1 Stark. N. P. C. 20. 
 
 (n) De Berkom v. Smith, supi'a. 
 
 [o) Spencer v. Billing, 3 Campb. 312.
 
 AGAINST PARTNERS. 192 
 
 partnership against the party making it.(/>) And in a 
 late case, where it appeared that all the defendants, ex- 
 cepting one, had been outlawed, a letter written by that 
 one, admitting his partnership with the co-defendants, 
 was received as evidence of the partnership ;(1) for, as 
 Lord EUenhorough observed, the record in that action 
 would not be sufficient evidence in any future action 
 that might be brought by the then defendant against 
 the co-defendants for contribution, to prove that they 
 were parties to the promise, and it would be incumbent 
 on him to prove the fact by ulterior evidence. (9) And 
 the acts and admissions of a party, made sub- 
 sequently *to a contract, may be used as evi- [*193] 
 dence to show that he was a partner at the time 
 of the contract ;(2) but if it be clear that he was not 
 then a partner, no subsequent admission will render him 
 liable in point of law. Therefore, one, who has been 
 admitted into the firm, is not responsible for goods pre- 
 viously sold and delivered, notwithstanding he acknow- 
 ledge his liability, and accept a bill for the amount; 
 although, in an action on the bill, he M'ould, of course, 
 be liable, by virtue of that contract.(r)(3) But the act 
 or declaration of one partner is not evidence to prove 
 the partnership against the other members of the firm. 
 Thus, where a bill drawn upon a partnership firm is ac- 
 cepted by one partner in the joint name, the acceptance 
 
 (;j) Ellis V. Watson, 2 Stark. N. P. C. 453. 478. In proceedings 
 by the crown, the entry would be conclusive. Id. ibid. 
 ((/) Sangster v. Mazarredo, 1 Stark. N. P. C. 161. ' 
 (r) Saville v. Robertson, 4 T. R, 720. 
 
 (1) But in an action against A. and B. as partners, on a contract 
 executed in the partnership name by A., A. suffered a default, and B. 
 pleaded the general issue — held, that letters by A. in the partnership 
 name to the plaintiff's testator, could not be read in evidence by B. to 
 show that he was not a partner with A. The Court, however, per- 
 mitted an account book containing entries made by A. & B. to go to 
 the jury as evidence of a partnership. Champlin, Ex. of Champlm v. 
 Tiiley et al. 3 Day's Rep. H06, 307. 
 
 (2) So the conduct of the parties at the time of sale. Rose v. Mur- 
 chie, 2 Call's Rep. 409. 
 
 (3) See Fere v. Ashhy, 10 Barn. & Cresw. 288. Poindexter v. 
 fVaddy, 6 Munf. Rep. 418. Hart v. Tomlinson, 2 Verm. Rep. 101.
 
 193 LEGAL REMEDIES 
 
 is not evidence of the partnership except against the ac- 
 ceptor.(s) So, an affidavit for the registry of a ship, 
 made by A, stating that A and B are the owners, is not 
 evidence of the fact against B.(^) And where the ques- 
 tion is whether A, who resides in England^ is partner 
 with B, who resides in Sptiin^ it is no evidence- of the 
 fact to show that B has long traded at S. in Spain, 
 under the firm of A and B, and that A for a long time 
 resided there, and that there was no other person there 
 of that name.(w) And as the act or admission of one 
 partner is insufficient to establish the fact of partnership 
 against the others, it follow^s that any act by third per- 
 sons, which affects to treat them as joint owners, is no 
 evidence of the fact of joint ownership, unless the par- 
 ticular act be show'n to have been recognised by them. 
 Thus, to charge two persons as joint purchasers of a 
 cart, an entry of such cart in the tax-gatherer's book, as 
 the property of both, is not evidence, without showing 
 that the parties authorised or adopted the entry.(2;) 
 Upon the same principle, an entry in books kept in the 
 office for licensing stagecoaches, is not any proof that 
 the persons named in the license are owners of a 
 coach.(Mj) But, notwithstanding an admission of the 
 
 partnership, made by one of several partners, will 
 [ *194 ] not establish it against the others, yet, if the *fact 
 
 that several are partners be proved by other 
 means,(l) the act or declaration of one, relating to the 
 
 is) Spencer v. Billing, 3 Campb. 312. 2 Phill. on Evid. 23. 
 
 {t) Tinkler v. Walpole, 14 East, 226. Mclver v. Humble, 16 
 East, 169. Flower v. Young, 3 Camb. 240. Smith v. Fuge, 3 
 Campb. 456. Ditchburn v. Spracklin, 5 Esp. N. P. C. 31. 
 
 (u) BurguetJ. Firmin De Tastet, 3 Stark. N. P. C 53. 
 
 iy) Weaver v. Prentice, 1 Esp. N. P. C 369. 
 
 {iv) Strother v. Willan, 4 Campb. 24. 
 
 (1) As to what is prima facie evidence of a partnership, see Tfliitney 
 et al. V. Stirling et al. 14 Johns. Rep. 215. Gowans v. Jackson, 20 
 Johns. Rep. 176. Pix v. Otis. 5 Pick. Rep. 38. Brytlen v. Taylor, 
 2 Harr. & Johns. 396. Jlllen v. Rostaing, 11 Serg, &; Rawle, 362. 
 Martin v. Kaffroth, 16 Serg. & Rawle, 120. Taylor et al. v. Hen- 
 derson, 17 Serg. <fe Rawle, 453. McPherson v. Rathhone, 7-Wend. 
 Rep. 216.
 
 AGAINST PARTNERS. 194 
 
 subject matter of the partnership, will bind all: for 
 where partners or others possess a community of inte- 
 rest in a particular subject,. not only the act and agree- 
 ment, but the declaration of one in respect of that sub- 
 ject matter, is evidence against the rest.(x)(l) There- 
 fore in an action of covenant against two, the affidavit 
 of one of them may be given in evidence as the acknow- 
 ledgement of both.(?/) And in an action against two, as 
 drawers of a bill, it is sufficient to show that two per- 
 sons bearing the surnames of the defendants are in 
 partnership, and that one of the partners acknowledged 
 that the bill was drawn by them, without proving that 
 they bear the Christian names assigned to them on the 
 record.(z) So, an admission by one partner of a debt, 
 and that it has not been paid, is evidence against all to 
 take the case out of the statute of limitations.(a)(2) 
 
 {x) Per Le Blanc, J., Rex v. the Inhabitants of Hardwicke, 11 
 East, 589. Nicholls v. Dowding, 1 Stark. N. P. C. 81. Rut where 
 the same persons are partners, and also part-owners of a vessel, the ad- 
 mission of one as to a subject of copartownership, but not of copartner- 
 ship, is not binding upon the others. Jaggers v. Binning, 1 Stark. N. 
 P. C. 64. 
 
 {y) Vicary's case, Bac. Abr. tit. Evidence, 623. S. C. Gilb. Evid. 
 51. 
 
 {z) Hodenpyl v. Vingerhoed, cor Mhot, J. Chitty on Bills, 489. 
 The rule, it seems, is different as to plaintiffs. Acerro v. Petroni, 1 
 Stark. N. P. C. 100 ; but see Jowett v. Charnock, 6 Mau & Selw. 45. 
 Com. Dig. Abatement, E. 18, 19. Boughton v. Frere, 3 Campb. 29. 
 
 (a) Per Lord Kenyan, Perry v. Ja6kson, 4 T. R. 516. Thwaites 
 V. Richardson, Peake's N. P. C. 16. 
 
 (1) Per Parker, C. J., Odiorne v. Maxcy et al. 15 Mass. Rep. 44. 
 Fisk V. Copelnnd, 1 Overt. Rep. 383. So entries in the Books. Wal- 
 den et al. v. Sherburne et al. 15 Johns. Rep. 409. See Moyes et al. 
 V. Brumaiix, 3 Yeatcs, 30 ; the report is very unsatisfactory. But 
 prima facie evidence of partnership must be first given. 1 Gallis' 
 Rep. 635. Whitney v. Ferris et al. 10 Johns Rep. 66. Teller v. 
 Muir, 2 Penn. Rep. 740. Pobins v. Jflllard, 6 Pick. Rep. 464. 
 Corps v. Robinson, 2 Wash, C. C. Rep. 388. The case of Mams v. 
 Brownson, 1 Tyl. Rep. 452, cannot be considered as law. 
 
 (2) Per Story, J., 1 Gallis. Rep. 635. And the acknowledgment 
 will be sufficient though it take place after the dissolution of a partner- 
 ship. Smith v. Ltcdlows, 6 Johns. Rep. 267. Patterson v. Choate, 
 7 Wend. Rep. 441. Shelton v. Cocke et al. 3 Munf. Rep. 191. Mcln- 
 tyre v. Oliver, stcrv. part. 2 Hawk's Rep. 209. See ante, page 79,
 
 194 LEGAL REMEDIES 
 
 And in a joint action against the joint makers of a pro- 
 missory note, an acknowledgment by one of them within 
 six years, will revive the debt against the other, who 
 signed the note only as a surety. (6) So, although a 
 nolle prosequi be entered as to one defendant, who pleads 
 his bankruptcy, an admission made by him before he 
 obtained his certificate has been ruled to be evidence 
 
 against the other defendants.(c) 
 [*195] *And the general rule, allowing the acts or 
 
 declarations of one partner to be evidence against 
 the others, has been extended so far as to admit the acts 
 or declarations of one partner to be evidence against 
 his co-partners concerning joint contracts and their joint 
 interest, although the partner, whose acts or declarations 
 are given in evidence, is not a party to the suit. This 
 extension of the rule does not encroach upon the prin- 
 ciple established in the law of evidence, that the decla- 
 rations of a party are not admissible where he is living, 
 and can be called as a witness to substantiate upon 
 oath the fact to which his declarations relate ; for where 
 the declarations are made by one who can be identified 
 with him against whom they are oflfered, an exception 
 has been engrafted upon that principle ; such declarations 
 
 {b) Perham v. Raynal, 2 Bingh. 306. 
 
 (c) Grant v. Jackson, Peake's N. P. C. 203. On the ground of its 
 being a rule in equity not to receive the answer of one party against 
 another, (see Wych v. Meal, 3 P. Wms. 310. 12 Ves. 361.) it has 
 been held, that in an action against a firm, on a bill of exchange ac- 
 cepted by one partner in the joint name, the admissions of the acceptor 
 in his answer to a bill filed in equity against him are not evidence 
 against the rest. Rooth v. Quin, 7 Price, 193.(1) And see Perham 
 V. Raynal, 2 Bingh. 306, Petherick v. Turner, cited 1 Taunt. 104. 
 Tyrant v. Jackson, Peake's N. P. C. 203, contra. 
 
 note (2). Aliter in Pennsylvania, Levy v. Cadet, 17 Serg. &Rawle, 
 126. Searight v. Craighead, 1 Rawle & Penr. 135, and Kentuch/j 
 Bell V. Morrison, I Peters' Sup. C. Rep. 352. 
 
 (1) Fan Reimsdyk v. Kane et al. 1 Gallis' Rep. 630. S. C. 9 
 Cranch. 153. Chapin v. Coleman, 11 Pick, Rep. 331, contra. But in 
 an action against three defendants, as parrners, the office copy of an 
 answer to a bill in Chancery, filed by one against the others is evidence, 
 without producing the original, in order to establish a partnership. 
 Studdy V. Sanders et al. 2 Dowl. & Ryl. Rep. 347.
 
 AGAINST PARTNERS. 195 
 
 are receivable, and the circumstance of the party niaking 
 them being aUve at the time of the trial, is no objection 
 to their reception.((^) Thus, in an action against one 
 partner for money paid to his use, the admission of the 
 debt by another partner is evidence against the defen- 
 dant.(e) So, an acknowledgment by one of several makers 
 of a joint and several promissory note will take the case 
 out of the statute of limitations, as against any one of 
 the other makers in a separate action on the note against 
 him.(/) Even the payment of a dividend by the as- 
 signees of one of the makers of such a note, within six 
 years before the commencement of the action against 
 the other maker, has been held a sufficient answer to a 
 plea of the statute of limitations by that other,(^) So, 
 a payment of interest by A on the joint and several note 
 of A and B is in legal effect an admission by both that 
 the note is unsatisfied, and operates as a new promise 
 by all and each of the parties to pay according to the 
 nature of the instrument, and that though B was a mere 
 surety, and the payment was made without his 
 *knowledge.(A) But where one of two partners, [ *196 ] 
 
 (d) Barough v. White, 4 B. & C. 328. 
 
 (e) Thwaites v. Richardson, Peake's N. P. C. 16. 
 
 (/) VVhitcomb v. Whiting, Dougl. 629. 652. Perham v. Raynal, 
 2 Bingh. 306. By the late act of Parliament, 9 Geo. 4. c. 14. s. 1., 
 which renders a written memorandum necessary to the validity of any 
 engagement or promise to take a case out of the operation of the statute 
 of limitations, it is enacted, that where there shall be two or more joint 
 contractors, or executors or administrators of any contract, no such joint 
 contractor, executor or administrator shall lose the benefit of the 21 Jac. 
 1. c. 16. (Statute of Limitations) so as to be chargeable in respect or 
 by reason only of any written acknowledgment or promise made and 
 signed by any other or'others of them : provided always, that nothing 
 herein contained sliall alter or take away or lessen the effect of any 
 payment of any principal or interest made by any person whatsoever. 
 
 (g) Jackson v. Fairbank, 2 H. Bl. 340. See Ux parte Dewdney, 
 15 Ves. 499. 
 
 (A) Burleigh v. Stott, 2 Mann. & Ryl. 93. S. C. 8 B. & C. 36. In 
 the former report of this case, Holroyd, J. is reported to have said, 
 " There can be no doubt that, regarding the note as joint only, the pay- 
 ment by one took the note out of the operation of the statute as regards 
 both the makers. I think in justice and sense, the same result ought to 
 follow, regarding the note as both joint and separate. The debt was in 
 reality originally a joint debt, and though each debtor became sepa- 
 rately, he was still jointly, liable, and a payment by one released 7>ro taitto
 
 196 ' LEGAL REMEDIES 
 
 who were the joint drawers of a bill of exchange 
 became bankrupt, and, under his commission, the in- 
 dorsees proved a debt (beyond the amount of the bill) 
 for goods sold, and they exhibited the bill as a security 
 they then held for their debt, and afterwards received a 
 dividend ; it was determined in an action by the indorsees 
 against the solvent partner, that the statute of limitations 
 was a good defence, although a dividend had been paid 
 within six years, inasmuch as the proof being for goods 
 sold, the payment of the dividend did not amount to an 
 actual or virtual acknowledgment that there was any 
 money due on the bill.(/) (1) So, where A and B made 
 a joint and several promissory note, and ten years after 
 A's death B paid interest on the note; in an action 
 brought upon the note against the executors of A, it was 
 held that the joint contract having determined by the 
 death of A, the payment of interest by B did not take 
 the case out of the statute of limitations, so as to make 
 A's executors liable.(^) And in all cases in which it is 
 endeavoured, by means of the acknowledgment of one 
 partner, to avoid the operation of the statute of limi- 
 tations in favour of the other, it is necessary that the 
 acknowledgment should be clear and explicit ;(2) there- 
 fore, in an action on a joint promissory note, it is not 
 sufficient to destroy the effect of a plea of that statute, to 
 show a payment by a joint maker to the payee within six 
 
 both the joint and separate liability of each. The one receives the be- 
 nefit of a payment by the other, the same whether the liability be joint 
 only, or both joint and separate : in fairness, therefore, he ought to 
 incur the same responsibility in both cases. In the case of a joint and 
 several bond, a release by the obligee to one obligor would clearly des- 
 troy the joint and several obligation." 
 
 (i) Brandram v. Wharton, 1 B. & A. 463. 
 
 {k) Atkins v. Tredgold, 2 B. & C. 23. 
 
 (1) If one of two partners become bankrupt and obtain his certificate, 
 and after that acknowledge a debt due to the plaintiif by his partner 
 and himself, such acknowledgment is not suflicient to take the case out 
 of the statute of limitations in an action against him and his partner for 
 such debt, if his partner plead the statute of limitations, and he plead 
 his bankruptcy. Martin v. Bridges et al. 3 Carr. & Payne, 83. 
 
 (2) Clementson v. Williams, 8 Cranch, 72.
 
 AGAINST PARTNERS. 196 
 
 years, so as to throw upon the defendants the obligation 
 of proving that the payment was not made on account of 
 the note.(/) The principle of the general rule also extends 
 to an admission made by one partner, after a dissolution 
 of the co-partnership ; for, even in such a case, 
 *the admission will conclude his co-partners, if [ *197 ] 
 it relate to a transaction which occurred pend- 
 ing the partnership.(m)(l) Therefore, where the cre- 
 ditor of a partnership, in discharge of a demand against 
 himself, assigned to a third person the debt owing to 
 him by the firm, it was determined that a verbal pro- 
 mise, by one of the partners, to pay such debt to the as- 
 signee, was not within the statute of frauds : for it was 
 not an undertaking for the debt of another, the old debt 
 being extinguished and a new one created : and that the 
 promise bound not only the party who made it, but the 
 whole partnership, even though some of the members of 
 the firm had retired before the promise was given, pro- 
 vided the debt to which it had reference arose out of 
 joint contracts, entered into whilst they continued in the 
 partner ship.(w) And it has been reported to have been 
 the opinion of Lord Kenyan, that a declaration, after the 
 dissolution of the firm, by one of the members, as to the 
 
 (/) Holme V. Green, 1 Stark. N. P. C. 488. 
 (m) Wood V. Braddick, 1 Taunt. 104. ^ 
 (n) Lacy v. McNeile, 4 Dowl. & Ryl. 13. 
 
 (1) Simpson et ul. v. Geddes, 2 Bay's Rep. 5.33. See also PFm- 
 chester V. Jackson et al. 3 Hayw. Rep. 310. 311. (7'mnessee), and 
 the dictum of Story, J., recognising JFood v. Braddick, 1 Gallis, 
 Rep. 635, 636. See 1 McCord's Cha. Rep. 172. 17 Mass. Rep. 227. 
 A different rule prevails in New York, and the weight of American 
 authority is in conformity Avith it. Mercer v. Sayer et al. Anth. N. 
 P. Rep. 119. Hacklcy v. Patrick et al. 3 Johns. Rep. 536. fValden 
 et al. V. Sherburne et al. 15 Johns. Rep. 409. Baker v. Stackpoole, 9 
 Cow. Rep. 420. Hopkins v. Banks. 7 Cow. Rep. 650. Shelton v. 
 Cocke et al. 3 Munf. 191. Bootes v. Welford cf Co. 4 Munf. 215. 
 Walker et al. v. Duberry, 1 Marsh. Rep. 189. {Kentucky). See also 
 the opinions of Swift, C. J., and Hosmer, J., in Story v. Barrel et al. 
 2 Conn. Rep. 665. But the admission of a partner, notwithstanding 
 the dissolution of the partnership, will continue to be obligatory upon 
 the others until due notice of the dissolution is given. Price 4' Co. v. 
 Towsey, 3 Litt. Rep. 423. 
 
 34
 
 197 LEGAL REMEDIES 
 
 different persons of whom the firm was composed, is 
 evidence against all the members to prove the partner- 
 ship.(o) But the admission of one partner, made after 
 the partnership had ceased, is not evidence to charge 
 the other, in any transaction which has occurred since 
 their separation j(p)(l) neither is a declaration made by 
 one of two partners, during an existing co-partnership, 
 evidence to bind his partner as to a transaction which 
 took place previous to the partnership, unless a joint re- 
 sponsibility be proved as a foundation for such evi- 
 dence.(5') Notice to one of several partners is a suffi- 
 cient notice to all. When therefore a bill has been 
 drawn by a firm upon one of the partners, and by him 
 accepted and dishonoured, it is unnecessary to give 
 notice of such dishonour to the firm ; for this must ne- 
 cessarily be known to one of them, and the knowledge 
 of one is considered as the knowledge of all.(r) And in 
 such a case, proof of the acceptance of the bill by the 
 drawee is evidence, in an action against all the drawers, 
 that the bill was regularly drawn.(s) Where the 
 [*198] joint liability results not from *a contract ex- 
 pressly made with all the defendants, but from 
 the fact of their partnership, it may be removed by prov- 
 ing a notice to the plaintiff that the firm would not be 
 answerable on contracts made by any single partner in 
 the joint name.(/) So, where the fact warrants it, it is 
 competent to the defendants to prove a dissolution of the 
 co-partnership previous to the contract ; this, however, 
 will not be in itself sufficient where the defendants have 
 
 (o) Evans v. Drummond, 4 Esp. N. P. C. 89. It is at least doubt- 
 ful whether such a declaration can be evidence of the fact of partuer- 
 nership ; for, if it vpere made during the partnership, it would be un- 
 availing, except against the partner from whom it proceeded. See 
 ante, p. 193. 
 
 (p) Wood V. Braddick, supra. 
 
 (q) Catt V. Howard, 2 Stark, on Evid. 45. S. C. 3 Stark. N. P. 
 C. 3. 
 
 (r) Porthouse v. Parker, 1 Campb. 82. (s) Id. ibid. 
 
 [t) Lord Galway v. Matthew, 10 East, 264. Vice v. Fleming, 1 
 Youn. & Jerv. 226. 
 
 (1) Simpson v. Geddes, 2 Bay's Rep. 533.
 
 AGAINST PARTNERS. 198 
 
 openly acted as partners, unless notice to the plaintiff of 
 the dissolution be also proved. It is sufficient, if the 
 plaintiff, in the first instance, prove a partnership at a 
 time anterior to the contract ; when that is once estab- 
 lished, a continuance of the partnership is to be presum- 
 ed, until a dissolution be proved; and proof of a dissolu- 
 tion will still be insufficient, unless reasonable proof be 
 given of notice of the fact to the plaintiff; for although 
 the partnership may, in fact, have been dissolved, yet if 
 the parties do not announce it, they by their silence, in- 
 duce strangers to continue to trust to the joint credit of 
 the firm.(M) And where notice of the dissolution is proved, 
 the plaintiff may rebut it by evidence of the subsequent 
 conduct and declarations of the defendants, tending to 
 induce the world to suppose that the partnership still 
 subsisted ; as by proof that they subsequently interfered 
 in the management of the business, or allowed their 
 names to be used, or in any way authorised the parties 
 acting in the concern to make use of their names and 
 credit.(tj) A mere statement in conversation by one 
 partner that he has ceased to be a partner, is not admis- 
 sible evidence on his part to prove a notice of dissolu- 
 tion. (z^) 
 
 A party to the suit on record cannot, generally, be a 
 witness at the trial for himself or for a joint suitor, 
 against the adverse party, on account of the immediate 
 and direct interest which he has in the event, either from 
 having a certain benefit or loss, or from being liable to 
 costs.(:p) But there seems to be no objection to the com- 
 petency of persons, who are parties to a suit in a corpo- 
 rate capacity, and consequently not individually 
 liable to costs, *and who are free from all interest [ *199 ] 
 in the question. Thus, in an action against the 
 
 (?<) 3 Stark, on Evid. 1078. 
 
 [v) Newsome v. Coles, 2 Campb. 617. And see Williams v. Keats, 
 2 Stark. N. P. C.290. Dolman tJ. Orchard, 2 C. & P. 104. Stables v. 
 Eley, 1 C. & P. 614. Where a seceding partner's name is continued 
 in the firm by express agreement, he will be liable to persons acquaint- 
 ed with the fact of the dissolution under those circumstances, inasmuch 
 as such an agreement implies an undertaking to continue responsible 
 for the engagements of the firm. Brown v. Leonard, 2 Chitt. 121. 
 
 {w) Dolman v. Orchard, supra. {x) 1 Phill. on Evid. 71.
 
 199 LEGAL REMEDIES 
 
 governors of the Foundling Hospital for the amount of 
 work done by the plaintiff, Lord Kenyon admitted seve- 
 ral of the governors to prove the badness and insuffi- 
 ciency of the work.(?/) So, where, iii an action against 
 several, one pleads his bankruptcy, and the plaintiff 
 enters a nolle prosequi as to him, he is thereby rendered 
 a competent witness for the other defendants.(z) But 
 if the plaintiff, instead of entering a nolle prosequi, take 
 issue on the plea of bankruptcy, the bankrupt cannot be 
 admitted to give evidence for the rest, though he may 
 have received his certificate ; for, in case of a verdict 
 for the plaintiff he is liable to the costs of the action.(a) 
 Nor, on proof of his certificate, is he entitled to a ver- 
 dict during the progress of the cause, in order that he 
 may be introduced as a witness for his co-defendants.(6) 
 So, in an action on a joint contract against two defen- 
 dants, where one let judgment go by default. Lord Ken- 
 yon refused to admit him as a witness for the other de- 
 fendant, to negative the contract; for, if negatived as 
 to one it fails as to the other, and the plaintifT could not 
 make use of the judgment by default against him.(c) 
 Nor is a defendant so situated a competent witness for 
 the plaintiff to prove that the other defendant was a 
 party to the contract ; for if the plaintiff should succeed, 
 he would be entitled to contribution from the co-defen- 
 dant, and if the plaintiff should fail, he himself would be 
 liable to the whole of the demand.(f/) (1) And a release 
 
 (y) Weller v. The Governors of Foundling Hospital, Peake's N. 
 P. C. 153. Barret v. Gore, 3 Atk. 401 ; but see Whitmore v. Wilks, 
 
 1 M. & Malk. N. P. C. 214, and 3 C. & P. 364. 
 
 (z) Mclver v. Humble, 16 East, 171. S. P. ruled at Lancaster by 
 Le Blanc, J. ex relatione Park, J. 1 B. Moore, 339. Moody v. King, 
 
 2 B. & C. 558. 
 
 («) Raven v. Dunning, 3 Esp. N. P. C. 25. S. P. Currie v. Child, 
 
 3 Camb. 283. 
 
 {b) Emmett v. Butler, 7 Taunt. 599. S. C. 1 B. Moore, 332. 
 (c) Brown v. Fox, Ex. Sum. Ass. 1789. 1 Phill. on Evid. 78. 
 {d) Brown v. Brown, 4 Taunt. 752. 
 
 (1) And where two partners are sued, and the process is served upon 
 one of them only, the defendant not served is not a competent witness 
 for the plaintiff. Bill v. Porter, 9 Conn. Rep. 23. Ptirviance v. 
 Dryden, 3 Serg. & Rawle, 402 : — observe the facts of the case without
 
 AGAINST PARTNERS. 199 
 
 from the plaintiff would not render him competent ; for 
 one objection to his admissibility is, that his evidence 
 might tend to inculpate his co-defendant, and therefore, 
 
 reference to the marginal abstract; — and the plaintiff in such a case 
 cannot compel a defendant not served or appearing to testify on his be- 
 half. Taylor v. Henderson, 17 Serg. & Rawle, 453. Nor is a part- 
 ner whose non-joinder is pleaded in abatement, a competent witness for 
 the defendant to prove the fact of partnership. Spaulding v. Smith, 1 
 Fairf. Rep. 363. In Norman v. Norman 8,- Harvey, 2 Yeates, 154, it 
 was decided, that in a suit against two partners, one of them, who had 
 not been arrested, and to whom non est inventus was re'turned, but who 
 had subsequently to the institution of the suit, paid the plaintiff" one 
 half of his demand, might be sworn, notwithstanding his co-defendant 
 objected to his testimony on the ground of his interest in the event of 
 the cause, to prove the quantum of the demand, on the part of the plain- 
 tiff, although not compellable to give testimony. The Court considered 
 the witness as alone possessing the right of objection to be examined. 
 And in a late case, in an action against A. & B. as partners, upon an 
 alleged engagement by the firm. A., who was not found, or served with 
 process, was offered as a witness in favour of B., having been released 
 by B. ; and it was held, that the suit was regularly abated as to B. by 
 the return that he was " no inhabitant," and he was no more a party 
 to it than if his name had been omitted in the declaration ; that upon 
 the score of interest, the recovery of the plaintiff against the defendant, 
 and satisfaction from him, would be a bar to their action against the 
 witness ; and the release of A. protected him against any action which 
 B. might bring against him for contribution or otherwise. Le Roy et 
 al. v. Johnson, 2 Peters' Sup. C. Rep. 186. See, however, Gardiner 
 V. Levaud. 2 Yeates, 185. Black v. Marvin, 2 Penns. Rep. 138. In 
 Fawcett v. Wrashall, 2 Carr. & Payne, 305, the plaintiff had delivered 
 separate bills to two persons, who had been partners, one of whom paid 
 the bill delivered to him ; the other was sued alone, but there was no 
 plea in abatement. At the trial, the plaintiff called the partner not sued 
 to prove the liability of the defendant, and though objected to on the 
 ground of interest, he was admitted. And a plaintiff who is willing to 
 testify, may be called by a defendant as a witness, although he comes to 
 defeat the claim of another plaintiff suing jointly with himself. Nor- 
 den v. Williamson <$• Twibill, 1 Taunt. Rep. 377. The parties are 
 erroneously slated at the head of this case ; it appears from the report, 
 that Norden was the defendant, and Tivibill, one of the plaintiffs was 
 called by him as a witness. So in equity a co-partner of the com- 
 plainants, who is not a party to the suit, is a competent witness for the 
 defendant to prove the existence of a demand against the co-partnership, 
 of which the defendant wishes to avail himself as a set off. Gregory 
 et al. V. Bodge, 4 Paige's Cha. Rep. 556. The plaintiff was sworn as 
 a witness, at the request of the defendant, in Miller v. Sturks, 13 Johns. 
 Rep. 517, and the court held that the defendant could not afterwards 
 get rid of the effect of his testimony. In Miller v. McClenachan et al. 
 1 Yeates, 144, it was objected that one defendant, in a suit against part-
 
 199 LEGAL REMEDIES 
 
 without his consent, his testimony cannot be received.(e) 
 And a person who is shown to be a co-partner 
 [ *200 ] with the defendant in the subject of the *action 
 is, in general, incompetent to be a witness for 
 him ; because in the event of a verdict for the plaintiff, 
 he would be liable to contribute not only his proportion 
 of the sum recovered, but also his share of the costs : 
 and he will not be admissible, even although the ten- 
 dency of his evidence be to charge himself with the 
 whole debt, or although the defendant offer to release 
 him.(y*) Thus, in an action against a part-owner for 
 painting the ship, to which the defendant pleaded in 
 abatement that there were other part-owners not joined, 
 and the plaintiff replied that the defendant had underta- 
 ken solely to pay, it was held that the defendant could 
 not call the master, who was also a part-owner, to prove 
 that he ordered the work to be done.(^) So, in an action 
 of assumpsit for goods sold and delivered, the plaintiff 
 liaving proved the sale of the goods to the defendant 
 and to one J. S., who were partners in trade. Lord 
 Ketiyoji held that J. S., could not be a witness for the 
 defendant to prove that the goods were sold to himself, 
 and that the defendant was not concerned in the pur- 
 
 (e) Mant v. Mainwaring, 2 B. Moore, 9. S. C. 8 Taunt. 139. In 
 an action for a tort, it has been ruled, that one defendant who suffers 
 judgment by default is a competent witness to prove that a co-defen- 
 dant who has pleaded is not chargeable. Ward v. Haydon, 2 Esp. N. 
 P. C. 552. Chapman v. Graves, 2 Campb. 334. n. See Rex v. La- 
 fone, 5 Esp. N. P. C. 155. 
 
 (/) Simons v. Smith, 1 Ryan & Mood. 29. Cheyne v. Koops, 4 
 Esp. N. P. C. 112. You;ig v. Bairner, 1 Esp. N. P. C. 103. 
 cont. 
 
 (g) Young V. Bairner, supra. 
 
 ners, could not be sworn to prove the existence of the partnership, al- 
 though he was willing ; but a decision was not called for, and the wit- 
 ness was withdrawn. See also Waggoners v. Gray^s Mm. 2 Hen. & 
 Munf. 603. A nominal surviving partner is not a competent witness 
 in support of an action by the executor of a deceased partner, for a 
 partnership debt. Lane ex. v. Carmichael, Vern. & Scriv. Rep. 380. 
 Nor is the widow of a deceased partner a competent witness for the 
 surviving partner in an action by him as such. Alleii v. Blanchard, 
 9 Cow. Rep. 631.
 
 AGAINST PARTNERS. 200 
 
 chase, except as his servant ; for, said his Lordship, by 
 discharging the defendant he benefits himself, as he will 
 be liable to pay a share of the costs to be recovered by 
 the plaintiff.(A) (1) And in an action against A for the 
 price of goods sold, B. is not a competent witness on the 
 part of the defendant, to prove that the goods had been 
 sold to A and B jointly, and that they had been paid for 
 by remitting a debt due from the vendor to the firm of A 
 and B.{i) However, to raise the objection of incompe- 
 tency, it must be shown that the witness is a partner ; it 
 is not sufficient merely to suggest it. Thus, in action 
 for goods sold and delivered, a witness is competent to 
 prove that the goods were supplied upon his credit, and 
 for his use, although it be suggested that he is a partner 
 with the defendant.(^-)(2) But although, during the 
 subsistence of a partnership, one partner is generally 
 incompetent to defeat the claim of the plaintiff on ac- 
 count of the direct interest he has in the event of the 
 cause, yet if the interest of the witness incline him to 
 each of the parties, so as upon the whole to make him 
 indifferent, he will be competent to give evidence. Thus, 
 one of the joint makers of a promissory note is a compe- 
 tent witness, on the part of the plaintiff, to prove 
 *the signature of the defendant, the other joint [ *201 ] 
 
 (/i) Goodacre v. Breame, Peake's N. P. C. 174, 
 (i) Evans v. Yeatherd, 2 Bingh. 133. 
 (k) Birt V. Hood, 1 Esp. N. P. C. 20. 
 
 (1) See, however, Bimtee v. Warree, 1 Dowl. & Ryl. Rep. 106, par- 
 ticularly the opinion of Best, J. In Maryland, it has been decided, 
 (1827) in an action by the payee of a partnership note against two 
 partners, one of whom only was arrested and pleaded, that the other 
 partner was a competent witness for the defendant to prove that the 
 consideration of the note was for the witness's exclusive benefit, given 
 to secure a debt due by his account, and that when he signed the note he 
 informed the plaintiff that he was not authorized to sign the defendant's 
 name to it. Robertson v. Mills, 2 Harr. & Gill, 98. 
 
 (2) Where two are jointly concerned in a contract of sale, their inte- 
 rest may be severed by a parol agreement, on good consideration ; and 
 one of them after this dissolution of their joint concern, is a competent 
 witness for the other, in relation to a matter growing out of such con- 
 tract; such witness having parted with all his interest in the contract. 
 Smith V. .^llen, 18 Johns. Rep. 245.
 
 201 LEGAL REMEDIES 
 
 maker ;(/) for if the plaintiff should recover against 
 the defendant, the witness would be liable to the 
 defendant for contribution ; if, on the other hand, the 
 plaintiff fail, he may resort to the witness for the whole, 
 and then the witness would be entitled to the contribu- 
 tion from the defendant ; so that, in either view of the 
 case, the witness is indifferent in point of interest.(m)(l) 
 So, in an action against one partner, his copartner is 
 admissible as a witness on the part of the plaintiff, to 
 prove the defendant's liability. Thus, in assumpsit for 
 goods sold and delivered, and the general issue pleaded, 
 a witness called by the plaintiff admitted on the voir dire, 
 that he was jointly liable ; and on a motion to enter a 
 nonsuit on account of his incompetency, it was held that 
 his joint liability did not render him incompetent.(n) 
 And in an action brought to charge A, as a partner 
 in a trading company, a witness, who by other evidence 
 than his own, appeared to be a shareholder in the Com- 
 pany, was held to be competent to prove that A was a 
 partner, (o) So where one partner drew a bill in the 
 name of the partnership firm, and gave it in payment to 
 a separate creditor in discharge of his own debt, the 
 Court of King's Bench held, that in an action by such 
 creditor against the acceptor, either of the partners 
 might be called, on the part of the defendant, to prove 
 that the partner who drew the bill had no authority to 
 draw it in the name of the firm ; and that the bankruptcy 
 of the partners would not vary the question as to 
 the competency of the witness.(/7) And in a late case, 
 which was an action of assumpsit for the non-delivery 
 
 (Z) York V. Blott, 5 Mau. & Selw. 71. 
 
 {m) 1 Phill. on Evid. 68. . 
 
 (n) Blackett v. Weir, 5 B. & C. 385; and see Fawcett v. Wrathall, 
 2 C. & P. 305 
 
 (o) Hall V. Curzon, 9 B. & C. 646. In Luckett v. Graham, 1 Stra. 
 35, which was an action against one of three obligors, a co-obligor was 
 allowed to be a witness to prove the execution of the bond by the de- 
 fendant. 
 
 (p) Ridley v. Taylor, 13 East, 175. 
 
 (1) See Bulkley et al. v. Dayton et cd. 14 Johns. Rep. 387.
 
 AGAINST PARTNERS. 201 
 
 of goods, and for money had and received, and the de- 
 fendant pleaded in abatement that the promises were 
 made jointly with A and B, and not by the defendant 
 alone, it was determined that A was a competent wit- 
 ness for the plaintiff, to prove that the defendant was 
 not authorised or employed by the partners to make the 
 contract, and that he received the money to his own 
 use ; for, although the plaintiff should succeed, 
 the *defendant would not on that account be [ *202 ] 
 precluded from suing the other partners for con- 
 tribution ; the record in this action would not operate 
 as an estoppel against him on that occasion, because 
 there is no mutuality out of which the estoppel can arise ; 
 the record could only be used as a medium of proof, to 
 show that this defendant had paid in the action a cer- 
 tain sum,(y) and in this point of view the verdict in 
 favour of the plaintiff must be considered rather as pre- 
 judicial to the witness.(r) So, A would, under such cir- 
 cumstances, have been a competent witness for the 
 defendant to negative his several liabihty; and if, on 
 being called, he should have denied the partnership, the 
 defendant would still have been at liberty to have proved 
 its existence by other witnesses ; for, although a party 
 will not be permitted to produce general evidence to dis- 
 credit his own witness, yet he may show by other testi- 
 mony, that the witness was mistaken as to the fact which 
 he was called to establish.(s) Where there has been a 
 dissolution of the partnership, one partner is a competent 
 witness for the other in any transaction which has oc- 
 curred since their separation. Therefore where, two 
 days after a dissolution, a bill was drawn in the names 
 of the quondam partners, which was accepted and paid 
 
 (<7) See Evans v. Yeatherd, 2 Bingh. 133. 
 
 (r) Hudson v. Robinson, 4 Mau. & Selw. 475. S. P. Cossham 
 V. Goldney, 2 Stark. N. P. C. 414. 
 
 (s) Ewer V. Ambrose 3 B. & C. 746. Where a witness, called by' 
 the defendant to prove a partnership, disproves it, the answer of the 
 witness to a bill in Chancery, in which he swore that he was a partner, 
 is not admissible in evidence, on the part of the defendant, to prove 
 substantively the partnership; and it is doubtful whether it is re<;eivable 
 at all, because the only effect of it seems to be that of impeaching his 
 credit. Id. ibid. 
 
 35
 
 202 LEGAL REMEDIES 
 
 by a third person without consideration ; in an action 
 by the acceptor against the partners to recover the 
 money so paid, to which one of them pleaded his bank- 
 ruptcy and certificate, and the plaintiflf entered a nolle 
 prosequi as to him, it was held that he was a competent 
 witness for the other defendant, to prove that the bill was 
 accepted for his own individual accommodation, and not 
 jointly for him and his former partner.(^) It has been 
 ruled, that a partner who has obtained his certificate 
 under a joint commission is not a competent witness to 
 prove either of the requisites to support the commis- 
 sion. (?«)(!) 
 [ *203 ] *Having pursued our inquiries relative to ac- 
 tions against partners through their various 
 stages, so far at least as falls within the compass of the 
 present treatise, it now remains to be ascertained in 
 what manner a judgment obtained against them in a 
 civil action can be enforced. The action being joint, 
 the judgment, of course, ensues the nature of the action, 
 and is joint likewise. In executing such a judgment, no 
 difficulty arises ; the whole of the personal eflfects of the 
 partnership, or a sufficient quantity thereof to satisfy 
 the sum recovered, may be seized and sold under a writ 
 o{ fieri facias founded upon the judgment, in the same 
 manner as if they were the sole property of one defen- 
 dant, against whom a separate judgment had been ob- 
 tained.(2) Besides the right possessed by the judgment 
 
 (/) Moody V. King, 2 B. & C. 558. 
 
 {u) Flower v. Herbert, 2 H. Bl. 279, note (a). 
 
 (1) But upon a motion to discharge, upon common bail, a defendant, 
 a dormant partner engaged in a limited concern, and not in the general 
 partnership of the house, for whose use a note was discounted, the tes- 
 timony of one of the partners in the general concern, who was a cer- 
 tificated bankrupt, was offered to prove the fact, that the defendant was 
 not engaged in the general partnership, and received by the Court upon 
 the ground, that in such summary inquiries by the Court, the practice 
 authorised it. Bank of Pennsylvania v. Hadfeg et al. 3 Yeates, 560. 
 
 (2) The interest of a partner who has not been served with process, 
 or appeared to the action, in the partnership cfi'ects, may be sold under 
 an execution issued upon a judgment obtained against the other part-
 
 AGAINST PARTNERS. 203 
 
 creditor against the joint property, he may also seize 
 the separate effects of each or any of the individual 
 partners.(t;) He may likewise extend the real estates of 
 which the partners may be seised, or he may sue out a 
 joint writ of capias ad satisfaciendum, and execute it 
 ilpon the persons of all or any of the partners.(l) But 
 where a judgment is obtained against an individual 
 partner who has an interest in the capita],(iy) for his 
 separate debt, and the creditor, after taking out execu- 
 tion, seeks to enforce it against the joint property (for 
 he has an election, either to take the separate estate of 
 his debtor, or his debtor's share of the joint estate,) it 
 seems to be a very difficult thing to determine with cer- 
 tainty in what manner it is to be done. It is clear the 
 separate creditor has only a right to such interest in the 
 joint property, as upon a fair adjustment of accounts 
 could be claimed by the debtor himself; and although it 
 may be represented, that the world cannot know what 
 is the distinct interest of each, and therefore that it is 
 better his apparent should be considered as forming his 
 actual interest, yet courts of equity (and in awarding 
 execution courts of law have professed to follow courts 
 of equity) have long held otherwise, considering it not 
 to be equitable. The debtor may not be interested in 
 an equal moiety ; indeed, after the partnership accounts 
 are taken, his apparent interest may, in reality, dwindle 
 
 {v) Per Lord Eldon, Ex parte Ruffin, 6 Ves. 119. Bolton v. Pul- 
 ler, 1 Bos. & Pul. 547. 
 
 [w) \n Ex -parte Hamper, 17 Ves. 404. Lord i;ZfZo>i expressed 
 his opinion to be, that where the interest of a dormant partner is confined 
 to the profits, but does not extend to the capital, his separate creditor 
 cannot issue execution against the effects of the partnership, even sub- 
 ject to an account. 
 
 ners. Taylor v. Henderson, 17 Serg. & Rawle, 456, 457. Per Wil- 
 liams, J., 9 Conn. Rep. 28. 
 
 (1) Per TiLGHMAN, C. J., Bell v. Newman, 5 Serg. & Rawle, 86. 
 Where a creditor has separate judgments against each of two partners, 
 the partnership property will be bound to the same extent as if the 
 amount of both judgments had been included in a joint judgment against 
 both partners. Brinkerhoff et al, v. Marvin et al. 5 Johns. Cha. 
 Rep. 320.
 
 204 LEGAL REMEDIES 
 
 to nothing. It is obviously difficult, therefore, 
 [ *204 ] *to maintain as equitable a proceeding at law 
 
 which permits a creditor of one partner, without 
 any attention to the rights of the partners themselves, 
 to take one half of a chattel belonging to them, as if it 
 were perfectly clear that the actual interest of each was 
 in a moiety. (^) Courts of law, however, have re- 
 peatedly laid down,(y) that they will sell the actual inte- 
 rest of the partner, professing to execute the equities 
 between the parties, but forgetting that a court of equity 
 ascertained previously what was to be sold. Indeed, it 
 would be impossible for a court of law to ascertain 
 what was the interest to be sold, and what were the 
 equities depending upon the accounts of the partners 
 for years.(2')(l) 
 
 At law, the rule was, in one case, stated by Lord Ch. 
 J. Holt to be, that where there is execution against one 
 of two partners, the sheriff must seize all the goods ; 
 because the moieties are undivided : for if he seize but a 
 moiety, and sell that, the other will have a right to a 
 moiety of that moiety; but he must seize the whole, 
 and sell a moiety thereof undivided, and the vendee will 
 be tenant in common with the other partner.(a)(2) The 
 rule as thus laid down seems to have been adopted in 
 two subsequent cases.(6) But in a still later case,(c) 
 the same learned Chief Justice qualified the rule, and 
 
 {x) See Button v. Morrison, 17 Ves. 201. 
 
 (y) Backhurst v. Clinkard, 1 Show. 173. Eddie v. Davidson, 
 Dougl. 650 ; and see Scott v. Scholey, 8 East, 467. 
 
 {z) Per Lord Eldon in Waters v. Taylor, 2 Ves. & Bea. 301. See 
 also In re Wait, 1 Jac. & Walk. 608. 
 
 (a) Heydon v. Heydon, 1 Salk. 392. 
 
 (6) See Pope v. Haman, Comb. 217. Marriott v. Shaw, Com. 
 Rep. 277. 
 
 (c) Backhurst v. Clinkard, 1 Show. 173.; and see the note sub- 
 joined to this case, from which it appears that the same point had been 
 resolved the day before, and that Ch. J. Pollexfen agreed in opinion. 
 
 (1) See 2 .Johns. Cha. Rep. 549. 16 Johns. Rep. 106, note (c). 
 
 (2) Per RoANK, J., Shaver v. Mliitc et at. 6 Munf. 113. Per 
 Curiam, 3/erserea?f v. Norton, 15 Johns. Rep. 180. Per McKean, 
 C. J., 2 Ball. 278.
 
 AGAINST PARTNERS. 204 
 
 held tliat, although generally speaking, the partners 
 have joint and undivided interest, yet that, to some 
 purposes, their possession, as well as their interest is 
 several ; and that, under an execution, only the moiety 
 of the partner who is the defendant can be seized and 
 sold, for the property of the other moiety is not affected 
 by the judgment; and in a more recent case((Z)(l) 
 where there had been judgment, a fieri facias against 
 one of two partners, and all the partnership goods were 
 seized in execution, upon an application to the King's 
 Bench by the solvent partner, the court held, 
 that the sheriff could not sell *more than a [ *205 ] 
 moiety. (e) (2) In Skipp v. Harwood,(f) ac- 
 cording to Lord Mansfield's note,(^) Lord Hardwicke 
 entertained the same opinion ; he thought that only the 
 undivided share of the debtor could be taken, and that 
 in the same manner as the debtor himself had it, and 
 subject to the rights of the other partner ; for, as an exe- 
 cution against one partner for his separate debt ought 
 not to put the solvent partner in a worse condition, 
 therefore he must have all proper allowances made him 
 before the judgment creditor could have the share of his 
 debtor applied in satisfaction of the judgment. Upon 
 
 {d) Jacky v. Butler, 2 Lord Raym. 871. 
 
 (e) See also Barker v. Goodair, 1 1 Ves. 78. Hankey v. Garret, 1 
 Ves. jun. 236. S. C. 3 Bro. C. C. 457. 
 
 (/) Reported 1 Ves. Jun. 239, by the name of West v. Skipp. S. 
 C. 2 Swanst. 586. 
 
 [g) See Fox v. Hanbury, Cowp. 445. 
 
 (1) The solvent partner may bring an action at law (trespass or 
 trover,, at his election,) against the sheriff, if he sell more than a 
 moiety. 1 Gallis. Rep. 370. Melville v. Broivn, 15 Mass. Rep. 82. 
 
 (2) If the sheriff seize the whole of the partnership effects, the 
 Court, upon motion, will order them to be restored. Matter of Smith, 
 16 Johns. Rep, 102. And perhaps the partners might maintain trover 
 against the sheriff's vendee, for the goods, if he took possession of 
 them. Wilson et al. v. Conine, 2 Johns. Rep. 280. But not replevin — 
 the remedy of the other partners in such case, where there arc unliqui- 
 dated partnership accounts is, to obtain an order staying proceedings 
 on the execution till an account be taken in equity. Schriigam v. Car- 
 ter, 12 Wend. Rep. 131.
 
 205 LEGAL REMEDIES 
 
 this footing it is, that courts of law now profess to act 
 in awarding execution against the joint effects ; if it 
 were otherwise, the party claiming and deriving title 
 under an execution would be in a better situation than 
 the partner against whom the judgment was obtained, 
 which would be wholly inconsistent with the acknow- 
 ledged and declared principles of the law.(^) (1) Con- 
 veniency and justice certainly require this mode of 
 proceeding, as it enables the other partner to buy in the 
 share sold, and thereby prevent the business from being 
 broken up or disturbed : and the vendee, if a stranger, 
 will only succeed to the share due to the defendant upon 
 a balance being struck, thus preventing the defendant 
 from being the means of carrying out of the partnership 
 funds more than he is himself really entitled to. The 
 creditor of any one partner may therefore take in exe- 
 cution that partner's interest in all the tangible property 
 of the partnership ;(i) (2) but the levy under the execu- 
 tion transfers no part of the joint property, it merely 
 gives a right to an account, each partner having an inte- 
 rest, not in the whole, but in the surplus merely.(A:) (3) 
 The joint property must be delivered from the joint 
 debts ; if the joint estate be insolvent, the separate cre- 
 
 {h) Fox V. Hanbury, Cowp. 445. In the late case of Burton v. Green, 
 3 C. & P. N. P. C. 308, it was considered difficult to say, what inte- 
 rest could be taken by the sheriff under an execution against one of 
 several partners for his separate debt ; but semble he will not become 
 tenant in common with the other partners. 
 
 (i) Chapman v. Koops, 3 Bos. & Pul. 289. See also 17 Ves. 206. 
 
 {k) Per Lord Eldon in Button v. Morrison, 17 Ves. 201 ; see also 
 Rex V. Sanderson, 1 Wightw. 50. 
 
 (1) Lyndon V. Gorham et al. 1 Gallis. Rep. 368. Matter of Smith, 
 10 Johns. Rep. 106. Nicoll v. Mumford, 4 Johns. Cha. Rep. 525. 
 
 (2) Church v. Knox, 2 Conn. Rep. 516. 
 
 (3) Gilmore v. N. A. Land Co. 1 Peters' Rep. 460. Moody v. 
 Payne, 2 Johns. Cha. Rep. 548. Church v. Knox, 2 Conn. Rep. 517. 
 Brewster v. Hammet, 4 Conn. Rep. 540. Barber v. Hartford Bank, 
 9 Conn. Rep. 407- Wister v. Richards, 10 Conn. Rep. 37. Hadduck 
 V. Wilmarlh, 5 N. Hamp. Rep. 189. Comm. Bank v. Wilkins, 9 
 Greenl. Rep. 34. The U. States v. Hack, 8 Peters' Sup. Ct. Rep. 
 271. Mutter of Smith, 16 Johns. Rep. 106. PFilson et al. v. Gibbs, 
 2 Johns. Rep. 280. 2 Dall. 279, opinion ofYEAXEs, J., Knox v. Sum-
 
 AGAINST PARTNERS. 205 
 
 ditor cannot reap the fruits of his judgment.(/) An 
 account must hkewise be taken between the 
 partnership and *the individual partner; for [*206] 
 until that be taken, his interest in the surplus of 
 the joint effects cannot be ascertained.(m) But although 
 courts of law assume to award execution on the equita- 
 ble principles we have stated, their powers are inade- 
 quate to the accomplishment of their intention. A court 
 of law has no authority to restrain an execution against 
 partnership effects, or to direct an inquiry as to the 
 quantum of interest of the partner who is sued. In one 
 case, indeed,(?0 the Court of King's Bench suspended 
 an execution, and directed the Master to take an account 
 of the share of the partnership effects, to which the as- 
 signees of the other partner (he having become bank- 
 rupt) were entitled, and ordered the sheriff to pay a part 
 of the money levied, equal to the amount of such share, 
 to the assignees. But there no objection was made to 
 the sale by the party applying, or to an account being 
 taken by the Master by the party levying, though he 
 denied the title of the bankrupt partner to any of the 
 goods.(o) Where the plaintiff, in the execution, objects 
 
 (/) Taylor u. Fields, 4 Ves. 639. S. C. 15 Ves. 559, in note. 
 \m) Id. ibid. Waters v. Taylor, 2 Ves. & Bea. 301. Barker v. 
 Goodair, 11 Ves. 78. 
 
 (n) Eddie v. Davidson, Dougl. 650. 
 
 (o) Per Chambre, J., Chapman v. Koops, 3 Bos. & Pul. 289. 
 
 mers, 4 Yeates, 477. Pierce v. Jackson, Fisk v. Herrick, 6 Mass. 
 Rep. 242, 271. 11 Mass. Rep. 249, 472. Lyndon v. Gorham et al. 1 
 Gallis. Rep. 369. Crane v. French et al. 1 Wend Rep. 311. Dunham 
 V. Murdock, 2 Wend. Rep. 554. 8 Wend. Rep. 444. In Maryland, 
 it has been decided, that one-third of the partnership effects of three 
 partners residing in England, and having there become bankrupts, might 
 be attached by a citizen of that state, for a debt due to him by one of the 
 partners, and that the attaching creditor might have judgment of con- 
 demnation, without showing the state of the account as between the 
 other partners and the partner whose interest was attached. Wallace 
 et al. V. Patterson et al. 2 Har. & McHen. Rep. 463, and the law 
 seems to be so in Pennsylvania. McCarty v. Emlen, 2 Dall. 277. S. 
 C. 2 Yeates, 190, overruling McComb v. Dunch, 2 Dall. 73. The 
 reasoning, however, of Mr. Justice Yeates, who dissented in Emlen v. 
 McCarty, is entitled to most weight, and would now, in all probabili- 
 ty, be deemed conclusive.
 
 206 LEGAL REMEDIES 
 
 to such a reference, a court of law having no jurisdiction 
 to direct a partnership account to be taken, cannot in- 
 terfere, since, without the consent of all parties, it has 
 no power to authorise its officers to inquire into such 
 matters of account as are the proper subjects of investi- 
 gation in a court of equity •,(p) unless, indeed, an im- 
 proper use is made of the process of the court ; for if it 
 appear to have been resorted to for the purposes of op- 
 pression, it may afford ground for its interposition. (^) 
 Neither will a court of law, upon the application of part- 
 nership creditors, give time to the sheriff to make his 
 return to the writ of execution, so as to enable them to 
 obtain an account in equity, whereby the specific interest 
 of the debtor on the judgment would be ascertained.(r) 
 The proper and safest line of conduct for the sheriff, in 
 such a case, to pursue, is, to put some person in posses- 
 sion of the defendant's share as vendee, leaving him and 
 
 the parties interested to contest the matter 
 [ *207 ] in a court of equity.(s) If the sheriff be ^called 
 
 upon to discharge his duty, he is bound to 
 seize and sell whatever interest the individual part- 
 ner may have in the joint property; if he do not 
 possess any interest, or if, possessing an interest, it 
 has been seized under a prior writ of execution, and 
 therefore is in the custody of the law,(/) the sheriff 
 must return ntdla bona. But the interest or share of 
 the other partners not being effected by a writ of exe- 
 cution executed against the joint effects at the instance 
 of a separate creditor of one partner, it follows, that if, 
 after a levy made under that writ, writs of execution 
 should likewise be issued against any of the other part- 
 ners, the sheriff must seize their shares, and if, instead 
 of doing so, he return nulla bona, such a return will be 
 false, and he will be liable to an action for making 
 it.(?0 
 
 But notwithstanding the rules by which a court of law 
 is fettered and bound down render it incompetent to ad- 
 
 (p) Chapman v. Koops, supra. (q) Id. ibid. 
 
 (r) Parker v. Pistor, 3 Bos. & Pul. 288. ; but see the case cited by 
 Best Serjt., arg. (s) Id. ibid. 
 
 (/) 1 Show, 169. (u) Id. ibid.
 
 AGAINST PARTNERS. 207 
 
 minister complete and substantial justice to all parties, 
 yet in cases of execution courts of equity will interpose 
 their aid, and finally adjust the rights of the parties. In 
 adjudicating such questions the governing principle is, 
 that the equity of the creditor is founded on the equity 
 of the partner,(ij) and as the partnership property has 
 been acquired by the contraction of partnership debts, it 
 ought first to be applied in discharge of them, according 
 to the maxim, qui sentit commodum, sentire debet et onus. 
 The whole of this doctrine seems to arise out of the 
 very principle upon which partnership is founded, name- 
 ly, probable profit and the risk of loss, the advantages 
 or disadvantages of which cannot, in common justice, be 
 confined to one side only, but must be reciprocal through- 
 out. The separate creditor of one partner having, 
 therefore, no right against the partnership property be- 
 yond the separate interest of that partner, the solvent 
 partners may file a bill in equity against him to take an 
 account, as a means of ascertaining what interest the in- 
 dividual partner actually possesses in the joint stock, 
 and until such account be taken, may obtain an injunc- 
 tion restraining proceedings under the writ.(z^;) And 
 even after a sale by the sheriff, as his vendee becomes 
 tenant in common with the solvent partners of the joint 
 effects, the latter may exhibit a bill and compel 
 him to assent to the ordinary ^equity attach- [*208] 
 ing on partnership property, which is, that it is 
 not to be divided until the joint debts, and the separate 
 claims of the partners themselves, are paid and discharg- 
 ed.(a:) In such a case, a court of equity, diflfering in 
 this respect from a court of law, has no difficulty in set- 
 tling and arranging the rights of the parties secundum 
 cBC/unm et honum ; and, considering the nature and eflfect 
 of the contract of partnership to be that the whole proper- 
 ty is pledged to partnership purposes, and amongst and 
 in preference to any other purpose, to the payment of 
 the joint debts, and having the means of taking the com- 
 plicated accounts of the partnership, it converts the joint 
 
 {v) Campbell v. Mullet, 2 Swanst. 570. 
 
 {w) Taylor v. Fields, 4 Ves. 396. S. C. 15 Ves. 559, in note. 
 (x) Per Lord Ahanley, Chapman v. Koops, 3 Bos. &i Pul. 289. 
 
 36
 
 208 LEGAL REMEDIES 
 
 stock into that state in which the property would be di- 
 visible as clear surplus.(i/) It concedes to the judgment 
 creditor only that quantum of interest which the indivi- 
 dual partner himself could extract out of the concerns of 
 the partnership after all the accounts of the partnership 
 are taken, and the effects of the partnership are reduced 
 into a dry mass of property, upon which no person ex- 
 cept the partners themselves have any claim.(-2) The 
 party succeeding to the right of the partner comes into 
 nothing more than an interest in the partnership, which 
 cannot be tangible, cannot be made available, or be de- 
 livered, but subject to an account between the partner- 
 nership and the partner. If the whole property be due 
 to the joint creditors, they have the preferable right to 
 it ; but if it be not exhausted in satisfying their demands, 
 and the other partners have claims upon the surplus, in 
 consequence of having brought into the partnership or 
 disbursed more than their proportion, they must be 
 placed on an equality, by a reimbursement of their ad- 
 vance, before the judgment creditor, or the person claim- 
 ing through the sheriff, can insist upon payment : for all 
 that can, in such case, be delivered in equity, is the in- 
 terest which the partner had in the same state and con- 
 dition in which it was, and subject to the same claims 
 as existed against it when the partner himself possessed 
 it.(«) 
 
 On the subject of execution it remains to be observed, 
 
 that the writ of execution must correspond with 
 [ *209 ] the judgment by *which it is warranted, and on 
 
 which it depends. As, on a judgment against an 
 individual, an execution cannot issue against him and 
 another, so on a joint judgment against several, a sepa- 
 rate execution against one cannot be sustained.(6) Even 
 if some of the defendants have died since the judgment 
 was recovered, the execution must still be taken out in 
 
 (i/) Dutton V. Morrison, 17 Ves. 206. S. C. 1 Kose, B. C. 213; 
 see also Barker v. Goodair, 11 Ves. 85. 
 
 (2) DuUon u. Morrison, si</?ra, 
 
 (a) Taylor v. Fields, 4 Ves. ,396. S. C. 15 Vesey, 559; see also 
 Young V. Keighly, 15 Vesey, 557. 
 
 {b) Clarke v. Clement, 6 T. R. 525. Hob. 59. Hunt v. Pasman, 4 
 M. & S. 329.
 
 AGAINST PARTNERS. 209 
 
 the joint names of all those against whom it was ob- 
 tained.(c)(l) But when it is issued against all, it may- 
 be executed against all, or separately against each, since 
 each is answerable for the whole debt, and not for any 
 definite proportion of it.(c?) And if it be enforced against 
 an individual defendant, from whom actual satisfaction 
 is obtained, such satisfaction operates as a discharge of 
 the other defendants from the claim of the plaintiff.(e) 
 The creditor is entitled only to payment, which, if made 
 by one debtor, must necessarily liberate the other debtors 
 from his demand, although, as between the debtors them- 
 selves, the consequent obligation arises, of contributing 
 each his proportion towards the liquidation of the debt.f/) 
 On the same principle it is, that if after one of several joint 
 debtors on a judgment has been taken in execution on a 
 capias ad saiisfaciendum, he escape, and the creditor, in 
 an action against the sheriff founded on the escape, re- 
 cover from him the debt and damages due on the judg- 
 ment, the demand of the creditor is extinguished; because, 
 as regards him, were the judgment not vacated, he w ould 
 obtain a double satisfaction.(^) The law, therefore, sub- 
 stantially transfers the remedy to the sheriff, who, by an 
 action, founded on the recovery against himself, may 
 obtain a complete indemnification against the damages 
 he has been constrained to pay. But it is not alone in 
 cases of an actual pecuniary satisfaction received by the 
 creditor that the debtors on a joint judgment are absolved 
 from their joint and several responsibility under it ; the 
 creditor himself may, by his own acts, produce a perfect 
 
 (c) Lord Raym. 244. S. C. 1 Salk. 319. Tidd's Prac. (7th ed.) 
 1155. 
 
 {d) Abbot V. Smith, 2 Blackst. Rep. 947. Ex parte Ruffiii, 6 
 Vesey, 119. 
 
 (e) Hob. 59. Com. Dig, til. Execution (H). (/) See ante, p. 79. 
 
 \g) Hob. 59. 
 
 (1) See Guhr etal. v. Chambers, 8 Serg. &l Rawle Rep. 157. A 
 judment against two partners entered by confession in the singular 
 number, held to be a judgment against both, the previous part of the 
 order, and other circumstances, manifesting that the entry in the singu- 
 lar was a clerical mistake. McCoiin v. Holmes, 4 Litt. Rep. 389.
 
 209 LEGAL REMEDIES 
 
 exoneration of the debtors from liability, both separate 
 and joint. For instance, if, after a person of a single 
 joint debtor has been taken by virtue of a writ of execu- 
 tion issued against several, the creditor, on a compromise 
 being effected, or for any other cause, consent to his 
 
 liberation, he cannot afterwards retake him, or 
 [ *210 ] take any of the *co-debtors; the personal caption 
 
 and subsequent voluntary discharge of one joint 
 debtor, under final process, being so far considered as a 
 legal satisfaction of the entire debt, as that it cannot be 
 enforced against the other debtors.(^) And where a 
 plaintiff obtained a verdict in trespass against two de- 
 fendants, and both being arrested on a joint writ of 
 capias ad satisfaciendum for the amount of the daniages, 
 one was afterwards discharged on giving a promissory 
 note to the plaintiff, payable by instalments, it was held 
 that this operated to discharge the other.(i)(l) But 
 although such is the legal consequence of a discharge of 
 one of several joint debtors, when emanating from the 
 act of the party or creditor, yet the same effect is not 
 produced, where the liberation proceeds from, and is a 
 consequence of the act or operation of the law. There- 
 fore the discharge, under an insolvent debtors' act, of 
 one of two defendants taken on a joint writ, does not 
 operate as a discharge of the other defendant, since it is 
 not with the actual consent of the creditor.( ;) Nor are 
 
 (h) Clarke v. Clement, 6 T. R. 526. 5 Cro. Eliz. 73. Co. 586. 
 See also Tanner v. Hague, 7 T. R. 420. Blackburn v. Stupart, 2 
 East, 243. 
 
 (i) Ballam v. Price, 2 B. Moore, 235. Where the obligee of a joint 
 bond after an assignment of the estate of one of the obligors under a 
 commission of bankruptcy, recovered judgment against the other, and 
 look him in execution by a capias ad satisfaciendum, but consented to 
 his discharge on payment of part of the debt; on petition to the Lord 
 Chancellor he was allowed to come in as a creditor before the assignees 
 for a moiety of the money remaining due on the bond, for as the exe- 
 cution against the one obligor was subsequent to the assignment of the 
 bankrupt's estate, the obligee had already a vested interest in that es- 
 tate. Ex parte Smith, 1 P. Wms. 237. 
 (j) Nadin v. Battie, 5 East, 147. 
 
 (1) See Cooper v. Bigalow et al, 1 Cowen's Rep. 56.
 
 AGAINST PARTNERS. 210 
 
 joint debtors exempted from their joint responsibility, if 
 one of them being taken in execution escape, and the 
 creditor, not exerting his legal remedy against the sheriff, 
 does not obtain from him an equivalent in damages for 
 the debt.(^) So, if one die whilst in execution under a 
 joint judgment, the right of the creditor under the judg- 
 ment survives against the others.(/) A caption of one 
 defendant under a capias ad satisfaciendum is no actual 
 satisfaction, so as to bar the plaintiff from taking out 
 execution against other persons liable to the same debt 
 or damages.(?n) In an action against several defendants, 
 a verdict was taken for the plaintiff for a certain amount 
 of damages, subject to a point of law reserved for the 
 opinion of the court ; and in case that point should 
 be determined in favour of the plaintiff, *then [*211 ] 
 subject to the award of a barrister as to the 
 amount of damages. The point of law being decided in 
 favour of the plaintiff, the abitrator declined proceeding 
 in the reference, having been consulted by one of the 
 parties in the cause. One of the defendants refused to 
 name any other arbitrator; and, under these circum- 
 stances, the court ordered judgment and execution to 
 issue against that defendant for the damages found by 
 the jury unless he would consent to refer the damages 
 to some other arbitrator.(?2) 
 
 If the sheriff, under an execution against one of two 
 partners, seize and sell the whole of the property, the 
 solvent partner may, it seems, either consider the seizure 
 and sale as a tort, and maintain an action of trover 
 against him, or he may v*^aive the tort and adopt the 
 sale ; in which case, he may proceed against the sheriff 
 as for money had and received to his use.(o) But if, 
 under such an execution, the sheriff neither seizes nor 
 sells any part of the joint property, but falsely returns 
 nulla bona, in an action against him for such return, the 
 
 {k) Cro. Eliz. 479. 555. 573. 5 Co. 86. Hob. 59. 
 (/) Id. ibid. 
 
 (m) Hob. 59. ; and see Brickwood v. Annis, 5 Tauut. 614. S. C. 1 
 ■ Marsh. 250. 
 
 (n) WooUey v. Kelly, 1 B. & C. 68. 
 (o) Tidd's Pract. (7th ed.) 1024.
 
 211 EqUITABLE REMEDIES 
 
 proper measure of damages seems to be half the value 
 of the whole goods>.{p) 
 
 SECTION II. 
 Equitable Remedies against Partners. 
 
 Creditors, or persons contracting with a partnership 
 firm, may likewise, where there is a defect of remedy at 
 law, resort to a court of equity, and call in aid its inter- 
 ference. In many instances more effectual relief is ad- 
 ministered in equity, than the forms and technicalities of 
 the law will allow it to grant. The common law, for 
 example, though it professes to adopt the lex mercatoriay 
 has not adopted it throughout, in what relates to partner- 
 ships in trade. It holds, indeed, that although partners 
 are in the nature of joint tenants, there shall be no sur- 
 vivorship between them in point of interest ; yet, with 
 regard to partnership contracts, it applies its 
 [ *212 ] own pecular rule ; and because they are *in form 
 joint, holds them to produce only a joint obliga- 
 tion, 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, there- 
 fore, 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) 
 
 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 compliance with the gene- 
 
 (/)) Tyler r. Duke of Leeds, 2 Stark. N. P. C. 218. 
 (o) See post, where this subject is more fully considered.
 
 AGAINST PARTNERS. 212 
 
 ral rule, which requires that, to a bill founded on a con- 
 tract, all those persons should be made parties who are 
 parties to the contract.(6)(l) It is also essential in 
 order that the court may be enabled to dispense com- 
 plete justice, by deciding upon and settling the rights of 
 all persons interested.(c) But a strict observance of the 
 general rule is not enforced where the parties to be made 
 defendants are too numerous to render it practicable to 
 prosecute a suit, if they were all joined in it; and there- 
 fore an individual claiming against a numerous partner- 
 ship or club, who is not himself a partner, is at liberty to 
 file a bill against a few of the partners or members 
 only.(c?) And when one partner is resident in a foreign 
 country, and consequently out of the reach of the pro- 
 cess of the court, the suit may be brought against the 
 partner who is within its jurisdiction ; and if the omis- 
 sion be excused by the bill, the defendant will be pre- 
 cluded from objecting that his co-partner is not made a 
 party ;(e) and if a decree be obtained against him, he will 
 be compelled to satisfy the joint demand.(/)(2) 
 
 (b) Humphreys v. HoUis, 1 Jacob, 75. 
 
 (c) Lord Redesdale's Tr. on PI. 133. 
 
 (a) Baldwin v. Lawrence, 2 Sim, & Stu, 26. Weale v. West Mid- 
 dlesex Waterworks Company, 1 Jac. & Walk. 358. Meux v. Maltby, 
 2 Swanst. 277. Cockburn v. Thompson, 16 Ves. 321. Weld v. Bon- 
 ham, 2 Sim. & Stu. 91. 
 
 (e) Weymouth v. Boyer, 1 Ves. jun. 416. In Cockburn v. Thomp- 
 son, 16 Ves. 325, Lord Eldon said, " there are many instances of jus- 
 tice 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." (3) 
 
 (/) Darwenl v. Walton, 2 Atk. 510. It is usual where parties are 
 charged by the bill to be out of the jurisdiction of the court to name 
 them in the prayer of process ; because, if they come within the juris- 
 diction, process may issue against them without amending the bill. 
 But the omission of their names in the prayer of process does not ren- 
 der the record defective. Lord Redesdale's Tr. on PI. 134. Haddock 
 V. Thomlinson, 2 Sim. &l Stu. 219. 
 
 (A) Waggoner v. Gray's Jidm. 2 Hen. & Munf. 605. Bozier v. 
 Eaivards, 3 Litt. Rep. 67. See Hoy^s heirs v. McMurry, 1 Litt. Rep. 
 365. 
 
 (2) See Simpson et al. v. Geddes, 2 Bay's Rep. 533. 
 
 (3) The Court will not bind all the partners in a trading company, 
 as to the construction of the articles of co-partnership, as to a point of
 
 213 EQUITABLE REMEDIES 
 
 [ *213 ] *So where one of the joint owners of a cargo 
 ' deposited part of the cargo with a factor to sell, 
 
 and hold a moiety of the proceeds for his separate cre- 
 ditor, 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.(^) 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 co- 
 partner, 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.(/i) (1) The 
 relief to be obtained against partners through the me- 
 dium 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 asso- 
 ciation, 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.(z) The 
 equitable jurisdiction by injunction, where the effect will 
 
 (g-) Weymouth v. Boyer, ante. 
 
 {h) Carrington v. Cantillon, Bunb. 107. S. P. Coles v. Gurney, 1 
 Madd. 187. And see Ex parte Peyton, Buck, 200. 
 
 (i) 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. 
 
 general interest, in a suit by some of the partners against a committee 
 for the management of the commercial concerns, not otherwise autho- 
 rized to represent the partnership. Baldwin v. Lawrence, 2 Sim. & 
 Stu. 26. 
 
 (1) So the answer of one joint partner in the name of both is suffi- 
 cient, provided the complainant files a general replication, and takes no 
 steps to compel an answer from the other partner. Freelands v. 
 Royal et at. 2 Hen. & Munf. 575.
 
 AGAINST PARTNERS. 213 
 
 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 oppor- 
 tunity to oppose it on affidavit.(ir) 
 
 *SECT10N til. [ ^214 ] 
 
 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-Ge- 
 neral, on the behalf of the crown, seeks to enforce pay- 
 ment of the penalties imposed by the revenue laws. 
 There, it seems, the partners are either jointly or sepa- 
 rately hable, the whole of the penalties being recoverable 
 from them, either in their joint or their individual capa- 
 cities, at the election of the crown. This doctrine we 
 find laid down by Lord Chief Baron Pe7igelly:(a) "If 
 one of several partners is concerned in smuggling on 
 account of the co-partnership 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(6) in which wines 
 were imported and entered at the custom-house, by one 
 party 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 to the crown. Nor is it essential, 
 
 {z) Crowder v. Tinkler, 19 Ves. 617. 
 {aS Attorney-General v. Burges, Bumb. 223. 
 \b) Attorney-General v. Stanny forth, Bumb. 97. 
 37
 
 214 PROCEEDINGS AGAINST PARTNERS 
 
 in order to subject partners jointly to penalties, that the 
 goods in respect of which they are incurred should ac- 
 tually 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. (c) And, 
 if one partner is guilty of aiding and assisting, or is 
 
 otherwise concerned in unshipping, or in further- 
 [*215] ing the importation of prohibited and *uncus- 
 
 tomed goods, he is liable to the penalty, not only 
 for what he, but any of the others may, at the time, 
 smuggle.(d') But partners must all be participes cri- 
 minis ; they must be parties to the act of illicit impor- 
 tation, 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.(e) 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 seised 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.(/) 
 The penalty incurred by each is to be measured and re- 
 gulated by what comes to his possession ; but that must 
 be meant of what really and truly comes into his posses- 
 sion, and not what notionally and virtually only can be 
 said to be in his possession.(^) And, on the same 
 
 (c) Attorney-General v. Burges, supra. 
 
 {d) Rexr. Manning, Com. Rep. 616. (c) Id. ibid. 
 
 (/) Co. Litt. 186. a. [g) Rex. v. Manning, supra.
 
 AT THE SUIT OF THE CROWN. 215 
 
 principle, that each is culpable for what he receives, or 
 what comes to his hands, it seems, that a mere tem- 
 porary, but exclusive custody of uncustomed goods, with 
 a knowledge that they are of that description, is suffi- 
 cient to render the person having that custody res- 
 ponsible 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 intrusted 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 intrust- 
 ed.(A) 
 
 We have seen, that in a case of a judgment and exe- 
 cution against an individual partner for his 
 separate debt, the joint *creditors must be satis- [ *216 ] 
 fied 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 indi- 
 vidual 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 the interest 
 which the partner himself possesses. If, therefore, an 
 extent against a single partner, and a commission of 
 bankruptcy against the firm, are contemporaneous in 
 their existence, notwithstanding the latter issue subse- 
 quently 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 
 efrects.(i)(l) But where partnership property is seized 
 
 {h) Rex. V. Manning, supra. 
 
 {i) Rex V. Saunderson, 1 Wightw. 50. 
 
 (1) Nor does the priority of The United States, extend to take the 
 property of a partner from partnership effects, to pay a separate debt, 
 due by sucli a partner to the United States, when the partnership 
 effects are not sufficient to satisfy the creditors of the copartnership. 
 The U. States v. Hack et al 8 Peters' Sup. Ct. Rep. 271.
 
 216 PROCEEDINGS AGAINST PARTNERS 
 
 under an extent against one partner, who, on taking the 
 accounts, proves to be indebted to the firm, the court 
 will not, on motion, grant an amoveas manus, until it has 
 been referred to the remembrancer. (j) 
 
 Besides, in the instances which have been stated, the 
 rights of the crown may, in other cases, conflict with 
 those of partners. Upon the outlawry of one partner, 
 or his attainder for treason or felony, all the partnership 
 effects become vested in the crown. The share of the 
 party outlawed or attainted is in the first place forfeited; 
 whereby, if the king were capable of being so, he would 
 become joint tenant, or tenant in common of the part- 
 nership effects with the other partner ; but as this would 
 be inconsistent with the dignity of the monarch, he is 
 strictly entitled to the whole. So, if the interest of one 
 partner vest by contract in the king, he will, as it seems, 
 be entitled to the entirety of the undivided interests of 
 all the partners. The law upon this subject has been 
 ably and elegantly explained by Mr. Justice Blackstone, 
 in his Commentaries.(A:) He says, " In the several 
 methods of acquiring property by prerogative, there is 
 also this peculiar quality, that the king cannot have a 
 joint property with any person in one entire chattel, or 
 such a one is not capable of division or separation; but 
 where the titles of the king and a subject concur, the king 
 shall have the whole : in like manner, as the king can- 
 not, either by grant or contract, become a joint 
 [ *217 ] *tenant of a chattel real with another person ; 
 but by such grant or contract shall become en- 
 titled to the whole in severalty. Thus, if a horse be 
 given to the king and a private person, the king shall 
 have the sole property : if a bond be made to the king 
 and a subject, the king shall have the whole penalty ; 
 the debt or duty being one single chattel ;(/) and so, if 
 two persons have the property of a horse between them, 
 or have a joint debt owing them on bond, and one of 
 them assigns his part to the king, or is attainted, where- 
 
 (j) Rex V. Rock, 2 Price, 198. 
 {k) Vol ii..p. 409. 
 (/) Fitzh.'Abr. t. Dette, 38. Plowd. 243.
 
 AT THE SUIT OF THE CROWN. 217 
 
 by his moiety is forfeited to the crown ; the king shall 
 have the entire horse, and entire debt.(wi) For, as it 
 is not consistent with the dignity of the crown to be 
 partner with a subject, so neither does the king ever lose 
 his right in any instance; but, where they interfere, his is 
 always preferred to that of another person :(/z) from 
 which two principles it is a necessary consequence, that 
 the innocent, though unfortunate partner must lose his 
 share in both the debt and the horse, or in any other 
 chattel in the same circumstances." One good effect of 
 this doctrine, with regard to partnership, is, that it may 
 render a man cautious as to the persons with whom he 
 forms this relation, and that it makes it his interest to 
 strive to preserve them in the path of loyalty and virtue. 
 Besides, although such are the strict rights of the crown, 
 in the mild spirit of modern times, they are not likely 
 ever to be enforced either against creditors or deserving 
 partners. 
 
 CHAPTER V. [*218] 
 
 SECTION I. 
 
 The Causes of the Dissolution of a Partnership. 
 
 In the preceding chapters our object has been to ascer- 
 tain and define what are the consequences legally result- 
 ing from the formation of the contract of partnership. 
 These we have endeavoured to explain, both as they 
 regard the rights of partners themselves, and as they 
 relate to the responsibilities which, as a body, they may 
 incur to third persons. It is now to be considered what 
 are the modes and causes by which a partnership, when 
 once constituted, may be and is dissolved. Where the 
 
 (m) Cro. Eliz. 263. Plowd. 323. Finch Law, 278. 10 Mod. 245. 
 (n) Co. Litt. 30.
 
 218 THE CAUSES OF THE DISSOLUTION 
 
 partnership is formed for a single dealing or transaction, 
 it follows that it is at an end so soon as the dealing or 
 transaction in which the partners jointly engage is com- 
 pleted.(a) But where a general partnership is formed, 
 either for a definite or an indefinite period of time, the 
 causes which may operate a destruction of it are various. 
 In the case of a partnership limited as to duration, it 
 may, before the prescribed period of its termination ar- 
 rives, be dissolved, either by the death, the confirmed 
 insanity, the bankruptcy of all or one of the partners, or 
 it may endure for the stipulated period, and expire with 
 the effluxion of time ; but where the partnership is un- 
 limited, as to its existence, although in the instances of 
 death or bankruptcy it is determined, yet, if those acci- 
 dents do not intervene, any partner may withdraw him- 
 self from it whenever he thinks proper. In this respect 
 the law of England adopts the rule of the civil law : 
 Tamdiu societas durat. guamdiu consensus partium integer 
 per sever at. Q}) Besides the causes we have stated as 
 operating a dissolution, a partnership, limited as to du- 
 ration, may, before the expiration of the time agreed 
 upon for its continuance, be dissolved by the decree of 
 a court of equity, where the conduct of some or all of 
 the partners has been such as to render it impossible 
 to carry on the trade or undertaking on the 
 [ *219 ] *terms stipulated. We will now consider the 
 causes of dissolution under three general heads : 
 first, the act of God ; secondly, the act of the party ; and 
 thirdly, the act or operation of law. 
 
 A dissolution occasioned by the act of God may be 
 subdivided into two branches : first, a dissolution which 
 is necessarily effected by death; and, secondly, a disso- 
 lution which may be the result of insanity. By the death 
 of one of the partners the contract of partnership is ipso 
 facto dissolved.(c)(l) And even where any number of 
 
 a) See Inst. lib. 3. t. 20. s. 6. (6) Cod. lib. 4. t. 37. 1. 5. 
 
 c) Vulliamy v. Noble, 3 Meriv. 614. 
 
 (I) Gratz V. Bayard, 11 Serg. &; Rawle, 46. Scholefield v.Eichel- 
 berger, 7 Peters' S. C. Rep. 586.
 
 OF A PARTNERSHIP. 219 
 
 persons, exceeding two, are united as partners, the death 
 of on6 of them operates a dissolution, unless provision 
 is expressly made to the contrary ; and the accounts of 
 that partnership are taken down to the time of the death 
 of the partner.(c?) The inducements to form such a 
 contract consist chiefly in the personal character and 
 qualifications of the party, and his representative or 
 legatee may be in all respects a contrast to him. Cases 
 might easily be put in which considerable inconvenience 
 and hardship may arise from the application of this rule, 
 but any relaxation of it would produce much greater and 
 more frequent grievances. It has been objected to the 
 doctrine, that death ends a partnership, that it is un- 
 reasonable; but considering what persons might be in- 
 troduced into a firm, unless it worked a dissolution, 
 there is strong reason for saying that its eflfect should be 
 such as the law ascribes to it.(c) The contract of 
 partnership being founded on a delectus personcz, it w ould 
 be destructive and subversive of the very foundation 
 of such a contract w^ere the surviving partner bound 
 and compellable to receive into the partnership, at all 
 hazards, the executor or administrator of the deceased, 
 his next of kin, or possibly a creditor taking administra- 
 tion, or whoever claimed by representation or assign- 
 ment from his representative.(/) The reasoning on 
 which this doctrine rests has received a fuller illustra- 
 tion from the civilians than from any authorities 
 in our *domestic jurisprudence. According to [ *220 ] 
 the Roman law, a partnership was dissolved by 
 the death of either of the partners ; and where the num- 
 bers of partners exceeded two, the death of one eflfected 
 a dissolution among the survivors. Solvitur adhic soci- 
 ctns etiam mortc socii, quia qui socictatem coiitrahit, ccrtam 
 personam sibi elegit ; sed et si consensu plurium societas 
 
 (d) Per Lord Eldon, Kinder v. Taylor, M. S. S. Gillespie v. 
 Hamilton, 3 Madd. 254. A. provision in partnership articles that, upon 
 the decease of one, the surviving partners shall take his share at a 
 valuation, would, it seems, be construed as an implied agreement, that 
 a partnership should subsist among the survivors. Wrexham v. Hudle- 
 ston, 1 Swanst. 514. n. 
 
 (e) Per Lord Eldon, Crawshay v. Maule, 1 Swanst. 509. 
 (/) Id. Idid. S. C. 1 J. Wils. 181.
 
 220 THE CAUSES OF THE DISSOLUTION 
 
 contracta sit, morte unius socii solvitur, etsi plures super- 
 sint ; ?iisi in coeunda societate cditer convener it. (g^ So 
 rigidly was this doctrine enforced, that a stipulation for 
 admitting the heir of the deceased into the partnership 
 was declared void. Nemo potest societatem hcBredi siio 
 sic parare, tit ipse hcBres socius sit,(Ji) Adeo morte socii 
 solvitur societas, ut nee ah initio pacisci possimus, ut hceres 
 succedat societati.(i) But the law of England imposes 
 no such restraint; it merely declares that, in the absence 
 of express stipulation to the contrary, a partnership is 
 dissolved by the death of either or any of the partners, 
 the contract not subsisting for the benefit of representa- 
 tives.(A;) Partners are not incapacitated from securing 
 to their families respectively, or from transmitting to 
 their personal representatives, the interests they several- 
 ly possess in the business in which they have engaged; 
 but such a transmission of interest must be made the 
 subject matter of positive provision and agreement 
 amongst the partners themselves. The right of each 
 partner, by express stipulation inter se, to secure a devo- 
 lution of his interest in the trade upon others at his 
 death, is evidenced by a modern case.(/)(l) There a 
 partnership was formed for ninety-nine years, upon an 
 agreement that, on the death of any of the partners, his 
 share should go and of right belong to his widow during 
 her life, as a provision for her support, and also to enable j 
 
 her to educate and promote her children; and, that after | 
 
 {g) Inst. lib. 3. t. 26. s. 5. Pothier has thus explained the reason 
 why death operates a dissolution. " La raison est que les qualites 
 personnelles de chacun des associes entrent en consideration dans le 
 contrat de societe ; je ne dois done pas etre oblige lorsque Vun de mes 
 associes est mart, a demeurer en societe avec les aittres, parce quHl se 
 petit faire que ce ne soit que par la consideration des qualites person- 
 nelles de celui qui est mort, que fai voidu contracter la societe.''^ 
 Pothier Traite du contrat de Societe, c. 8. s, 3. p. 141. 
 
 (/t) Dig. lib. 17. t. 2. 1. 35. {i) Dig. lib. 17. t. 2. 1. 59. 
 
 (/c) Pearce v. Chamberlain, 2 Ves, sen. 33. Godfrey v. Browning, 
 lb. 34. 
 
 (/) Balmain v. Shore, 9 Ves. 500. 
 
 (1) Gratz V. Bayard, 11 Serg. & Rawle, 46. Warner v. Cunning- 
 ham, 3 Dew's Rep. 76.
 
 OF A partnership'. 220 
 
 her decease, her share in the joint trade should go 
 and of right belong and appertain unto, and be equal- 
 ly divided among her children, share and share 
 *alike; and although, under the circumstances [*221] 
 of the case, it was held that the child of a part- 
 ner did not take a vested interest in the parent's share 
 during the life of the parent, yet the legality of such a 
 provision was not questioned or disputed. But, without 
 the express assent of his co-partner, one partner cannot 
 nominate a person to continue the trade after his 
 death ;(/) (1) although, if the surviving partner himself 
 claims any benefit under the will, he cannot, without re- 
 nouncing that benefit, refuse to admit a legatee ;(m) nor, 
 because there is a stipulation that upon the death of one 
 particular partner of two, the business shall be carried 
 on by his representatives, does it follow that such a 
 provision extends to admit into the partnership the re- 
 presentatives of the other partner in the event of his 
 previous demise.(/i) Although a partnership is entered 
 into for a term of years, it is previously dissolved by the 
 death of either of the partners, unless there are express 
 stipulations to the contrary.(o) (2) Where it is stipulated 
 by the articles that, upon the death of one, he shall be 
 succeeded by some one he shall appoint, or by his exec- 
 utors, if, the person appointed shall not think proper to 
 come into his place on the terms of the partnership, the 
 death puts an end to the concern from the time of the 
 decease of the partner making the appointment, and not 
 upon a dissolution wrought by exclusion of the appointee, 
 
 (Z) Godfrey v. Browning, ante. 
 
 (m) Crawshay v. Maule, 1 Swanst. 509. 
 
 n) Pearce v. Chamberlain, ante. 
 
 o) Gillespie v. Hamilton, 3 Mad. 251. 
 
 (1) Schofieldx. Eichelberger, 7 Peters' S. C. Rep. 586. Nor can 
 one partner, by selling out a portion of his interest, or by any other 
 means, introduce a third person as partner into the concern. Murray 
 V. Bogert et al 14 Johns. Rep. 318. Kingman v. Spurr, 7 Pick. 
 Rep. 235. And Chancellor Kent has deemed this principle to be ap- 
 plicable to the case of a feme sole partner, who by marrying dissolves 
 the partnership. 3 Kent's Comm. 55, 2d Edit. Bray v. Fromont et 
 al Mad. & Geld. Rep. 5. 
 
 (2) Per Curiam, 7 Peters' S. C. Rep. 594. 
 
 38
 
 221 THE CAUSES OF THE DISSOLUTION 
 
 for he never became a partner.(^) It is not necessary 
 *to give notice of a dissolution wrought by death in order 
 to Tree the estate of the deceased from future liabiHty 5(9) 
 and on this ground a court of equity M'ill not restrain 
 the surviving partners from using the name of a deceased 
 partner in the firm of the trade.(r) 
 
 With respect to insanity^ it seems clear that it does 
 not, like death, per se work a dissolution of a partner- 
 ship ;(s) and the effect of the insanity of one partner; as 
 a ground for a court of equity to decree a dissolution, is 
 not yet settled by decision. It appears principally a 
 
 question of circumstances, to be decided by refe- 
 [ *222 ] rence to the particular character of the *disease, 
 
 as permanent or temporary, the terms of the 
 contract and the nature of the undertaking, as imposing 
 on the lunatic an obligation of active interference, for 
 the performance of which he is disqualified, or reserving 
 to him a right of inspection, by the suspension of which 
 the safety of his estate may be hazarded. In such cases 
 the jurisdiction of a court of equity is most diflicult and 
 delicate, and to be exercised with great caution.(/) 
 Where, as far as human testimony can establish, the 
 lunacy of the partner is incurable, and he has by the 
 articles contracted to contribute his skill and industry in 
 carrying on the trade, his lunacy furnishes good ground 
 to a court of equity to decree a dissolution ; because, as 
 on the one hand, it would be a great hardship upon a 
 person so disordered, if his property were continued in 
 a business which he could not control or inspect, and 
 were thereby subjected to the consequences of the pos- 
 sible imprudence of another ; so, on the other hand, it 
 would be difficult to hold the co-partner to his contract, 
 when it was perfectly manifest that the other could not 
 execute that for which he had engaged.(w) But, as the 
 
 ip) Kershaw v. Matthews, 2 Russ. 62. 
 \q) VuUiamy v. Noble, 3 Meriv. 614. 
 (r) Webster v. Webster, 3 Swanst. 490. n. 
 (s) Waters v. Taylor, 2 Ves. & Bea. 303. 
 {t) Per Lord Eldon, Waters v. Taylor, 2 Ves & Bea. 303. 
 {u) Id. ibid. Sayer v. Bennett, 1 Cox's Ca. 107. S. C. 1 Mont, 
 on Partn. notes p. 16.
 
 OF A PARTNERSHIP. 222 
 
 duration of the disorder may be protracted or circum- 
 scribed, and the degree may admit of variety, it is im- 
 possible speculatively to lay down any general rule on 
 the subject; since such a rule in its application, must 
 vary according as the malady is either confirmed insanity, 
 or mere temporary illness, or dejection of mind,(z;) and 
 according as the prospect of recovery is speedy or re- 
 mote. Each case must be governed and decided by its 
 own peculiar circumstances. However, whatever may be 
 the nature of the disorder, one partner cannot, in con- 
 sequence of such an affliction, put an end to the part- 
 nership by his own act ; that object can only be attained 
 through the medium of the decree of a court of equi- 
 ty .(i^) (1) In one case the court ordered it to be referred 
 to the master to inquire and state whether the defendant 
 (the alleged lunatic) was in such a state of mind as to be 
 capable of conducting the partnership business according 
 to the terms of the articles of co-partnership.(^) 
 
 *Where no term is expressly limited for the [ "223 ] 
 duration of a partnership contract, and there 
 is nothing in the contract itself to fix its existence to any 
 particular period, it is dissoluble at the will of either par- 
 ty. {y) (2) Admitting the serious inconveniences which 
 sometimes ensue the application of this principle, it is 
 
 (u) Liardet v. Adams, Mont, on Part. 90. n. ii). 
 
 {w) Waters v. Taylor, supra. Sayer v. Bennet, supra. See also 
 Wrexham v. Hudleston, 1 Swanst. 514. n. S. C. cited 2 Ves. sen. 34, 35. 
 
 {x) Sayer v. Bennet, supra. 
 
 (y) Peacock v. Peacock, 16 Ves. 50. Crawshay v. Maule, 1 
 Swanst. 508. S. C. 1 J. Wils. 181. 
 
 (1) 3 Kent's Comm. 58, 2d Edit. Messrs. TVelfs and Emmet in 
 the argument of Griswold v. TVaddington, 15 Johns. Rep. 57, stale 
 the law to be, that insanity operates as a dissolution of a partnership, 
 and the Court recognise it expressly; but the true rule is stated by Mr. 
 Colden, (page 80,) that " the mere fact of lunacy does not put an end 
 to the partnership." Jones v. Noy, 2 Milne & Keen, 125. 
 
 (2) Skinner v. Dayton, 19 Johns. Rep. 538. 11 Serg. & Rawle, 
 46. It is a question for the jury, whether facts and circumstances 
 proved show a partnership to have been dissolved. Eocche v. Fen- 
 dergrast, 3 Harr. & Johns. 33.
 
 223 THF CAUSES OF THE DISSOLUTION 
 
 necessary likewise to contemplate the formidable evils 
 which would attend an opposite doctrine. When per- 
 sons enter into a partnership without saying how long it 
 shall endure, they are understood to take that course, in 
 the expectation that circumstances may arise in which a 
 dissolution will be the only means of saving them from 
 ruin. To require, therefore, a prospective notice might 
 contravene the intention of the parties, at the same time 
 that its reasonableness w^ould afford a constant subject 
 of dispute. On the one hand, it may be extremely dis- 
 advantageous to parties to say, that a partnership shall 
 be dissolved on a given day; on the other, it must be 
 extremely difficult, if not impossible, for a court of equity, 
 by a general rule, to ascertain what is reasonable notice ; 
 and the question, whether the particular notice was rea- 
 sonable or convenient, would be matter of discussion in 
 almost every instance of a disputed dissolution. Con- 
 siderations of that sort led to the adoption of the rule, 
 that in the case of a partnership subsisting without arti- 
 cles, and for an indefinite period, any partner may, at a 
 moment's notice, terminate the partnership. But, ac- 
 cording to the principles on which the dissolution' must 
 take place, a partner can very seldom, if ever, have an 
 interest to give notice of dissolution at a period disad- 
 vantageous to the general interest of the concern ; as 
 where the articles do not prescribe the terms, the law 
 ascertains what shall be the consequence : viz. that the 
 whole of the joint property shall be sold off, and the con- 
 cern wound up. No partner, therefore, can derive a 
 particular advantage by choosing an unseasonable mo- 
 ment for dissolution ; as, by so doing, he must suffer in 
 proportion to the extent of his interest in the trade. Nor 
 is it clear that a better rule could be suggested. But 
 whatever is its policy, the principle of law being estab- 
 lished, it is incumbent on those who engage in partner- 
 ship to protect themselves by contract against its incon- 
 veniences : if they omit that precaution, courts of 
 [ *224 ] justice have no right to redeem them from *the 
 penalties of their imprudence. In such a case, a 
 dissolution may be brought about by a notice given by 
 any one of the partners to the other, signifying his dis-
 
 OF A PARTNERSHIP. 224 
 
 sent to the further continuance of the partnership, there 
 being no necessity to resort to a court of equity for its 
 aid and inter vention.(2r) Here again the law of Eng- 
 land corresponds with the rule of the civil law. Ma7iet 
 autem societas eousque donee in eodem eonsensu persevera- 
 verint. At cum alicjuis renimciaverit societati, solvitur 
 societas.{a) Regularly a partnership for an indefinite 
 period, constituted by deed, can be dissolved only in the 
 same manner in which it was created ; and a partner- 
 ship similarly formed, but limited as to duration, ought, 
 if the partners are desirous of terminating it before the 
 expiration of the time originally agreed upon, to be an- 
 nulled by deed, according to the maxim, umimquodque 
 dissolvitur eo ligamine quo ligatar. But although the 
 partnership is commenced by articles unsealed, in which 
 is contained an agreement for a copartnership deed, it is 
 nevertheless, in legal eflfect, a partnership formed by 
 parol, and consequently may be dissolved by a verbal 
 notice.(^») And where there is a partnership constituted 
 by deed, a notice that it is dissolved, signed by the par- 
 ties, for the purpose of being inserted in the Gazette, is 
 sufficient evidence of the dissolution for all purposes 
 against the parties signing it.(c) 
 
 The existence of engagements with third persons, 
 which have not come to a conclusion, does not form any 
 objection to a dissolution. For as partners are neces- 
 sarily entering into contracts from day to day, which 
 cannot all expire at the same period, it would, if their 
 subsistence furnished ground of objection to a dissolu- 
 tion, be hardly possible to dissolve any partnership. The 
 partners cannot, it is true, by a dissolution, relieve them- 
 selves from any engagements which they may have 
 contracted with strangers ; but, as among themselves, 
 the existence of such engagements cannot prevent a 
 dissolution, either by mutual consent or notice.(c?) Arti- 
 
 (z) Ex parte Nokes, 6 June 1801. Cook's M. S. 
 (a) Inst. lib. 3. t. 26. s. 4. 
 (6) Rackstraw v. Imber, Holt's N. P. C. 368. 
 (c) Doe (1. Waithman v. Miles, 1 Stark. N. P. C. 181. S. C. 4 
 Campb. 373. 
 
 {d) Featherstonhaugh v. Fenwick, 17 Ves. 298.
 
 224 THE CAUSES? OF THE DISSOLUTION 
 
 cles of partnership frequently contain a provision for a 
 dissolution, upon notice to be given by any one of the 
 partners. In such a case, the mode of proceeding pointed 
 
 out must be strictly pursued, and a regard to 
 [*225] good faith must *govern the conduct of the 
 
 partner who w^ithdraws. But if a partnership 
 be commenced for a limited period, with a right reserved 
 to each partner of dissolving it on giving a year's notice, 
 and after the expiration of the period originally agreed 
 upon, it be, by mutual consent, continued, it may then 
 be dissolved by either party at his pleasure. (e) In the 
 absence of an express, there may be an implied con- 
 tract, as to the time for which a partnership shall en- 
 dure ;(/") (1) and where that is the case, the partnership 
 cannot be destroyed by the act of the party until the 
 contemplated period arrives. However, the purchase of 
 a leasehold interest by a partnership firm does not ne- 
 cessarily manifest an intention, that the partnership con- 
 tract shall be co-existent with the duration of the lease ; 
 although, unquestionably, the purchase may be so made 
 as to imply an agreement that the partnership should 
 last as long as the lease.(^) But if, as a general rule, 
 such an inference were to be drawn from the mere act 
 of .purchase, it would apply alike to the acquisition of 
 freehold as of leasehold interests, and consequently, if 
 the partners were to purchase a fee simple, it must, ac- 
 cording to that principle, be concluded that they intended 
 the partnership should ,exist for ever.(A) When the dis- 
 solution of a partnership, to which any partner is enti- 
 
 (e) Featherstonhaiigh v. Fenwick, 17 Ves. 298. 
 (/) Crawshay u. Maule, 1 Swanst. 508. 
 {g) Per Lord Eldon, lb. 521. S. C. 1 J. Wils. 181. 
 (h) Id. Ibid. Featherstonhaiigh v. Fenwick, supra. Jefferys t>. 
 Smith, 1 Jac. & Walk. 301. 
 
 (1) Though a co-partnership is by the articles to terminate at a cer- 
 tain period, it may be continued by express or tacit consent ; and in 
 such case, the stipulations of the original articles would be considered 
 as those of the continuing partnership. Mifflin v. Smith, 17 Serg. & 
 Rawle, 165. See Dickinson v. Bold's Survivors, 3 Desaus. Cha. Rep. 
 501.
 
 OF A PARTNERSHIP. 225 
 
 tied, is opposed by some of the partners, a court of 
 equity will interfere ; and, under such circumstances, it 
 may be more prudent to file a bill, which may not only 
 pray a dissolution, but likewise an account and an in- 
 junction, restraining the dissentient partners from exe- 
 cuting securities in the name of the firm, and from 
 receiving the partnership debts.(i) There is an instance 
 of an application to a court of equity to inhibit the dis- 
 solution of a commercial partnership ;(A:) and it has been 
 said, that on proper grounds such an application may be 
 sustained.(/) 
 
 It may be doubted whether, as against a client who, 
 having employed solicitors in partnership, has a 
 right to their united *exertions, the solicitors are [ *226 ] 
 at liberty to dissolve their partnership, and turn 
 the client over to one of them ; it should seem they have 
 not, as against him, the power of dissolving their part- 
 nership ;(m) but, however that may be, a retiring part- 
 ner can never be considered as a discharged solicitor. 
 The client, after such dissolution of partnership, cannot 
 employ both ; and it would be impossible to maintain, 
 that, if he employ one, the other is let loose, and dis- 
 charged from all those obligations which he had under- 
 taken. A solicitor under such circumstances, if retained 
 against his former client, must (however high his per- 
 sonal character) be considered, hypothetically, as em- 
 ployed for no other reason except the very improper one, 
 that he had been previously employed by the other party; 
 and upon the clearest general principle, that cannot be 
 admitted.(w) 
 
 The eflfect of the marriage of a feme sole partner has 
 never been expressly decided ; but, upon general princi- 
 
 (i) Master v. Kirton, 3 Ves. 74. Lawson v. Morsan, 1 Price, 303, 
 Ryan u. Mackmath, 3 Bro. C. C. 15. 
 
 (A:) Chavany v. Van Sommcr, 3 Woodd. Lect. 416. n. S. C. 1 
 Swanst. 512. n. 
 
 {I) 1 Madd. Ch. Pr. 160. 
 
 {ni) Cook V. Rhodes, in note to 19 Ves. 273. 
 
 (n) Cholmondeley v. Clinton, 19 Ves. 267. S. C. Coop. 80; and 
 see Beer v. Ward, 1 Jacob, 82.
 
 226 THE CAUSES OF THE DISSOLUTION 
 
 pies, it would most probably be held to operate a disso-^ 
 lution of the partnership.(o) (1) 
 
 Where articles of partnership are entered into, it fre- 
 quently happens that a precise term is fixed for the 
 duration of the contract. In that case, the partnership^, 
 if it do not meet with an intermediate legal or acci- 
 dental termination, is regularly dissolved by the effluxion 
 or expiration of the period originally stipulated for its 
 existence. A partnership so constituted cannot be de- 
 feated by the will of one or of any number of the part- 
 ners short of the whole of them ; but, of course, if they 
 all agree upon a separation, they may do so at any 
 time.(2) 
 
 Besides the instances of dissolution occasioned by the 
 act of God, or efl?ected by the parties themselves, a part- 
 nership contract entered into for a term of years, may, 
 in some cases, before the term has expired, be terminated 
 by the act of the law. Where it appears that the con- 
 templated undertaking cannot be carried on according to 
 the true intent and meaning of the articles of co-partner- 
 ship, as if a partnership be formed for carrying into effect 
 a new invention, which, after repeated trials is 
 [ *227] found impracticable, *a court of equity will dis- 
 solve \i.{p) And although the misconduct of a 
 partner in trifling circumstances, which is not of such a na- 
 ture as to defeat the object for which the partnership was 
 formed, seems not to be a sufficient cause for dissolving a 
 partnership ;{cj) yet, if the conduct of partners has been 
 
 {o\ Wats, on Partn. 384. See also 1 Swanst. 517. n. 
 (p) Baring v. Dix, 1 Cox's Ca. 213 
 
 {q) Goodman v. Whitcomb, 1 Jac. & Walk. 593. Liardet v. 
 Adams, Mont, on Partn. 90. 
 
 (1) See 15 Johns. Rep. 82. 3 Kent's Comm. 55. 2d Edit. 
 
 (2) " Even where partners covenant with each other, that the part- 
 nership shall continue seven years, either party may dissolve it the 
 next day, by proclaiming his determination for that purpose, the only 
 consequence being, that he thereby subjects himself to a claim for 
 damages for a breach of his covenant." Per Platt, J., Skinner v. 
 Dayton, 19 Johns. Rep. 538. 3 Kent's Comm. 54. 55. 2d Edit, 
 Sed qiisere. See the reasoning of Judge Washington, 4 Wash. C. C. 
 Rep. 234.
 
 OF A PARTNERSHIP. 227 
 
 such as to render it impossible to carry on the partnership 
 upon the terms on which it was entered into,(r) or if one 
 partner be entirely excluded by the others from his inte- 
 rest in the partnership,(6) or if there be a gross abuse of 
 good faith between the parties(0 a dissolution will, in such 
 cases, be decreed at the instance and on the complaint 
 of a single partner, notwithstanding the other partners 
 object to it.(u) So violent and lasting dissension seems 
 to be a ground upon which a court of equity will decree 
 a dissolution ; as where the parties refuse to meet each 
 other on matters of business ; a state of things which 
 precludes the possibility of the partnership business being 
 conducted with advantagc.(t?) A society for rehef in 
 sickness, by means of a fund raised by subcription of the 
 members, has been considered as a partnership, it having 
 no corporate character ;(t^)(l) and where it has been 
 found that the society has existed upon principles which, 
 with reference to the amount of the number of subscri- 
 bers, and the nature of the subscriptions, made the whole 
 a bubble, the same has been dissolved, each member re- 
 ceiving a portion of the sums subscribed.(:c) The court 
 will likewise dissolve friendly societies founded on erro- 
 neous principles; and, until a dissolution takes place, 
 will restrain the trustees from making payments which 
 may tend to exhaust the funds.(y) 
 
 An act of bankruptcy committed by one partner, if fol- 
 lowed by a commission and assignment, is a dissolu- 
 
 (r) Waters v. Taylor, 2 Ves, «fc Bea. 299. 
 
 [s) Goodman v. Whitcomb, supra. 
 
 \t) Chapman v. Beach, 1 Jac. & Walk. 594. 
 
 (u) Baring t'. Dix, supra. See Glassington v. Thwaites, I Sim. &l 
 Stu. 129. notes (a) and (b). 
 
 (v) De Berenger v. Haramell, cor. Sir L. Shadwell. Jarman's 
 System of Conveyancing, 7th vol. p. 26. 
 
 (w) Beaumont v. Meredith, 3 Ves. «fc Bea. 180. 
 
 (.r) Buckley v. Cater, stated 17 Ves. 15. Pearce v. Piper, ibid. 1. 
 Beaumont v. Meredith, svj)ra. 
 
 (t/) Reeve v. Parkins, 2 Jac. & Walk. 390 ; and see Ellison v. Big- 
 nold, ibid. 503. 
 
 (1) Babb V. Reed, ct ul. trustees, &c., 5 Rawle, 151. 
 39
 
 228 THE CAUSES OF THE DISSOLUTION 
 
 [ *228 ] tion of the partnership *for all purposes, as 
 regards the bankrupt partner, by virtue of the 
 relation to the statutes concerning bankrupts, which 
 avoid all the acts of a bankrupt from the time of the 
 act of bankruptcy, and from the necessity of the thing, 
 all his property being vested in his assignees, who be- 
 come tenants in common of his share of the partnership 
 stock.(^)(l) And with respect to the solvent partner, 
 the bankruptcy of his copartner so far operates a disso- 
 lution of the partnership, as to prevent his dealing with 
 the partnership property for future purposes, as if the 
 partnership continued; but in respect of past transac- 
 tions or claims which were consummate at the time of 
 the bankruptcy, the solvent partner is not prevented 
 from exercising the control which rests with him over 
 the partnership effects, to take care that they are duly 
 applied in liquidation of the partnership debts.(rt) With 
 reference to the bankrupt partner, it was for some time 
 doubtful, whether the act of bankruptcy, the commission, 
 
 (z) Hague v. Eolleston, 4 Burr. 2174. Smith v. De Sylva, Cowp. 
 471. Ex parte Ruffin, 6 Ves. 126. Ex parte Williams, 11 Ves. 5. 
 Wilson V. Greenwood, 1 Swanst 480. S. C. 1 J. Wilson, 223. In 
 re Wait, 1 Jac. &, Walk. 009. Per Bayley J., 10 East, 426. 
 
 (a) Harvey v. Crickett, 5 Mau. & Selw. 336. See also dictum of 
 Lord Ch. B. Thomson in Coldwell v. Gregory, 1 Price, 129. S. C. 2 
 Rose, 149. Ex parte Blakey, 1 Glyn & James, 198. 
 
 (1) 15 Johns. Rep. 82. 17 Johns. Rep. 535. So a voluntary bona 
 fide assignment by one of several partners, of all his interest in the co- 
 partnership stock, &c. ipso facto dissolves the partnership ; although 
 one of the articles expressly provides, that the partnership is to continue 
 until two of the contracting parties shall demand a dissolution, and the 
 other partners wish the partnership business to go on notwithstanding 
 the assignment. Marquand et al. v. The N. F. Mati. Comjmny, 17 
 Johns. Rep. 525. Mitmford v. McKay, 8 Wend. Rep. 442. But an 
 assignment of their property by a firm consisting of two partners, con- 
 taining a condition that it shall enure only to the benefit of such credi- 
 tors as shall agree to look to each of the partners for only such moiety 
 of such balance as shall remain after a dividend of the property assigned, 
 followed up by a covenant to that effect on the part of the creditors, 
 does not produce a severance of the partnership, although in the instru- 
 ment executed by the creditors there be a covenant on the part of the 
 partners that they will individually pay a moiety of such balance. Le 
 Page v. McCrea, 1 Wend. Rep. 164.
 
 OF A PARTNERSHIP. 228 
 
 or the assignment, should be considered as operating the 
 dissolution. In one case,(ft) Lord Mansfield seemed to 
 conceive that it was the act of bankruptcy : in another 
 case,(c) that effect was ascribed by him generally to the 
 bankruptcy. However, from several decisions which 
 have subsequently taken place, it seems now settled, 
 that the joint tenancy is not fully severed until the part- 
 ner against whom the commission issues is adjudged a 
 bankrupt, but that the dissolution has then a retrospect 
 to the act of bankruptcy.(rf) The adjudication that the 
 party is a bankrupt is, indeed, so effectual a dissolution, 
 that the bankrupt himself may, it has been said, insist 
 upon its having terminated the partnership.(e) But if 
 the commission be fraudulently taken out for a purpose 
 foreign to its object, as with the express view- 
 thereby of working a dissolution *of the partner- [ *229 ] 
 ship, the Lord Chancellor will direct it to be 
 sueperseded at the cost of those at whose instance it 
 was issued, although there be a trading, a debt, and an 
 act of bankruptcy, for the great seal will not permit such 
 an abuse of its process.(/) To warrant the granting a 
 supersedeas^ however, there must be fraud, it not being 
 sufficient to show the existence merely of a by-motive, 
 because a commission is, in a qualified sense, a legal 
 right, like an action, and courts of justice have no con- 
 cern with, or power to inquire into, the motives of par- 
 ties who assert a legal right. Therefore, where a cre- 
 ditor of a firm being displeased with the conduct of one 
 of the partners, and being convinced, that if he continued 
 in the concern he would ruin it, arrested all the partners; 
 they, with the exception of the one with whom the cre- 
 ditor was displeased, put in bail, but he remained in pri- 
 son until two months expired, and then he was made a 
 
 (6) Fox V. Hanbury, Cowp. 448. (c) Hague v. RoUeston, supra. 
 
 {d) Ex parte Smith, 5 Ves. 295. Smith v. Stokes, 1 East, 363. 
 Dutton w. Morrison, 17 Ves. 204. Barker v. Goodair, 11 Ves. 78. 
 Upon the issuing of a commission, the assignment by the commission- 
 ers has a relation back to the first act of bankruptcy, committed subse- 
 quent to the petitioning creditor's debt. Ex parte Birkett, 2 Rose, 71 . 
 
 (e) Pidcock w. Kilby, Mont, on Partn. 91. n. (1). 
 
 \f) Ex parte Browne, 1 Rose, 151. See also Ex parte Harcourt, 
 2 Rose, 203, Ex parte Gallimore, ibid. 424.
 
 '229 THE CAUSES OF THF. DISSOLI^TION 
 
 bankrupt by the creditor, ^vho continued his dealings 
 with the other partners. On a petition being presented 
 by the bankrupt to supersede the commission, on the 
 ground that an unfair use had been made of the same, 
 it being issued for the purpose of dissolving the partner- 
 ship, so far as respected him, the Vicc-Chancellor, after 
 conferring with the Lord Chancellor on the subject, dis- 
 missed the petition, observing, that the commission was 
 not affected by any by-object in the petitioning creditor, 
 and that it was not fraudulent on his part, if, without 
 concerting with the other partners, he desired to operate 
 a dissolution, considering it an advantageous measure 
 for himself, that the bankrupt should not continue in a 
 firm with which he had dealings.(^) 
 
 An execution, likewise, under which all the interest of 
 one partner is siezed and sold, is a determination of the 
 partnership as to him : because whatever interest he 
 possessed is divested out of him, and becomes, by the 
 sale, vested in the vendee of the sheriff, who is tenant in 
 common with the solvent partners. (/«)(!) 
 
 A partnership may likewise be dissolved by an award. 
 It is customary in regular partnerships, to insert 
 [ *230 ] a clause in the ^articles, by which the partners 
 covenant to submit to arbitration any matter or 
 thing which may become the subject of controversy or 
 dispute between them. And although in such cases the 
 arbitrators are usually judges of the parties' own choos- 
 ing, and proceed in a summary way ; yet, if duly autho- 
 rised, their reward is considered final, consequently bind- 
 ing upon the parties, unless there should appear just 
 grounds, either at law, or in equity, to set it aside. And 
 it is a mode of dissolving a partnership very frequent 
 
 {g) Ex parte Wilbran, 5 Madcl. 1. S. C. 1 Buck, 461. And see 
 Ex parte Bourne, 1 Glyn & James. 311. But see S. C. 2 Glyn <fe 
 James, 137, in which the former order was reversed. 
 
 {h) Sayerv. Bennet, Mont, on Partn. notes, p. 17. In Fox v. Han- 
 bury, Cowp. 445, Lord Mansfield assumed that a partnership might be 
 dissolved by an execution. And see Waters v. Taylor, 2 Ves. & Bea. 
 299. 
 
 (1) Per Curiam, Murray v. Mvmford, 6 Cow, Rep. 443.
 
 OF A PARTNERSHIP. 230 
 
 amongst merchants and traders, and is considered a 
 ready method of adjusting partnership claims. In order 
 to empower arbitrators to direct a dissolution, it is not 
 necessary for the parties, submitting to arbitration, to 
 give them an express authority for the purpose ; since, 
 if two partners refer all matters in difference between 
 them, and the question of the dissolution be, at the time 
 of the reference, a subject of dispute, the arbitrators may 
 dissolve the partnership.(i)(l) 
 
 SECTION II. 
 The Consequences of the Dissolution of a Partnership. 
 
 Having pointed out the various causes which operate 
 a dissolution of a subsisting partnership, and likewise the 
 modes by which a partnership may be dissolved, it now 
 remains to be considered what are the consequences 
 resulting from a dissolution, in whatever manner it is 
 brought about. These may be considered, either as they 
 affect a total or a partial destruction of a partnership, a 
 complete annihilation of a firm, or a dissolution merely 
 for the purpose of making an alteration in it, by the re- 
 tirement of an old and the introduction of a new mem- 
 ber. The consequences which particularly ensue a dis- 
 solution occasioned by the bankruptcy or the death of a 
 partner we will separately examine. 
 
 Where a partnership is, by notice, by death, or by any 
 other mode of determination, actually ended, as regards 
 all the partners, no one of them can make use of the 
 
 {%) Green v. Waring, 1 Blackst. Rep, 475. 
 
 (1) See Byres v. Van Deiisen, 5 Wend. Rep. 268. A commercial 
 partnership existing between a citizen of the United States, and the 
 subject of another country, is dissolved by the breaking out of a war 
 between the two countries. Griswoldv. Waddington, 16 Johns. Rep. 
 438. S. C. 15 Johns, Rep. 5. See as to the affect of residence in a 
 hostile country by a partner. The San Jose Indiana, 2 Gallis. Rep. 
 268.
 
 230 THE CONSEQUENCES OF THE 
 
 partnership estate in a manner inconsistent with the 
 winding up of the concern. The object of their original 
 
 association is then terminated, and their power 
 [ *231 ] *of employing the joint property in the way of 
 
 trade ceases.(l) The partners cannot create any 
 new obhgations ; for after a dissolution nothing remains 
 to be accomplished, except the arrangement of the affairs 
 of the partnership ; but, until they are settled, the connec- 
 tion between the partners subsists ;(2) and in that sense, 
 and until such a settlement take place, the partnership 
 may be said to continue, and the ex-members of the firm 
 may be sued as existing partners.(a) From the nature 
 of a partnership, engagements may be contracted which 
 cannot be fulfilled during its existence, exposed as it is 
 to sudden and arbitrary terminations; and the con- 
 sequence, therefore, must be, that, for the purpose of 
 makin;^ good outstanding engagements, of taking and 
 settling all the accounts and converting all the property, 
 means, and assets of the partnership, existing at the time 
 of the dissolution, as beneficially as may be for the 
 benefit of all who were partners, according to their res- 
 pective shares and proportions, the legal interest subsists, 
 although, for all other purposes, the partnership is ac- 
 tually determined. (6) The arrangement of the affairs 
 being then the sole object and purpose to be attained 
 after a dissolution, a court of equity will, in all cases, 
 interpose where the conduct of partners is of a descrip- 
 tion not likely to be attended with such a result. There- 
 
 («) Ex parte Williams, 11 Ves. 5. Peacock v. Peacock, 16 Ves. 
 57. Wilson v. Greenwood, 1 Swanst. 480. S. C. 1 J. Wilson, 223. 
 Crawshay v. Maule, ibid. 506. S. C. 1 J. Wils. 181. 
 
 (6) Crawshay w. Collins, 15 Ves. 227. Natusch ». Irving. Appendix, 
 post. 
 
 (1) Whiteman v. Leonard, 3 Pick. I?ep. 177. 
 
 (2) It has been held in South Carolina, that after the dissolution of a 
 partnership, one of the partners may consent that the holder of a note, 
 indorsed by the firm previous to the dissolution, may compound with 
 and release the drawer, and his consent will bind the other partner to be 
 answerable for the balance due ; and this upon the ground that such 
 consent was not the creation of a new liabilily, but the keeping alive 
 the old one. Union Bunk v. Hull, 1 Harper's Rep. 246.
 
 DISSOLUTION OF A PARTNERSHIP., 231 
 
 fore, if one partner trade with the joint property on his 
 separate account,(c) or if he interfere with it otherwise 
 than for the settlement of the joint afrairs,(6/) or if 
 some members of the firm, in closing the transactions, 
 seek to exclude others from a just share in the manage- 
 ment,(e) (1) a court of equity will appoint a manager or 
 receiver to wind up the concern, and will direct inquiries 
 in what manner it can be wound up most beneficially to 
 those interested.(/) (2) But to justify a call for this 
 summary interference, some fraudulent breach of con- 
 tract or duty must be shown ; for a receiver will not be 
 appointed, merely on the ground of a previous dissolution 
 of the partnership having taken place.(^) In 
 some cases of dissolution by the *bankruptcy of [ *232 ] 
 one partner, the solvent partner will be enabled 
 to deal solely with the partnership property; and for 
 that purpose will be appointed the receiver of it, but 
 without a salary.(A) Where on a dissolution of part- 
 nership, and a bill filed for an account, a receiver was 
 appointed, it was held that the court would not compel 
 the managing partner to deliver up to the receiver, books, 
 deeds, &c. belonging to a third party (a client of the 
 partners,) such partner oflfering free access and inspec- 
 tion, and to assist in making out the bills.(i) 
 
 (c) Harding v. Glover, 18 Ves. 281. 
 
 (/) Crawshay v. Maule, 1 Swanst. 507. S. C. 1 J. Wils. 181. 
 Heathcote v. Hulme, 1 Jac. & Walk. 128. 
 
 (e) Wilson v. Greenwood, 1 Swanst. 481. S. C. 1 J. Wilson, 22.3. 
 
 (/) Crawshay v. Maule, supra. 
 
 {g) Harding v. Glover, 18 Ves. 281. Wilson v. Greenwood, supra. 
 
 (h) Ex parte Stoveld. 1 Glyn. & James. 303. 
 
 (i) Dacie v. John, 1 McClell. & Y. 206. 
 
 (1) See Law v. Ford, 2 Paige's Cha. Rep. 310. 
 
 (2) See Gratz et al. v. Bayard et al. 1 1 Serg. &; Rawle, 48. These 
 are powers, however, which were possessed by no court in Penns^/Z- 
 vania, until the passage of the act of June 16th, 1836, (Pamph. Laws, 
 789,) by the 13th section of which it is provided, "that the Supremo 
 Court, when sitting in Bank, in the city of Philadelphia, and the Court 
 of Common Pleas for the said city and county [of Philadelphia] shall 
 have the power and jurisdiction of Courts of Chancery [Equity] so far 
 as relates to the supervision and control of partnerships.'
 
 232 THE CONSEQUENCES OF THB 
 
 We will now endeavour to explain what is considered 
 as falling under the description o^ joint property at the 
 termination of a partnership. The joint property con- 
 sists of the remaining stock which existed at the formation 
 of the partnership, with the additions made to it in the 
 course of trade, either during the continuance of the 
 partnership, or subsequently thereto ; for if the trade be 
 carried on by one partner with the joint capital, he must 
 account for the profits he may derive.(A;)(l) Real es- 
 tates acquired by the partnership are, as we have seen,(/) 
 regarded in no other light than as a partnership property, 
 and consequently they form a portion of the joint fund. 
 Nor, as it has been observed, does it matter that the 
 freehold interest purchased by the firm is conveyed to 
 one partner. Such a conveyance does not alter the 
 nature of the purchase, nor affect the rights of the other 
 partners. The property still continues to form an article 
 of joint estate, and, as such, must be brought into the 
 common fund.(m) (2) And where a renewal of the lease 
 of part of the partnership premises is clandestinely ob- 
 tained by a member of a partnership, dissoluble at plea- 
 sure, although it does not follow that all the concerns 
 conducted upon the premises are a part of the joint 
 estate, yet the lease will, on a dissolution, form a por- 
 tion of the partnership property; because a partner so 
 treating will not be permitted to secure to himself 
 the good-will of the trade, in exclusion of his part- 
 
 (h) Brown v. Vidler, cited 15 Ves. 223. Coxwell v, Broraet, cited 
 ib. Crawshay v. Collins, ib. 229., and 1 Jac. & Walk. 267. Fea- 
 therstonhaugh v. Fenwick, 17 Ves. 298. 
 
 (Z) See ante, p. 32. 
 
 (m) Smith v. Smith, 5 Ves. 189.; and see Alder «. Fouracre, 3 
 Swanst. 489. 
 
 (1) Brown v. De Tastet, Jac. Rep. 284. The surviving partners 
 retained the capital of a deceased partner, and employed it in trade — 
 decreed to account for the profits. 
 
 (2) Tlie widow of a deceased partner is not entitled to dower 
 in the lands and houses purchased with the co-partnership funds, 
 and held in the name of all the co-partners, or on their behalf. Kick- 
 ardson's ExWs. v. WyutVs Ex, 2 Desaus. Ciia. Kep. 471. 
 
 I
 
 DISSOLUTION OF A PARTNERSHIP. 233 
 
 ners.(n) So mines are, for many purposes *part- [ *233 ] 
 nership property. They are, like all personal 
 property, liable to debts of the partnership, and debts to 
 .the co-partnership.(o) But that only is to be considered 
 as co-partnership property which belongs jointly to all the 
 partners, whether it arise simply from contributions inter 
 se, or is composed in one part of contributions, and in 
 the remaining part of acquisitions made by, or profits 
 derived from, the use and application of the capital 
 formed by such contributions. A distinct and indepen- 
 dent fund, belonging to different but not to all the indi- 
 vidual members of the firm, which is not commensurate 
 with joint property, and does not succeed to the place of 
 it, does not fall within the meaning of, and is not dis- 
 tributable as joint estate : if it were so distributable, the 
 partners uninterested in such fund would be relieved 
 from the weight of debt which otherwise they must bear, 
 at the same time, probably, that the separate creditors 
 of the actual owners might have claims against it, and 
 who, therefore, w ould be entitled to priority of satisfac- 
 tion. For instance, if one joint owner of a ship insure 
 his share or interest, and a loss happen, the money re- 
 covered upon the policy will be separate, and not joint 
 property. (p)(l) So, if a partnership consisting of three 
 
 (n) Featherstonhaugh v. Fenwick, supra. Wilson v. Greenwood, 
 1 J. Wilson, 223. 
 
 (o) Fereday v. Wightwick, 1 Tamlyn's Rep. 250. Jefferys v. 
 Smith, 1 Jac. & Walk. 298. 
 
 (p) Ex parte Parry, 5 Ves. 575 ; and see Ex parte Smith, 3 Madd, 
 63. S. C. Buck. 149. 
 
 (1) Garrell v. Hanna, 5 Ilarr. & Johns. 412. Graves v. Barne- 
 wall, 2 Cranch, 419. But if the acting partner in a concern of two, 
 causes insurance to be effected for the amount of his own share, and the 
 policy state it to be on his account, but retain the general printed words 
 of *' whomsoever else it may concern," the insurance will be held to have 
 been made on joint account, if such appear to have been the intention of 
 the assured ; and to gather this intention, the letters of the assured may 
 be referred to, though they were never shown to the underwriter, who 
 subscribed upon seeing instructions to insure only on the separate ac- 
 count of the acting partner. Laivrence v. Seebor, 2 Caines' Rep. 203. 
 See Turner v. Biirrows, 5 Wend. Rep. 541. S. C. 8 Wend. Rep. 144, 
 in error, judgment affirmed. 
 
 40
 
 233 THE CONSEQUENCES OF THE 
 
 partners were to sustain an accidental loss, as by fire, 
 and an individual were to make a donation to two of 
 the partners in compensation of their loss, such a gift 
 to the two partners would not render the subject of it 
 partnership property.(9) And in a late case, where it 
 appeared that two American citizens(l) and a French 
 subject, residing at St. Domingo^ were in partnership, 
 and were owners of certain ships captured by British 
 cruizers, and that the commissioners appointed under 
 the treaty of commerce concluded in the year 1794 be- 
 tween this country and America, for awarding compensa- 
 tion to American subjects who had suffered losses by 
 capture, for which they could obtain no redress in the 
 ordinary tribunals, had awarded in compensation of the 
 ships of the partnership captured certain sums to the two 
 Americans, with express exclusion of the French citizen 
 as an alien enemy, it was determined, that the sums 
 so awarded were not partnership property.(r) 
 [ *234 ] There the property in *the ships was irrevoca- 
 bly lost and gone by the capture and condemna- 
 tion, and the subsequent bounty to the two being mat- 
 ter of liberality and conciliation, but not of strict legal 
 right, could not be considered as resulting to the benefit 
 of all the partners, without contravening the terms of 
 the grant. If, instead of compensation, restitution of the 
 ships had been ordered, the capture would not, perhaps, 
 have altered the property, because it would have been 
 unaflfected by the sentence of condenmation. And, in 
 such a case, the res ipsa being returned, and remaining 
 in solido in the possession of the two partners, nothing 
 would have occurred to have changed its identity, and 
 consequently the rights existing antecedently to the cap- 
 ture would have been restored.(s) 
 
 When the common property is ascertained, either 
 partner may insist upon a sale of the whole concern. 
 
 {q) 2 Swanst. 573. (r) Campbells. MuUett, 2,Swanst. 551. 
 
 (s) Thompson i'. Ryan, 2 Swanst. 565. n. 
 
 (1) The word " subjects" was used in the preceding London edition.
 
 DISSOLUTION OF A PARTNERSHIP. 234 
 
 The rights of the partners respectively are then precisely 
 equal Teach may require the whole concern to be wound 
 up by a sale, and a division of the produce. One partner 
 has no claim upon his individual proportion of a specific 
 article, nor can he insist upon an exclusive right in it, 
 but he is entitled only to a general arrangement of the 
 partnership concerns, and for that purpose to an account 
 of the produce of the aggregate joint efrects.(^)(l) He 
 cannot separate his share from the bulk of the joint pro- 
 perty, nor compel his co-partner to accept what, accord- 
 ing to a valuation, his interest may be worth.(z/) That 
 is not the mode in which a court of equity winds up the 
 concerns of a partnership, but in every case in which 
 that court interferes in closing the transactions of a 
 firm, it directs the value of the whole of the joint pro- 
 perty, whether real or personal, to be ascertained in the 
 way in which it can be best ascertained, viz. by a sale 
 and its conversion into money.(u) Nor, in the case 
 of a suit instituted for the dissolution of a partner- 
 ship, where it is clear, from the pleadings 
 *that all or some of the parties have a right to [*235 ] 
 a dissolution, does the court wait until a final 
 decree is made before it orders a sale. Such a delay 
 might be attended with considerable inconvenience. The 
 record itself disclosing sufficient to entitle the complain- 
 ant to call for a dissolution, a decree directing a disso- 
 
 {t) Crawshay v. Collins, 15 Ves. 229. Lingen v. Simpson, 1 Sim. 
 & Slu. 600. 
 
 («) Featherstoiihaugh v. Fenwick, 17 Ves. 309. See Natusch v. 
 Irving, Appendix, post. 
 
 {v) Feredayu. Wightwick, 1 Tamlyn's Rep. 261. In Rigden v. 
 Pierce, 6 Madd. 353, where the articles stipulated for an equal division 
 of the partnership property on a dissolution, after payment of the 
 partnership debts, it was held that it necessarily required a conversion 
 into money, and that either party had a right to insist on a sale of the 
 whole. 
 
 (1) Sigorirney v. Munn, 7 Conn. Rep. 324. In the absence of all 
 proof to the contrary, partners will be presumed to be equally interest- 
 ed in the partnership funds. Gould v. Gould, 6 Wend. Rep. 263. 
 The San Jose Indiano, 2 Gallis' Rep. 269.
 
 235 THE CONSEQUENCES OF THE 
 
 lution must necessarily, under such circumstances, be 
 eventually pronounced, and nothing, therefore, can re- 
 main but to wind up the concern. The jurisdiction of 
 the court would consequently, in many cases, be ren- 
 dered extremely mischievous, if it were laid down as an 
 universal rule, that the trade, whether beneficial or not, 
 should be carried on till the cause was finally heard. On 
 fireneral principles, therefore, it is the practice, in the 
 instance of a trading partnership clearly dissolved, or 
 where the right to a dissolution is manifest, at once to 
 put an end to the trade, by directing a sale by interlocu- 
 tory order on motion, where that measure is required 
 by the evident interest of the parties.(id;) In a late case, 
 where it was provided by the articles that, upon the ex- 
 piration of the co-partnership, the stock should be 
 divided, received, and taken by the partners according 
 to their respective interests, it was held, that such a pro- 
 vision could not be literally carried into execution, and 
 therefore, that by the general law of partnership, the 
 settlement of the affairs must be made by sale^ and a 
 division of the produce.(a.-) 
 
 The joint property being disposed of, the joint credi- 
 tors have the primary claim upon the fund constituted by 
 its produce. This is consonant with the principle qiii 
 sentit commodum sentire debet et onus }■ as the partnership 
 property has been acquired by means of partnership 
 debts, it ought first to be applied in discharge of them. 
 It is also for the sake of the partners themselves, that 
 the joint creditors are first to be satisfied ; because, in 
 in taking the account between the partners, there is that 
 equity affecting each, that he shall be discharged from 
 ■his liability in respect to partnership debts, before any 
 division of the funds, liable to those debts, takes 
 
 {to) Crawshay v. Maule, 1 Swanst. 506. 523. S. C. 1. J. Wils. 
 181. In Nerot v. Burnard,,2 Russ. 56., pending an appeal against a 
 decree declaring a partnership dissolved, and directing the property to 
 be sold, and an account, the court upon motion suspended the sale 
 upon the terms of bringing title deeds into the master's office, and 
 giving security for the value of the eftects. 
 
 {x) Cook V. Collingridge, 1 Jacob, 607.
 
 DISSOLUTION Of a PARTNERSHIP. 236 
 
 place between the partners.(y) (1) ^Besides, it [*236] 
 is very possible, and it often happens in fact, 
 that the partners have different interests in the surplus, 
 and out of that, in order to the administration of justice 
 to the partners themselves, a necessity arises, that the 
 partnership debts must be paid, otherwise the surplus 
 cannot be distributed according to equity.(2') Partner- 
 ship effects, therefore, or their produce, must be applied 
 in liquidation of the outstanding debts, before any of the 
 partners can claim any thing for his share or debt.(a) (2) 
 And as the assignee of a single partner must claim 
 through the medium of the assignor, and can be in no 
 better state than he was, it follows that an assignment 
 by one partner of his interest in the joint property to 
 secure his separate debt, must continue subject to the 
 payment of joint debts.(6) (3) Independently, however, 
 and subject to the rights of the joint creditors, when an 
 account is taken between partners after a determination 
 
 (y) Campbell v. Mullett, 2 Swanst. 574. 
 (z1 Ex parte Ruffin, 6 Ves. 127. 
 
 (a) West V. Skip. 1 Ves. sen. 456. 
 
 [b) Young V. Keighly, 15 Ves. 567; and see the judgment of 
 Lord Mansfield, in Fox v. Hanbury, Cowp. 445. 
 
 (1) fVodrop V. Ward, 3 Desaus. Cha. Rep. 203. White v. Union 
 Ins. Company, 1 Nott & McCord's Rep. 556. Ridgehy v. Carey, 4 
 Harr. & McHen. Rep, 167. See McCullough v. DasliielVs Adm. 1 
 Harr. & Gill. 96. Deveau v. Fowler, 2 Paige's Cha. Rep. 400. 
 Wilder v. Keeler, Egberts v. Wood, 3 Paige's Cha. Rep. 167, 518. 
 Smith V. Barker, 1 Fairf. Rep. 458. 
 
 (2) But the prior right of a partnership creditor, to be paid out of 
 the common property, in preference to a separate creditor of either of 
 the partners, does not exist in the case of a dormant partnership. 
 French v. Chase, 6 Greenl. Rep. 160. Lord v. Baldwin, 6 Pick. 
 Rep. 348. 
 
 (3) Where two persons are partners in carrying on of a trade, and 
 by the terms of their partnership one finds stock and the other does the 
 work, and each is entitled to a proportion of the proceeds of the manu- 
 factured articles, and the working partner absconds, the other, it seems, 
 is entitled to take possession of the whole stock on hand, holding the 
 share of his partner subject to the claims of his creditors ; but if the 
 absconding partner relinquishes his interest to the other partner, an 
 actual delivery is not necessary to complete the transfer. Boynton v. 
 Page, 13 Wend. Rep. 425.
 
 236 THE CONSEQUENCES OF THE 
 
 of the partnership, each partner is entitled to be allowed 
 against the other every thing he has advanced or brought 
 in as a partnership transaction, and to charge his co- 
 partner in the account with what he has failed to bring 
 in, and with what he has abstracted from the joint fund 
 beyond his just proportion ; and nothing will be consi- 
 dered as the share of any of them, but that proportion of 
 the residue, to which each, on a balance of the accounts 
 so taken, may be ascertained to be entitled.(c) 
 
 We will now inquire what are the consequences result- 
 ing from a partial dissolution of a partnership, which 
 may be considered either as they regard the retiring 
 partner, or as they affect the remaining partner. On the 
 secession of one partner from a firm, it is, generally 
 speaking, agreed, that he shall receive a sum of mo- 
 
 ney(c?) or an annuity, proportioned to his share 
 [ *237 ] in the *concern, in return for which, he makes 
 
 over to the partner, who intends continuing the 
 trade, whatever interest he may possess in the joint pro- 
 perty. When the consideration for the assignment by 
 the retiring partner of his interest in the concern is an 
 annuity to be paid to him, we have before seen(e) that 
 the income secured must not arise out of and be subject 
 lo the fluctuations of the profits of the trade; because, if it 
 be so, all the substantial enjoyment of a partner in the 
 profits will be given ; but the annuity must be certain, 
 and be payable at all events, and its amount should be 
 regulated by a reference to the actual bona fide value of 
 
 (c) West V. Skip. 1 Ves. sen. 242. S. C. 2 Swanst. 586. Where 
 a partner had, during his continuance in the firm, carried the amount 
 of his advances to his private credit, without deducting the property 
 tax, it was held that, after his retirement from the partnership, the 
 continuing partners could not, after a long lapse of time, deduct it, es- 
 pecially as it did not appear that they had ever accounted for it to 
 government. Parker v. Ramsbottom, 3 B. & C. 257. S. C. 5 D. & 
 R. 138. 
 
 (rf) An assignment by a retiring partner of all his interest in the 
 partnership contracts and concern, in consideration of a certain sum at 
 which his interest had been valued, has been held not to be a sale of 
 property within the- act requiring an ad valorem stamp. Belcher v. 
 Sikes, 6 B. &; C. 234. 
 
 (c) See ante, p. 21.
 
 DISSOLUTION OF A PARTNERSHIP. 237 
 
 the interest which the retiring partner renounces. In a 
 late case it was agreed, that the continuing partner 
 should, in consideration of an assignment to him of the 
 partnership property, including a lease of the premises 
 on which the business was carried on, secure to the re- 
 tiring partner, the payment of an annuity by bond, which 
 was conditioned to be void on payment of the annuity, 
 " or in case lie should, at any time after the expiration of 
 the then existing lease, be dispossessed of and compelled to 
 quit the premises without any collusion, contrivance, act, or 
 default of his own;'''* the continuing partner obtained a 
 renewal of the lease, and afterwards became a bankrupt, 
 and the renewed lease passed under the assignment of 
 his estate ; it was decided that this was not such an 
 eviction or dispossession as was contemplated by the 
 agreement, in the event of which the annuity was to 
 cease.(/) But if the partners cannot arrive at any 
 amicable arrangement, then, as in the case of a total dis- 
 solution, the partnership effects are all to be reduced into 
 money, and, after discharging all the demands existing 
 against the firm, the surplus is to be divided amongst 
 all the partners, according to the proportions in which 
 they may be respectively and severally entitled. If, in- 
 stead of a share of the capital or its profits, there is 
 nothing to be apportioned but a loss, the retiring partner 
 necessarily stands in the same situation as the other 
 partners, and cannot set up any claim in opposition to 
 real creditors. Upon this principle it has been held, 
 that an agreement by which one partner permitted the 
 other (who seceded from the partnership at the time it 
 was insolvent) to withdraw money out of the reach of 
 the joint creditors was fraudulent and invalid, and the 
 retiring partner was compelled to refund. (^) But 
 where no *fraud is intended or practised, and [ *238 ] 
 the dissolution is fairly made between the part- 
 
 (f) Holyland v. De Mendez, 3 Meriv. 184. 
 
 Ig) Anderson v. Mallby, 4 Bro. C. C. 423. S. C. 2 Ves. jim. 244. 
 See Parker v. Ramsbottom, 3 B. <fe C. 257. In Ex parte Carpenter, 
 1 Mont. & M. 1, where, upon the retirement of one partner, the con- 
 tinuing partners taking the concerns in its actual state, undertook by 
 deed to indemnify the former, it being then, as to joint effects, insol-
 
 238 THE CONSEqUENCES OF THE 
 
 ners, an agreement by one partner to give to the retiring 
 partner a sum of money for his interest in the concern, 
 will not be invalidated by the circumstance per se, of the 
 joint effects being insufficient to pay the joint debts.(A) 
 And on a dissolution, two or more partners may agree, 
 that what was before the joint property of all shall be- 
 come the separate property of one, although in such 
 cases, the question, whether that which had been joint 
 has become separate estate, depends upon the bona fide 
 of the transaction. The rights of the creditors are in- 
 disputable ; their equities to have the joint effects ap- 
 plied in liquidation of their debts must be worked out 
 through the medium of the partners, as the joint credi- 
 tors must be paid, in order to administer justice to the 
 partners themselves. While they remain solvent, and 
 the partnership is going on, the creditor has no equity 
 against the effects of the partnership. He may bring an 
 action against the partners, and get judgment, and may 
 execute his judgment against the effects of the partner- 
 ship. But when he has got them into his hands, he has 
 them by force of the execution, as the fruit of his judg- 
 ment ; clearly not in respect of any interest he had in 
 the partnership effects while he was a mere creditor, not 
 seeking to substantiate or create an interest by suit. 
 Having, therefore, no lien on the property, the joint cre- 
 ditors, where notice of the dissolution is given, cannot 
 prevent the partners from effectually transferring it by 
 bona fide alienation ; for the circumstance of its having 
 once been joint property does not render it such for 
 ever.(2) If, by bona fide conveyance one of the part- 
 ners becomes a new purchaser, and is put into pos- 
 session, he is, to all intents and purposes, 
 [ *239 J the owner, *and joint creditors cannot follow 
 
 vent ; and upon the death of one and bankruptcy oi the other continu- 
 ing partner, the retiring one had been called upon to pay ; it was held 
 that the permitting the one to retire without taking from him the pro- 
 portion of the deficiency, did not necessarily make the deed fraudulent 
 as against the remaining partners. 
 . (h) Ex parte Peake, 1 Madd. 346. 
 
 \i) JEx parte Ruffin,, 6 Ves. 127. Ex parte Fell, 10 Ves. 347. Ex 
 parte Williams, 11 Ves. 3. Ex parte Rowlandson, 1 Rose, 416. 
 Campbell v. Mullett, 2 Swanst. 575.
 
 DISSOLUTION OF A PARTNERSHIP. 239 
 
 the property into his hand3.(l) Possession, however, 
 of the partnership property must be given by the re- 
 tiring to the remaining partners, according to the 
 nature of the contract ; for if no change of possession 
 follow the agreement, agreeably to the contract, the 
 property, as respects joint creditors, is still to be con- 
 sidered as partnership property.(/t:) If the court were 
 to lay down, that what has, at any time, been joint pro- 
 perty, should always remain so, the consequence w^ould 
 be, that no partnership could wind up its affairs ; there- 
 fore a bona fide transmutation of the property is under- 
 stood to be, the act of men dealing fairly in winding up 
 the concern, and it is binding upon the creditors. Where, 
 upon a dissolution of partnership, it was agreed that 
 certain articles of the partnership stock should become 
 the exclusive property of one of the partners, and that a 
 certain fund should be appropriated to the payment of 
 the debts, and that fund afterwards proved insufficient 
 for the purpose. Sir John Leach held that the other part- 
 ner had no lien on those articles in respect of such de- 
 ficiency.(/) It may here be remarked, that if one partner 
 sells his share in the partnership business to his co- 
 partner, who continues, the retiring partner does not 
 necessarily dispose of the good-will, so as to prevent his 
 carrying on the same business in the immediate neigh- 
 bourhood ; but if it is the intention of the parties that 
 the good-will should be included in the sale, it must be 
 made a part of the agreement, and the retiring partner 
 must be bound not to carry on the business any longer, 
 or within a certain distance of the place where the part- 
 nership business is conducted.(m) The court will in no 
 
 {k) Ex parte Harris, 1 Madd. 583. 
 
 (Z) Lingen v. Simpson, 1 Sim. &; Stu. 600. 
 
 (m) Kennedy v. Lee, 3 Meriv. 441. In the case of Hardy v. Mar- 
 tin, 1 Bro. C. C. 418. n, one partner, on retiring from business, gave a 
 bond for 600/. to the other, not to carry on the same business within 
 certain limits ; and, after a verdict at law for the penalty, the Court of 
 
 (1) See Poindexter v. Waddy, 6 Munf. 418, and consider the facts 
 of the case, and opinion of the Court, without regard to the marginal 
 abstracts. 
 
 41
 
 239 THE CONSEQUENCES OF THE 
 
 case interpose by injunction, or entertain a suit upon the 
 mere speculation of possible injury ; and therefore where 
 upon a covenant, in articles of partnership between sur- 
 geons, that either might dissolve it at the end of seven 
 years, but that in such case the party would not practice, 
 except as a physician, under a heavy penalty, notice of 
 dissolution having been given and an intention expressed 
 by the party giving the notice of his continuing the 
 practice of a surgeon, a demurrer to a bill for 
 [ *240 ] an *injunction filed two months before the ex- 
 piration of the partnership was allowed.(7?) 
 
 A partnership may be dissolved as between the part- 
 ners themselves, and still -continue legally to subsist as 
 between them and the rest of the world. Since credit 
 is given to the whole firm, justice requires that all those 
 who belonged to it should be bound, while it is supposed 
 to exist. To exempt a retiring partner from this con- 
 tinued responsibility, he must give notice that he is no 
 longer a partner, and to such as may be considered ap- 
 prized of his secession, he will not be answerable for the 
 subsequent acts and engagements of the remaining part- 
 ners. The object of a partner, on his retirement, must 
 therefore be, in the first place, to effect his discharge 
 from debts and engagements existing at the time of the 
 dissolution ; and in the second place, to guard himself 
 against responsibility for acts or engagements to be done 
 or entered into by his co-partners in the name of the 
 partnership firm. In what manner this discharge from 
 liability, both to present and future demands, is to be 
 obtained, we will separately consider. 
 
 Notwithstanding a dissolution, the retiring as well as 
 the remaining partners continue jointly liable to answer 
 all debts or engagements contracted or entered into by 
 the firm during the existence of the partnership. The 
 joint creditors may proceed against all the partners ; for 
 their agreements to dissolve cannot deprive the creditors 
 of their right of applying for payment to those who are 
 
 Chancery granted an injunction to stay execution, and directed an issue 
 to take an account of tlie damage actually sustained. 
 
 (n) Coates v. Coates, 6 Madd. 287 ; and see Glassington v. 
 Thwaites, 1 Sim. & Stu. 133.
 
 DISSOLUTION OP A PARTNERSHIP. 240 
 
 responsible to them.(l) It consequently becomes matter 
 of serious importance to the retiring partner effectually 
 to absolve himself from the existing claims upon the firm. 
 In the absence of special agreement, it has been stated(o) 
 that this may be done by a sale of the joint stock, and 
 the application of its produce to the discharge of the 
 joint demands ; and upon which any of the partners, on 
 a dissolution, has a right to insist. But in the instance 
 of a partial dissolution, although the interest of the 
 retiring partner may be transferred to the other upon 
 very various terms, and through the medium of very 
 different stipulations, yet it most frequently happens, 
 that in consideration of an assignment by the retiring 
 to the continuing partner of his interest in the joint 
 stock, the latter, as a partial recompense, assumes the 
 liquidation of the debts, and indemnifies the 
 retiring ^partner against any claims that may [ *241 ] 
 be made upon him in respect of them. This as- 
 sumption by the continuing partner of separate respon- 
 sibility can, as to the creditors of the firm, be considered 
 only as a proposal that he is willing to become their sole 
 debtor, and the joint creditor cannot sustain an action 
 at law against him alone upon the mere naked effect of 
 such an engagement. Neither can such a creditor, in 
 the event of the bankruptcy of the continuing partner, 
 sustain a claim of proof against his separate estate, un- 
 less before the bankruptcy he accede to the proposal 
 held out, and accept him as his separate debtor; be- 
 cause, however great the hardship upon the creditor may 
 be, that the joint stock, to which he may have especially 
 given credit, should, by the dealing of his debtors with 
 each other, be converted into separate estate, yet the 
 legal principal is, that it becomes so converted by the 
 simple force of the contract, and this legal principle is 
 too strong to be controlled in equity, by imposing the 
 obligation of discharging the joint debts as the condition 
 
 (o) See ante, p. 234. 
 
 (1) IVhiling el al.v. Farrandet al. 1 Conn. Rep. 60. Forest y. 
 Wain et al. 4 Yeates, 337.
 
 241 THE CONSEQUENCES OF THE 
 
 of the. con version. (jo) However the covenant of the 
 continuing partner, to pay the joint debts, where it has 
 been recognised by the creditor, has, in many instances, 
 as between the latter and the retiring partner, given rise 
 to questions, as to what shall operate his discharge ; 
 but, with a few exceptions, to which we will shortly ad- 
 vert, the result seems to be, that nothing but actual sa- 
 tisfaction can be considered as working a complete and 
 perfect exoneration. In a late case,(i5r) one of three 
 partners, after a dissolution of partnership, undertook, 
 by deed, to pay a particular partnership debt on two 
 bills of exchange, and that was communicated to the 
 holder, who consented to take the separate notes of one 
 partner for the amount, but strictly reserved his right of 
 action against all the three, and retained possession of 
 the original bills ; the separate notes having proved un- 
 productive, it was determined that the creditor might 
 still resort to his remedy against the other partners, and 
 that the taking, under such circumstances, the separate 
 notes, and even afterwards renewing them several times 
 successively, did not amount to satisfaction of the joint 
 
 debt. So in a case(r) still more recent, where, 
 [ *242 ] on a dissolution, it *was agreed between two 
 
 partners, that one should take upon himself to 
 discharge a debt due to a particular creditor, who was 
 informed of the agreement, and expressly undertook to 
 exonerate the other partner from all responsibility ; yet, 
 as the debt was not satisfied by the one, nor any fresh 
 security given, it was decided by the Court of King's 
 Bench that the promise of the creditor was without con- 
 sideration, and did not constitute any defence to an 
 action brought by him against both partners.(l) And 
 
 (p) ^a^joar/e Freeman, Buck. 471. JEx parte Fry, 1 Glyn& James, 
 96. But see Mont. Dig. of New Decis. in Bank. 2d part, p. 71 ; and 
 3d part, p. 126. 
 
 (q) Bedford v. Deakin, 2 B. & A. 210. S. C. 2 Stark. N. P. C. 178. 
 
 (r) Lodge v. Dicas, 3 B. & A. 611. 
 
 (I) Smith et al, v. Rogers et al. 17 Johns. Rep. 340. See Blew v. 
 ff^yatt, 5 Car. & Payne, 397.
 
 DISSOLUTION OF A PARTNERSHIP. 242 
 
 where one of three partners retired, and notice was 
 given to a creditor of the firm that the remaining part- 
 ners had assumed the funds, and would discharge the 
 partnership debts, the creditor assented to this agree- 
 ment, and transferred the debts due from the old firm to 
 the credit of the new firm, and afterwards drew on the 
 new firm for a part of his balance, which was paid; but 
 the new firm subsequently becoming insolvent, he brought 
 an action for the remainder against all the members of 
 the old firm ; it was held, that the retiring partner was 
 liable for all the debts incurred before the dissolution of 
 the partnership.(s) In like manner, where a firm of four 
 partners were indebted on a dishonoured bill of ex- 
 change, and having afterwards dissolved the partnership, 
 a new firm was formed of three of them, and the holder 
 of the bill indorsed it over to the latter firm, in order, if 
 possible, to obtain payment of it; and whilst the bill was 
 in their possession, the three settled their accounts with 
 the fourth partner, saying that the bill had been satisfied 
 by them, but the bill itself was not produced to or seen 
 by the fourth partner, at the time of such settlement : it 
 was held that this was no defence to the fourth in an 
 action by the holder against all the partners, the bill not 
 having been in fact satisfied by the persons to whom it 
 had been indorsed and handed over.(^)(l) On the same 
 principle the Court of Exchequer has held that a person 
 depositing money with bankers, and taking their ac- 
 countable receipts, does not, by continuing to leave his 
 money in the bank after a dissolution of the original 
 firm, and the constitution of a new one, which consists 
 of some of the members of the old bank and other persons, 
 discharge the partners who have seceded, although he re- 
 ceives interest regularly from the new firm, gives them 
 no notice, and continues to transact business with them 
 in the common course, and that for a period 
 *of four years, and until they become insol- [*243] 
 
 (s) David V. Ellice, 5 B. & C. 196. S. C. 7 D. & R. 690. 
 {t) Featherstone v. Hunt, 1 B. & C. 113. 
 
 (I) See Arnold v. Camp, 12 Johns. Rep. 409.
 
 243 THE CONSEQ.UENCES OF THE 
 
 vent.(w) That a similar rule prevails in equity is 
 strongly illustrated by a case(?;) which was brought un- 
 der the consideration of Lord Rosslyn. There a de- 
 visee, in trust for the testator's executrix and her children, 
 was a member of a firm, which was indebted to the tes- 
 tator, at his death, both on bond and on simple contract; 
 and, after the testator's death, the other partners of the 
 firm, with the privity of the executrix, gave to the de- 
 visee a bond for the simple contract debt, in trust for the 
 uses of the will; and the executrix having gone abroad, 
 the effects of the testator were, during her absence, 
 managed by the devisee. The firm, of which the devi- 
 see was a member, was afterwards dissolved by the se- 
 cession ofoneof the partners, and, both the firm and the 
 devisee being solvent, it was agreed, at a meeting of 
 creditors, that the debts of the old firm should be secu- 
 red by the bonds of the remaining members, of whom 
 one was the devisee, and he, in consequence of such 
 agreement, delivered up, without any communication with 
 the executrix, the bonds for payment of the debts due 
 to the testator's estate, which were cancelled; and Lord 
 Rosslyn, on a bill being filed, considered that the out- 
 going partner was not released from his liability upon 
 the cancelled bond. But although, as partners are joint- 
 ly liable for all debts due from the firm, no arrangement 
 between themselves can vary the right of the creditor, 
 yet that right may be destroyed by his expressly con- 
 senting to accept of the separate security of one partner, 
 in discharge of and in satisfaction of the joint debt. 
 Therefore, if a partnership debt is paid by a bill of ex- 
 change, which, when due, and after notice of the disso- 
 lution, is renewed by the creditor's taking the separate 
 bill of the remaining partner, the retiring partner is dis- 
 
 (w) Gough V. Davies, 4 Price, 200. It seems that the old firm would 
 continue liable, although the old debt was carried, with the privity of 
 the customer, into the books of the new firm, and placed as an item in 
 their account to the credit of the customer, Id. Ibid. ; and see Sleech's 
 case, 1 Meriv. 563. 
 
 {y ) Dickenson v. Lockyer, 4 Ves. 36; and see Heath v. Percival, 
 1 P. Wms. 682.
 
 DISSOLUTION OF A PARTNERSHIP. 243 
 
 charged.(z^;) (1) And if the creditor, by his conduct in 
 taking the separate security of one partner, induce the 
 outgoing partner to allow the remaining partner to re- 
 ceive monies, which otherwise he would have prevented, 
 it seems that the joint ^liability is extinguish- 
 ed.(x) The liability of a retiring partner for a [ *244 ] 
 debt due from the firm at the time of his seces- 
 sion may likewise be destroyed, if the creditor after- 
 wards continue his dealings with the remaining partner, 
 and in the course of them, payments are made by the 
 latter to the creditor, without appropriation equal to or 
 exceeding the amount of the debt due at the dissolution.(2) 
 In such a case, the law of England, borrowing the rule 
 from the civil law, declares that, in the absence of ap- 
 propriation, in the first place by the debtor, or by the 
 creditor in the second, the payment shall be ascribed to 
 that debt which is the most burthensome, and if all are 
 equally burthensome, to that which is the oldest in point 
 of time and standing.(2/) (3) Thus where, after the re- 
 
 {w) Evans v. Drummond, 4 Esp. N. P. C, 89. See also Paterson 
 V. Zachariah, 1 Stark. N. P. C. 71. 
 
 ix) Reed v. White, 5 Esp. N. P. C. 122. See Robinson v. Read, 
 9 B. & C. 449. In Heath v. Percival, 1 P. Wms, 682, where two 
 partners in a Goldsmith's trade, being bound in a bond to J. S., dis- 
 solved the partnership and divided the stock, and the obligee, after the 
 dissolution applied to the partner continuing the business, for pay- 
 ment of the bond, but subsequently consented to let the money remain 
 on that partner's agreeing to pay an increased rate of interest, it was 
 held by Lord Macclesfield that the changing the interest did not alter 
 the security, as far as regarded the principal sum and the interest ori- 
 ginally reserved ; for that the bond still continued the bond of both, and 
 that the retiring partner, after the lapse of a great number of years, and 
 after the other partner had become bankrupt, was liable upon the bond. 
 In this case public notice had been given to all the joint creditors, that 
 they were either to receive their money, or to look upon the continuing 
 partner as their pay-master ; but the court determined that such a no- 
 tice, being res inter alios acta, could not be binding upon the obligee, 
 
 (j/) Sec the elaborate judgment of Sir TV. Grant, in Clayton's case, 
 1 Meriv. 604. See also Bo'denham v. Purchas, 2 B. & A. 39. Sim- 
 
 (IJ See Harris et al. v. Lindsay, 4 Wash. C. C. Rep. 98. 271. 
 
 (2) As to the dealing and acts by which a retiring partner will be 
 discharged. Bank of Wilmington v. Almond et al. 1 Whart. Rep. 169. 
 
 (3) See Cremer v. Higginson et al. 1 Mason's Rep. 324. Sneed 
 V. Wiester, 2 Marsh. Rep. 288. Bacon v. Brown, 1 Bibb's Rep. 334.
 
 244 THE CONSEQUENCES OF THE 
 
 tirement of a partner, the creditor joins the transactions 
 of the old and new firm in one entire account, the pay- 
 ments made from time to time by the continuing partner 
 must be applied to the old deht.\z) And, where an in- 
 dividual kept a banking account with an army agent, who 
 afterwards, without the knowledge of his customer, ad- 
 mitted a partner for a limited period, at the expiration of 
 which he retired ; and the account being kept as between 
 the individual and the army agent, the latter subsequent- 
 ly became bankrupt; it was decided that pay- 
 [ *245 j ments made by the bankrupt *to his customer, af- 
 ter the expiration of the partnership, not having 
 been appropriated by either party at the time to the dis- 
 charge of any particular debt, the retiring partner, ac- 
 cording to the principle of law regulating such payments, 
 might consider them as having been made in reduction 
 of the balance due at the termination of the partnership, 
 and that he was not accountable for any sums received 
 by his co-partner on account of his customer after the 
 dissolution. (a)(1) So, in a previous case,(6) where the 
 plaintiffs had dealt for a length of time with two part- 
 ners, not knowing that, during a part of the time, they 
 had a third partner, and had furnished them with goods 
 and received payments on account generally ; and before 
 the time when the secret tri-partnership was dissolved, 
 goods had been furnished, to cover which, bills had been 
 
 son V. Ingham, 2 B. & C. 65. Simson v. Cooke, 1 Bingh. 452. Al- 
 though the rule is, that when money is paid generally it ought to be 
 applied to the first items in the account, yet when there are distinct 
 demands, one against persons in partnership, and another against one 
 of the partners only, if the money paid be the money of the partners, 
 the creditor is not at liberty to apply it to the payment of the debt of 
 the individual. Thompson v. Brown, 1 Mood. & Malk. N. C. P. 40. 
 
 (z) Simson v. Ingham, 2 B. & C. 65. 
 
 (a) Brooke v. Enderby, 4 B. Moore, 501. S. C. 2 Brod. & Bingh. 
 70. (b) Newmarch v. Clay, 14 East, 240. 
 
 (1) Fairchild v. Holly, 10 Conn. Rep. 175. See also as to the right of 
 a creditor and one partner to apply partnership funds misapplied by an- 
 other member of the firm to the payment of his individual debt due to the 
 same creditor, to the payment of the debt due by ihe firm, Campbell v. 
 Matthews, 6 Wend. Rep. 557,
 
 DISSOLUTION OF A PARTNERSHIP. 245 
 
 paid to the plaintiffs by the two ostensible partners, 
 which were dishonoured after the secret dissolution of 
 the tri-partnership, and then other goods were furnished 
 as before; yet as the dishonoured bills were afterwards 
 dehvered up by the plaintiffs upon the receipt of subse- 
 quent good bills, which latter were more than sufficient 
 to cover the debts of the tri-partnership, though not to 
 cover, in addition, the goods furnished after the dissolu- 
 tion of it, it was held, that such delivering up of the old 
 dishonoured bills, upon receipt of the new good bills, was 
 evidence of a particular appropriation of such new bills, 
 in payment and discharge of the old debt, of which the 
 secret third partner might avail himself in an action on 
 the case for goods sold and delivered, brought against 
 him jointly with the other two partners. 
 
 When the retiring partner leaves a sufficiency in the 
 hands of the remaining partner to discharge the joint 
 demands, and has sufficient confidence in him to trust to 
 his making the intended application of it, he generally 
 takes care to provide himself with an express indemnity 
 against claims that may, under any contingency, be 
 made upon him. Such an indemnity is usually given in 
 the shape of a covenant contained in the deed of disso- 
 lution, whereby the one partner, in consideration of his 
 being allowed to receive all the partnership credits, 
 covenants expressly to pay all the partnership debts, 
 and for the violation of which cnijagcmdit the law 
 has furnished the covenantee with a remedy by ac- 
 tion upon the covenant.(l) An express covenant is. 
 
 (1) Where one of three co-partners took an assignment of the stock 
 and credits of the co-partnership, and contracted to pay all debts due 
 from the co-partnership, it was held, that ho was liable for a debt due 
 from the co-partnership to one of the other co-partners. Hobart v. 
 Hoivard, 9 Mass. Rep. 301. In Pcnnsyhania, where a bond with 
 surety was given upon the dissolution of a partnership, by one partner, 
 (who received all the funds, and assumed the payment of all the debts 
 and engagements of the firm,) to the other, conditioned well and faith- 
 fully to pay all the partnership debts within twelve months, it was held, 
 that such bond might be assigned to trustees for the benefit of the cre- 
 ditors of the firm, and might be well sued, in the name of the partner to 
 whom it was given, for such use. Kerr v. Haivthorne et al. 4 Yeates, 
 170. See Waddington v. Vredenbergh, 2 Johns. Ca. 227. The fol- 
 
 42
 
 246 THE CONSEQUENCES OF THE 
 
 [ *246 ] *under such circumstances, the most advisable to 
 procure, since being positive in its nature it 
 leaves no room for subsequent altercation or dispute; 
 but where, from the whole of the deed taken together, 
 or from any form of expression in any part of it, an in- 
 tention is apparent that the party should be bound, a 
 covenant may be implied; and therefore if a court, look- 
 ing at the whole of the instrument, finds from its lan- 
 guage that it contains a clear agreement to do any act, 
 whether in the way of covenant, provision, or even 
 exception, then, though it be not technically couched in 
 the form of a covenant, it is clear that an action of 
 covenant may be maintained. (c) Thus, in a late case,(c?) 
 it appeared that by indenture between A of the first part, 
 B of the second part, and C of the third part, it was 
 agreed that A should retire from business, and B and C 
 become partners ; that the capital employed should be 
 36,000/., 24,000/. of which A should advance for B, and 
 the remaining 12,000/. was to be advanced by C. The 
 deed then proceeded, "And whereas an account of all 
 the debts and credits of A in his business of general 
 merchant has been this day taken, and the balance in 
 his favour amounts to 38,033/. ; and whereas it has been 
 agreed by and between A, B, and C, that the whole of the 
 said debts and credits of A shall be received and paid by 
 
 (c) Stevenson's case, 1 Leon. 324. HoUis v. Carr, 2 Mod. 87. 
 \d) Saltoun v Houstoun, 1 Bingh. 433. 
 
 lowing decision took place in Tennessee. A. and B. were merchants 
 and partners in trade in the state of Maryland, and there agreed to dis- 
 solve partnership, and upon the dissolution B. was to have all the debts 
 and effects belonging to the firm, and he engaged to indemnify A. against 
 the debts due from it, and to pay him a certain sum. A., subsequent 
 to the dissolution, died. B. entered into partnership with C. and in 
 the course of their business, debts became due to them in Tennessee, 
 after which the firm of B. &l C. became insolvent, the debts due from 
 the firm of A. & B. being unpaid. On a bill by the representatives of 
 A. stating the foregoing facts, and that they were apprehensive of being 
 subjected to the payment of the debts due from the firm of A. and B. 
 the debtors of B. and C. in Tennessee were enjoined from paying them 
 a moiety of the debts, being B.'s proportion thereof. Davis' Ex. v. 
 TuUon, 1 Overt. Rep. 121.
 
 DISSOLUTION OF A PARTNERSHIP. 246 
 
 B and C, and that the balance of 38,033/. shall be ac- 
 counted for and paid by them in manner hereinafter 
 mentioned ; and that for the better enabling them to call 
 in, collect, and receive such credits. A, by an indenture 
 of assignment bearing even date with these presents, hath 
 assigned the same to B and C : Now this indenture fur- 
 ther witnesseth that it is agreed that in consideration of 
 12,000/. paid to A by C as his share of the capital, and 
 for raising 24,000/. the proportion of A of the capital, 
 the sum of 36,000/. part of the 38,033/. shall be retained 
 and kept by B and C as their capital and joint stock, and 
 shall belong to them in the following proportions : viz. 
 24,000/. thereof to B, and 12,000/. thereof to C, and the 
 remaining 2,033/. shall be paid to A by instalments at six, 
 twelve, and eighteen months; and in case any of the debts 
 assigned shall prove bad, the loss shall be borne by B and 
 C." " It was held that this deed contained that which 
 amounted to a covenant by B and C to pay the debts due 
 from A in his business at the date of the indenture. 
 *And where a partner had seceded from a part- [ *247 ] 
 nership under an express indemnity against any 
 claims in respect of the partnership, and had afterwards, 
 by the sentence of a foreign court, been compelled to 
 pay a sum of money for customs imposed by the revenue 
 laws of the country, the Court of Chancery ordered the 
 money to be repaid to him, and would not investigate 
 the merits of the original claim, on the ground that a 
 foreign judgment is not examinable by an English 
 court.(e)(l) So where the defendant entered into a 
 covenant to indemnify the plaintiff from all debts due 
 from a late partnership subsisting between the plaintiff, 
 the defendant, and a third person, and from all suits on 
 
 (e) Gold V. Canham, Lord Nottingham's MS. 2 Swanst. 325. S. 
 C. 1 Ca. inCha. 311. 
 
 (1) A partner having withdrawn from a mercantile company, and 
 being afterwards erroneously included in a suit against a new company 
 formed' by the other partners, may be relieved in equity against a judg- 
 ment therein obtained, upon the ground that one of the company pre- 
 vented his making defence at law, by assuring him the matter should 
 be adjusted. Lee v. Baird et al. 4 Hen. & Munf. 453.
 
 1247 THE CONSEQUENCES OF THE 
 
 account of non-payment, it was determined that proof 
 on the part of the plaintiff, that proceedings had been 
 instituted in a foreign court against the late partners, 
 for the recovery of a partnership debt, and that a decree 
 passed against them for want of an answer (in conse- 
 quence of which a sequestration issued against the estate 
 of the plaintiff, and he was obliged to pay the debt) was 
 conclusive evidence in an action on the covenant against 
 the defendant, who was a party to the foreign suit, and 
 who, having notice, ought to have appeared and made 
 his defence, and that the defendant was' not at hberty 
 to show that the proceedings were erroneous.(/) But 
 as the object of a covenant of indemnity can only be 
 that of protecting the partner, in whose favour it is 
 made, from demands substantiated to be just, it follows 
 that, to sustain an action for a breach of such a cove- 
 nant, it must be shown, that the demand, in respect of 
 which the breach is alleged to have been committed, was 
 a debt actually contracted either during the partnership, 
 or subsequently to its dissolution. Thus where, on the 
 dissolution of a partnership between A and B, A cove- 
 nanted to leave a sum of money in a banker's hands 
 until a stated period as a security against payment of 
 any demands which might be made upon him in respect 
 of debts contracted by B on the credit of the partnership, 
 which sum was after the stipulated time to be paid over 
 to B, subject to such claims as might have been made. 
 B having commenced an action against A on his cove- 
 nant, assigning as a breach, that although no demand 
 had been made upon him he had prevented B from re- 
 ceiving the money, the Court of Common Pleas 
 [ *248 ] held 'that it was not sufficient for A in his plea 
 to allege that a demand had been made upon 
 him in respect of a debt, as being a debt contracted by 
 B, without showing that the debt was actually so con- 
 tracted. ("■) 
 
 The next consideration for an outgoing partner upon 
 a dissolution of the partnership, is to protect himself 
 
 (/) Tarleton v. Tarleton, 4 Mau. & Sehv. 21. Molony v. Gibbons, 
 2Campb. 502.' 
 
 {g) Want V. Reece, 1 Bingh. 18. S. C. 7 B. Moore, 244.
 
 DISSOLUTION OF A PARTNERSHIP. 248 
 
 against liability for future debts to be contracted by the 
 house. To create a legal obligation, as partner, it is 
 not necessary in fact, or in law, that the partnership 
 should be still continuing. The legal obligation may 
 arise from the acts of the party at one time, and his 
 forbearance at another time.(/i) If a partner, on his 
 retirement from a partnership, neglect to notify its dis- 
 solution to the world, he is guilty of a delusion and as 
 he thereby induces strangers to believe that the partner- 
 ship is continuing, he must abide by the consequences 
 resulting solely from his own negligent imprudence.(i) 
 It has therefore been held that a firm may be bound 
 after the dissolution of a partnership by a contract made 
 by one partner, in the name of the firm, with a person 
 who contracted on the faith of the partnership, and had 
 not notice of the dissolution. (A;) (1) And the principle 
 upon which the responsibility of the retiring partner 
 proceeds, being his negligent conduct in forbearing to 
 give notice, and the consequent ignorance of the world 
 of the fact of a dissolution having taken place, he will 
 be liable for the engagements of the other partners, en- 
 tered into in the name of the firm, even with a party 
 whose dealings began subsequently to the dissolution of 
 
 (A) Per Mbott, C. J., Goode v. Harrison, 5 B. & A. 157. 
 
 (i) Where a partnership is terminated by the death of one of its 
 members, it seems that notice of that event is not necessary to protect 
 the estate of the deceased from future liability. VuUiamy v. Noble, 3 
 Meriv. 619. And the liability of a partner, who notoriously withdraws 
 his name from a firm, is not continued by the circumstance that the 
 deed by which he has professed to assign his share is void for a techni- 
 cal informality. Mclver v. Humble, 16 East, 174. 
 
 {k) Godfrey v. TurnbuU, 1 Esp. N. P. C. 371. Osborn v. Harper, 
 5 East, 225. Goode v. Harrison, supra. In Fox v. Hanbury, Cowp. 
 445., Lord Mansfield said, " If partners dissolve their partnership, 
 they who deal with either, without notice of such dissolution, have a 
 right against both." 
 
 (1) Price Sf Co. v. Towsey, 3 Littell's Rep. 423. Ketcham et a/. 
 V. Clarke, 6 Johns. Rep. 144. Thommon v. Kalbach, 12 Serg. & 
 Ravvle, 238. Lc Roy et al. v. Johnson, 2 Peters' Sup. C. Rep. 186. 
 Brishan v. Boyd, 4 Paige's Cha. Rep. 17.
 
 248 THE CONSEQUENCES OF THE 
 
 the partnership.(/).(l) It may be inferred from what has 
 been stated, that, to exempt the outgoing partner from 
 future Habihty, notice of the dissolution of the partner- 
 ship should be sufficiently promulgated to the world. 
 This may be done either by an actual and express notice, 
 
 or by one which is constructive and implied. 
 [ *249 ] *Where notice of the dissolution is expressly 
 
 given to all the persons with whom the ex-part- 
 ners had dealings in partnership (and generally speaking 
 this form of notice is the most advisable and proper,) (m) 
 the joint responsiblity for subsequent acts of individual 
 partners is terminated. Notice of a dissolution is, in 
 legal import, and effect, notice of the want of authority 
 of any single partner to bind the firm by his separate 
 act ; the communication of such a notice operates, there- 
 fore, as a determination of continued liability. Even 
 where a plaintiff was privy to an intention of partners to 
 dissolve their partnership, which was in the course of 
 execution, it was held that, in an action founded upon a 
 supposed subsequent partnership transaction, the plaintiff 
 must show that the intention was abandoned.(w) But 
 express notice of a dissolution to be available must be 
 given to every person entitled to it ; for a communication 
 of the fact to one may be rendered nugatory and in- 
 effectual by a neglect to communicate it to another, 
 where the rights of the two arise out of the same trans- 
 action. Therefore, if the plaintiff, in an action on a bill 
 of exchange accepted by one of several partners in the 
 name of the firm, be an indorsee, the defendants setting 
 up a defence of want of authority to accept, in con- 
 sequence of a dissolution of the partnership, must show 
 that the payee had notice of the resolution of the firm to 
 dissolve the partnership, and be no longer answerable 
 
 (/) Parkin v. Carruthers, 3 Esp. N. P. C. 248. 
 (m) Graham v. Hope, Peake's N.P. C. 154. Jenkins v. Blizard, 1 
 Stark. N. P. C. 418. 
 
 (n) Patterson v. Zachariah, 1 Stark, N. P. C. 71. 
 
 (1) But this applies only to transactions in the usual course of busi- 
 ness. fVhitinan v. Leonard, 3 Pick. Rep. 177.
 
 DISSOLUTION OP A PARTNERSHIP. 249 
 
 for any such bills, and if that be not done, it is not suffi- 
 cient to prove that the indorsee had notice, for he is en- 
 titled to avail himself of any circumstance which would 
 operate in favour of the payee.(o) Bankers ought re- 
 gularly to give notice of a change in the firm by a cir- 
 cular letter ; but such change may also be notified by an 
 alteration of the name in the printed check, and persons 
 who have used the new checks cannot take advantage 
 of the want of a more express notice.(p) What 
 shall be deemed *a constructive and implied [*250] 
 notice is a little perplexed by the cases which 
 have been decided on the subject, but we will endeavour 
 to extract from them the principles they have established. 
 A notice of the dissolution of a partnership is very com- 
 monly inserted in the Gazette, but the insertion of a 
 notice therein is not of itself sufficient to exempt a 
 retiring partner from future responsibility. Such an 
 advertisement announcing a dissolution, is admissible as 
 evidence of a public notification of the fact ; but such 
 evidence is of little avail, unless it be shown that the 
 party entitled to notice was in the habit of reading the 
 Gazette.(9) (1) It has indeed been ruled that in respect 
 
 (o) Rooth V. Quin, 7 Price, 193. 
 
 [p) Barfoot V. Goodall, 3 Camph. 147. Where the defendant part- 
 owner and managing director of a mine, informed the plaintiff that he 
 had sold his shares to others, who would in future be his paymasters ; it 
 was held, that the operation of such notice, not being absolute in its 
 terms, was altogether a question for the jury, whether it amounted to a 
 notice that he would not be responsible for any goods subsequently sup- 
 plied ; and that not having been submitted to them, a new trial was 
 granted. Vice v. Fleming, 1 Younge &; Jerv. 227. 
 
 (</) Godfrey v. Turnbull, 1 Esp. N.P.C. .371. S. C. Peake's N. P. 
 C. 155. n. Leeson v. Holt, 1 Stark. N. P. C. 186. Graham v. Hope, 
 Peake's N. P. C. 154. Gorham v. Thompson, ib. 42. Rex w. Holt, 
 5 T. R. 443. Williams v. Keates, 2 Stark. N. P. C. 290. See also 
 JSx parte Usborne, 1 Glyn & James, 358. A notice of dissolution in 
 the Gazette may be given in evidence without a stamp. Jenkins v. 
 Blizard, 1 Stark. N. P. C. 420. 
 
 (1) The Court oi King^s Benchhave recently decided, that notice in 
 the Gazette is notice to all the world of the dissolution of a partnership. 
 Wright et al. v. Pulham, 2 Chitt. Rep. 121. The cases cited by Mr. 
 Gow, in which the^ question arose, of how far the insertion of a notice 
 in the Gazette operated to exempt a retiring partner from future liability.
 
 250 THE CONSEQUENCES OF THE 
 
 of persons who had not any previous dealings with the 
 partnership, an advertisement in the Gazette would be 
 sufficient presumptive evidence to be left to a jury from 
 thence to infer notice of a 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 of dissolution. (r) (1) But an advertisement in a 
 common newspaper is not even admissible without proof 
 that the party took in the paper ;(s) although if the 
 paper be proved to have been received by him it will be 
 admissible, notwithstanding the fact of the dissolution 
 has not appeared in the Gazette.(^) (2) Where the 
 paper containing the advertisement is proved to have 
 been read by the party, or is proved only to have been 
 delivered in the usual course at his house, the jury may 
 reasonably be instructed to consider, whether the atten- 
 
 (r) Godfrey v. Turnbull, supra. See also Nevvsome v. Coles, 2 
 Campb. 617. 
 
 (s) Leeson v. Holt, 1 Stark. N. P. C. 186. And see Boydell v. 
 Drumraond, 11 East, 144. n. Norwich &, LowestofF Navigation 
 Company v. Theobald, 1 M. & Malk. N. P. C. 153. 
 
 it) Rooth V. Quin, 7 Price, 193. 
 
 are Nisi Prius cases ; for in Rex v. Holt, and Hovil v. Browning, the 
 question did not arise. The case of Wright et al. v. Pulham, is very 
 shortly reported, and there being no statement of facts, arguments of 
 counsel, cases cited, or reasons for the opinion of the Court, given, the 
 report is not very satisfactory. " I do not know that any case has yet 
 been decided in this Court (Sup. Ct. of Pennsylvania) with respect to 
 the notice of dissolution of partnership." Per Duncan, J. Shaffer v. 
 Snyder, 7 Serg, & Rawle, 504. 
 
 (1) Notice in the public papers is conclusive upon all persons who have 
 had no previous dealings with a co-partnership. Lansing v. TenEyck, 
 3 Johns. Rep. 300. Mowatt v. Howland, 3 Day's Rep. 353. Martin 
 V. fValton Sf Co. 1 McCord's Rep. 16. See 6".Tohns, Rep. 147, 148. 
 Graves v. Merry, 6 Cow. Rep. 701. Bristol v. Sprague, 7 Wend. Rep. 
 423. But as to such persons as have had dealings with a co-partnership, 
 it is not so to be considered, unless under the circumstances it appears 
 satisfactorily to the jury that it operated as a notice. Martin v. Walton 
 ^ Co. Graves v. Merry. 
 
 (2) Bank of South Carolina v. Humphreys et al. 1 McCord's Rep. 
 388, in which it was ruled, that taking the Gazettes [The Courier and 
 City Gazette) in wliich the dissolution of a partnership was published, 
 amounted to express notice.
 
 DISSOLUTION OP A PARTNERSHIP. 250 
 
 tion of a tradesman in reading a newspaper was not 
 likely to be attracted by notices of the dissolution of 
 partnerships, to which the attention of others might not 
 be directed ; and it is a question for the jury to deter- 
 mine, whether, under all the circumstances of the case, 
 the party has actually received notice of the 
 dissolution.(M)(l) In the case *of a dormant [ *251 ] 
 partner whose name has never been announ- 
 ced, he may withdraw from the concern, without mak- 
 ing the dissolution of the partnership publicly known; 
 for his liability depends upon the mere fact of partner- 
 ship, and no credit has been given to him personally as 
 a supposed member of the firm.(?;) (2) But it seems, 
 that, if the ostensible partner state the existence of the 
 partnership to a party who deals with the firm, the dor- 
 mant partner is liable until such party has notice of the 
 dissolution.(z^) 
 
 After the dissolution of a partnership, to which the 
 necessary publicity is given, the partners become so dis- 
 united in interest, that the one cannot by any contract or 
 engagement implicate the credit of the others. Therefore, 
 
 (u) Jenkins v. Blizard, 1 Stark. N. P. C. 420. See also Hovill v. 
 Browning, 7 East, 161. Rowley v. Home, 3 Bingh. 2. 
 
 (u) Evans v. Drummond, 4 Esp. N. P. C. 89. Newmarch v. Clay, 
 14 East, 239. 
 
 (w) Evans v. Drummond, 4 Esp. N. P. C. 89. It has indeed been 
 said, that if the communication were made after the actual dissolution, 
 the dormant partner would remain liable until notice was given ; but 
 this point seems doubtful ; for, by the dissolution, the power of the 
 ostensible partner, to bind his former co-partner, ceased. Id. ibid. 3 
 Stark, on Evid. 1080. 
 
 (1) It is sufficient notice of the dissolution of a co-partnership if 
 such circumstances be proved, as leave no rational doubt that the party 
 knew of the dissolution. Jby v. Fining, 2 McCord's Rep. 379. Ob- 
 serve the facts of the case. Or it may be implied from the transaction 
 itself. WhiUman v. Leonard, 3 Pick Rep. 177. Where a partnership 
 exists between persons who reside in two different countries, and a 
 dissolution takes place from the breaking out of a war between the two 
 countries, the existence of the war dispenses with the necessity of giv- 
 ing public notice of the dissolution. Griswold v. Waddington, 15 
 Johns. Rep. 57. 
 
 (2) Armstrong v. Hussey, 12 Serg. & Rawle, 315. Kelley et al. 
 V. Hurlbut, 5 Cow. Rep. 534. 
 
 43
 
 251 THE CONSEQUENCES OF THE 
 
 although the remaining partner be intrusted with the 
 settlement of the partnership affairs, he cannot indorse, « 
 
 in the name of the firm so as to bind the retiring part- I 
 
 ner, a security which formed a part of the joint ef- | 
 
 fects.(:r)(l) Nor can he by drawing upon a debtor to 
 the firm in the joint name, and subsequently negotiating 
 the bill, render it an available security against the out- 
 going partner.(?/)(2) Even if such a bill were discount- 
 ed bona fde^ and the produce applied to the liquidation 
 of the partnership debts, the discounter could not enforce 
 any claim against the ex-members of the firm, either 
 upon the bill, or for money advanced to the use of the 
 firm.(z)(3) It has, indeed, been supposed that the out- 
 going partner would not be liable in respect of an in- 
 dorsement made, in the name of the partnership firm, 
 during the subsistence of the partnership, if the security 
 itself were not negotiated by the remaining partner until 
 after a dissolution. («) The seceding partners are not 
 responsible, where ample notice of the dissolution has 
 
 \x) Abel V. Sutton, 3 Esp. N. P. C. 108. S. P. Kilgour v. Finlay- 
 son, 1 H. Bl. 155. 
 
 [y) Kilgour y. Finlaysnn, swjora. 
 
 {2) Id. ibid. (a) Abel. v. Sutton, supra. 
 
 (1) Sanford v. Mickles et al. 4 Johns. Rep. 224. 1 Nott & 
 McCord's Rep. 561. Fisher's Ex. v. Tucker's Ex. 1 McCord's Cha. 
 Rep. 170. See Dolman v. Orchard et al. 2 Car. & Payne, 104. Nor 
 renew a note in the Bank in the co-partnership name, although, during 
 the co-partnership, the firm had written to the President and Directors, 
 requesting to be permitted to renew their note, until the expiration of a 
 certain time, during which time the renewal was given, but subsequent 
 to the dissolution. Bank of South Carolina v. Humphreys et al. 1 
 McCord's Rep. 388. Where one of two co-partners, after the dissolu- 
 tion of the partnership, gave a note in the name of the firm, for his own 
 private debt, the creditor knowing that the partnership was dissolved ; 
 and this note being afterwards sued, and the party who made it having 
 become bankrupt, the other party compromised the suit by giving his 
 own note for half the debt, and all the costs ; part of which note he af- 
 terwards voluntarily paid — it was held, that the making and acceptance 
 of the first note was a fraud on the absent partner, and that the second 
 note was therefore void. Stearns v. Burnham, 4 Greenl. Rep. 84. 
 
 (2) Martin, v. Walton, 1 McCord, 16. 
 
 (3) See Le Roy et al. v. Johnson, 2 Peters' Sup. Ct. Rep. 186.
 
 DISSOLUTION OF A PARTNERSHIP. 251 
 
 been given, even although the remaining partners con- 
 tinue the trade in the name of the old firm ; for they are 
 not bound, as a measure of precaution and for their own 
 protection, to apply to a court of equity for an 
 injunction restraining the remaining ""partners [*252] 
 from using the style of the old partnership ; it 
 is sufficient to operate their discharge that full notice 
 has been given of their secession from the partnership, 
 and they will not in such case be liable even to a person 
 who was ignorant of the fact of the dissolution, unless it 
 appear that they have subsequently interfered in the 
 management of the business, or allowed their names to 
 be used, or in any way authorised the parties acting in 
 the concern to make use of their names and credit.(6)(l) 
 In many instances of dissolution the remaining part- 
 ner is, by agreement, exclusively authorised to arrange 
 the joint affairs, and is to receive the partnership credits, 
 as the fund out of which to discharge the partnership 
 de5ts. Where this is the case, and notice, as well of 
 the dissolution as of the private arrangement between 
 the partners, is given, a debtor to the firm cannot, by 
 colluding with the outgoing partner, obtain from him a 
 discharge of the debt. A receipt given by the latter for 
 the debt, though dated anterior to the dissolution, will 
 
 (6) Newsome v. Coles, 2 Campb, 617 ; and see Williams v. Keats, 
 2 Stark. N. P. C. 290. Where a retiring partner, in the business of 
 carriers, permitted his name to remain on the cart, and over the house 
 of business, he was held responsible for the negligence of the driver. 
 Stables v. Elev, 1 C. &; P. 614. 
 
 (1) A party is liable on a promissory note made in the name of the 
 firm in which he had been a partner, after he had ceased to be a part- 
 ner, and taken by the plaintiff with a knowledge that the partnership 
 had ceased, but that the name of the party sought lo be charged was to 
 continue to a future day. He had also said, " that he would take care 
 that money should be ready for the note." Brown v. Leonard, 2 
 Chitt. Rep. 120. So where, after the dissolution of a co-partnership 
 existing between two, one of the co-parlners made a promissory note 
 signed by himself, and purporting to be for the account of the company, 
 on which note the other partner made a partial payment, this was held 
 sufficient evidence to charge both partners in an action upon ihe note. 
 Eaton V. Taylor et al. 10 Mass. Rep. 54.
 
 252 THE CONSEQUENCES OF THE 
 
 be fraudulent and void, and will not estop the remaining 
 partner from disclosing the transaction and recovering 
 payment.(c) So, if the remaining partner have the ex- 
 clusive right in equity to all the debts, and a debtor is 
 conscious of that right, a payment to the outgoing part- 
 ner will not affect the claim of the remaining partner ;{d) 
 but, without notice, such a payment would discharge the 
 debtor.(e)(l) And where, on a dissolution, it was agreed 
 that the joint debts should be received by an agent 
 appointed by both partners, to which arrangement a 
 debtor acceded, but afterwards one of the partners coun- 
 termanded the authority given to the agent, and per- 
 sonally demanded the debt, a receipt from such partner 
 in the name of both was held to be a discharge to the 
 debtor.(/)(2) 
 
 In investigating the rights and liabilities of a retiring 
 partner, we have anticipated those of a remaining part- 
 ner^ which are precisely correspondent. He is 
 [ *253 ] individually invested with the same *power of 
 insisting upon a sale of the joint stock, and the 
 application of its produce in a due and legal course of 
 
 (c) Henderson v. Wild, 2 Campb. 561. See Skaife v. Jackson, 3 
 B. &C. 421. 
 
 Id) Duff w. East India Company, 15 Ves. 213. (c) Id. Ibid. 
 
 (/) Bristow V. Taylor, 2 Stark. N. P. C. 50. S. C. 6 Mau. & 
 Selw. 156. 
 
 (1) AVhere J. P. being indebted to partners in trade, one of whom, 
 after the dissolution of the partnership, was declared bankrupt, in 
 England, paid the debt to the bankrupt partner, although before the 
 payment he had received notice (not from an authorised person) of the 
 dissolution of the partnership, and of the bankruptcy of the partner to 
 whom payment was made, such payment was held to be a valid pay- 
 ment. Cheston v. Page's Ex. 4 Har. & McHen. Rep. 466. 
 
 (2) Napier V. McLeod, 9 Wend. Rep. 120. See Scott v. Trents, 
 1 Wash. Rep. 77. But if a partnership be dissolved, and a receiver 
 appointed, a debtor knowing thereof will not be discharged by a pay- 
 ment to either partner. Manning v. Brickell, 2 Hayw. Rep. 133. And 
 where a firm, after the dissolution of the partnership, put a debt at the 
 disposal of one partner, and gave information of it to the debtor, such 
 partner has a right to assign it as security for his private debt, and in 
 equity the assignee may maintain a suit for it against the debtor. 
 McLcinahan v. EUery, 3 Mason's Rep. 269.
 
 DISSOLUTION OF A PARTNERSHIP. 253 
 
 administration; but the exercise of that power would 
 necessarily frustrate the very object he has in contem- 
 plation, by continuing the trade on his separate account. 
 His liabiUty to discharge past debts is, of course, in all 
 cases, co-extensive with that of the retiring partner ; but, 
 generally speaking, he burdens himself with the increased 
 obligation of being separately responsible. Such an 
 engagement, if bottomed on a valuable consideration, 
 wiFl, in the event of his not fulfilling it, subject him to 
 such legal claims only as may arise to his co-partner 
 out of its non-observance ; because, as we have seen, 
 the compact of the parties cannot countervail the rights 
 of the creditors, or enable them to sue upon a covenant 
 to which they are not parties, although it is made for 
 their benefit.(/) In a late case(g) where by indenture 
 (reciting that the maker of the deed was indebted in his 
 separate capacity to a banking-house in which he was a 
 partner,) hereditaments were conveyed in trust, to pay 
 such sums as then were, or should afterwards be, owing 
 to the said firm by the maker in his separate capacity ; 
 and also to pay the said maker's just proportion or share 
 of such debts as then were, or should afterwards be, 
 owing from him jointly and as a co-partner in the said 
 firm ; and also to pay the several persons, mentioned in 
 a schedule to the said indenture, the several debts 
 therein specified, and due from the maker rateably and 
 in equal proportions ; it was determined that the court, 
 in the construction of the deed, would lean in favour of 
 equal payment of all debts. The partnership creditors 
 will not be permitted, on the one hand, to take in pri- 
 ority to the separate or scheduled creditors, but must 
 come in pari passu with them ; on the other hand, the 
 words "just proportion or share," in the clause of the 
 deed speaking of the debts due by the firm in which the 
 maker was a partner, must be understood to mean, not 
 what was due from him to the partnership, or what, as 
 between himself and his partners, he might be bound to 
 contribute to the partnership fund ; but what, in conse- 
 
 (/) Ex parte Peele, 6 Ves. 604. Ex parte Williams, Buck, 15. 
 Ex parte Freeman, Ibid. 471. 
 
 (o-) Wadeson v. Richardson, 1 Ves. &; Bea, 109.
 
 253 THE CONSEQUENCES OF THE 
 
 quence of being a partner, he may owe to the partner- 
 ship creditors. Quoad them, his just proportion is what, 
 with reference to the state of the partnership funds, and 
 
 the abiUty of the other partners, he may even- 
 [ *254 ] tually *be called upon to contribute to the joint 
 
 debts, so that all those debts may be paid. So, 
 with respect to future engagements, the liability of the 
 continuing partner to perform them is similar to that 
 which the law casts upon the outgoing partner. The 
 latter may, after a dissolution, pledge the credit of the 
 pre-existing firm, and his act will have a binding opera- 
 tion upon the remaining partner, if the fact of the disso- 
 lution have not been duly and regularly notified. To 
 secure himself, therefore, against such a possible respon- 
 sibility, it is incumbent on the remaining partner to 
 apprize the world of the retirement of his co-partner 
 from the business. 
 
 We have already stated, that where a total destruc- 
 tion of the trade is not contemplated, but one or more 
 of the partners alone renounce it, it is usually stipulated 
 between them that the joint stock shall become the 
 separate property of the remaining partners ; and the 
 validity of transfers made in pursuance of such stipula- 
 tions has frequently been made a point of discussion in 
 courts of equity. This subject we have already par- 
 tially considered, and shall examine it more at large 
 when we inquire into the consequences resulting from a 
 dissolution by bankruptcy ; but the substance of the de- 
 terminations upon such questions may here be stated to 
 be, that where there has been a fair dissolution of part- 
 nership, and one partner, by agreement, retains the part- 
 nership effects, the transmutation is so complete, that 
 even joint property, remaining in specie^ is considered as 
 his separate estate,(/i) if exclusive possession of the 
 joint property were given to him according to the nature 
 of the contract.(i) And where the remaining partner 
 of an old firm agreed, on the formation of a new part- 
 nership, that all securities for money, shares of ships, 
 
 (A) Ex parte Ruffin, 6 Ves. 119. Ex parte Williams, 11 Ves. 3. 
 (i) Ex parte Harris, 1 Madd. 589.
 
 DISSOLUTION OF A PARTNERSHIP. 254 
 
 and debts due to him in respect of the old house, subject 
 to the debts and engagements affecting the same, should 
 become the joint property of the new firm, according to 
 the proportions of capital agreed to be brought in by the 
 new members ; yet, although the new members advanced 
 only part of their stipulated capitals, it was decided that 
 the member of the old firm had not any interest in the 
 securities which belonged to the old house, except as a 
 partner of the new firm.(A:) But if in such cases the 
 assignment be conditional only, and, in conse- 
 quence of the *non-performance of the condi- [ *255 ] 
 tion, the retiring partner file a bill in equity 
 against the remaining partner for an account, alleging 
 fraud in the non-observance of the articles of dissolution, 
 and praying an injunction and receiver, which are or- 
 dered, and the remaining partner afterwards become a 
 bankrupt, the subject matter of the assignment retains 
 its original character of joint property.(/) 
 
 It remains to be observed, that where there is not a 
 renunciation by the outgoing partner of his right to his 
 proportion of the joint capital, his co-partner, if he con- 
 tinue the trade after a dissolution, and employ the com- 
 mon capital in it, will be bound to account for the profits 
 which may be derived ;(m) although, if the profits are 
 made solely by the skill of the remaining partner, it is 
 said to be the practice of a court of equity to allow him 
 a compensation commensurate with his exertions. (w) 
 But where the profits arise out of the use of the partner- 
 ship stock mixed with the separate property of the re- 
 maining partner, it has been doubted whether the out- 
 going partner is entitled to insist upon a participation. (o) 
 A court of equity will enforce an agreement made upon 
 the dissolution of a partnership, that a particular book 
 used in the trade should become the exclusive property 
 
 {k) Young V. Keighly, 15 Ves. 558. 
 
 U) Ex parte Rowlandson, 1 Rose, 416. 
 
 (m) Brown v. Vidler, cited 15 Ves. 223. Featherstonhaugh v. Fen- 
 wick, 17 Ves. 298. Brown v. De Tastet, 1 Jac. 284. 
 
 (n) See the arguments in Crawshay v. Collins, 15 Ves. 218. See 
 also JBrown v. Litton, 1 P. Wms. 142. 
 
 (o) Per Lord Eldon, 15 Ves. 229.
 
 255 THE CONSEQUENCES OF A 
 
 of one of the partners, and that a copy of it should be de- 
 livered to the other.(p) And where, on a general refer- 
 ence of all matters in dispute between A, B, and C, co- 
 partners, the arbitrators ascertained the capital, includ- 
 ing a debt from A, and some dubious debts, and finding 
 the partnership debts and gross value of the stock, award- 
 ed the same in specific shares, and directed B to receive 
 and pay all debts, keep accounts, and on a balance of 
 receipts, credit was to be given for A's share against his 
 debt. After the award had been long acted on, it turn- 
 ed out that B received some debts which had been omit- 
 ted in the account laid before the arbitrators, and on 
 which the award had proceeded ; and also good debts to 
 a larger amount than stated, and the Court of Exchequer 
 held, in the absence of all fraud, that A was entitled to 
 
 an account of such, and also of the dubious debts, 
 [ *256 ] ^notwithstanding the general reference ; but that 
 
 any over receipts in respect of the good debts 
 was to follow the directions of the award with respect 
 to the dubious debts.(^) It is, perhaps, needless to re- 
 mark, that the same cause which operates to prevent 
 one partner from maintaining an action against his co- 
 partners for work and labour performed on account of 
 the partnership during its subsistence, applies with equal 
 force to such an action for a compensation for services 
 rendered after its dissolution. As where, upon the dis- 
 solution of a joint-stock company, two of the members 
 were sued by a creditor of the concern, and they em- 
 ployed the plaintiff, an attorney, and also a member of 
 the company, to defend the suit ; it was held, that as he 
 himself derived a benefit from the defence, and was lia- 
 ble to contribute to the expenses, he could not sue his 
 late co-partners for the costs.(r) 
 
 (p) Lingen v. Simpson, 1 Sim, & Stu. 600. 
 Iq) Spencer v. Spencer, 2 Y. & J. 249. 
 
 (r) Milburn v. Codd, 6 B. & C. 419. S. C. 1 Mann. & Ryl. 238 ; 
 and see Parkin v. Fry, 2 C. & P. N. P. C. 311.
 
 DISSOLUTION BY BANKRUPTCY. 256 
 
 SECTION III. 
 
 The Co?isequences of a Dissolution by Bimkruptcy, 
 
 It is now to be considered what are the consequences 
 resulting from the dissolution of a partnership when it is 
 occasioned by bankruptcy. 
 
 The questions which have arisen from partnership 
 bankruptcies are extremely numerous, and many of them 
 excessively complicated. We must attempt, by classifi- 
 cation and arrangement, to reduce them to something 
 like order and system. It will then be seen that the 
 great men, who, for a century past, have successively 
 held the great seal, and presided over the bankrupt laws, 
 have displayed a peculiar share of learning and discrimi- 
 nation in this intricate and abstruse department of juris- 
 prudence, and have given a series of enlightened, com- 
 prehensive, and consistent decrees upon the subject, 
 admirably calculated for the advancement of trade in 
 general, and for the protection of the rights of the par- 
 ties more immediately interested. 
 
 *All the partners in a firm may become bank- [ *257 ] 
 rupt together ; or one only may become bankrupt, 
 while the others remain solvent. The first is the most 
 simple case, and we will therefore begin by considering 
 it. 
 
 To sustain a joint commission, it is necessary there 
 should have been a joint trading ; but if the trading con- 
 tinue, it matters not that the partnership has been dis- 
 solved. Thus, a commission of bankruptcy has been 
 sustained against a partnership on a debt contracted 
 many years after a dissolution, the sale of partnership 
 goods having been continued. (s) The enumeration of 
 every trade which is sufficient to bring a man or a body 
 of men within the operation of the bankrupt laws, would 
 not only be too tedious, but would be foreign to our pur- 
 pose: they will be found collected and arranged in the 
 
 (a) Tarletonu. Backhouse, cited 3 Swanst. 571. See 19 Ves. 464. 
 
 44
 
 257 THE CONSEQUENCES OF A 
 
 various excellent treatises on the bankrupt laws.(;) On 
 this branch of the subject we will merely notice a recent 
 decision,(M) in which an acknowledgment by a person 
 that he was in partnership with another as a trader, who 
 afterwards was declared a bankrupt, was held sufficient 
 to constitute a trading, although no acts of buying or 
 selling were proved to have taken place during the part- 
 nership. 
 
 A second ingredient requisite to the support of a joint 
 commission is, that e«cA of the partners should have com- 
 mitted an act of bankruptcy. {y) And formerly, if a com- 
 mission had been taken out against three partners, and 
 two of them only had committed acts of bankruptcy, the 
 commission was void to all purposes ; for if all the part- 
 ners named in it had not been found bankrupts, it could 
 not have been sustained against any.(w;) In this respect, 
 however, the law is altered by a recent act of parlia- 
 ment,(:i') which empowers the Lord Chancellor to super- 
 sede a commission of bankruptcy as to one or more of 
 the partners without prejudice to its validity against the 
 rest. And, according to this provision, a joint commis- 
 sion invalid in its concoction, no act of bankruptcy hav- 
 ing been committed by one, has been superseded 
 [ *258 ] as to him, without prejudice to its *valdity as to 
 the other, or his certificate thereunder.(2/) So, 
 where a commission was issued against two partners, 
 and another commission was subsequently issued against 
 one of them and three other persons, which latter com- 
 mission was superseded as to the partner included in 
 
 (0 See Cook's B. L. (7th ed.) 43. Whitra. B. L. (2d ed.) 7. 1 
 Mont. B. L. (2d ed.) 4. Eden's, B. L. 2.; and see the 6 Geo. 4. c. 
 16. s. 2. 
 
 {u) Parker v. Barker, 3 B. Moore, 226. S. C, 1 Brod. & Bingh. 
 9; but see Bromley v. King, 1 Ryan & Mood. 228. 
 
 (t;) Beasly r.Beasly, 1 Atk. 97. Allan t'. Hartley, Cook's B. L. 7. 
 
 iiv) Id. ibid. (a?) 6 Geo. 4. c. 16. s. 16. 
 
 \y) Ex parte Bygrave, 2 Gl. & J. 391. The first being a legal 
 commission, the court has no jurisdiction to supersede it as to one party, 
 on a petition by the assignees under a second commission ; but the 
 court afterwards, on the petition of the assignees under the first, super- 
 seded the second commission as to one of three parties. In re Col- 
 man, 1 Mont. & M. 15. 
 
 ^
 
 DISSOLUTION BY BANKRUPTCY. 258 
 
 the first commission without prejudice as to the other 
 three bankrupts, and the assignees under the second 
 commission sold an estate belonging to one of the three 
 bankrupts ; the purchaser having objected that a good 
 title could not be made on the ground that the second 
 commission was altogether void, and that the 6 Geo. 4. 
 c. 16. s. 16. only applied to cases of valid commissions, 
 Sir John Leach determined otherwise, and made a decree 
 for specific performance.(2') To sustain a commission 
 against all the members of a firm, the acts of bankruptcy 
 must be committed, either during the trading, or subse- 
 quent thereto, and during the existence of a debt con- 
 tracted when in trade.(a) What are the acts which the 
 legislature has declared to be conclusive evidence of the 
 bankruptcy of traders it will be inconsistent with our 
 object to detail ; we will therefore content ourselves with 
 referring to the several digests on the subject, in which 
 those acts are enumerated, and the numerous decisions 
 of the courts upon them are noticed.(5) There are, 
 however, a few cases in which the validity of joint com- 
 missions has been disputed, on the ground of there not 
 being any joint act of bankruptcy to support them, and 
 to these we will briefly advert. Where there were two 
 partners in a concern at Manchester and in London^ under 
 diflferent names, and one partner resided at each place, and 
 the London partner, being upon a visit for a few days 
 at Manchester, occasionally attended the counting-house 
 there, and both partners, afraid of an arrest, left the 
 house of business privately, carrying the books of ac- 
 count with them, it was ruled to be an act of bankruptcy 
 in both.(c) And where two traders, in partner- 
 ship, *left their shop, and told their shopman that [ *259 ] 
 they did so for the purpose of endeavouring to 
 get some bills of exchange discounted, and directed him 
 to say that they were not in the way, or to make some 
 
 (z) Burlton v. Wall, 1 Tamlyn's Rep. 113. 
 
 (a) Ex parte Bamford, 15 Ves. 449. Ex parte Dewdney, ibid. 
 495. 
 
 (6) Cook's B. L. 72. Whitm. B. L. 18. 1 Mont. B. L. 31. Eden's 
 B. L. 11. See also 6 Geo. 4. c. 16. s. 3, 4, 5, 6, & 8. 
 
 (c) Spencer ». Billing, 3 Campb. 312.
 
 259 THE CONSEQUENCES OF A 
 
 excuse for them, in case a creditor should call; and a 
 creditor having called on that and the following day 
 when they were both at home, and desired to see either 
 the one or the other of them, the shopman, without fur- 
 ther authority, denied them, to which they, being after- 
 wards informed of it, did not object, it was held that the 
 jury were warranted in concluding that they absented 
 themselves from their shop with an intent to delay their 
 creditors.(c?) So, a conveyance by a firm of all their 
 stock in trade, debts, and effects, for the benefit of all 
 their creditors, but without the concurrence of every 
 creditor both joint and separate, is an act of bank- 
 ruptcy.(e) But a conveyance executed by one only of 
 three partners, with intent that it shall not be eflfective 
 unless executed by all of them, is not, as it seems, an 
 act of bankruptcy.(/) And where one of three bankers, 
 who was the only residing partner at the place where 
 the business was carried on, and who alone transacted 
 the business, absented himself from the banking-house, 
 shut it up, and stopped payment, it was determined that 
 this was not evidence of a joint act of bankruptcy com- 
 mitted by all the three ;(^) and there is not wanting the 
 authority of Lord Eldon to show that such an absenting 
 by one partner does not constitute an act of bankruptcy 
 by each of those who may be united with him in partner- 
 ship.(A) So, if one of two partners go abroad for the 
 purpose of transacting his business, but not with the 
 intent of avoiding his creditors, and, in consequence of 
 the other partner having contracted a debt in the part- 
 nership name and committed an act of bankruptcy, the 
 clerk of the firm goes to the partner abroad, and com- 
 
 {d) Capper v. Desanges, 3 B. Moore. 4. S. C. 8 Taunt. 671. See 
 Ex parte Gardner, 1 Ves. & Bea. 77. 
 
 (e) Eckhardt v. Wilson, 8 T. R. 140. See the cases of Bemey v. 
 Davison, 4 B. Moore, 126. S. C. 1 Bro. & Bingh. 408 ; and Bemey 
 V. Vyner, 4 B. Moore, 322. S. C. 1 Bro. & Bing. 482. 
 
 (/) Button V. Morrison, 17 Ves. 200. A fraudulent grant by deed 
 made by one partner to his co-partner, is an act of bankruptcy in the 
 grantor, though not in the grantee. Whitwell v. Thompson, 1 Esp. 
 N. P. C. 68. 
 
 [g) Mills V. Bennett, 2 Maul. & Selw. 556. 
 
 (A) Ex ■parte Mavor, 19 Ves. 543.
 
 DISSOLUTION BY BANKRUPTCY. 260 
 
 municates to him the insolvent state of the house, 
 upon which he expresses his determination *not [ *260 ] 
 to return, this is not a sufficient act of bank- 
 ruptcy to support a joint commission. (i) A joint act 
 of bankruptcy concerted between three partners and an 
 attorney, who acted both as their agent and as the 
 agent of the petitioning creditor, is not sufficient to sus- 
 tain a commission on the petition of the latter, although 
 he was not actually privy to the preconcert.(^) 
 
 With respect to the petitioning creditor's debt, the 
 amount of it, its nature, and the time when it should 
 have been contracted to sustain a joint commission, dif- 
 fer in no respect from those requisites which the law 
 has imposed to give it validity in the case of a separate 
 commission. It will therefore be sufficient to observe, 
 that it must be a joint debt due from or payable by(/) 
 all the partners, since none other can be made the foun- 
 dation of an application for a commission against the 
 members of a firm collectively. It must also have been 
 contracted before any of the acts of bankruptcy which 
 are to support the commission were committed. There- 
 fore, where an attorney, after an act of bankruptcy com- 
 mitted by one partner, but, in consequence of a previous « 
 retainer, had a sum due to him from the firm ; it was 
 held that the debt did not constitute a good petitioning 
 creditor's debt to support a joint commission.(?/i) 
 
 (i) Ex parte Mutree, 5 Ves. 576. See Warner v. Barber, Holt's 
 N. P. C. 175. 
 
 (k) Prosser v. Smith, Holt's N. P. C. 442. See also Ex parte 
 Staff, Buck, 440. 
 
 (/) 6 Geo. 4. c. 16. s. 15. See Eden's B. L. .38. 
 
 (m) Ex parte Miller, Buck. 283. By a late act of parliament it is 
 provided, that if, after adjudication, the debt of the petitioning creditor 
 be found insufficient, the Lord Chancellor may, upon the application of 
 a creditor who has proved a sufficient debt, and whose debt had been 
 incun-ed not anterior to that of the petitioning creditor, order the com- 
 mission to be preceded in, and it shall by such order be deemed valid. 
 6 Geo. 4. c. 16. s. 18. This provision was expressly confined to a 
 debt incurred not anterior to that of the petitioning creditor, on ac- 
 count of the doctrine of relation to the act of bankrup'tcy ; for that doc- 
 trine cannot be extended beyond the accruing of the debt of the peti- 
 tioning creditor without destroying the tide of the assignees. Ex parte 
 Birkett, 2 Rose, 71. Ex parte Bowness, 2 M. & S. 479.
 
 260 THE CONSEQUENCES OF A 
 
 Where there is or has been a joint trading, acts of 
 bankruptcy have been severally committed by each 
 member of a firm, and a legal petitioning creditor's debt 
 to the requisite amount is due from them, a joint com- 
 mission of bankruptcy may be effectually sustained. 
 But in such a commission, before the late statute, 
 all the ostensible partners must have been included ; 
 for a commission being, to some purposes, considered 
 
 as in the nature of an action at law, it was 
 [ *261 ] held that a joint commission against two *of 
 
 several partners could not be supported. (n) 
 If one partner had been an infant, and therefore strict- 
 ly not an object of the bankrupt laws,(o) or if one 
 had laboured under the influence of that dreadful visita- 
 tion lunacy,(;?) or had been an uncertificated bank- 
 Tupt,(q) there could not be a joint commission against 
 the others ; separate commissions must have been taken 
 out against each individually. This however is reme- 
 medied by a recent enactment,(r) which declares " that 
 any creditor or creditors whose debt or debts is or are 
 sufficient to entitle him or them to petition for a com- 
 mission against all the partners of any firm, may petition 
 for a commission against one or more partners of such 
 firm; and every commission issued upon such peti- 
 tion shall be valid, although it does not include all 
 the partners of the firm." Before this statute it was 
 not necessary to have included a dormant or se- 
 cret partner in a commission against the ostensible 
 
 (w) Allen V. Downes, Willes' Rep. in not. 474. Streatfield v. Hal- 
 liday, 3 Term R. 779. 
 
 (o) Ex parte Henderson, 4 Ves. 163. JEx parte Barwis, 6 Ves. 
 601. Rex V. Cole, 1 Lord Raym. 444. O'Brien v. Currie, 3 C. & 
 P. 383 ; but see Ex parte Watson, 16 Ves, 265. 
 
 (p) Ex parte Lay ton, 6 Ves, 440. See Anon. 13 Ves. 590. 
 
 {fj) Ex parte Martin, 15 Ves. 114. Ex parte Bold, Co. B. L. 12. 
 In a case where an uncertificated bankrupt entered into partnership with 
 another person, and a joint commission issued against them, Sir Wil- 
 liam Grant held, that the creditors of the partnership had no equity 
 against the assignees under the first commission for an account and ap- 
 plication to their debts of the property used or acquired in that part- 
 nership. Everett v. Backhouse, 10 Ves. 94 ; and see Ex parte Storks, 
 2 Rose, 179. S. C. 3 Ves & Bea. 105. 
 
 (r) 6 Geo. 4. c. 16. s. 16.
 
 DISSOLUTION BY BANKRUPTCY. 261 
 
 partners ;(s) although, where there was a partner abroad, 
 and from the title of the firm, as if it had the word 
 " company" subjoined, it was doubtful whether it con- 
 sisted solely of the partners in England, it would not 
 have been prudent, without inquiry, to have issued a 
 commission against the latter only.(^) Doubts, indeed, 
 have been entertained, whether a joint commission can 
 be supported against the ostensible members of the firm, 
 and a dormant partner whose interest is confined to a 
 share of the profits ',(ti) but probably, as a joint creditor 
 has an election to consider a dormant partner his debtor, 
 and as there is scarcely a partnership in which 
 the members of it are not entitled in ^different [ *262 ] 
 interests, a commission including him would be 
 upheld on the ground that tbe joint property must be 
 considered, as regards its distribution under the bank- 
 rupt laws, the promiscuous joint property of them all.(z;) 
 Formerly, where there were several partners, it used 
 to be the practice to take out separate commissions 
 against each partner, as well as a joint commission 
 against all of i\\eT(\.(w) This arose, probably, from the 
 difficulty which commissioners found, where only a 
 single commission was taken out, of marshalling the 
 joint and separate estates between the respective classes 
 of creditors, the statute having given no direction for 
 that purpose : but that practice was discountenanced, it 
 having been the common course of the court, upon peti- 
 tion, to make an order for the separate creditors to 
 come in and prove their debts under the joint commis- 
 sion ; and that the assignees should keep distinct ac- 
 counts of the respective estates.(:r) And now by a ge- 
 neral order(y) made by Lord Ross/yn, where there is a 
 joint commission issued, the commissioners are to cause 
 
 (s) Ex parte Benfield, 5 Ves. 424. 
 
 [t] Expartc Laylon, 6 Ves. 438. 
 
 (?<) Ex parte Hamper, 17 Ves. 404. See also Ex parte Matthews, 
 3 Ves & Bea. 126. 
 
 {v) Ex parte Hodgkinson, 19 Ves. 294. Ex parte Norfolk, ibid. 
 455. Ex parte Watson, ibid. 459. Ex parte Hunter, 2 Rose, 382. 
 
 {w) In re Simpson, 1 Atk. 137. {x) Co. B. L. 9. 
 
 (t/) 8th March, 1794. 2 Co. B. L. 284. See also Twiss v. Massey, 
 1 Atk. 67. In re Powel, Davies, 373.
 
 262 THE CONSEQUENCES OF A 
 
 distinct accounts to be kept of the joint and separate 
 estates, and any separate debts due from individual part- 
 ners, (or where there are inferior partnerships, consist- 
 ing of some of the bankrupts, debts due from such part- 
 nerships,(2') are to be proved under the joint commis- 
 sion ; the respective estates to be apphcable in the first 
 instance to the payment of their respective debts. 
 
 According to the present practice, a joint commission 
 against all or two or more of the partners, or separate 
 commissions against each of them, may be supported ; 
 but it seems that a joint commission against all and a 
 separate commission against any of the partners cannot 
 legally subsist at the same time, if the commission which 
 is prior in point of existence was acted upon and in legal 
 operation ;(a) because, by the assignment under it, all 
 the interest and effects of the bankrupts or bankrupt will 
 
 vest in their or his assignees. At law, therefore 
 [ *263 ] if a joint commission *be first issued, and be 
 
 proceeded in, a subsequent separate commission 
 is invalid; and if a separate commission, which has 
 been opened and is in operation, subsist, a joint one, 
 afterwards sealed, cannot as a matter of course be pro- 
 secuted.(6)(l) There is indeed a case apparently mi- 
 litating against this principle, in which, after and during 
 the existence of two separate commissions, which had 
 issued against two of three members of a firm, a joint 
 commission was taken out against the whole firm ; and 
 although the question as to the validity of the joint com- 
 mission was not ultimately decided by the court, yet the 
 late Lord Chief Baron Thompson intimated his opinion 
 that it was valid until actually superseded.(c) By a 
 modern act of parliament(^) it is provided, "that if 
 after a commission issued against two or more members 
 
 (z) Ex parte Worthington, 3 Madd. 26. 
 
 (fl) Warner v. Barber, 2 B. Moore, 71. S. C. 8 Taunt. 176. Ex 
 parte Bullen, 1 Rose, 136. 
 
 {h) Ex parte Munton, 1 Ves. & Bea. 64. Ex parte Rawson, ibid. 
 163. Ex parte Crew, 16 Ves. 236. Warner v. Barber, ante. 
 
 (c) Butts V. Bilkie, 4 Price, 241. S. C. 2 Rose, 171. n. 
 
 {d) 6 Geo. 4. c. 16, s. 17. 
 
 (J) See Murray v. Murray, 5 Johns. Cha. Rep. 76. et seq.
 
 DISSOLUTION BY BANKRUPTCY. 263 
 
 of a firm, any other commission or commissions shall be 
 issued against any other member or members of such 
 firm, such other commission or commissions shall be 
 directed to the commissioners to whom the first com- 
 mission was directed ; and immediately after the adju- 
 dication under such other commission or commissions, 
 the commissioners shall convey and assign all the estate, 
 real and personal, of such bankrupt or bankrupts, to the 
 assignees chosen in the first commission, and after such 
 conveyance all separate proceedings under such other 
 commission or commissions shall be stayed, and such 
 commission or commissions shall without affecting the 
 validity of the first commission, be annexed to and form 
 part of the same : provided that the Lord Chancellor 
 may direct that such other commission or commissions 
 be issued to any other commissioners, or that such other 
 commission or commissions shall proceed either sepa- 
 rately or in conjunction with the first commision." 
 Where a joint commissiom has issued against two part- 
 ners in this country, it forms no ground for superseding 
 it, that there is a prior separate commission in Ireland 
 in prosecution against one of them.(e) And although a 
 second commission, where there is a former one in ope- 
 ration against the same parties, is strictly and legally 
 speaking void, yet where the convenience of administer- 
 ing a partnership fund requires it, and it can be 
 done without prejudice *to transactions which [*264] 
 have taken place under the first commission, the 
 Lord Chancellor will so dispose of a prior separate com- 
 mission, either by superseding or removing it, as to pre- 
 vent its being an impediment to the prosecution or 
 validity of a subsequent joint commission.(/) It there- 
 fore frequently occurs, that a joint commission is taken 
 out and is sustained after the parties against whom it is 
 
 (e) Ex parte Cridland, 3 Ves. & Bea. 94. S. C. 2 Rose, 164. 
 (/; Fx parte Rawson, 1 Ves. & Bea. 163. S. C. 1 Rose, 423. Ex 
 parte Pachelor, 2 Rose, 26. In re Colbeck, Buck, 52. Under the 6 
 Geo. 4. c. 16. s. 16. the court has power to supersede a commission 
 invalid as to one parly, because a prior commission had issued against 
 him, without prejudice to its validity against the others included in it. 
 Burlton v. Wall, 1 Tamlvn's Rep. 1 13. 
 
 45
 
 264 THE CONSEqUKNCES OF A 
 
 directed have been declared bankrupts under separate 
 commissions ; by which means, not only is great expense 
 saved, but the joint effects are distributed to better ad- 
 vantage.(^) And if it can be made appear that the 
 bankrupt's estate Avill be benefitted by prosecuting the 
 joint commission, and consequently that the better ad- 
 ministration of justice requires it to be upheld, the Lord 
 Chancellor, where no injustice can ensue, will supersede 
 the prior separate commissions ;(A) and by so doing, he 
 imparts legal validity to the subsequent joint one.(i) In 
 a late case in which a separate commission issued against 
 one of three partners, and afterwards a commission 
 was sued out against two of the firm, the first, as being 
 the least extensive commission, was superseded.(Q So 
 where there are inferior partnerships between some of 
 the partners and different commissions, the court will, in 
 general, support that commission which includes all the 
 partners, and supersede the others. (/) And it is not a 
 sufficient reason against superseding the separate com- 
 mission, that a separate creditor to a large amount will 
 be thereby divested of his right of voting in the choice 
 of assigness.(m) And notwithstanding a prosecution 
 is instituted against the bankrupt for not surrendering 
 under the separate commission, it will be superseded 
 to make way for a more extensive commission, if the 
 omission to surrender were from a mistake as to 
 
 the legality of the commission, and without 
 [ *265 ] *any fraudulent intent.(n) But if a bankrupt is 
 
 exposed to a prosecution for felony in not sur- 
 rendering to a separate commission, and no circumstan- 
 ces of extenuation appear, that commission will not be 
 superseded solely for the convenience of a joint one.(o) 
 
 (g) Ex parte Hardcastle, 2 Cox, 397. S. C. Co, B. L. 11. 
 
 \h) Ex parte Munton, 1 Ves. & Bea. 63. S. C. 1 Rose, 433. Ex 
 parte Pachelor, supra. Ex parte Crew, 16 Ves. 237. 
 
 {i\ Per Richards, B., Butts v. Bilkie, 4 Price, 247. 
 
 [k) Ex parte Smith, 1 Glyn & James, 256. 
 
 (/) Ex parte Bonbonus, 8 Ves. 540. Ex parte Rawson, 1 Ves. & 
 Bea. 160. S. C. 1 Rose, 423. 
 
 {rn) Ex parte Pachelor, 2 Rose, 26. ' 
 
 (n) Ex parte Lavender, 18 Ves. 18. S. C. 1 Rose, 55. 
 
 (o) Ex parte Roberts, 2 Rose, 378.
 
 DISSOLUTION BY BANKRUPTCY. 265 
 
 And a separate commission will not be superseded at 
 the instance of the creditors under a joint commission, 
 if there be not any joint efFects,(;?) or if it be apparent 
 that the joint commission cannot be sustained. (^r) Nor, 
 as it seems, -will it be superseded until the adjudication 
 of bankruptcy under the joint commission. (/) And where 
 a strong objection exists to the interference of the court, 
 and circumstances render the superseding the legal com- 
 mission inexpedient, as if the certificate of the bankrupt 
 under the separate commission would be thereby destroy- 
 ed,(5) or sales have taken place under it, which conse- 
 quently ought to be protected, the court, to give effect to 
 the certificate, in the one case,(/) or to the sales in the 
 other, will, instead of granting a supersedeas^ direct the 
 commission and the proceedings (which, being a species 
 of record in bankruptcy, gives the court that authority,(zf ) 
 to be brought into the bankrupt office, there to be im- 
 pounded, and not to be produced without the order of 
 the Chancellor.(ij) When the separate or joint commis- 
 sion is superseded, the Lord Chancellor will make such 
 equitable arrangements as the circumstances of the case 
 
 (p) Ex parte Rowlandson, 1 Rose, 89. Ex parte Wheeler, Buck, 26. 
 
 \q) Ex parte Roberts, 1 Mad. 72. 
 
 Ir) Ex parte Gardner, 1 Ves. & Bea. 74. 
 
 (s) It is in the discretion of the court to supersede the first, or, as it 
 has been properly termed, the legal commission, whether the bankrupt 
 has got his certificate under it or not. Ex parte Cutten, Buck, 69. 
 But in cases where he has obtained it, the court is generally unwilling 
 to 'supersede. Ex parte Yi^m^pev, 17 Ves. 413. Thus, where there 
 had been delay on the part of the joint creditors, and the bankrupt's 
 certificate under the separate commission had been before the Chancel- 
 lor for allowance, the court refuced to interpose. Ex parte Rowland- 
 son, 1 Rose, 89. Ex parte Cutten, supra. But where there has been 
 fraud under the separate commission, the circumstance of the bankrupt 
 having obtained his certificate, or even set up in trade again, will be 
 disregarded. Ex parte Poole, 2 Cox, 227. Ex parte Gillam, ibid. 
 193. 
 
 (t) See Ex parte Lezverhnd, 1 Atk. 145. 
 
 (u) Ex parte Shaw, 1 Glyn & James, 125. 
 
 [v) Ex parte Tobin, 1 Ves. & Bea. 308. Ex parte Rowlandson, I 
 Rose, 416. Ex parte Rawson, 1 Ves. «fe Bea. 160. S. C. 1 Rose, 
 423. Ex parte Hamper, 17 Ves. 413. Ex parte Thompson, 1 Rose, 
 285.
 
 
 266 THE CONSEQ,UENCES OF A 
 
 may require ;(w) and will direct the proofs, taken 
 [ *266 ] under the *superseded commission, though it has 
 
 become .a nullity, to be transferred to, and to be 
 received under the other.(^) And where the rights of 
 the parties evidently require the interposition of a court 
 of law, it will, in case of the existence of two commis- 
 sions, exercise a species of equitable jurisdiction. Thus 
 where a separate commission issued against A, and a 
 joint commission against A and B, and the assignees un- 
 der the separate commission obtained a verdict against 
 C ; the court ordered the money to be paid into court 
 until a petition, pending before the Lord Chancellor to 
 supersede the separate commission, was decided.(3/) If 
 the commission that first issued is superseded, the peti- 
 tioning creditor is entitled to his costs, unless it was 
 taken out against good faith; and it is not sufficient to 
 deprive him of his right to costs, that he had notice of a 
 docket having been struck against all the members of 
 the firm.(^) But he will not be compelled to attend be- 
 fore the commissioners for the purpose of proving the act 
 of bankruptcy under the subsequent joint commission, 
 because he ought not to be constrained to be a witness 
 to destroy his own proceedings ;(a) and he is not bound 
 to supersede his commission, because a joint commission 
 has issued.(6) When a joint commission is regularly 
 sued out between two or more partners, it does not abate 
 by the death of one of them, after the bankruptcy has 
 been found. But if one of the firm be dead at the time 
 of issuing the commission, it seems that it is absolutely 
 void.(c) 
 
 (w) JExparte Ravvson, 1 Ves. & Bea. 160. S. C. 1 Rose, 423. 
 (x) Ex parte Upham, 17 Ves. 212. Ex parte Tobin, 1 Ves. & Bea. 
 380. Ex parte Rawson, supra. 
 
 (y) Hodgkinson v. Travers, 1 B. & C. 257. 
 
 (z) Ex parte Brown, 1 Ves. & Bea. 60. S. C. 1 Rose, 433. 
 
 (a) Ex parte Stone, I Glyn & James, 7. 
 
 (b) Ex parte Brown, supra. See also Ex parte Gardner, 1 Ves. 
 & Bea. 74. 
 
 (c) Beasly v. Beasly, 1 Atk. 97. Warrington v. Norton, Forr. 184. 
 
 1 Vern. 154. See also Ex parte Smith, 5 Ves. 295. Ex parte Beale, 
 
 2 Ves. & Bea. 29. 6 Geo. 4. c. 16. s. 26.
 
 DISSOLUTION BY BANKRUPTCY. 266 
 
 The legislature, considering that bankrupts have been 
 guilty of "a fraud, and, consequently, that they are im- 
 proper persons to be trusted any longer with the manage- 
 ment of their own estate, has appointed other persons in 
 their place, to whom, for the security of their creditors, the 
 commissioners are to assign their effects. We will, there- 
 fore, now consider the effect of an assignment under a joint 
 commission, and what property, by virtue thereof, vests in 
 the assignees. Mr. Justice Blackstonc, in his 
 *Commentaries,(f/) says, that the whole of the [ *267 ] 
 property which the bankrupt had in himself at 
 the time he committed the first act of bankruptcy, or 
 that has vested in him since, before his debts are satis- 
 fied or agreed for, pass by the assignment. And in an 
 early case(e) we find it laid down by Lord Chancellor 
 Ki7ig, that the assignment made by the commissioners 
 under a joint commission, passes as well the separate as 
 the joint estate of the bankrupt partners. Therefore, 
 after such assignment, no property of any kind remains 
 in the bankrupts ; and nothing can be taken by the as- 
 signees under a separate commission subsequently sued 
 out against any one of them. It has also been said, that 
 notwithstanding the property in a partnership be in one 
 or more members of the firm solely, with an interest in 
 the profits merely in the others, in bankruptcy such pro- 
 perty passes as joint property, and is administered with 
 regard to the joint creditors, as the promiscuous joint 
 property of the whole firm.(y ) 
 
 It is often of the utmost importance to determine what 
 is to be deemed joint and what separate property, since it 
 not unfrequently happens, that the separate estate is 
 more than sufficient to satisfy all the primary demands 
 upon it, while the joint estate amounts scarcely to any 
 thing, or vice versa. What is to be considered joint pro- 
 perty at the termination of a partnership, we have al- 
 
 {d) Vol. 2. p. 485. 
 
 (e) Hx parte Cook, P. Wms. 500. See also Ex parte Baudier, 1 
 Atk. 98. Hague v. Rolleston, 4 Burr. 2174. Bolton v. Puller, 1 
 Bos. &; Pul. 547. 
 
 (/) Ex parte Hunter, 2 Rose, 382.
 
 267 THE CONSEQUENCES OF A 
 
 ready had occasion to obserYe;(^) and, indeed, little 
 difficulty occurs with respect to the nature of the pro- 
 perty, where the partnership has continued down to the 
 time of the bankruptcy, and the bankrupts are not at 
 that time, and have not been before, connected with any 
 other firm : but it sometimes happens that a dissolution 
 or a change has taken place in the members of the part- 
 nership, or that there are subordinate and distinct part- 
 nerships, between certain of the members of the principal 
 
 , one. To adjust the clashing interests and claims 
 [ * 268 ] of *solvent partners, and of different classes of 
 
 creditors under such complicated circumstances, 
 is necessarily a matter of much nicety. It is settled that 
 the property, to pass under the commission as joint es- 
 tate, must have retained that character down to the 
 period of the bankruptcy, for if previously thereto, either 
 by bona Jide contract or otherwise, the joint property of 
 the general partnership be converted into the separate 
 propety of an individual partner, or into the joint pro- 
 perty of two or more partners, it will devolve upon the 
 assignees in the new character which it has acquired, 
 and be distributable amongst that class of creditors to 
 the satisfaction of whose claims it would in ordinary 
 cases be apropriated. We will therefore inquire how 
 far the contract, or the acts and conduct of the partners, 
 may be considered as giving a different nature and de- 
 nomination to property, which originally belonged to the 
 whole firm. The cases in which an alteration in the 
 nature of the property has been contended to have taken 
 place by the mere force of contract, have almost univer- 
 sally been those in which, anterior to the bankruptcy, a 
 dissolution of or change in the partnership has been 
 effected, and there the court has given effect to the trans- 
 
 (g) See an^e, p.- 232. Mines are, for many purposes, partnership 
 property. They are liable to the debts of the partnership, and debts to 
 the co-partnership; and notwithstanding the bankruptcy of a partner 
 indebted to' the co-partnership, the accounts are to be taken beyond the 
 tinae of the bankruptcy, and up to the time of the sale ; the debts of the 
 partnership are first to be satisfied, and out of the bankrupt's share re- 
 payment is to be made to the co-partnership of what is due to it from 
 him. Fereday v. Wightwick, 1 Taralyn's Rep. 250.
 
 DISSOLUTION BY BANKRUPTCY. 268 
 
 mutation upon this principle, that if it were to be held 
 that what at any time, during the partnership, has been 
 part of the joint effects, should in all future time remain 
 so, notwithstanding a bona fide transfer, no partnership 
 could ever arrange their affairs. (A) But to operate a 
 conversion by contract, the contract, though it need not 
 be in writing,(f) and may be either absolute or condi- 
 tional,(/?:) must be express ; for, although the joint pro- 
 perty be left in the custody of one or more partners, yet 
 if it be so left, without an agreement having for its ob- 
 ject the transmutation of it, the mere dissolution will 
 not produce that effect. For dissolution, simply consi- 
 dered, can only amount to a declaration that the part- 
 nership is not to be carried on any farther, except for 
 the purpose of winding up the affairs ; and when there 
 is no transfer of the property, each partner is left 
 in possession as a trustee for all, to the extent of 
 enabling each to call upon all to apply the partner- 
 ship effects to the purposes to which they ought to be 
 applied, even if there was no dissolution.(/) But 
 *if joint creditors do not interpose, (and, if they [ *269 ] 
 dislike the arrangement, it is competent to them 
 at the time to desire payment of their debts from each 
 of the partners,) and the partners make a fair contract 
 inter se ; if they do actually dissolve the partnership ; if 
 they fully effect a dissolution, with a contract for divi- 
 sion of the property ; if they make an actual assignment 
 by deed or otherwise ; if possession is delivered upon 
 that, and enjoyment makes it perfect ; if all these cir- 
 cumstances combine, and there is nothing of fraud im- 
 peaching the transaction, then, as is determined in many 
 cases,(7n) the joint property becomes separate property 
 by virtue of that contract, and the joint property is 
 
 (h) Per Lord Eldon, Ex parte, Ruffin, 6 Ves. 119. 
 
 (i) Ex parte Williams, 11 Ves. 6. 
 
 {k) Ex parte Fell, 10 Ves. 348. Ex parte Rowlandson, 1 Rose, 
 416. {I) Ex parte Williams, supra. 
 
 (m) Ex parte Titner, 1 Atk. 186. Ex parte Ruffin, 6 Ves. 119. 
 Ex parte FeW, 10 Yes. 347. Ex parte AVilliams, 11 Ves. 6. Ex 
 parte Slow, Co. B. L. 539. Ex parte Rowlandson, 2 Ves, & Bea. 
 172. S. C. 1 Rose, 416. Ex parte Peake, 1 Madd. 346. Ex parte 
 Harris, ibid. 583.
 
 269 THE CONSEGtUENCES OF A 
 
 throughout to be treated as separate property, and the 
 joint creditors cannot follow it ; but, from the moment of 
 the agreement it becomes the separate estate of the 
 party who has contracted for it, just as much as if he 
 had acquired it in market overt of any stranger. Where, 
 however one of three partners assigned his share to one 
 of the other two partners, and a separate commission 
 afterwards issued against the third, Lord Hardwicke 
 held, that the joint estate of the whole firm should be 
 applied to the payment of the partnership debts ;(n) and 
 Lord Eldon, in alluding to that determination, thought the 
 assignment by one partner to one only of the two, mate- 
 rially distinguished it from the case of an assignment to 
 all the remaining partners. (o) But in every case of 
 transmutation, the bona fides of the transaction is strictly 
 to be examined, and it seems that the length of time 
 which elapses between the assignment and failure of the 
 remaining partners, is evidence of the good faith of the 
 transaction. (;j) And the transmutation of the property 
 must be complete, and the contract respecting it be ex- 
 ecuted before the bankruptcy, in order to divest the joint 
 creditors of their right of treating it as joint estate. If 
 the partners conveying their interests are, as a measure 
 of protection, compelled to call in aid the assistance of 
 a court of equity, to exact from the partners, to whom 
 they have assigned, an implicit observance of the terms 
 
 on which the bargain was made, and that court 
 [ *270 ] do extend its ^relief previously to bankruptcy, 
 
 by enjoining the latter from interfering with the 
 property and appointing a receiver, the original denomi- 
 nation of the property will not be changed. Thus, 
 where a retiring partner assigned the partnership estate 
 and effects to a continuing partner, and afterwards the 
 continuing partner refused to accept the bills, the stipu- 
 lated consideration for the assignment ; the retiring part- 
 ner then filed his bill against him, praying an injunction 
 and receiver, which were ordered : upon a subsequent 
 bankruptcy of the continuing partner, it was held, that 
 
 (n) Ex parte Burnaby, Co. C. L. 246. 
 (o) Ex parte Ruffin, 6 Ves. 129. 
 {p) Ex parte '^^'iWmvas, 11 Ves. 6.
 
 DISSOLUTION BY BANKRUPTCY. 270 
 
 such interference of the court restored the property to 
 its original character as joint property ; unless the re- 
 tiring partner had, by his conduct, between the time of 
 his obtaining the injunction and the bankruptcy, render- 
 ed nugatory the effect of such interference, and upon 
 that an inquiry was directed.(7) So, in all cases of 
 executory agreements, where the farther act necessary 
 to complete the transfer does not happen before the 
 bankruptcy, the nature of the property is not changed 
 by the contract, but retains its character of joint estate. 
 Thus, where a retiring partner assigned and sold all his 
 interest in the concern to the continuing partner, who 
 agreed to pay a debt owing by the former, and also to 
 pay him a stated annuity, for the due payment of which, 
 it was stipulated, that the father of the continuing part- 
 ner, who was not a party to the assignment, should be 
 security ; this was held to be an executory contract, and 
 consequently that, the father having refused to become 
 security, the interest of the retiring partner in the part- 
 nership stock was not thereby transferred. (r) Besides, 
 in those instances of contract to which we have allud- 
 ed, the acts of the partners themselves, exemplified in a 
 course of dealing, may have the effect of changing the 
 quality of that property which originally partook of 
 the nature of joint estate. There can be no doubt, that, 
 as between themselves, a partnership may have transac- 
 tions with an individual partner, or with two or more of 
 the partners, having their separate estate engaged in 
 some joint concern, in which the general partnership is 
 not interested, and that they may by their acts convert 
 the joint property of the general partnership into 
 the *separate property of an individual partner, [ *271 ] 
 or into the joint property of two or more partners, 
 or e comer so. And their transactions in this respect 
 will, generally speaking, bind third persons ; and third 
 
 {q) Ex parte Rowlandson, 2 Ves. & Bea. 172. S. C. I Rose, 416. 
 If the remaining partner had become bankrupt before the bill in equity 
 had been filed, ?ind the injunction and receiver ordered, it seems that the 
 property would have passed to his separate creditors, by virtue of the 
 statute of James. Id. ibid. And see post. 
 
 (r) Ex parte Wheeler, Buck, 25. 
 
 46
 
 271 THE CONSEQUENCES OF A 
 
 persons may take advantage of them in the same man- 
 ner, as if the partnership were transacting business with 
 strangers. For instance, suppose the general partner- 
 ship to have sold a bale of goods to the particular part- 
 nership, a creditor of the particular partnership might 
 take those goods in execution for the separate debt of 
 that particular partnership.(.s) And where four per- 
 sons were partners in a banking-house at Liverpool, and 
 two of them carried on a separate mercantile concern 
 in London, and certain bills of exchange deposited with 
 the house at Liverpool to be discounted, were remitted 
 to the house in London upon the general account be- 
 tween the two houses, it was determined that the Lon- 
 don house acquired the property in the bills remitted, and 
 therefore that, upon the failure of both houses, their 
 assignees were entitled to retain them.(/) 
 
 We will now endeavour to elucidate another head of 
 transmutation, occasioned by the acts of partners them- 
 selves, and this will embrace all the questions affecting 
 partnerships, that have arisen out of the statute of 
 James,\ii) which vests in the assignees such goods as, 
 by the consent and permission of the true owner, the 
 bankrupts have in their possession, order, and disposi- 
 tion, at such time as they shall become bankrupt. In 
 investigating this subject, it is proposed to consider, 
 first, those cases in which previously to bankruptcy, a 
 dissolution of or a change in the partnership has taken 
 place, and the joint property has been left in the exclu- 
 sive possession of one or more of the former partners ; 
 and, secondly, those which have established the princi- 
 ple applicable to a dormant partner, who has suffered 
 his share of the property to continue in the order and 
 disposition of the ostensible partner, down to the time of 
 
 (s) Per Eyre, C. J. Bolton v. Puller, 1 Bos. & Pul. 539. 
 
 \t) Id. Ibid. 
 
 (m) 21 Jac. 1. c. 19. s. 11. By the 6 Geo. 4. c. 16. s. 1. this sta- 
 tute is repealed, but the 11th section of the statute of James is 
 re-enacted by the 72d section of the repealing statute almost in totidem 
 verbis. The adjudged cases, which are detailed throughout the work, 
 and which were decided with reference to the statute of James, are 
 therefore retained, for the purpose of explanation, and as guides to the 
 construction to be put upon the statute of Geo. 4.
 
 DISSOLUTION BY BANKRUPTCY. 271 
 
 his bankruptcy. The last division would, perhaps, in 
 point of correct distribution, be more fitly 
 *considered when we treat of the effect of an [ *272 ] 
 assignment under a separate commission as it 
 regards separate property, but in order to present a con- 
 tinuate view of all the decisions upon this branch of 
 partnership law, it has been thought better to embody 
 them. With regard to the question first proposed for 
 consideration, it may be premised that the principal, 
 and, indeed, the only difficulty in deciding, whether what 
 was originally joint property is still to be deemed the 
 property of all the partners, or the separate property of 
 the possessors, lies in ascertaining whether the latter are 
 alone the reputed owners of it ; for the object and spirit 
 of the act is, that where persons are induced to give 
 credit by seeing a bankrupt in possession of property, 
 that property, whether it be the bankrupt's or another's, 
 shall be applied in payment of the debts provable under 
 his commission. It is the principle of discountenancing 
 fictitious credit, and its concomitant frauds, which the 
 statute enforces: indeed there can be no other just 
 ground on which one man's debts are to be paid with 
 the property of another. In furtherance of this princi- 
 ple, it has uniformly been held that such a possession as 
 is calculated to give a delusive credit is a reputed pos- 
 session within the meaning of the statute. When, there- 
 fore, the fact of reputed ownership is settled, the appli- 
 cation of the statute is easy; for, from the reputed 
 ownership, false credit arises; from that false credit 
 arises the mischief, and to that mischief the remedy of 
 the statute applies. But to make the statute available 
 to the creditors of the party in whose visible possession 
 the property has been, that possession must continue up 
 to the time of the bankruptcy ; for, if withdrawn; bo?ia 
 fide, by the owner, at any time, however short, before 
 the bankruptcy, the property cannot be reclaimed by 
 the assignees.(v) But a removal made in contemplation 
 of bankruptcy, being fraudulent, will not alter the pos- 
 
 {v) Jones V. Dwyer, 15 East, 21. Ex parte Smith, 3 Madd. 63. 
 S. C. Buck, 149. Storer v. Hunter, 3 B. & C. 368.
 
 272 THE CONSEQUENCES OF A 
 
 session, in consideration of the law.(i^) And, to con- 
 stitute a fraud, on the part of the true owner, it is neces- 
 sary that the property should be left in the order and 
 disposition of the bankrupt with his consent; where 
 this is not the case, it would rather be to encourage, 
 than to check fraud, if what had been surreptitiously de- 
 tained were to be divested from the innocent owner, and 
 transferred to the assignees of the bankrupt.(ar) In cases 
 
 of partnership, where the transfer of the joint pro- 
 [ *273 ] perty *from the retiring to the continuing partners 
 
 is not made matter of contract, it may be diffi- 
 cult to estabhsh an actual consent to any change in the 
 right to the property taking place ; but, although no actual 
 consent can be proved, yet for this purpose the acts and 
 conduct of the parties will warrant the, presumption of an 
 assent, and that will be inferred, if, from the time of the 
 dissolution down to the time of the bankruptcy, the re- 
 tiring partners renounce their equity of having the part- 
 nership credits applied in discharge of the parnership 
 debts, and allow the continuing partners to deal as they 
 think fit with the property, and to act with the w^orld 
 respecting it, so as thereby to gain them a false and 
 delusive credit. (y) A dissolution, on the eve of the re- 
 tirement of a partner, will not, of itself, convert into 
 separate property the joint estate left in the possession 
 of the partners continuing the business ; for such a pos- 
 session is qualified, and is clothed with a trust to apply 
 the property in discharge of the joint debts,(2^) unless, 
 indeed, the laches of the retiring partner has been such 
 as to suffer the joint property to remain in the exclusive 
 possession of the continuing partners for such a length 
 of time as falsely to give them an appearance of sub- 
 stance.(a) And a fortiori the statute will not apply to 
 a case where the joint property is wrongfully withheld 
 by one partner, against whom a bill in equity is filed for 
 
 {w) Ex parte Smith, supra. 
 \x) Ex parte Richardson, Buck. 488. 
 
 (y) See West v. Skip, 1 Ves. sen. 242. Ex parte Ruffin, 6 Ves. 
 129. 
 
 (z) Perhord Eldo7i, Ex parte Williams, 11 Ves. 6. 
 (c) West V. Skip, supra.
 
 DISSOLUTION BY BANKRUPTCY. 273 
 
 an account, and an injunction to restrain him from dis- 
 posing of it, pending which he becomes a bankrupt.(6) 
 But if a new firm be constituted of some of the members 
 of an old firm, either with or without the addition of 
 others, and the whole of the stock in trade of the old 
 firm be delivered over to the new firm, and they be al- 
 lowed to appear to the world as apparent owners of it, 
 and afte wards become bankrupts, in such case all the 
 effects of the old partnership foUnd in specie amongst the 
 property seized under the commission will vest absolutely 
 in the assignees; and though there be outstanding debts of 
 the former firm unsatisfied, these effects so found in specie 
 will not be considered as the joint estate of the former 
 firm, either for the benefit of joint creditors, or the part- 
 ners who have withdrawn. (c) Therefore, where, upon 
 the dissolution of a partnership between a father 
 and his son, it was agreed t^at until the *son [ *274 ] 
 was provided for, the father should allow him a 
 third of the profits, and the father afterwards formed a 
 partnership with a third person, and carried into it the 
 stock belonging to the former partnership ; on a com- 
 mission of bankruptcy being awarded against the father 
 and son, it wa^ held that their joint property having been 
 permitted by the son to become the visible property of 
 the new partnership, it must in the first instance, be ap- 
 plied in satisfying the creditors of that partnership, and 
 that, if aftewards any surplus remained, the share of the 
 father in it would be his own separate property, and 
 therefore subject to the claims of his separate cre- 
 ditors.(c?) And again, on the dissolution of a partnership 
 between A, B, and C, three persons as distillers, one of 
 them (to whom the property in fact belonged) leased to 
 C and to one J, the distil-house and premises, and the 
 several stills, vats, and utensils of trade specified in a 
 schedule as used by the former partnership, and C and J 
 were to carry on the business on the premises, which 
 they accordingly did for some time, but afterwards be- 
 
 (6) West V. Skip, swpra 
 
 (c) Ex parte Ruffm, apd Ex parte Williams, supra. Ex parte Fell, 
 10 Ves. 347. 
 
 [d) Ex parte Barrow, 2 Rose, 252.
 
 274 THE CONSEQUENCES OP A 
 
 came bankrupts; whereupon a question was raised, 
 whether such stills, vats, and utensils so continuing in the 
 possession of C and J, and used by them in their trade 
 in the same manner as by the former partners, passed 
 under the statute to the assignees, as being in the pos- 
 session, order, and disposition of the bankrupts, at the 
 time of their bankruptcy as reputed owners ; and it was 
 held that the stills, which were fixed to the freehold, 
 did not pass to the assignees under the words goods and 
 chattels, in the statute; but that the vats, &c., which 
 were not so fixed, did pass to the assignees, as being left 
 by the true owner in the possession, order, and disposition 
 (as it appeared to the eye of the world) of the bankrupts, 
 as reputed owners. (e) So, if a country partnership, con- 
 sisting of three partners, sell their goods in London in the 
 names of two of the firm, the property in London will, it 
 seems, be in the order and disposition of the two.(/) In 
 cases of conditional transfers by some to the other part- 
 ners of the joint estate, we have seen that where the con- 
 dition is not performed before the bankruptcy the nature 
 of the property is not changed by the, simple force of the 
 contract ; but in such cases, or in cases in which the con- 
 sideration for the transfer is not paid, the property will still 
 
 pass as separate estate under the statute, if from 
 [ *275 ] *the time of the contract down to the date of 
 
 the bankruptcy, the assignees are permitted by 
 the assignors to continue in sole possession, and to carry 
 on trade and acquire credit as sole owners of it. There 
 can, indeed, under such circumstances, be no solid dis- 
 tinction between a permitted possession under a contract 
 incomplete as regards the persons contracting, and one 
 which is tolerated by the parties independently of con- 
 tract. The one must be as productive of the mischief 
 contemplated by the statute as the other, and both ought 
 therefore to be held within its provisions. It has conse- 
 quently been considered, that an exclusive possession 
 derived under a contract which, as between the parties 
 themselves, has not been performed, is sufficient to ope- 
 
 (e) Horn v. Baker, 9 East, 215. See Storer v. Hunter, 3 B. & C. 
 368. 
 
 (/) Ex parte Hargreaves, 1 Cox, 440. S. C. 6 Ves. 747.
 
 DISSOLUTION BY BANKRUPTCY, 275 
 
 rate a conversion of the property if the meaning of the 
 transaction was to transmute, and possession follows ac- 
 cordingly.(^) And in a late case(/i) it was observed 
 by Lord Eldon^ " If one partner puts another into the 
 sole possession of the partnership estate and effects, and 
 leaves them in his sole order and disposition, giving him 
 title under an instrument, upon the face of it giving title, 
 it would be difficult to insist that he would have a Hen 
 upon that property, for the consideration money against 
 the separate creditors of the other; considering that he 
 had, by title and his own act, left this property in the 
 sole order and disposition of the other."(l) With res- 
 pect to the description of property affected by the statute, 
 it is settled that no distinction exists between debts due 
 and other property; for, notwithstanding debts are not 
 assignable at law, they are still within the scope of the 
 statute ;{i) and where, upon the dissolution of a part- 
 nership, they have been assigned by some of the partners 
 to the others, although by the assignment the latter be- 
 come the true owners of them, yet they will remain in 
 the order and disposition of the partnership, and form 
 part of the joint estate, unless, prior to the bankruptcy, 
 notice of the assignment has been given to the debtors.(^) 
 It is true that a partner stands in a different situation 
 from a stranger, to whom the debts might have 
 been assigned ; because in his *character of part- [*276] 
 ner, and independently of any assignment, he is 
 personally competent to receive and discharge them ; but 
 it is also true, that until notice be given to the debtors, 
 the other partners are equally competent to receive and 
 give acquittances for whatever may be due ;(/) besides 
 the assignee, by receiving the assignment without inform- 
 
 Ig) Ex parte Fell, 10 Ves. 348. Ex parte Williams, 11 Ves. 6. 
 
 (h) Ex parte Rowlandson, 1 Rose, 419. 
 
 (i) J^JxparfeRuffin, 6Ves. 128. Ex parte'SVWYi^-Kis, supra. Horn- 
 blower V. Proud, 2 B. & A. 329. Ex parte Enderby, 2 B. & C. 389. 
 
 {k) Ryal v. Rowles, 1 Ves. sen. 349. S. C. 1 Atk. 165. Jones v. 
 Gibbons, 9 Ves. 407. Ex parte Monro, Buck, 300. 
 
 (/) Duffu. East India Company, 15 Ves. 213. 
 
 (1) See Lord v. Baldwin, 6 Pick. Rep. 348.
 
 276 THE CONSEQUENCES OP A 
 
 ing the debtors of the transaction, would enable the as- 
 signor, if he were so disposed, fraudulently to obtain a 
 fictitious credit with the debtors, and therefore so long 
 as notice is withheld from them, the order and disposi- 
 tion must remain in the partnership. Upon this princi- 
 ple it has been held that debts due to a partnership which, 
 upon a dissolution, are assigned by the retiring partners 
 to the continuing partner,(m) or debts which, by agree- 
 ment, on a dissolution, belong to one of the partners,(n) 
 continue in the order and disposition of the partnership, 
 and consequently to form part of the joint estate, unless, 
 previously to bankruptcy, the debtors were apprized of 
 the assignment or agreement. And it is insufficient in 
 such cases to notify the dissolution only, for, unless ex- 
 press notice of the assignment be given, the order and 
 disposition will not be altered.(o) But the operation of 
 the statute, and any question respecting the transmuta- 
 tion of the property, may, in all cases, be avoided, upon 
 the retirement of a partner, by his assigning to the re- 
 maining partner all the effects in trust to pay the debts ; 
 because then, notwithstanding there may not be a sub- 
 sisting joint possession, the property would continue sub- 
 ject to the joint demands, and would not, by the simple 
 fact of possession, be converted into separate estate.(p) 
 The statute of James is not repealed, and of course those 
 sections of the late general bankrupt act, in which the pro- 
 visions of the statute of James have been embodied, are 
 not rendered inoperative, as to shipping, by the 
 [ *277 ] *Ship Register Acts ',{q) for these statutes relate 
 
 (m) Ex parte Burton, 1 Glyn & James, 207. 
 
 (n) ^a:^ar^e Usborne, ibid. 358. 
 
 (o) Ex parte Harris, I Madd. 587. In Ex parte Usborne, supra, a 
 notice, stating the dissolution of the partnership by mutual agreement, 
 and that all debts due to or from the concern would be received and paid 
 by one of the partners, was inserted in the Gazette ; but Sir/oAn Leach 
 held such a notice ineffectual, and that the order and disposition of the 
 debts owing by those debtors who had not express notice of the agree- 
 ment, remained in the partnership, 
 
 {p) Ex parte Fell, 10 Ves. 347.; and see Ex parte Williams, 11 
 Ves. 6. Ex parte Martin, 19 Ves. 491. S. C. 2 Rose. 331. 
 
 (5) 26 Geo. 3. c. 60. 34 Geo. 3. c. 68. 4 Geo. 4. c. 41. The pro- 
 vision in the 6 Geo. 4. c. 16. s. 72, that nothing therein contained shall 
 invalidate any transfer or assignment of any ship, or any share thereof,
 
 DISSOLUTION BY BANKRUPTCY. 277 
 
 to transfers made by the act of the party only,(r) 
 viz. from a former owner to a new otvner, and where the 
 transfer is capable of being effectuated in the ordinary 
 way, by the mere operation of an instrument of assign- 
 ment from the one party to the other, and do not relate to 
 transfers deriving their effect by peculiar provision or 
 operation of law, as assignments by commissioners of 
 bankrupt to assignees under the bankrupt laws do, or titles 
 passing to executors or administrators in case of death. 
 In these cases a title may be transmitted without any of 
 the forms required by the statutes ; and as a title may be 
 transmitted without these forms in the case of bank- 
 ruptcy generally, it may be so done in a case falling 
 within the scope and object of the statute of James.(^s) 
 Therefore, where A, the owner of a ship, duly assigned 
 his interest in it to B, and B became the registered 
 owner, but by his permission A continued to have the 
 same in his possession, order, and disposition, until he 
 became bankrupt, it w^as holden that A's assignees were 
 entitled to the ship.(/) And under a commission of 
 bankruptcy against two partners, ships registered in the 
 name of one of them, but in the ordering and disposition 
 of both, from part of the joint estate.(t<) On the same 
 principle, a ship registered in the name of two partners, 
 but which is left in the order and disposition of one of 
 them, will pass to the assignees of the latter on his 
 bankruptcy.(t;) It is a sufficient compliance with the 
 terms of the registry acts, that the names of the several 
 
 made as a security for any debt, either by way of mortgage or assign- 
 ment, duly registered according to law, seems, independently of au- 
 thority, to admit that to all other than the excepted cases the enactment 
 applies. 
 
 (r) Bloxham v. Hubbard, 5 East, 422. 
 
 (s) Robinson v. McDonnell, 5 Mau. <fe Selw. 228. Hay v. Fair- 
 bain, 2 B. & A. 193. Monkhouse v. Hay, 2 Brod. & Bingli. 114. 
 S. C. 4 B. Moore, 549. 8 Price, 256. Mair v. Glennie, 4 Mau. <fc 
 Selw. 240. Ex parte Hill, and In re Siiarpe, Mont. Dig. of New De- 
 cis. in Bank, 2d part, p. 85, overruling the oases of Curtis v. Perry, 6 
 Ves. 739. Ex -parte Yallop, 15 Ves. 60. Ex parte Houghton, 17 
 Ves, 251. S. C. 1 Rose, 177. 
 
 {t) Hay V. Fairbarn, and Robinson v. McDonnell, sitpra. 
 
 \u) Ex parte Burn, 1 Jac. &; Walk. 378. 
 
 (») Kirklevi'. Hodgson, 1 B. & C. 588. 
 
 47
 
 277 THE CONSEi^UENCES OF A 
 
 owners appear on the registry, without its being there 
 stated in what proportions they are interested. Thus 
 
 where the names of two partners in trade ap- 
 [ *278 ] peared (amongst others) on the certificate *of 
 
 registry as owners the Court of King's Bench 
 determined, that the registry acts did not prevent the 
 showing how, and in what proportions, the several 
 owners were respectively interested ;(1) and though the 
 partners might derive title under different conveyances, 
 yet, if their shares were purchased with the partnership 
 funds, and treated by them as partnership property, and 
 the partners became bankrupts, they were to be consider- 
 ed joint property. (?z;) 
 
 It now remains to be inquired whether the statute ap- 
 plies to, and in what cases it afTects the interest a dor- 
 mant partner may possess in the joint estate. It was for 
 a long time doubtful M'hether, where a dormant partner 
 suftered the ostensible partner to appear to the world as 
 sole owner of the whole of the partnership property, and 
 to continue as such owner down to the time of his act 
 of bankruptcy, the share or interest of the dormant part- 
 ner therein was to be considered as being in the order 
 and disposition of the ostensible partner, with the con- 
 sent of the true owner, within the meaning of the statute. 
 In the first case on this subject, which came before Lord 
 Hardwicke, the bankrupt was possessed of undivided 
 property as tenant in common, and it was held not to be 
 such a possession as to make the interest of the other 
 tenants distributable under the commission. (:r) In a sub- 
 sequent case(^) an issue was granted to try the question 
 of partnership, and the result does not appear ; but Lord 
 Alvatiley, then Master of the Rolls, expressed a strong 
 opinion that a secret partnership did not prevent the 
 
 (w) Ex parte Jones, 4 Maul. andSelw. 450. 
 (x) Ex parte Flvn, 1 Atk. 185 ; and see Mucklow v. Mangles, 1 
 Taunt. 318. 
 
 (y) Binford v. Dommett, 4 Ves. 756. 
 
 (1 Bixhy V. The Franklin Insurance Company, 8 Pick. Rep. 86. 
 Colson V. Bonzey, 6 Greenl. Rep. 474.
 
 DISSOLUTION BY BANKRUPTCY. 278 
 
 operation of the statute. But in Coldwell v. Gregory{z) 
 the Court of Exchequer expressly decided that a dormant 
 partner was not within the statute ; and therefore that 
 where his share of the joint property was suffered to re- 
 main in the custody of the ostensible partner who 
 became bankrupt, it did not pass to his assignees, be- 
 cause the bankrup. had such an interest and qualified 
 property in the dormant partner's share as to destroy 
 the essential requisites of a reputed, as distinguished ' 
 from a true ownership. This latter determination, how- 
 ever, did not meet with general approbation, and its 
 authority was much shaken by what fell from Lord 
 Eldon on several occasions.(a) And in a late 
 *case, the Court of King's Bench determined [*279 ] 
 that the statute did extend to those cases of 
 tenancy in common in which the bankrupt tenant in 
 common was allowed by his co-tenant to appear to the 
 world as sole owner of the property, and to use it for 
 his own exclusive advantage, and to have an order and 
 disposition of it which could only be consistent with a 
 several ownership. There the sole owner of a ship as- 
 signed three fourth shares of it to a creditor as security 
 for his debt, and all the forms required by the Ship 
 Registry Acts, as to the transfer, were duly complied 
 with; but nothing further was done to make it notorious 
 to the world that there had been any such assignment 
 or any change of property ; and the sole owner, down to 
 the period when he became bankrupt, was suffered to 
 continue as apparent owner of the whole ; and it was 
 decided, that he continued to be the apparent owner of 
 
 (z) 1 Price, 119. S. C. 2 Rose, 149. 
 
 (a) See Ex parte Barrow, 2 Rose, 254. Ex parte Dyster, ib. 256. 
 In re Colbeck, Buck, 53. In Smith v. Watson, 2 B. & C. 412., Best, 
 J., alluding to the objection there taken, that a secret partner was vir- 
 tually excepted out of the statute, observed, " I cannot, indeed, readily 
 conceive any case more completely within the mischief which the en- 
 actment was intended to remedy. For, if a secret partnership could be 
 set up as an answer to assignees claiming property which had been left 
 in the order and disposition of the bankrupt, as apparent owner, enor- 
 mous debts, unconnected with the partnership business, might be con- 
 tracted upon the credit gained by the possession of property, which a 
 person wholly unknown to the creditors might claim, to the exclusion 
 of their just demands."
 
 279 THE CONSEqUENCES OF A 
 
 the shares assigned with the consent of the true owner, 
 and therefore that those shares passed to his assignees 
 as property in his order and disposition.(6) The princi- 
 ple of this decision was attempted to be reconciled with 
 that of ColdweU v. Gregory^ by distinguishing between 
 property which originally belonged to the bankrupt and 
 his co-tenant, although the whole was suffered to remain 
 in the visible possession of the bankrupt, and that of 
 which the bankrupt was originally the real and sole 
 owner, and so apparently continued down to the time of 
 his bankruptcy, notwithstanding a conveyance by him of 
 an undivided interest in the property to a third person 
 as a partner.(c) But this distinction appears for that 
 purpose to be unfounded ; for in a more recent 
 [ *280 ] case in which the *property in dispute was origi- 
 nally partnership property, and was originally in 
 the controul of one partner alone, and so continued up 
 to the date of his bankruptcy, the same court decided 
 that it was a case not only within the words of the 
 statute, but within the mischief which that enactment 
 was intended to remedy, and, consequently, that the de- 
 termination of the Court of Exchequer could not be sup- 
 ported. In that case A and B were partners, but the 
 whole of the business was carried on by and in the name 
 of A, B never appearing to the world as a partner; and, 
 at the dissolution of the partnership by effluxion of time, 
 all the partnership stock and effects, by agreement be- 
 tween them, were left in A's hands, who was to receive 
 and pay all the debts due to and from the concern, and 
 to repay, by instahnents, the capital brought in by B ; 
 A having continued, for a year and a half, to carry on 
 the business as before, became a bankrupt, and it was 
 held, that all the partnership property and effects so left 
 
 (6) Kirkley r. Hodgson, 1 B. & C. 588. See 4 Geo. 4. c. 41. s.44. 
 
 (c) See Lingard v. Messiter, 1 B. & C. 308. In this case a distinc- 
 tion was drawn between those cases where the bankrupt has once been 
 the owner of property, and where he has not. In the former case, it 
 has been said, that the mere fiict of possession may raise a presumption 
 that he continues in possession as reputed owner; but that, in the lat- 
 ter, possession might not of itself show that the bankrupt was reputed 
 owner, and that it would then be necessary for the assignees to estab- 
 lish that fact by other evidence.
 
 DISSOLUTION BY BANKRUPTCY. 280 
 
 in A's hands, and also the debts due to the concern, 
 passed to his assignees, being in his order and disposi- 
 tion at the time he became bankrupt.(rf) And the fact 
 of the dissolution of the partnership previously to the 
 bankruptcy of the ostensible partner, makes no differ- 
 ence ; for it has been determined, that where a firm con- 
 sists of a dormant and an ostensible partner, and the 
 latter becomes a bankrupt, the whole property will pass 
 to his assignees, notwithstanding the partnership's sub- 
 sisting at the time of the bankruptcy.(e) 
 
 Under o. joint commission separate creditors will be al- 
 lowed to prove their debts for the purpose of assenting 
 to, or dissenting from, the certificate ;(/) but they cannot 
 vote in the choice of assignees ; for, by the statute,(^) 
 only those creditors can vote, who are entitled to prove 
 their debts, by right under the act of parliament, and 
 without an order of the Lord Chancellor. Formerly 
 separate creditors could not prove under a joint com- 
 mission, without a special application in each particular 
 instance ; and although Lord Rosslyn made a general 
 order,(A) allowing them in every case to prove, yet that 
 does not bring them within the operation of the 
 statute, they being still considered as coming *in [ *281 ] 
 under the decree or order of a court of equity.(i) 
 If, therefore, the separate creditors elect assignees under 
 a joint commission, the Lord Chancellor will order a 
 new choice.(y^) But although the separate creditors 
 cannot vote in the choice of assignees, yet if the sepa- 
 rate estates are insufficient to pay the separate creditors, 
 the body of separate creditors will be permitted to ap- 
 point an inspector of those estates, on the ground that 
 the joint creditors can have no interest in them.(/) 
 
 The assignees, under a joint commission of bank- 
 ruptcy, are to keep distinct accounts of the joint and 
 separate estates of the bankrupts ; and where there are 
 
 id) Ex parte Enderby, 2 B. & C. 389. 
 (e) Smith V. Watson, ibid. 401. (/) Whitm. B. L. 276. 
 
 \g) 5 Geo. 2. c. 30. See the 6 Geo. 4. c. 16. s. 61, 62. 
 (/t) See ante, p. 262. 
 
 {i) Ex parte Parr, 18 Ves. 65. S. C. 1 Rose, 76. Ex parte Yizmer, 
 1 Rose, 321. Ex parte ie'^son, I Ves. 224. 
 
 {k) Id. ibid. {I) Ex parte Batson, 1 Glyn & James, 269.
 
 281 
 
 II 
 
 THE CONSEqUENCES OF A 
 
 minor partnerships, the accounts of the respective part- 
 nerships must be kept distinct under the general order.(m) 
 The joint property of all the partners, and the separate 
 property of each, both, to be sure, pass under such a 
 commission ; but they do not form the same fund, and 
 are not to be applied to the same purposes. At law the 
 separate creditor of a partner may take either the sepa- 
 rate property of his. debtor, or his debtor's share in the 
 joint property, or both, if necessary ; and a creditor of 
 the partnership may take the whole joint property, or 
 the whole separate property of any one partner. Under 
 a commission, however, the property seized, whether 
 joint or separate, is no longer disposed of as at law ; but, 
 falling immediately under the administration of the Court 
 of Chancery, the effects are subject to a mode of distri- 
 bution amongst the different classes of creditors, founded 
 as well upon the equity of that court, as upon the gene- 
 ral intention of the statutes, that all creditors should 
 have an equal satisfaction. The joint creditors having 
 increased the joint fund, and those who make advances 
 on the separate credit having created the separate fund, 
 natural justice requires, that the funds so constituted 
 shall be applied to the respective demands. It has ac- 
 cordingly been long established as a rule of that court, 
 that where there are different sets of creditors, each 
 estate shall be applied exclusively, in the first instance, 
 to the payment of it^ own creditors, the joint estate to 
 the joint creditors, and the separate to the separate ; 
 and that neither the joint creditors shall come upon the 
 separate estate, nor the separate upon the joint, but only 
 upon the surplus of each that shall remain after 
 [ *282 ] each *has fully satisfied its own creditors re- 
 spectively. In conformity to this rule of distri- 
 bution, separate creditors have never been permitted to 
 come in directly upon the joint estate along with the 
 joint creditors ; but as the assignment under a joint com- 
 mission is of the whole estate, as well of the seperate 
 estate of each partner as of the joint estate of all the 
 partners, separate creditors have always been allowed 
 
 (m) Lord Loughborough'' s order, 8th March 1794. Ex parte Wor- 
 thington, 3 Madd. 26.
 
 DISSOLUTION BY BANKRUPTCY. 282 
 
 to prove under a joint commission, for the purpose of 
 receivino- dividends from tlie separate estate in the first 
 instance" and afterwards from the surplus, if any, of the 
 joint estate after the joint creditors are satisfied.(n) 
 Where there were three firms commencing at different 
 periods, upon the bankruptcy of the firm in which they 
 were all engaged, the Lord Chancellor ordered distinct 
 accounts to be kept of the difierent partnerships, and of 
 the respective separate estates of the bankrupts.(o) But 
 where there have been various partnerships, and a joint 
 commission is taken out against one firm, in which some 
 of the parties were not engaged, there can only be the 
 common order for keeping the distinct accounts of the 
 joint and separate estates.(;?) 
 
 We now proceed to the consideration of what are to 
 be deemed joint, and what separate debts, as regulating 
 the proof against the joint estate under a joint commis- 
 sion. It may be laid down generally, that all debts are 
 proveable against the joint estate for which the partner- 
 ship was liable. Although this was never doubted, a 
 question has arisen as to the right of a creditor to come 
 upon the joint estate, where he has taken a separate 
 security from an individual partner. It is, however, set- 
 tled, that such a circumstance makes no diflference where 
 the credit was originally joint. Thus, where two part- 
 ners agreed to borrow a siim of money for the use of the 
 partnership, and one of them . only gave a bond for se- 
 curing the re-payment, but the money was afterwards 
 entered in the cash-book of the partnership; a joint 
 commission being taken out against them, the commis- 
 sioners refused to admit the obligee as a creditor upon the 
 joint estate ; but Lord King was of opinion he ought to be 
 admitted, and directed accordingly.((/) And where a cre- 
 ditor had lent money to two partners upon their joint 
 notes, and upon the separate bonds of each, and the 
 whole of the money was applied to the use of the 
 *partncrship, consisting of them and several [ *283 ] 
 others, and the partners all agreed to consolidate 
 
 (n) Cull. B. L. b. 5. c. 3. (o) Ex parte Marlin, 2 Bro. C, C. 15. 
 \p) Ex parte Parker, Co. B. L. 249. 
 
 \p) Ex parte Parker, Co. B. L. 249. 
 {q) Exports Brown, cited 1 Atk.225.
 
 283 THE CONSEQUENCES OF A 
 
 the separate debts, and to consider them as the debts of 
 the partnership, Lord Thurlow permitted the creditor to 
 prove the whole amount against the joint estate of the 
 partnership.(r) So, in a more recent case,(5) Lord Eldon 
 said, that where money is raised by partners for partner- 
 ship purposes, by means of bills drawn by one of the 
 members of a partnership, the discounter can sustain a 
 claim of proof against the joint estate in respect of the 
 money received by the firm, although, as regards the bills 
 themselves, there is not a joint legal contract. But if 
 the credit be originally separate, the debt does not be- 
 come joint from a mere subsequent application of the 
 funds by the debtor to the uses of a partnership of which 
 he is a member.(^) For instance, money borrowed by 
 one partner to pay for an estate, creates only a separate 
 debt ; and it does not become joint, if instead of being 
 applied in payment of the estate, it be employed in dis- 
 charging partnership debts. (w) So, a loan of money to 
 one partner, and a subsequent loan of it by the latter 
 to the partnership, does not alter the nature of the 
 original loan, so as to entitle the lender to consider 
 himself a creditor of the firm.(v) And where bills 
 drawn by one partner in his individual name, but re- 
 presenting the partnership, were accepted by a dor- 
 
 (r) Ex parte Clowes, 2 Bro. C. C. 595. S. C. Co. B. L. 260. 
 
 [s) Ex parte Bolitho, Buck, 100. 
 
 {{) Ex parfeEmly, 1 Rose. 65. In Ex parte Hunter, 1 Atk. 22a. 
 Lord Hardivicke thought that the mere receipt by the firm was suffi- 
 cient to enable the creditor to stand in the place of the partner to whom 
 the advance was actually made ; and, in his right, to prove against the 
 joint estate. But it seems clear that the law in this case was mistaken. 
 
 (u) Ex parte Wheatley, Co, B. L. 508, 9. 
 
 {v) Parkin v. Carruthers, 3 Esp. N. P. C. 248. In Lloyd v. 
 Freshfield, 9 D. & R. 19. S. C. 2 C. & P. 325, it was held, that 
 where one partner borrows money on his own private credit, though he 
 afterwards apply it to partnership purposes, the lender cannot charge 
 the partnership with the liability of the single partner. And in Bevan 
 V. Lewes, 1 Sim. 376, the Court of Chancery, on the ground that where 
 money is borrowed by a partner, and his own security only given, it 
 cannot be made a partnership debt by being applied to partnership pur- 
 poses, though with the knowledge of the other partner, determined that 
 such a security constituted the creditor joint proprietor only with the 
 other partner, and he was only entitled to be paid out of the partner's 
 share of the surplus, after satisfying the partnership debts.
 
 DISSOLUTION BY BANKRUPTCY. 283 
 
 mant partner, it was held that the holder, who was 
 ignorant of the partnership, was entitled to prove them 
 against the separate estates but not against the 
 joint estates ; and that, having proved *against [ '*284 ] 
 the joint estate, he might withdraw that proof 
 and be admitted a creditor on the two separate es- 
 ta.tes.(w) But in the absence of proof of a separate 
 contract, the application to partnership uses of money 
 borrowed by one partner, is evidence to show that the 
 debt is joint.(jc) And although, to make the debt joint, 
 there must be a contract, expressed or implied by the firm, 
 and the mere receipt of the money is not sufficient evi- 
 dence from which to imply a contract, yet the justice of 
 the case being that the firm which receives the money 
 should pay the real proprietor, qui sentit commodum seniire 
 debet et omis^ it will not, perhaps, be the cause of much 
 astonishment that any slight circumstances, in addition 
 to the receipt of the money, have been considered suffi- 
 cient from which to raise an implied contract. Therefore 
 in a case where a sole trader became indebted by bond, 
 and took in a nominal partner, and sometime afterwards 
 a joint commission was issued. Lord Thurlow refused to 
 permit the separate creditor to prove against the joint 
 estate. But he said that if any interest had been paid 
 upon the bond by both, he should have considered it as 
 adopting the debt, and making the partnership liable for 
 it.(^) And the courts seem to favour the presumption 
 of the adoption by a new firm of the debts of the old.(2') 
 Thus, where new partners were taken into a trade, and 
 it was agreed that the stock of, and debts due to, the old 
 firm, should become the capital of the new partnership, 
 and that the new firm should take upon themselves the 
 payment of the debts of the old firm, and the new 
 partnership became bankrupts, the creditors of the old 
 were admitted to prove as joint creditors of the new 
 
 {w) Ex parte Husband, 2 Glyn & James. 4. 
 
 [x\ Ex parte Clowes, supra. Ex parte Bonbonus, 8 Ves. 540. 
 
 (y) Ex parte Jackson, 1 Ves.jun. 131. 
 
 (z) Id. ibid. Ex parte Peele, 6 Ves. 604. 
 
 48
 
 284 THE CONSEQUENCES OF A 
 
 firm.(a) In such cases, however, there must be some 
 evidence of accession on the part of the creditors to the 
 agreement of the parties ; because, w^ithout it, there can- 
 not be a substitution of debtors. Therefore, where A, a 
 trader, being indebted to several persons, entered into a 
 partnership with B, and brought his stock in trade into 
 the partnership, and by the articles of copartnership it 
 was agreed that the joint trade should pay those creditors 
 of A who were named in a schedule subjoined ; it was 
 
 held that a separate creditor of A, named in the 
 [ *285 ] ^schedule, whose assent before the bankruptcy 
 
 to the agreement between the parties could not 
 be shown, did not by the articles become a joint creditor 
 of A and B.(b) Where one partner, with the privity of 
 his copartners, applies to the purposes of the partnership 
 money with which he is separately intrusted, the debt 
 may be proved against the joint estate ; but if the appli- 
 cation to the purposes of the partnership were made 
 without the knowledge of the copartners, the debt can 
 only be proved against the separate estate of the party 
 guilty of the misapplication. The former part of this 
 proposition is strongly corroborated by a recent decision. 
 There one of three partners died intestate, leaving a 
 widow and infant children, and the widow, having ad- 
 ministered, agreed with the surviving partners, that the 
 intestate's share of the partnership property should con- 
 tinue in the firm, of which she constituted a member, for 
 a term of years, and the firm became bankrupts. Lord 
 Eldon observed, that "the administratrix committed a 
 breach of trust by continuing the money in the trade ; 
 and the partners, knowing that a certain proportion 
 belonged to the children, who, being infants, could not 
 contract, held the money on the only terms on which 
 they could hold it as debtors to the children ; as if it had 
 been placed with them by way of direct loan. If it had 
 been for the benefit of the children to prove against the 
 
 (a) Ex parte Pcele, supra. Ex parte Bingham, Co. B. L. 509. 
 In re Staples, ibid. Ex parte Clowes, supra. 
 
 {h) Ex parte Williams, Buck, 13. Ex parte Freeman, ibid. 471 
 Ex parte Fry, 1 Glyn & James. 96. Sut see Mont. Dig. of New 
 Decis. in Bank. 2d part, p. 71, and 3d part, p. 126.
 
 DISSOLUTION BY BANKRUPTCY. 285 
 
 separate estate of their mother, they might have done so ; 
 but it did not follow that they might not prove under the 
 joint commission against the partnership, having pos- 
 sessed the property of the infants under circumstances 
 raising a clear assumpsit. ''\c) And in a preceding 
 case,(J) where one of two partners applied trust-money 
 in the trade, with the privity of the other partner, and 
 they afterwards separated, and the partnership effects 
 were assigned over to the first, who undertook the pay- 
 ments of the debts; this was held not to operate the 
 discharge of the other partner, but that both were liable 
 to make good the trust-money. So, if a sum be paid to 
 one trustee on account of the trust fund, and he lend it 
 upon note to his co-trustee, and both the trustees become 
 bankrupts, the debt may be proved under each commis- 
 sion. (e) But the liability of the firm in these 
 cases *depends on the knowledge the other mem- [ *286 ] 
 bers have of its being trust-money, and therefore 
 if one partner, being a trustee, bring trust-money into 
 the trade without the knowledge or privity of his co- 
 partner, it cannot be proved against the joint estate as a 
 joint debt ; for although the partner abuses his trust, and 
 advances the money to the partnership, it will not raise 
 a contract between the partnership and the cestuique 
 trusty nor convert the innocent partners into implied 
 trustees.(/) 
 
 Where a creditor, in respect of the contract of his 
 debtors, is, at law, both a joint and a separate creditor, 
 the rule in bankruptcy restrains his legal rights, and 
 compels him, for the benefit of the other creditors, to 
 renounce one of his legal characters. He must, accord- 
 ing to the rule of the court now firmly established, make 
 his election, in the first instance, whether he will come in 
 upon the joint or the separate estate, that is, against 
 which estate he will prove in preference ; for whichever 
 he may elect, he will be entitled to participate in the 
 
 (c) Ex parte Watson, 2 Ves. <fc Bea. 414. 
 
 {d) Smith V. Jameson, 5 T. R, 601. 
 
 (e) Keble v. Thompson, 3 Bro. C. C. 112. 
 
 (/) Ex parte Apsey, 3 Bro. C. C. 265. Ex parte Heaton, Buck, 386.
 
 286 THE CONSEq,UENCES OF A 
 
 surplus of the other, if there should be any.( g) Thus, 
 where a joint commission was taken out against two 
 partners, and the petitioner was a bond creditor, to whom 
 the bankrupts were jointly and severally bound; it was 
 held that he must make his election to come upon the 
 joint or separate estate ; if he elected the former, he 
 could not come upon the latter (and so vice versa) for 
 the surplus of the debt, until the creditors of the separate 
 estate were satisfied. (A) And Lord Hardwicke founded 
 his order upon this reasoning, that the bond creditor 
 might have brought a separate action at law against 
 each of them, and might have had likewise separate exe- 
 cutions, but could not have levied his debt upon both the 
 estates at the same time, but only for the deficiency, 
 where one estate was not sufficient to satisfy the whole. 
 The same doctrine is established in many other cases.(2) 
 Lord Eldon, however, yielded with reluctance to this 
 rule, expressing himself dissatisfied with the principle 
 upon which it rests. In one case,(A:) his lordship, allud- 
 ing to this subject, says : " The reasoning goes upon this, 
 
 that a joint and separate action could not be 
 [ *287 ] brought at law.* But surely the distinction is 
 
 then, that where a joint and separate bond is 
 given, and another security, several from each; there, 
 as two actions might be brought, the rule in bank- 
 ruptcy should be different." And upon another occa- 
 sion,(/) the same noble and learned lord observed, " In 
 bankruptcy, for some reason not very intelhgible, it 
 has been said, the creditor sfiall not have the benefit of 
 the caution he has used. I never could see why a cre- 
 ditor, having both a joint and several security, should not 
 go against both estates: but it is settled that he must 
 elect." To entitle a creditor to the exercise of this right 
 of election, however, it is necessary he should, in respect 
 of his debt, have a joint claim upon all the partners, if he 
 
 (g) Co. B. L. 259. (h) Ex parte Banks, 1 Atk. 107. 
 
 (i) Ex parte Rowhndson, 3 P. Wms. 405. Ex parte Bond, 1 Atk. 
 98. Ex parte Blankenhagen, Co. B. L. 259. Ex parte Hay, 15 
 Ves. 4. Ex parte Masson, 1 Rose, 159. Ex parte Liddel, 2 Rose, 34. 
 
 (A) Ex parte Bevau 9 Ves. 225. (/) S. C. 10 Ves. 109.
 
 DISSOLUTION BY BANKRUPTCY. 287 
 
 elect to prove against the joint estate, or a several claim 
 upon the single partner against whose separate estate he 
 may declare his option to prove. Therefore where, by 
 deed, the stock and effects of a partnership were assign- 
 ed to the continuing partner, who covenanted to pay the 
 joint debts, and the partners afterwards became bank- 
 rupts. Sir John Leach held that the joint creditors not 
 having previously to the bankruptcy, accepted the con- 
 tinuing partner as their sole debtor, had not an election 
 to prove against his separate estate.(m) So, if a joint 
 creditor take, as a collateral security, a draft from a 
 solvent partner, he may elect whether he will prove 
 against the joint or separate estate ; but, if he take it in 
 discharge of his joint debt, he must, as it seems, prove 
 against the separate estate.(?i) Where the right of elec- 
 tion is optional, the creditor, in order to make it, must 
 have a reasonable time to inquire into the state of the 
 different funds,(o) and it seems that he is entitled to de- 
 fer his election until the assignees are possessed of a 
 fund sufficient to make a dividend.(/>) In one case 
 where the parties were assignees, and had sufficient funds 
 for a dividend, they were ordered to elect in six weeks.(9) 
 But a creditor who has proved against one es- 
 tate will, in some cases, be allowed to *with- [*288] 
 draw his proof, and prove against the other ;(r) 
 and although he has received a dividend, the court will 
 permit him to change his proof upon refunding the divi- 
 dend he received.(s) So the petitioning creditor under 
 two commissions, who has proved under one, will be al- 
 lowed to alter his proof under the other, if he cannot be 
 said to have deliberately elected in the first instance.(^) 
 But a creditor having once elected will not be permitted 
 
 (m) Ex parte Freeman, Buck, 471. Ex parte Fry, 1 Glyn & James. 
 96. But see Mont. Dig. of New Decis. in Bank. 2d part, p. 71., and 
 3d part, p. 126, where it is stated that the case Ex parte Freeman was 
 overruled by the Lord Chancellor upon appeal. 
 [n) Ex parte Roxby, Mont, on Part. 124. 
 (o) Whistler v. Webster, 2 Ves. jun. 371. 
 hi) Co. B. L. 259. Ex parte Bond, 1 Atk. 98. 
 \q) Ex parte Butlin, Co. B. L. 259. 
 Ex parteMz.son, 1 Rose, 159. 
 Ex parte Rowlandson, 3 P. Wms. 405. 
 Ex parte Bolton, 2 Rose, 389. S. C. Buck, 7.
 
 288 
 
 THE CONSEqUENCES OF A 
 
 to change his proof, if by so doing he disturb a dividend 
 made under the other estate.(z<) And, except under spe- 
 cial circumstances, a creditor who has proved against 
 one estate will be compelled to retain his proof, if he do 
 not, before a dividend is declared of that estate, signify 
 his election of abandoning it and of proving against the 
 other estate ; for otherwise, to the extent of his dividend, 
 he would suspend the division of the property to the pre- 
 judice of the other creditors.(i;) So if he prove against 
 the joint estate, and sign the certificates, he cannot, as it 
 seems, vary his proof, and prove against the separate 
 estates.(2^) And, generally speaking, where the creditor 
 has done acts by virtue of his proof, which may affect the 
 interest of others, he will not be allowed to retract.(ar) 
 A joint and separate creditor, who sues out a separate 
 commission, and proves his debt under it, is, upon its 
 being superseded in consequence of the awarding of a 
 subsequent joint commission, restored to his right of 
 election to prove against the joint estate and he has also 
 a right to elect out of which estate he will be 
 [ *289 ] *paid the cost of the super sedeas.{y) But what- 
 ever number of securities he may have taken 
 from the bankrupts for the debt, if he elect to go against 
 
 (u) Ex parte Beilby, 13 Ves. 70. 
 
 (v) ^a: par/c Husband, 5 Madd. 419. ^a^joarteBentley, 2 Cox, 218. 
 
 {w) Ex parte Knott, 1 Mont. B. L. 243. Ex parte kikmson, Mont. 
 Dig. of New Decis. in Bank. 2d part, p. 90. In a late case the Vice- 
 Chancellor seems to have been of opinion that a joint creditor having 
 been a party to a petition was an objection to the transfer of proof. Ex 
 parte Husband, 5 Madd. 419. 
 
 {x) Ex parte Solomon, 1 Glyn & James. 25. But see Mont. Dig. 
 of New Decis. in Bank. 3d part," p. 106. n. (a). Where a creditor had 
 an election to prove against the joint estate or the separate estate of one 
 partner, with a distinct right to prove against the separte estate of the 
 other partner, and he proved against the joint estate, and, without voting 
 in the choice, was elected an assignee and signed both certificates, it 
 was held that he might transfer to the other separate estate the debt 
 which he had proved against the joint estate, if the deduction of the 
 amount of the debt would not affect the certificate of the other bank- 
 rupt, against whom he had proved his distinct separate debt, although 
 the next signature on the certificate may have been influenced by his 
 signature. Ex parte Blackburn, Mont. Dig. of New Decis. in Bank. 
 3d part, p. 127. 
 
 (y) Ex parte Brown, 1 Ves. & Bea. 60. S. S. 2 Rose, 433. Ex 
 parte Smith, 1 Glyn &l James. 256. 

 
 DISSOLUTION BY BANKRUPTCY. 289 
 
 one estate, and there is a surplus from the estate which 
 he rejects, his securities will give him no preference to 
 the other creditors, but he will be entitled only to share 
 the surplus pari passu with them.(z) In a recent case it 
 was held that joint creditors are entitled to prove against 
 the joint estate without giving up securities, or renounc- 
 ing the separate estate of a deceased partner.(«) 
 
 To this rule of election there are exceptions^ which, 
 upon a close examination of the cases, it will be found 
 extremely difficult to reconcile and arrange. In the first 
 place it seems clear, and is admitted by all the authori- 
 ties, that a creditor will not be put to his election, where 
 the same persons are concerned in several firms, and 
 issue bills drawn by all the partners upon a distinct firm 
 constituted of some of them, and the creditor without 
 notice of their joint connection takes such a bill. Thus, 
 where there was a partnership of four, two of whom 
 were engaged in a separate trade, and the two others in 
 another separate trade, one of these minor firms accept- 
 ed bills drawn by the other, and the holder, who had no 
 knowledge that they were also one firm, was allowed to 
 prove against the respective joint estates.(6) So, where 
 A, B, and C were partners in one concern, and A and 
 B in another distinct trade, the holder of a bill drawn by 
 C, and indorsed by A and B, was, on the ground of his 
 Ignorance of the connection of the three in one partner- 
 snip, determined to be entitled to prove against the joint 
 estate of A and B, and the separate estate of C.(c) And 
 the recent case of Ex parte Adam{d) is to the same 
 effect, viz. five persons in one firm, drawing a bill upon 
 two engaged in a distinct firm, the holder having no 
 notice of the connection of the parties. But in one in- 
 stance the circumstance of the party taking the bill 
 having a knowledge of the joint connection seems 
 
 (z) Ex parte Bevan, 10 Ves. 107. 
 
 \a) Ex parte Peacock, 2 Glyn & James. 27. 
 
 \b) Ex parte La Forest, Co. B. L. 261. 
 
 (c) Ex parte Benson, Co. B. L. 263. In re Burton, cited 8 Ves. 
 546. 
 
 {d ) 2 Rose, 36. S. C. 1 Ves. & Bea. 493. In the latter report 
 the circumstance of the holder being ignorant that the parties were con- 
 nected in one firm is omitted. See 1 Mont. Dig. 118.
 
 290 THE CONSECIUENCES OF A 
 
 [ *290 ] to have *been disregarded, and the holder 
 of a security who had notice that the parties 
 were engaged in one lirni was allowed to prove against 
 both estates, although the firms of the parties to the bill 
 were distinct. Thus, where A a sole trader, B and C 
 partners, and D also a sole trader, had engaged in a 
 joint adventure, and for a joint purchase of goods by 
 them, the vendor, with a knowledge of their joint iritercst, 
 received in payment a bill drawn by A on and accepted 
 by B and C, and Lord Eldon held, that on the bank- 
 ruptcy of A and of B and C, the vendor was entitled to 
 prove the bill against both their estates.(e) Where, 
 however, there are not distinct firms, but one of a part- 
 nership has drawn upon the firm, and the holder has 
 taken the security with notice that such person was in- 
 cluded in it, he will not be entitled to double proof. 
 Thus, where a creditor who knew of the general partner- 
 ship, but where there was no distinct firm, insisted upon 
 the indorsement of one of them upon a bill drawn by 
 them all, for the purpose of raising a contract for double 
 security, the court thought that he was not entitled to 
 prove.(/) And in the previous case of ex parte Bigg(g) 
 which was a bill drawn by A upon a firm which consist- 
 ed of himself and four others, it was held that the holder, 
 having had notice that the drawer was a member of the 
 firm, was not entitled to a double proof. Whether the 
 holder of a bill without notice of the fact that the parties 
 liable upon it are not separate firms, but parts of one 
 firm adopting several liabilities upon the instrument, 
 would be put to his election, has not yet been deter- 
 mined ; but it may be collected, from the judgment of 
 Lord Eldon in the last cited case, that, in his opinion, 
 the circumstance of the parties to the bill being not dis- 
 tinct firms, would, if it had been necessary to decide the 
 question, have influenced him materially ; and therefore 
 it seems, upon the whole, probable that he would be 
 bound to elect.(A) 
 
 It was long doubted, whether, if a firm be indebted to 
 
 (e) Ex parte Wenslay, 2 Ves. & Bea. 254. S. C. 1 Rose, 441. 
 (/) Ex parte Bank of England, 2 Rose, 82. ( g) Ibid. 37. 
 
 {h) See Eden's B. L. 174.
 
 DISSOLUTION BY BANKRUPTCY. 290 
 
 one of the partners, the creditors on the separate estate 
 of that partner should be admitted as creditors on 
 the partnership estate^ in competition with the joint 
 creditors ; Lord Hardwicke conceived and held,(i) that 
 where money had been lent to the partnership 
 *by a partner, who afterwards became bank- [ *291 ] 
 rupt, the separate creditors of the latter might 
 prove the amount of the loan, as a debt against the joint 
 estate. Lord Thurlow^ however, thought differently, and, 
 in a subsequent case,(Q decided that proof could not, 
 under such circumstances, be made : on the principle 
 that the equities of the creditors, whether joint or sepa- 
 rate, must be worked out through the medium of the 
 partners, and that it was a clear and well-established 
 rule that the individual partner could not himself prove 
 against the joint estate in competition with the creditors 
 of the firm, who were in fact his own creditors, and 
 thereby take part of the fund to the prejudice of those 
 who were not only creditors of the partnership, but of 
 himself. Therefore, where there was a joint commission 
 against two partners, and a separate commission against 
 one of them, and the assignees under the separate com- 
 mission petitioned to be admitted creditors under the 
 joint commission, for a sum of money brought by the 
 bankrupt whom they represented into the partnership 
 beyond his share, and as being therefore a creditor upon 
 the partnership for that sum ; Lord Thurlow refused it, 
 on the ground that proof of a debt due to an individual 
 partner could not be allowed to come in conflict with the 
 proofs of the joint creditors. (/) The rule introduced by 
 Lord Thurlow has been in many cases acted upon, and 
 has been confirmed by Lord Eidon.(m) It was thus 
 concisely stated by his lordship on a recent occasion :(n) 
 "If one partner lend £1000 to the partnership, and they 
 become insolvent in a week, he cannot be a creditor of 
 
 (i) Ex parte Vlnnler, 1 Atk. 223. 
 
 {k) Ex parte Lodge, Co. B. L. 505. S. C. 1 Ves. jun. 166. 
 
 {I) Ex parte Burrell, Co. B. L. 503. Ex parte jParkev and Ex 
 parte Pine, ibid. 
 
 (m) ^.r parte Reeve, 9 Ves. 589. Ex parte Adams, 1 Rose, 305. 
 Ex parte Harris, ibid. 438. Ex parte S'iWiioe, 1 Glyn & James. 382. 
 
 (n) Ex parte Harris, 2 Ve«. & Bea. 212. 
 
 49
 
 291 THE CONSEqUENCES OF A 
 
 the partnership, though the money was supphed to the 
 joint estate ; that is, no proof can be admitted to affect 
 the creditors ; though the individual partners may cer- 
 tainly have the right against each other." But although 
 in cases, the result of contract, in which the joint is in- 
 creased at the expense of the separate estate, the funds 
 are administered as they are constituted at the time of 
 the bankruptcy, yet there are circumstances under which 
 the separate creditors will be permitted to prove, against 
 the joint estate, a debt due from the partnership to the 
 
 individual partner. To induce a relaxation of 
 [ *292 ] the rule, *however, it must be made out that the 
 
 separate effects, creating the debt, were obtained 
 from the separate to augment the joint estate, either by 
 actual fraud, or under circumstances from which the law 
 will imply fraud : and, in a legal sense, every appropria- 
 tion by the firm as contradistinguished from a taking 
 either by contract or loan is considered fraudulent, if it 
 be made without the express or implied authority of the 
 individual partner.(o) And where a joint commission 
 issued against A and B, and A being a dormant partner 
 the joint creditors resorted to the separate estate of B, 
 thereby diminishing that separate estate, and exonerat- 
 ing the joint estate of A and B, so as to produce a sur- 
 plus of it, Lord Eldon held that the separate creditors 
 of B had a lien upon that surplus, to the extent which 
 their funds had been diminished by the resort of the 
 joint creditors. (^j) A partner in a banking firm, who, 
 after getting his certificate, had taken up the notes of 
 the firm, has been permitted to prove against the joint 
 estate. (9') 
 
 Another relaxation of the rule, that a partner cannot 
 prove against a firm, is admitted where there is a minor 
 partnership or house of trade constituted of persons who 
 are, members of a larger firm^ and there are distinct deal- 
 ings between the distinct houses of trade, and both firms 
 become bankrupt, the one being indebted to the other in 
 
 (0) Ex por/e Harris, ante. Ex parte Yonge, 3 Ves. & Bea, 31. 
 S. C. 2 Rose, 40. Ex parte Cust, Co. B. L. 506. 
 (p) Ex parte Reed, 2 Rose, 84. 
 {q) Ex parte Atkins, Buck, 479.
 
 DISSOLUTION BY BANKRUPTCY. 292 
 
 respect of such dealings ; in such a case proof may be 
 made for the debt, in the same manner as if the deahngs 
 had been among strangers.(r) But the question, what 
 is a deahng in a distinct trade, is always to be looked 
 at with great care, for the proof is admissible on behalf 
 of the separate trade against the aggregate firm only in 
 respect of dealings between trade and trade. If an mdi- 
 vidual partner, who is a separate trader, lend money to 
 his partnership, the strict rule immediately applies to 
 him, and shuts him out from the benefit of proof; 
 for if it were sufficient to state, in order to bring the 
 case within the exception, that the partner would not 
 have lent the money but as a separate trader, the 
 general rule would be at an end. It is obvious, there- 
 fore, that the right of proof must be confined to 
 *distinct dealings in the articles of distinct trades, [ *293 ] 
 since a more extended relaxation of the rule 
 would, in its consequences, lead to the destruction of the 
 rule itself. Therefore, where two partners of a large 
 banking firm carried on a separate trade as ironmongers, 
 and a debt arose from the aggregate firm to the separate 
 trade, in respect of moneys procured for the benefit of 
 the aggregate firm, on the credit of the indorsement of 
 the separate firm. Lord Eldon held that no proof could 
 be made on behalf of the firm of the two against the 
 aggregate firm in respect of that debt.(s) And if the 
 firm consist of two persons only, and one carry on a se- 
 parate trade, as they are both liable for the same joint 
 debts, the solvent partner is not entitled to prove, under 
 the commission against his co-partner, a debt for goods 
 sold by his distinct house to the firm, until the joint cre- 
 ditors have been satisfied. It would be otherwise in the 
 case of a firm of A, B, C, and D, proving against a firm 
 of A, B, C, and E ; for the former would not be liable for 
 the joint debts of the latter firm.(0 So if the concern 
 
 (r) Ex parte Hargreaves, 1 Cox, 440. S. C. cited 6 Ves. 123, 747., 
 and 11 Ves. 414. Ex parte'^xng. Ex parte Freeman, Ex parte Johns, 
 Co. B. L. 509. Ex parte St. Barbc, 11 Ves. 413. Ex parte Hes- 
 ham, 1 Rose, 146. Ex parte Catesby, 2 Christ. B. L. 286. 
 
 (s) Ex parte Sillitoe, 1 Glyn & James. 374. 
 
 [t) Ex parte Adams, 1 Rose, 305.
 
 293 THE CONSEQUENCES OF A 
 
 carried on by one partner is merely a branch of the joint 
 concern, proof will not be permitted.(?^) But where some 
 of the members of a partnership carried on different 
 concerns under separate and independent firms, and be- 
 came mutually indebted the one firm to the other, it was 
 held that proof might be equally made by the one firm 
 
 against the other.(v) 
 [ *294 ] *When a joint commission is taken out, the 
 
 creditors of the separate estates are not entitled 
 to interest upon their debts after the payment of twenty 
 shillings in the pound, unless the joint creditors have re- 
 ceived the principal of their debts in full ; but the over- 
 plus of the separate estates must be applied to increase 
 the joint fund.(z^) And if, under a joint commission, 
 both the joint and separate creditors receive the full 
 amount of the principal of their debts, and there is a 
 
 (u) Dx parte St. Baibe, 11 Ves. 413. 
 
 (u) Ex parte Castell, 2 Glyn & James. 124. In Mr. Eden's able 
 Treatise on the Bankrupt Laws, p. 170, it is observed that "the ge- 
 neral rule respecting the proof by partners must, it should seem, be 
 considered as limited to the right of receiving dividends, upon which it 
 is but justice that a partner, who is himself liable, should not be per- 
 mitted to take any of the funds before the creditors are paid. But as to 
 the mere right of proof, there is, strange to say, no determination what- 
 ever, and we are informed by Mr. Montagu, that the practice of the 
 commissioners is not to permit a partner to prove. 1 Mont. Dig. 245. 
 The reasons which he gives in favour of such proof are, however, 
 so satisfactory, that whenever the point comes to be determined, it 
 should seem that there is no doubt of the right to prove, reserving the 
 right to receive dividends till the taking of the partnership accounts. 
 For 1st, This is an equitable debt, and therefore proveable. 2dly, It 
 may be contended, it is a debt under Sir S. Romily's act. And 3dly, a 
 partner would be barred by the certificate of his copartner. Mr. Mon- 
 tagu justly adds, that if it is supposed to be unjust that a partner should 
 prove, when by payment by the bankrupt partner, the solvent partner 
 may ultimately be a debtor, instead of a creditor, it is not right to ex- 
 tend this reasoning from cases where the possibility exists, to cases 
 where its existence, as often happens, is impossible." 
 
 {w) Ex parte Boardman, Co. B. L. 198. S. C. 1 Cox, 275. Ex 
 parte Clarke. 4 Ves. 677. Ex parte Boyd, 1 Glyn &. James. 285. 
 Ex parte Minchin, 2 Gl. & Jam. 287. Where, after satisfying both 
 joint and separate creditors, there is a surplus, it is provided by the late 
 general bankrupt act, 6 Geo. 4. c. 16. s. 132, that it shall not be paid 
 over to the bankrupts until, first, interest has been paid on those debts 
 which, either by law or by contract, carry interest; and secondly, until 
 interest, at the rate of four per cent., has been paid upon all other debts 
 proved under the commission.
 
 DISSOLUTION BY BANKRUPTCY. 294 
 
 debt due to the separate estate of one partner from the 
 joint estale, the creditors upon the joint estate will be 
 entitled to interest upon their debts subsequently to the 
 date of the commission, to be paid out of the surplus of 
 the joint estate; upon this principle, that neither the 
 partnership nor the individual partner can claim in com- 
 petition with the creditors ; and if the creditors are en- 
 titled to any interest, the interest is as much a debt as 
 the principal ; and that principle will prevent either the 
 partnership or the individual debtor ranking with the 
 other creditors, until the whole of their demand is satis- 
 fied. (a;) It has already been stated that where there is 
 a surplus upon the joint estate, after payment of all the 
 joint creditors, the separate creditors of each partner 
 have a lien upon that surplus, and it must be adminis- 
 tered amongst them.(.y) And where a man is a partner 
 in separate firms, each of which becomes bankrupt, the 
 surplus of his separate estate will be applied in discharg- 
 ing the joint debts of the firms, in proportion to the whole 
 amount of the debts proved against each firm respec- 
 tively.(2') 
 
 The creditors may agree that the joint and separate 
 estates of the bankrupt shall be blended, and the joint 
 and separate creditors paid pari passu, as if they were 
 all creditors of the same class; and if all the creditors 
 of each description are unanimous, the court will or- 
 der a consolidation of the two estates. But 
 *where a meeting of the joint and separate ere- [ *295 ] 
 ditors had been called by advertisement, and the 
 creditors present at the meeting had agreed to a con- 
 solidation, the court refused, by acting upon their reso- 
 lution, to bind the interest of the absent creditors of both 
 classes, but directed a reference to the commissioners to 
 inquire if the proposed consolidation was for the general 
 benefit.(r/) 
 
 Nothing particular occurs with regard to the certificates, 
 
 (x) Ex parte Reeve, 9 Ves. 188. 
 
 (y) Ex parte King, 17 Ves. 115. In re Wait. 1 Jac. & Walk. 610. 
 [z) Ex parte Franklyn, Buck, 332. Ex parte Bruce, Whitm. B. 
 L. 353. Ex parte Barron, ibid. 354. 
 
 («) Ex parte Strult, I Glyu & James, 29.
 
 295 THE CONSEQUENCES OF A 
 
 or their operation, when several are included in the same 
 commission. If they are obtained agreeably to the di- 
 rections of the statute, they are of course bars against 
 all creditors, whether they have signed or not ; but the 
 creditors will not be deprived of their remedy against 
 the bankrupts, if the certificates have been procured by 
 means which the legislature has reprobated. In the 
 case of Norton v. Shakspeare,(b) a deed of composition, 
 framed only for the joint creditors of two bankrupts, and 
 which was signed by seven joint creditors out of ten, 
 but not by any of the separate creditors of one of the 
 bankrupts, was held not such a " compoimditig with his 
 creditors," as would, within the meaning of the statute 
 5 Geo. 2. c. 30. s. 9.,(c) avoid the effect of a subsequent 
 certificate under a commission of bankrupt, to protect 
 the future estate and eflfects as well as the person of one 
 of the bankrupts, who was afterwards sued to judgment, 
 and had execution levied on his goods by one of his sepa- 
 rate creditors. But if the deed be framed in terms 
 embracing all the creditors, although some of them do 
 not come in, but afterwards sue the bankrupt and obtain 
 payment of their debts, it is such a compounding with 
 creditors as will, under the statute, deprive the bankrupt 
 of the benefit of his certificate to protect his future 
 efrects.(c?) If a commission against partners be super- 
 seded as to one or more of them, a certificate subse- 
 quently obtained by the partner, as to whom the com- 
 mission is not ordered to be superseded, is not affected 
 by the super sedeas.(e) Where a joint certificate was 
 duly signed by the creditors, and one of the bankrupts 
 died before the commissioners certified their conformity, 
 
 but the commissioners afterwards certified that 
 [ *296 ] the bankrupts *had conformed, and that one of . 
 
 the bankrupts died without having made the 
 usual affidavit of conformity ; upon the petition of the 
 surviving bankrupt, the Lord Chancellor ordered that the 
 joint certificate should be inserted in the Gazette, as the 
 
 (&) 15 East, 619. Curling v. Oakley, cited 1 Selw. N. P. (5th ed.) 
 250. S. P. (c) See 6 Geo. 4. c. 16. s. 127. 
 
 (rf) Slaughter v. Cheyne, 1 Mau. <fe Selw. 182 ; and see Reed v. 
 Sowerby, 3 Mau. & Selw, 78. (e) 6 Geo. 4. c. 16. s. 16.
 
 DISSOLUTION BY BANKRUPTCY.- 296 
 
 separate certificate of the petitioner, and that the same 
 should be allowed and confirmed, if no cause should be 
 shown to the contrary, as such separate certificate. (y) 
 
 After their certificate has been regularly signed and 
 allowed by the Lord Chancellor, and a final dividend 
 has been made, the bankrupts under joint, as under sepa- 
 rate commissions of bankruptcy, are entitled to a decent 
 and reasonable allowance out of their eftects.(o-) Part- 
 ners, however, under a joint commission, are not entitled 
 to a double allowance, one in respect of the joint, and 
 the other of the separate estate ; but one allowance only 
 in respect of their joint and separate eftects is to be di- 
 vided between them, according to the proportiojis which 
 the surplus of each of their separate estates, after pay- 
 ment of their respective separate debts, and the respec- 
 tive moieties of their joint estate, have contributed to the 
 payment of their joint debts.(/i) And in determining the 
 question /of allowance the joint and separate estates are 
 not to be considered as distinct, and as if two commis- 
 sions had issued ; but the two estates are to be blended, 
 to consider whether one allowance is to be made. There- 
 fore, a bankrupt under a joint commission was held not 
 to be entitled to an allowance, though his joint estate 
 had paid ten shillings in the pound, unless both joint and 
 separate creditors who had proved had been paid the 
 same dividend. («) So where, under a separate commis- 
 sion against one partner and the usual order for keeping 
 distinct accounts, the joint estate paid eighteen shillings 
 in the pound, and the separate estate only two shillings in 
 the pound, the bankrupt was held not entitled to an allow- 
 ance, on the ground that the payment to the joint cre- 
 ditors was not a payment under the bankruptcy, but 
 was a mere mode of arrangement which could not give 
 the bankrupt any other privileges than what he would 
 liave been entitled to if his joint property had been 
 
 (/) Ex parte Currie, 10 Ves. 51. S. P. Ex parte Cosszxi, 1 Glyn 
 «St James. 248; and see Bromley v. Goodere, 1 Atk. 77. 
 
 (^) See 6 Geo. 4. c. 16. s. 128. 
 
 (/i) Ex parte Bate, 1 Bro. C. C. 453. S. C. Co. B. L. 488. 
 
 (i) Ex parte Powell, 1 Madd. 68. See also Ex parte Stiles, 1 
 Atk. 208.
 
 297 THE CONSEqUENCES OF A 
 
 [*297] ^distributed under the direction of a court of 
 eqiiity.(/^') And a bankrupt who pays twenty 
 shillings in the pound, under a separate commission to 
 his separate creditors, is not entitled to an allowance 
 against the right which the joint creditors have to the 
 surplus under the usual order.(/) With respect to the 
 allowance under a joint commission, it was formerly 
 considered that it could only be claimed jointly ; and, 
 therefore, that if one partner solely obtained his certifi- 
 cate he was not entitled to it, so long as his copartner 
 remained uncertificated.(m) This, however, has subse- 
 quently been remedied by a legislative provision,(w) 
 which declares, that " in all joint commissions, under 
 which any partner shall have obtained his certificate, if 
 a sufficient dividend shall have been paid upon the joint 
 estate, and upon the separate estate of such partner, he 
 shall be entitled to his allowance, although his other 
 partner or partners may not be entitled to any allow- 
 ance." And in the construction of this act it has been 
 held, that where the separate estate of one of three part- 
 ners had paid twenty shillings, and the surplus carried 
 to the joint estate, ,on which twelve shillings and six- 
 pence had been paid, he was entitled to his sole use to 
 the allowance, although upon the separate estates of the 
 other partners a sufficient dividend had not been paid, 
 the new act showing the legislature to have contemplat- 
 ed the separate payment of each partner's allowance ; 
 but such allowance is not payable until the final dividend 
 is made.(o) 
 
 Sometimes it happens that one partner only commits 
 an act of bankruptcy, while the others remain perfectly 
 solvent ; in which case, a separate commission can alone ' 
 be supported against the party committing the act of 
 bankruptcy. 
 
 As to the trading and act of bankruptcy requisite to 
 
 {k) Ex parte Farlow, 2 Ves. & Bea. 209. S. C. 1 Rose, 421. Ex 
 parte Terrell, Buck, 345. 
 
 (/) ^a^parie Holmes, 3 Ves. & Bea. 137. S. C. 2 Rose, 95. 
 
 (m) Ex parte Powell, 1 Madd. 62. (n) 6 Geo. 4. c. 16. s. 129. 
 
 (o) Ex parte Minchin, 1 Mont. & M. 135; and see Ex parte 
 Goodall, 2 Glyn & James. 281.
 
 DISSOLUTION BY BANKRUPTCY. 297 
 
 ground a separate commission, it can make no difference 
 whether a person carries on business with others or by 
 himself. With respect to the petitioning creditor's debt, 
 it was questioned in a case, in which the point was 
 most elaborately discussed,(/>) whether a joint 
 *debt due from all the partners would support a [ *298 ] 
 separate commission against one of them ; and 
 on the principle that a joint creditor might at law pro- 
 ceed by execution against separate estate, the question 
 was then settled in the affirmative, and is now indis- 
 putable.(<7) But a debt due from one partner to another, 
 where the accounts -have not been balanced and adjust- 
 ed, is not a sufficient foundation for a commission ; al- 
 though Lord Eklon thought that had the partnership 
 been determined, and had the solvent partner paid all 
 the debts, a commission might have been supported.(r) 
 And in a late case where the petitioning creditors had 
 all been in copartnership with the bankrupt in a contract 
 to supply provisions for the use of the navy, and the af- 
 fairs of the contract had not been settled, Lord Ellenho- 
 rough intimated that if the debt of the petitioning credi- 
 tors arose out of the partnership concerns, it was insuffi- 
 cient.(5) But where the proprietor of goods intrusted 
 them to a trader to sell, upon an agreement that after 
 deducting the cost price of the goods, the interest of 
 money, and all charges, the profits should be equally di- 
 vided, and after a sale and appropriation of the profits 
 the trader was indebted to the proprietor in more than 
 one hundred pounds, it was ruled that this was a good 
 petitioning creditor's debt.(/) 
 
 A separate commission against one partner followed by 
 an adjudication that he is a bankrupt, puts an end to the 
 
 (p) Crisp V. Pen-it, WiUes, 467. S. C. 1 Atk. 133. 
 
 (q) Ex parte Elton, 3 Ves. 239. Ex parte Chandler, 9 Ves. 35. 
 Ex parte Ackerman, 14 Ves. 004. Ex parte Dewdney, 15 Ves. 499. 
 Ex parte Lavender, 18 Ves. 19. 
 
 (r) Ex parte. Nokes, 1 Mont. B. L. 21, 605. See also West v. 
 Skip, 1 Ves. sen. 239. S. C. 2 Swanst. 586. Ex parte Maberley, 
 Mont, on Part. p. 63, in notes. 
 
 (s) Windham v. Paterson, 1 Stark. N. P. C. 144. 
 
 [t) Marson v. Barber, Gow's N. P. C. 17. 
 
 50
 
 298 THE CONSliqUENCES OF A 
 
 partnership ; and the share or interest of the bankrupt 
 partner in the partnership effects, upon the execution of 
 the assignment by the commissioners, vests in his as- 
 signees. The effect of the bankruptcy is to dissolve the 
 partnership, and to avoid all the acts of the bankrupt 
 from the day of the bankruptcy.(l) It severs the joint- 
 tenancy ; and the assignees of the bankrupt partner be- 
 come tenants in common with the solvent partner in the 
 partnership effects, subject to all the rights of the lat- 
 
 ter,(w)(2) but according to the doctrine of courts 
 [*299] *of equity, perhaps, with equities in them vastly 
 
 beyond what tenants in conmion have where no 
 bankruptcy has occurred. (u) We will in the first place 
 
 {u) Fox V. Hanbury, Cowp. 448. Hague v. Rolleston, 4 Burr. 
 2174. Ex parte Smith, 5 Ves. 295. It has been ruled by Lord Ch. 
 J. Holt, that if there be four partners, whereof three are bankrupts, and 
 their shares assigned, and a payment is made to him that was no bank- 
 rupt, it is a payment to all the assignees; for now they are all partners. 
 Anon. 12 Mod. 447. 
 
 [v] Per hord Eldon, Barker u. Gcodair, 11 Ves. 85. Assignees 
 under a separate commission of bankruptcy against one partner, cannot, 
 
 (1) The plaintiff was in partnership with one Roioley, as insurance 
 brokers. Upon the 3d of April, 1771, they caused an insurance to be 
 made on the ship Anna Maria, belonging to the defendants, by their 
 order, which policy was underwrote by Robert Cornthiuaite, for 100/. 
 and the premium acknowledged to be received in the usual way upon 
 the policy. The premium was not in fact paid, but credit was given to 
 the brokers in the usual way till the settling day, which was usually 
 soon after Christmas. In November, 1771, Rowley, who carried on a 
 single trade singly a sa Scotch factor, became a bankrupt, and a sepa- 
 rate commission issued against him, and in September, 1772, the plain- 
 tiff paid the whole premium to Cornthivaite, and brought an action in 
 his own name against the defendants, the insured, to recover the 
 amount. The declaration contained counts for work and labour, and 
 money paid, laid out, and expended ; and the plaintift" obtained a ver- 
 dict at Nisi Frius before Sir fVilliam Henry Ashurst, subject to the 
 opinion of the Court of King's Bench upon a case stating the above 
 facts, the question being whether the plaintiff was entitled to maintain 
 the action ? The Court was of opinion, that the money not being paid 
 until a year after the bankruptcy of plaintiff''s partner, was not paid out 
 of the partnership effects, but out of the separate estate of the plaintiff, 
 and was therefore money paid for defendant's use, and gave judgment 
 for the plaintiff. Thacker v. Shepherd et al. 2 Chitt. iiep. 652. See 
 the argument of Mr. Jirden for the plaintiff. 
 
 (2) Murray v. Murray, 5 Johns. Cha. Rep. 60. 
 
 II
 
 DISSOLUTION BY BANKRUPTCY. 299 
 
 consider the effect of an assignment under a separate 
 commission, and what property passes by it to the as- 
 signees. 
 
 A separate commission being a statute execution 
 against both separate and joint estate, the assignees take 
 under it all the separate property of the bankrupt^ and all 
 his interest in the joint property ;(w) {I) the extent of 
 which interest is exactly the same as that which vests in 
 a separate creditor of one partner by a judgment at 
 law, taking execution against the partnership effects. 
 The interest of the solvent partner is not affected by the 
 execution in the one instance, (x) nor by the bankruptcy 
 in the other.(?/) In the case of an execution, the sheriff, 
 though he may seize the whole of the joint property, can 
 sell only an undivided moiety ; and the vendee becomes, 
 gtioad the interest of the indebted partner, tenant in 
 common with the solvent partner, taking only the undi- 
 vided share of the debtor, subject to all the rights of the 
 
 without the consent of every person interested in the estate, engage in 
 any new adventure with the solvent partner. 15 Ves. 228. 
 
 [w) Ex parte Cobham, 1 Bro. C. C. 576. Ex parte Hodgson, 2 
 Rro. C. C. 5. Horsey's case, 3 P. Wms. 23. Bolton v. Puller, 1 
 Bos. & Pul. 539. Ex parte Earned, 1 Glyn &, James. 311. 
 
 (x) Heydon v. Heydon, 1 Salk. 392. 
 
 (y) Taylor v. Fields, 4 Ves. 396. S. C. 15 Ves. 559. n. In the 
 case of Barker v. Goodair, 1 1 Ves. 85, Lord Eldon, after alluding to 
 the question whether a separate creditor, taking a moiety of a chattel 
 in execution, may call for a sale of it and divide the money, or whether 
 a court of equity would not force upon him the whole account of the 
 partnership, permitting him only to take that interest which the part- 
 ner, his debtor, would have been entitled to after the account, adds, 
 "but we have gone much greater lengths in bankruptcy as to that, and 
 even in the absence of the other partner. In bankruptcy, after one 
 partner has become bankrupt, I do not recollect that a joint creditor 
 was ever permitted to bring an action, and by an execution fasten upon 
 a moiety of the effects. On the contrary, in the absence of the solvent 
 partner, we say, the assignees shall take the solvent property, and deal 
 with it as the partner himself ought to have dealt with it, paying all 
 the joint creditors equally as far as the joint properly goes, and apply- 
 ing the surplus under all the equities subsisting between the partners." 
 See also Button v. Morrison, 17 Ves. 209. 
 
 (\) Harrison v. Sierry, 5 Cranch. 289. See page 302, the point 
 is not as fully stated in the marginal abstract of the case as it should be.
 
 299 THE CONSEQUENCES OF A 
 
 Other, and to the account to be taken between them as 
 partners. So, in the case of bankruptcy, the as- 
 [ *300 ] signees under *a separate commission can affect 
 the joint property no farther than the bankrupt 
 himself; they have no right to change the possession, 
 or to make any specific division of the effects ; they 
 take only such undivided share or interest as the bank- 
 rupt himself had, and in the same manner as he held it, 
 that is, subject to all the rights and liens of the other 
 partner, and they are entitled only to that balance which 
 is ascertained to be due to the bankrupt, after the part- 
 nership debts and the claims of the solvent partner are 
 satisfied, and a division is made of the surplus. (2^) But, 
 whatever his interest is, the assignees are entitled to it 
 specifically, and no agreement made between the part- 
 ners themselves, in contemplation of bankruptcy, can 
 prevent their right from attaching. Thus in a late 
 case(«) it appeared that articles of partnership had pro- 
 vided, that on a dissolution by the death, notice, or mis- 
 conduct of a partner, the remaining partners should 
 have the option of taking his share at a valuation, paya- 
 ble by yearly instalments in the course of seven years; 
 and that, on the bankruptcy or insolvency of a partner, 
 the partnership should be immediately void as to him ; 
 but by a deed, executed four years subsequently, the 
 partners declared, after a recital that such was their in- 
 tention in the articles, that in the event of bankruptcy or 
 insolvency, the same arrangement should be practised 
 as on dissolution by death, notice, or misconduct; one 
 of the partners having become bankrupt within a few 
 months after the execution of the latter deed, it was 
 held, that his assignees were not bound by it. Had such 
 a provision been contained in the original articles of 
 partnership, it seems doubtful whether it would not have 
 been void, as being contrary to the policy of the bank- 
 
 {z) In Hoklerness v. Shaekels, 8 B. &, C. 618. Lord Tenterden 
 observed that it is clearly established as a general principle of law, that 
 if one partner becomes a bankrupt, his assignees can obtain no share of 
 the partnership effects, unless they first satisfy all that is due from him 
 to the partnership. 
 
 (a) AVilson v. Greenwood, 1 Swanst. 471. S. C. 1 J. Wilson, 223.
 
 DISSOLUTION BY BANKRUPTCY. 300 
 
 rupt laws. For, although the owner of property may, 
 on alienation, qualify the interest of his alienee, by a 
 condition to take effect on bankruptcy, yet it seems that 
 he cannot, by contract or otherwise, qualify his own inte- 
 rest by a like condition, determining or controlling it in 
 the event of his own bankruptcy, to the disappointment 
 or delay of his creditors ; the jus disponendi which, for 
 the first purpose, is absolute, being in the latter instance 
 subject to the disposition previously prescribed 
 by law.(6) *And if one partner advance part of [ *301 ] 
 his share of the expense of an adventure, and 
 give his notes for the remainder, which do not become 
 due until after he is declared a bankrupt, the assignees 
 are entitled to his full share of the profits of the adven- 
 ture, notwithstanding the holders of the notes receive 
 only a dividend under the commission ; and the solvent 
 partners cannot, by voluntarily discharging the notes, 
 stand in the place of the bankrupt, for any proportion of 
 the profits to which he would have been entitled.(c) So, 
 if one partner mortgages all his interest in the partner- 
 ship stock to the other members of the firm, or to a per- 
 son in trust for them, and afterwards, and until he be- 
 comes bankrupt, continues to act as a partner, without 
 delivering exclusive possession of the stock to the mort- 
 gagee, the share so mortgaged is distributable under 
 the commission, as the separate property of the bank- 
 rupt.(6/) And where two persons, on entering into part- 
 nership, agreed that the manufactory and utensils in 
 trade should be the separate property of one of theni, 
 and that the other should pay a rent in proportion to his 
 share of the business, and the manufactory and utensils 
 being insured in the name of the true owner, they were 
 subsequently consumed by fire, and afterwards a com- 
 mission of bankruptcy issued against both, it was held 
 that the insurance money formed part of the separate 
 estate of the insured, and was unaffected by the sta- 
 
 (6) See 1 Swanst. 481. n. 
 
 (c) Smith V. De Silva, ('owp. 469. See the observations of Lord 
 Tenterden on this case, in Holderness v. Shackels, 8 B. <fc C. 618. 
 
 (d) Rvall V. Rowles, 1 Ves. sen. 348. S. C. 1 Atk. 16.5. 1 Wils. 
 260. Hall V. Gurnev, Co. B. L. 333. JEx parte Standgrooni, ibid. 
 337. S. C. 2 Cox, 234. 
 
 m
 
 301 THE CONSEqUENCES OF A 
 
 tute.(e) We have already explained, (/) that where a 
 firm consists of a dormant and an ostensible partner, and 
 the latter becomes bankrupt, the whole joint property 
 will pass as his separate estate under the statute of 
 James, and of course that it will so pass under the late 
 general bankrupt act, in which the provisions of the for- 
 mer statute have been embodied. (^) This, in some 
 instances, bears hard upon the dormant partner, who may 
 be called upon to pay the partnership debts, at the same 
 time that he is deprived of all the partnership property 
 acquired by the contracting those debts ; but as the 
 world naturally gives credit to the ostensible partner on 
 his reputed property, and as the statute was particularly 
 
 directed to remedy the mischief arising from a 
 [ *302 ] ^trader's holding out a delusive responsibility, it 
 
 follows that the person who permits him to exhibit 
 that false appearance should be answerable for the con- 
 sequences. And with respect to the two classes of 
 creditors, no injustice or inconvenience will, generally 
 speaking, result to them. The separate creditors, who 
 trusted the ostensible partner on the faith of his appa- 
 rent ownership of the property, have the primary claim 
 to it, and justly so, for otherwise there might not be any 
 fund to which they could resort for payment ; whilst the 
 joint creditors will be entitled to any surplus that may 
 remain after satisfying the separate creditors, and will 
 also have their remedy against the dormant partner for 
 the whole or any part of the partnership debts. Where 
 a sole trader agreed, in consideration of a sum payable 
 by instalments, to take two persons into partnership with 
 him for a period of eighteen years, and, after they were 
 admitted, the firm became bankrupt whilst some of the 
 instalments remained unpaid, it was determined that, 
 unless the bargain was ab initio a mere fraud, the instal- 
 ments must be paid as they became due : for, upon ad- 
 mission, the whole price became debiium in prcesenti, 
 although solvendum in futuro. In equity, as well as at 
 law, such a contract is performed, on one side, by admis- 
 
 (e) Ex parte Smith, 3 Madd. 63. S. C. Buck, 149. 
 
 (/) See ante, p. 278. 
 
 (g) See the G Geo. 4. c. 16. s. 72.
 
 DISSOLUTION BY BANKRUPTCY. 302 
 
 sion ; and the consideration must be paid by the other 
 side. The loss is not a breach of contract, but a con- 
 tino-ency, subject to which the party purchased : and if 
 no provision was made for such an event by the agree- 
 ment, equity can give no rehef It might be otherwise 
 if the party had been drawn into the bargain by fraud 
 and misrepresentation :(A) for though, even in such fraud- 
 ulent case, the injured party could not be allowed to 
 prove in competition with the creditors of the firm, in 
 respect of the instalments actually paid ;(i) yet payment 
 of the future instalments could not be enforced.(A) If, 
 after an act of bankrupty committed by one partner, the 
 solvent partners continue to trade with the joint capita], 
 they must account to the assignees for the bankrupt's 
 share of the profits derived from such trading.(/) And 
 on this principle, upon an exception to a master's report, 
 stating the capital and stock in trade of a partnership to 
 cpnsist, at the time of the bankruptcy of one of the part- 
 ners, of the estimated value of the dead stock em- 
 ployed in it, *it was referred back to him to state [*303 ] 
 what was the amount of the capital, and also of the 
 stock in trade at the time, in order to adjust the amount of 
 subsequent profits to which the assignees of the bankrupt 
 partner were entitled, as against the other partners, who 
 continued to trade with the partnership property after 
 the bankruptcy.(m) But where by contract, custom, or 
 previous usage between partners, in particular adven- 
 tures, the share of each is subject to the lien of the other 
 partners, for his proportion of the outfit and of the ex- 
 pense, no partner or representative of a partner, has a 
 right to his aliquot part of the subject-matter of the ad- 
 venture, until he has paid his share of the expense of 
 
 {h) Akhurst v. Jackson, 1 Swanst. 85. S. C. 1 J. Wils. 57. 
 
 (i) Ex parte Broome, 1 Rose, 69. 
 
 {k) Hamcl v. Stokes, 4 Price, 166. S. C. 1 Daniel, 20. 
 
 (/) Crawshay v. Collins, 15 Ves. 218. 
 
 (m) S. C. I Jac. & Walk. 267. Where the stock at the time of the 
 bankruptcy of one of the partners, consisted partly of patents, the be- 
 nefit of which were continued by the solvent p-.irtners, the court held, 
 under the circumstances, that the assignees were entitled to share in the 
 profits at'tcr the bankruptcy, until the final settlement and account, al- 
 lowances being made for advances of capital subsequently brought in 
 by the solvent partners. S. C. 2 Russ. 325.
 
 303 THE CONSEQ.UENCES OF A 
 
 procuring it; and, consequently, if one becomes bankrupt 
 without having paid such share, his assignees cannot 
 recover from the other partners his proportion, vt^ithout 
 a previous tender of the amount of such share. Thus, 
 in a recent case, it appeared, that A, B, and C, together 
 with others, were part owners of a ship engaged in the 
 whale fishery. The usual mode of managing the cargo 
 was, that on the arrival of the vessel at her homeward 
 port, the whalebone was taken into the possession of B 
 and sold by him, and the proceeds were applied towards 
 the discharge of the expenses of the ship. The blubber 
 was deposited in a warehouse rented of C, by the owners 
 of the ship, and the oil produced from it was then put 
 into casks, each owner's share being weighed out, and 
 placed separately in the warehouse, in casks marked 
 with his initials. After the division, the practice was for 
 the warehouseman to deliver to the order of each part- 
 owner his share of the oil, unless notice was given by 
 the ship's husband that the part owner's share of the 
 disbursements had not been paid ; and, in that case, the 
 w^arehouseman used to detain the oil till the ship's hus- 
 band's demand had been satisfied. The ship having 
 arrived from her voyage in 1825, the above course was 
 followed. The share weighed out and set apart for C 
 was twenty nine tons, which was stowed in the ware- 
 house in casks, which had A's initials put on them. In 
 January^ 1826, A became bankrupt. Twenty tons of 
 
 the oil had been delivered to him before his 
 [ *304 ] ^bankruptcy ; the remaining nine tons remained 
 
 in the warehouse at that time. In the same 
 month the warehouseman had orders from C, the ship's 
 husband, not to deliver to A the remaining oil, as his 
 share of the disbursements of the ship had not been paid: 
 and it was held, in an action of trover brought by the 
 assignees of A against C for the residue of A's oil, that 
 the other part-owners had originally a lien on it for his 
 share of the disbursements of the ship, and that this 
 right was not devested by the separation of A's share 
 from the residue, and placing it in casks marked with 
 his name.(n) 
 
 (n) Holderness v. Shackels, 8 B. & C. 612.
 
 DISSOLUTION BY BANKRUPTCY. 304 
 
 If a customer agree to pay into a bank composed of 
 four partners, bills of exchange indorsed, and to take in 
 return their promissory notes, the relation of debtor and 
 creditor is, by the contract, created with respect to all 
 bills paid into the bank, and notes taken in return, so 
 long as the firm continues the same as when the agree- 
 ment was entered into : and if the whole of the partners 
 become bankrupt, no lien can be claimed upon the bills 
 paid in before the bankruptcy ; such bills will be held to 
 have been paid in for the purpose of being discounted, 
 and the property in them to have become vested in the 
 bankers ;(o) but if one or more of the partners become 
 bankrupt, and subsequently bills are paid in, this trans- 
 action cannot be referred to a contract made in con- 
 templation of the security of the whole four original 
 partners. When the customer receives promissory notes, 
 purporting to be the security of the four, but which, in 
 truth, are the security of fewer than the whole number, 
 he does not receive the consideration he contracted for, 
 and his bills were delivered to persons to whom his con- 
 tract did not apply : should they, therefore, also become 
 bankrupts, their assignees cannot retain the bills so paid 
 in : the promissory notes, however, given in return for 
 the bills, must of course be restored.(^) But if, by con- 
 struction of a written document to that effect, an agree- 
 ment can be fairly inferred, that notwithstanding the 
 change of firm, the contract made with the original firm 
 shall be continued, the depositor of bills with the new 
 firm can have no relief.(9r) 
 
 We have seen in a former part of this work,(r) 
 that an act *qf bankruptcy committed by one [ *305 ] 
 partner, when followed by a commission, dissolves 
 the partnership by relation to the time when the act of 
 bankruptcy was committed. The partner, therefore, 
 who has committed the act of bankruptcy, cannot after- 
 wards communicate to strangers any rights either against 
 the firm or the joint property ; because the commission 
 and assignment retrospectively deprive him of all capa- 
 
 (o) Ex parte McGae, 2 Rose, 377, note. 
 
 \p) Ex parte McGae, 19 Ves. 609. Ex parte Rowton, 17 Ves, 431. 
 \q) Ex parte Marsh, 2 Rose. 243. (r) See ante, p. 227. 
 
 51
 
 305 THE CONSEQUENCES OF A 
 
 city of acting ; they determine his power to bind the 
 jSrm by relation to the date of his bankruptcy, and all his 
 rights, from that time, passing to his assignees, he ceases 
 to have any further control over the partnership, or the 
 joint property. And the statutes concerning bankrupts 
 make an entire, not a partial avoidance of the bank- 
 rupt's acts, as well in respect of his partner's moiety as 
 his own. Therefore, where a partner, on the eve of his 
 bankruptcy, voluntarily deposited goods with a third per- 
 son for a creditor of the firm, and the deposite falsely 
 purported to be founded upon a supposed sale ; the cre- 
 ditor, after the bankruptcy of the partner, having received 
 information of the deposite, declared his acceptance of 
 it ; and in an action of trover by the assignees under a 
 joint commission to recover the goods, it was held that 
 the creditor could not resist their claim, inasmuch as 
 the deposite was not completed until after the bankruptcy 
 of the party depositing, at which time the partnership 
 was at an end.(s) So, where two of three partners af- 
 fecting, but without authority, to bind the firim, by deed 
 assigned a debt due to them from a correspondent 
 abroad, without his privity, to a creditor at home, and 
 afterwards, by the direction of such correspondent, drew 
 a bill of exchange in the name of the firm upon his agent 
 here, which was accepted, payable to their own order, 
 for the amount of the debt ; and then the two partners, 
 having in the mean time committed acts of bankruptcy, 
 indorsed such bill to the creditor of the firm in part sat- 
 isfaction of his debt, and afterwards separate commis- 
 sions were sued out against the two partners, who were 
 declared bankrupts, and their effects assigned, the other 
 partner being all the time abroad. It was held that by 
 such indorsement of the bill by the two, after acts of 
 bankruptcy committed by them, though, before the com- 
 mission issued, nothing passed to the creditor ; for the 
 bankrupt partners had, by relation, ceased, at 
 [ *306 ] the time of such indorsement, *to have any con- 
 trol over the joint stock as partners, and there- 
 fore could not bind either the property of their assignees, 
 
 (s) Hague v, Rolleston. 4 Burr. 3176.
 
 DISSOLUTION BY BANKRUPTCY. 306 
 
 or of their solvent partner.(^)(l) But the acts of a sol- 
 vent partner, in disposing of the property in the course 
 of trade, after a secret act of bankruptcy committed by 
 his copartner, are valid. Therefore, upon a question, 
 vi'hether assignees under a joint commission against two 
 partners taken out after the bankruptcy of both, could 
 maintain an action of trover, against a person in posses- 
 sion of goods under a sale or consignment, bonajlde, for 
 a valuable consideration, and without any mixture of 
 fraud, from one of the partners, who had not then com- 
 mitted any act of bankruptcy himself, but after an act of 
 bankruptcy committed by the other partner ; the court 
 held the action could not be maintained, because the act 
 of the partner, who, at the time of the consignment, had 
 not committed any act of bankruptcy, bound both, and 
 also because, supposing the consignment avoided by the 
 act of bankruptcy of the other partner, then it was an 
 action of trover, by one tenant in common against an- 
 other, which clearly was not sustainable.(?<)(2) And 
 the same rule holds, although the solvent partner knew 
 of the bankruptcy ; for even in such case, the solvent 
 partner, having a lien on the partnership funds for his 
 own indemnity,(3) limited to their being applied to the 
 payment of partnership debts, may dispose of partnership 
 property in discharge of a debt due from the partner- 
 ship; and though he afterwards become bankrupt, an 
 
 {t) Thomason v. Frere, 10 East, 418. 
 
 (u) Fox V. Hanbury, Covvp. 448 ; and see Anon. 12 Mod. 446. 
 Smith V. Stokes, 1 East, 364. Smith v. Oriel, ibid. 369; and the 
 judgment of Lord Chief Baron Thompson in Coldwell v. Gregory, 1 
 Price, 129. In Brickwood v. Miller, 3 Meriv. 282, Sir William Grant 
 is reported to have said, that it is perhaps a matter of some uncertainty 
 to what extent the bankruptcy of one partner affects the power of the 
 others over the partnership property. 
 
 (1) But where one of two partners in trade had, after an act of bank- 
 ruptcy, accepted a bill of exchange in the name of the firm, without the 
 privity of his co-partner, — held, that in the hands of an innocent indor- 
 see it was an available security. Lacy v. Wolcott et al. 2 Dowl. & 
 Ryl. Rep. 458. 
 
 (2) See Murray v. Murray, 5 Johns. Cha. Rep. 78. 
 
 (3) See Hoxie v. Carr, 1 Sumn. Rep. 173.
 
 306 THE CONSEQUENCES OF A 
 
 action for money had and received will not lie against 
 the creditor at the suit of the joint assignees. Thus, 
 where one of two partners, who were country bankers, 
 became bankrupt, and the defendants being holders of 
 their notes, obtained payment of part of them from the 
 London bankers, at whose house they were payable, 
 out of the funds in their hands, belonging to the country 
 bank, and the solvent partner, knowing of the bank- 
 ruptcy, procured a debtor to the firm to give his bill in 
 part satisfaction of his debt, and indorsed and delivered 
 the same to the defendants, in payment of the 
 [ *307 ] ^residue of the notes in their hands, and after- 
 wards became bankrupt ; it was held, that the 
 assignees could not recover from the defendants the 
 monies so paid to them by the Lotidon bankers, nor the 
 proceeds of the said bill.(i;) But it has been ruled that, 
 after a secret act of bankruptcy committed by one of 
 two partners, the other cannot, by an indorsement in the 
 name of the firm, transfer the property in a bill, which 
 belonged to the firm before the bankruptcy; for the 
 partnership having ceased to exist, the solvent partner is 
 to be considered as tenant in common with the assignees 
 of the bankrupt partner, and consequently the property 
 in a bill can only be transferred by their respective in- 
 dorsements.(z^;) And it is stated to have been held, on 
 a motion for a new trial, that a disposition by the sol- 
 vent partners of a partnership security, after the bank- 
 ruptcy of an individual member of the firm, is not avail- 
 able in favour of a creditor who, at the time of such dis- 
 position, was privy to the bankruptcy; because the right 
 of the creditor to retain the security under such circum- 
 stances is in direct contravention with the principles of 
 the bankrupt laws, which subject the partnership pro- 
 perty, as it existed at the time of the bankruptcy, to the 
 claims of the creditors of the single bankrupt.(x) It has 
 been intimated that where acts of bankruptcy jare com- 
 
 (v) Harvey v. Crickett, 5 Mau. & Selw. 336. 
 
 \w) Ramsbottom ». Lewis, 1 Campb. 279 ; and see Ramsbotham v. 
 Cator, 1 Stark. N. P. C. 228. 
 
 (x) Ramsbottom v. Duck, 1 Mont. Dig. of New Decis. p. 18. of 
 the notes.
 
 DISSOLUTION BY BANKRUPTCY. 307 
 
 mitted by partners at distinct times, and, between the 
 two acts, the then solvent partner pays a debt to a joint 
 creditor, the joint assignees may, in an action for money 
 had and received to their use, as assignees of the part- 
 ner who, at the time of the payment, had committed the 
 act of bankruptcy, recover a moiety.(«/) But it seems 
 difficult to conceive upon what principle a partner is to 
 be considered as entitled to a moiety of each article or 
 sum belonging to the partnership, until the accounts are 
 taken ; and the more especially so in a case in which 
 the right of the creditor stands upon the legal effect of 
 partnership, by which a partner may make a valid trans- 
 fer to a third person, without subjecting the validity of 
 such transfer to depend upon the claims between the 
 partners themselves. A partner whose interest is con- 
 fined to the profits, and does not extend to the 
 *capital, cannot, after the bankruptcy of the real [ *308 ] 
 owner, transfer the property, so as to render the 
 transfer effectual against the assignees.(^) And upon 
 the principle that a separate commission against one 
 partner severs the joint-tenancy, and vests the bank- 
 rupt's share of the partnership effects in his assignees as 
 tenants in common with the solvent partner, by relation 
 to the time of the act of bankruptcy, an injunction has 
 been granted against proceeding under a foreign attach- 
 ment in the Lord Mayor's Court against the property of 
 two partners, where a commission had been sued out 
 against one of them, overreaching the attachment by 
 relation to the date of the bankruptcy .(a) But where 
 the commercial establishment is carried on both in this 
 and in a distant country, not subject to the bankrupt 
 laws, a creditor of the firm who, after an act of bank- 
 ruptcy committed by a partner resident here, attaches 
 
 {y) Smith v. Goddard, 3 Bos. & Pul. 465. Whitwell v. Thomp- 
 son, 1 Esp. N. P. C. 68. 72. Bat see the judgment oi Holroyd, J., in 
 Harvey v. Crickett, supra, semb. contra. 
 
 (z) Meyer v. Sharpe, 5 Taunt. 74. 
 
 (a) Barker v. Goodair, 11 Ves. 78. Button v. Morrison, 17 Ves. 
 193. S. C. 1 Rose, 213. In Bristow v. Potts, 11 Ves. 81, in note, 
 Lord Rosstyn held a different opinion, as he decided that the assignees 
 of one of the joint debtors had no equity to obtain an injunction against 
 creditors who had attached the joint estate.
 
 308 
 
 THE CONSEQ,UENCES OP A 
 
 the joint property abroad, cannot be compelled to refund 
 what he so obtains by legal process ; for the court can- 
 not reach the property abroad, or bind the partners who 
 are out of its jurisdiction ; and whenever it takes from 
 the creditor his separate remedy, it professes, at least, 
 to give him his distributive share of the whole partner- 
 ship property. Therefore, where a partnership was 
 formed in the West Indies, and one of the partners came 
 to England, and established himself in London for the 
 purpose of conducting the English branch of the busi- 
 ness, and he received and disposed of the consignments 
 from the West Indies, and shipped cargoes from England 
 to his partners there, and after an act of bankruptcy 
 committed by him, a joint creditor attached in the West 
 Indies property belonging to the firm ; it was held that 
 the assignees under a separate commission against that 
 partner could not compel the attaching creditor to re- 
 fund the property which he had attached, or to account 
 for what he had received by virtue of his attachment.(6) 
 And the same rule which governs the case of an attach- 
 ment against joint property within the reach of the court 
 must apply with equal force to an execution against joint 
 estate similarly situated. Therefore, where after 
 [ *309 ] an execution issued at the instance of *joint 
 creditors against joint effects, a commission of 
 bankruptcy was sued out by another joint creditor 
 against one of the partners upon an act of bankruptcy 
 antecedent to the execution executed, it was determined 
 that the creditors who had taken the effects by virtue of 
 the execution could not retain them against the assignees 
 under the separate commission.(c) Where one of two 
 solicitors in partnership had become bankrupts, the Court 
 of Chancery refused to compel the assignees to deliver 
 over a client's papers to the other, without the client's 
 consent.(c?) 
 
 It has been said (e), that if joint property be in the 
 
 (h) Brickwood v. Miller, 3 Meriv. 279. 
 
 (c) In re Wait, 1 Jac. & Walk. 605 ; and see Dutton v. Morrison, 
 17 Ves. 193. 
 
 (d) Davidson v. Napier, 1 Sim. 247; and see Ex parte Horsfall, 
 7 B. & C. 528. 
 
 (e) Per Lord Kenyan, Smith v. Stokes, 1 East, 369.
 
 DISSOLUTION BY BANKRUPTCY. 309 
 
 possession of a bankrupt partner at the time of the 
 bankruptcy, the assignees may take the whole property 
 and sell it, but they must account to the other partner 
 for his share. In a recent case, however, where, under 
 a separate commission against one partner, the assig- 
 nees took possession of the partnership property, and 
 were about to sell it, the Vice-Chancellor, on the appli- 
 cation of the solvent partner, granted an injunction, re- 
 straining the sale, although the bill contained no offer to 
 pay the joint creditors, but merely proposed to account 
 for the share of the bankrupt.(/)(l) But, under a 
 separate commission, if all the joint property is seized 
 by the assignees, and the solvent partner is dead, the 
 assignees may, by a bill in equity, be compelled to divide 
 not only a moiety, but the whole of the joint effects 
 amongst the joint creditors ;(^) and if the solvent part- 
 ner is abroad, the whole estate is administered in bank- 
 ruptcy.(A) Under a separate commission, the separate 
 estate is entitled to be reimbursed out of the joint estate 
 expenses incurred in recovering property for the benefit 
 of the joint creditors.(/) 
 
 (/) Allen V. Kilbree, 4 Madd. 464. It is difficult to reconcile this 
 decision with the observations of Lord Eldon in Banker v. Goodair, 11 
 Ves. 85, and Dutton v. Morrison, 17 Ves. 209. But the court will 
 not, on the application of joint creditors, restrain the assignees, under 
 a joint commission, from a sale of the stock in trade of the bankrupt 
 partners ; because, in proceeding to such sale, the assignees act at their 
 own risk, and upon their own responsibility, and they and not the 
 court are to be judges of the propriety and expediency of it. Ex 
 parte Montgomery, I Glyn & James. 338. See Ex parte Figes, ibid. 
 122. 
 
 {g) Hankey v. Garrett, 1 Ves. jun. 236. S. C. 3 Bro. C. C. 457. 
 Everett v. Backhouse, 10 Ves. 98. The practice is to obtain this ar- 
 rangement by order upon petition after the choice of assignees. Co. B. 
 L. 256. 1 Mont. B. L. 330. 
 
 (A) Per Lord Eldon, Barker v. Goodair, 1 1 Ves. 86. 
 
 {i) Ex parte Rutherford, 1 Rose, 201. 
 
 (1) Mr. Eden (Bank. Law, 252) has remarked, that there is proba- 
 bly a mistake of the Reporter in Mien v. Kilbree, as the case cannot be 
 reconciled with the doctrine contained in the observations of Lord Eldon 
 in Dutton v. Morrison, upon the authority of which it professes, to be 
 founded.
 
 310 THE CONSEqUENCES OF A 
 
 [*310] *Before the passing of a late act of parlia- 
 ment, it was an established rule that joint credit- 
 ors should not be permitted to vote or interfere in the 
 choice of assignees under a separate commission .(A;) The 
 electors of the assignees were the separate creditors, and 
 the petitioning creditor, whether joint or separate ;(/) 
 but if there were not any separate creditors, the amount 
 of whose debts would entitle them to vote,(m) or if there 
 were not any joint estate(n) or a solvent partner,(o) the 
 joint creditors would have been entitled to have proved 
 their debts for this purpose. And even where joint 
 creditors were excluded from voting, the court would in 
 some cases, where they were unrepresented, have appoint- 
 ed a person as an agent or inspector of the joint estate 
 with ample authority to take care of their interests.(/3) 
 But now by the 6 Geo. 4. c. 16. s. 62, it is enacted, 
 " that in all commissions against one or more of the 
 partners of a firm, any creditor to whom the bankrupt or 
 bankrupts is or are indebted, jointly with the other part- 
 ner or partners of the said firm, or any of them, shall 
 be entitled to prove his debt under such commission, for 
 the purpose only of voting in the choice of assignees un- 
 der such commission, and of assenting to or dissenting 
 from the certificate of such bankrupt or bankrupts, or of 
 either of such purposes." 
 
 {k) Ex parte Alcock, 11 Ves. 603. Ex parte Hubbard, 13 Ves. 
 424. Ex parte Longman, 18 Ves. 71. Ex parte Taylor, 18 Ves. 
 284. Ex parte Parr, 18 Ves. 70. S. C. 1 Rose, 76. Ex parte 
 Simpson, 1 Meriv. 38. S. C. 2 Rose, 337. 
 
 {I) Ex parte Hall, 9 Ves. 349. Ex parte Ackerraan, 14 Ves. 604. 
 Ex parte Dewdney, 15 Ves. 499. 
 
 (m) jEa:/jar/e Jones, 18 Ves. 283. S. C. reported worn. Ex parte 
 Laycock, 1 Rose, 32. 
 
 (n) ^x/jarfe Pinkerton, 6 Ves. 814. n. ^x^ar/e Machell, 2 Ves. 
 & Bea. 216. S. C. 1 Rose, 447. 
 
 (o) Ex parte Janson, 3 Madd. 229. S. C. Buck, 227. 
 
 (p) Ex parte Bassaro, 1 Rose, 226. Ex parte De Tastet and Ex 
 parte Martell, ib. 324, 5. S. C. 1 Ves. & Bea. 280. £a; parte Mills, 
 3 Ves. & Bea. 139. S. C. 2 Rose, 68. Ex parte Simpson, 1 Meriv. 
 38. S. C. 2 Rose, 337. Where, under a separate commission, a so- 
 licitor was appointed by the assignees, and the joint creditors employed 
 another solicitor for the benefit of the joint estate, it was held that they 
 were not entitled to have the expenses thereby incurred paid out of the 
 joint estate. Ex parte Longman, 1 Rose, 303.
 
 DISSOLUTION BY BANKRUPTCY. 310 
 
 Where the assignees under a separate commission pos- 
 sess themselves of the joint property, it may frequently 
 be to the interest of joint creditors that distinct accounts 
 should be kept of the joint and separate estates^ and that 
 each should be applied to the payment of the re- 
 spective classes of creditors according to *the [*311] 
 customary mode of applying the difterent es- 
 tates, when separate creditors prove under a joint cono- 
 mission. The correct mode of effecting this arrangement 
 is by bill, but the practice is to obtain the order by pe- 
 tition after the choice of assignees.(y) And where, 
 under a separate commission against one of two part- 
 ners, the usual order was obtained for keeping distinct 
 accounts of the joint and separate estate, the bankrupt 
 having paid 20s. in the pound to all his creditors, ob- 
 tained an order for the payment of the surplus to him, 
 and the same was accordingly paid. The representative 
 of the other partner was served with the petition, and 
 by mistake had omitted to appear. Upon her petition 
 it was held, that she was entitled to apply by petition in 
 bankruptcy for an account of such surplus, and for pay- 
 ment of her proportion of it, and that the court had juris- 
 diction to make the order.(r) Where two separate 
 commissions are taken out against different members of 
 the firm, it has been said that there ought not to be 
 orders for keeping distinct accounts under each commis- 
 sion.(5) 
 
 We will now consider the right which the joi?it credi- 
 tors have of proving their debts, with a view to receiving 
 dividends, under a separate commission issued against 
 one of their debtors.(^) Where the separate commission 
 issues at the instance and on the petition of a joint ere- 
 
 [S 
 
 r^) 1 Mont. B. L. 330, and Co. B. L. 253. 
 
 \r) Ex parte Lanfear, I Rose, 443. It was urged that the applica- 
 tion should have been by bill. 
 
 (s) Per Lord Eldon, Ex parte Bolton, Buck, 7. 
 
 (/) In Heath v. Hall, 4 Taunt. 328. Mansfield, C. J., says, " The 
 practice of the Court of Chancery has varied much within my memory ; 
 it used to be that a joint creditor might, under a separate commission, 
 prove and receive a dividend ; but now he cannot proceed to receive a 
 dividend unless there is a surplus; he can only prove his debt." 
 
 52
 
 311 THE CONSEQUENCES OP A 
 
 ditor,(z^) his right is in no respect distinguishable from 
 that of a separate creditor. He is entitled to prove 
 his debt under the commission as if it were a separate 
 debt, and to receive a dividend pari passu with the sepa- 
 rate creditors. It is not even an objection to his 
 [*312] proof that as to part of the debt *proved he is 
 a trustee for another joint creditor, who, accord- 
 ing to the general rule, could not himself have proved, 
 so as to have been entitled to receive a dividend, because 
 with the trust the commissioners or creditors have no 
 right to interfere. (v) But in determining the rights of 
 the other joint creditors under a separate commission, 
 great uncertainty .and confusion has prevailed. In the 
 time of Lord Hardwicke, the rule adopted was to permit 
 joint creditors to prove under a separate commission 
 against one partner, or under separate commissions 
 against all the partners, for the purpose of assenting to 
 or dissenting from the certificate ; and the joint credi- 
 tors were considered to have an equitable right to any 
 surplus of the separate estates, after payment of the 
 separate creditors ; but the joint property was distributed 
 under a joint commission taken out for that purpose, or 
 a bill must have been filed for an account of the joint 
 estate.(i^) This rule was broken in upon by Lord Thur- 
 low, who expressed his decided opinion that the contrary 
 course was the best, as being the most legal, and who, 
 
 [i() Ex parte Hall, 9 Ves. 349. Ex parte Ackerman, 14 Ves. 634. 
 Ex parte Dewdney, 15 Ves. 499. The petitioning creditor under a 
 joint commission cannot sustain a claim of proof against the separate 
 estates of the bankrupts, in competition with the separate creditors. 
 And therefore, where a joint creditor sued out a commission against A 
 " as surviving partner of B," it was held, that as the assignees under it 
 were entitled to possess the joint estate, and to administer it as joint 
 estate, and as a separate creditor could not have maintained such a com- 
 mission, the commission was joint, and consequently that the creditor 
 could claim only against the joint estate. Ex parte Earned, 1 Glyn & 
 James. 309. 
 
 {v) Ex parte De Tastet, 17 Ves. 247. S. C. 1 Rose, 10. The pe- 
 titioning creditor under a commissisn against two or more partners of 
 a firm is not entitled to receive a dividend out of the separate estates 
 rateably with the separate creditors. 6 Geo. 4. c. 16. s. 62. 
 
 {w) Ex parte Baudier, 1 Atk. 98. Ex parte Voguel, 1 Atk. 132. 
 Ex parte Oldknow, Co. B. L. 245. Ex parte Cobham, ib. 246. See 
 also Button v. Morrison, 17 Ves. 207. Ex parte Farlow, 1 Rose, 422.
 
 DISSOLUTION BY BANKRUPTCY. 312 
 
 in several instances,(^) allowed the joint creditors to 
 prove and take dividends under a separate commission ; 
 his lordship holding that a commission of bankruptcy 
 was an execution tor all the creditors, and as the as- 
 signees under a separate commission might possess 
 themselves, not only of the separate estate, but of the 
 bankrupt's proportion of the joint estate, and as a joint 
 creditor having brought an action and recovered judg- 
 ment against all his debtors might have several execu- 
 tions against each, therefore the bankruptcy preventing 
 his action with effect, should be considered a judgment for 
 him as well as the others, and consequently that no dis- 
 tinction ought to be made between joint or separate debts, 
 but that they ought all to be paid rateably out of the bank- 
 rupt's property, which was composed of his separate es- 
 tate, and his moiety or other proportion of the 
 joint estate.(«/) *Lord Rosslyn acted for some [*313] 
 time upon the practice established by Lord Thiir- 
 low, but afterwards with some alteration ; and upon great 
 consideration, he restored the principle of the rule which 
 had been adopted by Lord Hardwicke. Li the case of Ex 
 parte Elton^{z) Lord Rosslyn says, " The plain rule of dis- 
 tribution is, that each estate shall bear its own debts. 
 The equity is so plain that it is of course upon a bill 
 filed. The object of a commission is to distribute the 
 effects with the least expense. Every order I make to 
 prove a joint debt upon the separate estate, must produce 
 a bill in equity. It is not fundamentally a just distri- 
 bution, nor a convenient distibution ; because it tends to 
 more litigation and more expense. Every creditor of 
 the partnership would come upon the separate estate. 
 The consequence would be, the assignees of the separate 
 estate must file a bill to restrain the dividend upon all 
 these proofs, and make the partners parties. But there is 
 another circumstance ; it is a contrivance to throw this 
 upon the separate estate ; for what hinders them from 
 
 (x) Ex p^rte Haydon, Co. B. L. 246. S. C. Bro. C. C. 453. Ex 
 parte Copland, Co. B. L. 248. S. C. 1 Cox, 420. Ex parte Hodg- 
 son, 2 Bro. C. C. 5. Ex parte Page, ib. 119. Ex parte Flintura, ib. 
 120. 
 
 (y) See Button v. Morrison, 17 Ves. 207. (z) 3 Ves. 242.
 
 313 THE CONSEQUENCES OP A 
 
 recovering at law this debt against the partnership, for 
 it is money paid to one of the partners ? They have 
 nothing to do but to bring an action against the partners. 
 The affairs of the partnership may be very much in- 
 volved ; but if they are arrested, they would pay it. It 
 is not stated as a case where there are no joint effects. 
 Here it is only that there are two funds. Their proper 
 fund is the joint estate, and they must get as much as 
 they can from that first. I have no difficulty in ordering 
 them to be admitted to prove, but not to receive a divi- 
 dend. "(1) This rule was afterwards acted upon by Lord 
 Rosslyn^(ci) and was adopted and followed by Lord Eldon 
 in many subsequent cases, not because he was convinced 
 of its propriety, or of its being better calculated to the 
 due administration of justice than the doctrine intro- 
 duced by Lord Thiirlow, but he adhered to it, because it 
 was the practice, and to avoid the mischief arising from 
 shaking settled rules. (6) According to the rule, there- 
 fore, which these decisions have established, if there is a 
 joint fund, or a solvent partner, a joint creditor is not 
 entitled to prove his debt under a separate commission 
 for the purpose of receiving a dividend, without 
 [*314] the Lord Chancellor's order.(c) *And notwith- 
 standing the joint property is of the most trivial 
 amount, yet if there is such a fund, of any, even the 
 smallest description, and it is capable of being realised, 
 the rule is inflexible, and there will be no departure from 
 it.(c?) Lord Eldon, indeed admitted this qualification of 
 the rule, that " if the property alleged to exist be of such 
 a nature, and in such a situation, that any attempt to 
 bring it within the reach of the joint creditors must be 
 deemed a desperate, or, in point of expense, an unwar- 
 
 (a) i:x parte Abell, 4 A^'es. 837. 
 
 (6) Ex parte Clay, 6 Ves. 813, and the case cited ib. in note. Ex 
 parte Kensington, 14 Ves. 447. Ex parte Taitt, 16 Ves. 193. 
 
 (c) Mont. B. L. 230. 
 
 (d) Ex parte Peake, 2 Rose, 54. See also In re Lee, ib. in note. 
 
 (1) See Tuckers v. Oxley, 5 Cranch. 34. Murray v. Murray, 5 
 Johns. Cha. Rep. 74.
 
 DISSOLUTION BY BANKRUPTCY. 314 
 
 rantable attempt, that would authorise a departure from 
 the rule ; as in truth there would then be no joint pro- 
 perty."(e) And joint estate has been said to mean such 
 estate only as comes under the administration of the 
 assignees to distribute, and not to extend to joint estate 
 pledged for more than its value. (/") Therefore, a cre- 
 ditor having joint property of the bankrupts in pledge, 
 and selling the same after the bankruptcy for a sum less 
 than iiis debt, may, notwithstanding, prove for the dif- 
 ference against the separate estates of the bankrupts, if 
 there is no other joint property.(^) But, until a sale 
 takes place, the creditor will not be permitted to prove, 
 because the amount of the debt remaining due, cannot 
 be ascertained. (A) And if several firms are engaged in a 
 joint adventure, and there is no joint property, the cre- 
 ditors of the adventure, in the event of bankruptcy, must 
 prove against the estates of the individuals, and not of the 
 firm.(z) So, although there is not any joint fund, yet if 
 there is a solvent partner, a joint creditor will not be per- 
 mitted to prove and receive a dividend under a separate 
 commission. (Q And by the term solvent partner is 
 understood a partner against whom no commission of 
 bankruptcy has issued ;(/) for, it was recently observ- 
 ed,(m) a person may be insolvent, and yet 
 be able to pay a considerable *part of his [*315] 
 debts; and as a creditor, by using due dili- 
 gence against such a debtor, might obtain payment, it 
 follows that insolvency must, for this purpose, be distin- 
 
 (e) Ex parte Peake, 2 Rose, 54. See also In re Lee ib. in note. 
 
 (f) Ex parte Hill, 2 N. R. 191. n. 
 
 (g) Ex parte Geller, 2 Madd. 262. 
 
 {h) Ex parte Hoplcy, 1 Jac. & Walk, 423. S. C. 2 Jac. & Walk. 
 220 ; and 1 Glyn &, James. 63. Ex parte Smith, 2 Rose, 64. Ex 
 parte Greenwood, Buck, 323. Ex parte Barclay, 1 Glyn & James. 
 272. A pending execution, in respect of a joint debt, will not effect a 
 creditor's rijrht to prove a distinct separate debt, under a separate com- 
 mission. Ex parte Stanborough, 5 Madd. 89. 
 
 (i) Ex parte Wylie, 2 Rose, 393 ; but see Ex parte Nolle, 2 Gl. & 
 Jam. 295, in which the authority of Ex parte Wylie is denied. 
 
 (A) Ex parte Kensington, 14 Ves. 447. Ex parte Kendall, ib. 449. 
 Ex parte Sadler, 15 Ves. 52. 
 
 (/) Everett v. Backhouse, 10 Ves. 100. 
 
 (m) Ex parte Janson, 3 Madd. 229. S. C. Buck, 227.
 
 315 THE CONSEqUENCES OP A 
 
 guishable from bankruptcy; for in the latter case the 
 whole of the property is absorbed by the commission, 
 and there cannot possibly be any prospect of a success- 
 ful result attending the legal vigilance of the creditor. 
 The principle is, that whilst there is any fund, however 
 small, to which to resort, or whilst a chance exists of 
 obtaining payment from any of the debtors, who have 
 not been declared bankrupts, the joint creditors cannot 
 prove against the separate estate of one of the partners, 
 in competition with his separate creditors. Where, in- 
 deed, no joint property existed, but there was a solvent 
 partner abroad, who was not likely to return, Lord Eldon 
 ordered proof of a joint debt under a separate commis- 
 sion, but he directed the order to recite that it was ad- 
 mitted there was not any joint fund.(7i) And where the 
 partner was insolvent at the time the proof was ten- 
 dered, his lordship held that it could not be rejected, 
 because the partner continued solvent for some time 
 after the commission issued.(o) Joint creditors will also 
 be permitted to prove under a separate commission, even 
 where there is a subsisting joint estate or a solvent part- 
 ner if they will discharge the demands which the separate 
 creditors have upon the separate estate.(jL>) But it 
 should seem that upon an application for this purpose, a 
 mere offer to pay the separate debts would not be suffi- 
 cient without some proof before the court as to their 
 amount.(^) We have hitherto considered the subject 
 principally with a view to the proof for taking a divi- 
 dend. But long before the time of Lord Rosslyn, it had 
 been the custom to allow creditors having no right to 
 take dividends, to prove either against the joint or the 
 separate estate respectively, for the purpose of voting in 
 the choice of assignees, or of assenting to or dissenting 
 from the certificate. (r) And in the same manner, where 
 partnership property was supposed to have been taken 
 under the separate commission, joint creditors were 
 
 (n) Ex parte Pinkerton, 6 Ves. 814. n. 14 Ves. 449. See alsOjEaJ 
 parte Machell, 2 Ves. & Bea. 216. S. C. 1 Rose, 447. 
 (o) Ex parte Jones, 1 Mont. B. L. 238. 
 
 (p) Ex parte Chandler, 9 Ves. 35. Ex parte Hubbard, 13 Ves. 424. 
 (q) Ex parte Taitt, 16 Ves. 195. (r) Eden's B. L. 164.
 
 DISSOLUTION BY BANKRUPTCY. 315 
 
 allowed to come in ; and in two modern instances they 
 were permitted to vote in the choice of as- 
 signees.(5) The new act,(/) however, has *given [ *316] 
 a more extensive right to joint creditors under 
 separate commissions, as it entitles them to prove for 
 the purpose of voting in the choice of assignees, and of 
 assenting to or dissenting from the certificate ; but they 
 are not to receive dividends to the prejudice of the sepa- 
 rate creditors, except a joint creditor being a petitioning 
 creditor in a commission against one member of a firm. 
 It has been held that a creditor who proceeds to out- 
 lawry against two of three partners cannot prove his 
 debt against the separate estate of the third partner, 
 although the latter gave a separate cognovit in the 
 action in which his copartners were outlawed.(?^) 
 
 If joint creditors, under an order to prove against 
 separate estates, on the ground of there being no joint 
 property, prove against one or more of them exclusively 
 of the rest, and any joint property is afterwards realized, 
 the estates so burdened by the proof are entitled to be 
 reimbursed out of the joint property to the extent of the 
 proofs made against them, before the joint property is 
 divisible between the separate estates.(i;) And where 
 both the joint and separate estates were liable to a debt 
 to the crown, and by process more had been levied upon 
 the joint estate than its proportion, contribution was de- 
 creed between the two estates, and it was referred to the 
 Master to settle the proportion.(?^') 
 
 We will now proceed to examine in what cases the 
 joint creditors are permitted to prove a debt due from a 
 single partner to the partnership against the separate estate 
 of that partner, and afterwards we will advert to the 
 right which an individual partner possesses to satisfaction 
 of a debt due to the partnership out of the surplus of the 
 joint estate, in preference to the separate creditors of the 
 indebted partner. Where one partner has taken more 
 
 (s) Ex parte Jones, 18 Ves. 283. Ex parte Taylor, ib. 284. 
 
 (t) 6 Geo. 4. c. 16. s, 62. 
 
 (m) Ex parte Dunlop, Buck, 253. 
 
 (v) Ex parte Willock, 2 Rose, 392. 
 
 (w) Rogers v. Mackenzie, 4 Ves. 752.
 
 316 THE CONSEQUENCES OF A 
 
 than his share out of the joint fund, the joint creditors, 
 as the rule is now estabhshed, cannot be admitted to 
 prove against the separate estate of that partner, until 
 his separate creditors are satisfied; unless it can be 
 shown that, in drawing out the money, the partner 
 acted fraudulently, with a view to benefit his separate, 
 at the expense of the joint creditors. The law, sanc- 
 tioned by the authorities of Lord Talbot, (x) 
 [*317] and Lord Hurdivickc,{y) formerly *was, that 
 if the debt raised by the partners against an 
 individual partner arose out of contract, as upon a 
 loan by the partnership to him, the joint creditors 
 might be admitted to prove against the separate es- 
 tate in competition with the separate creditors. But 
 the opinions entertained by those learned judges have 
 been receded from in more modern times; and the 
 settled doctrine now is, that if the claim arise out 
 of contract, the estates are to be administered jointly 
 and separately, as they are actually constituted at the 
 time of the bankruptcy, the joint creditors not being per- 
 mitted to recall into the joint fund what one partner has 
 by contract, express or implied, subtracted from the joint 
 and applied in augmentation of his separate estate.(^) 
 This rule was introduced by Lord Thurlow, who, having 
 much considered the question, finally determined that the 
 assignees on behalf of the joint, could not prove against 
 the separate estate, unless the partner had taken the 
 joint property with a fraudulent intent, to augment, his 
 separate estate. Thus, where Fcndall was a dormant 
 partner with Lodge, and Lodge took money from the 
 partnership, to a considerable amount, without the know- 
 ledge of Pcndcdl, who did not intermeddle in the part- 
 nership business. Lord Thurlow, after taking time to 
 consider, thought he could not permit the assignees, 
 under a joint commission, to prove against the separate 
 estate of Lodge, without deciding upon a principle that 
 must apply to all cases, and constantly occasion the tak- 
 
 {x) Ex parte Blake, Co. B. L. 503. S. C. nom. Ex parte Drake, 
 cited 1 Atk. 225. 
 
 (V) Ex parte Hunter, 1 Atk. 223. S. C. Co, B. L. 500. 
 {z) Ex parte Yonge, 3 Ves. & Bea. 34. S. C. 2 Rose, 44.
 
 DISSOLUTION BY BANKRUPTCY. 317 
 
 ing an account between the partners and the partnership 
 in every joint bankruptcy. He said, that if the affidavits 
 had gone the length of connecting the bankruptcy with 
 the institution of the partnership trade, and that Lodge., 
 with a view of swindling Fendall out of his property, had 
 got him into the trade, and then taken the effects of the 
 partnership into his own hands, with a view to his separate 
 creditors, it might have been different ; and the petition, 
 on the part of the joint creditors, to prove against the 
 separate estate, was dismissed.(a) The principle estab- 
 lished by Lord Timrlow's decisions has been acknow- 
 ledged and followed by Lord Eldon ;(6) and it is now an 
 indisputable rule in bankruptcy, that where the debt 
 from one partner to the partnership was incurred 
 with the privity of his copartners, *proof by the [ *318 ] 
 joint against the separate estate will not be ad- 
 mitted! Thus, if upon the formation of a partnership of 
 two persons, it is agreed that the money shall be paid 
 into the bankers in their joint names, and such payment 
 is not made in their joint names, but one of the partners 
 permits the money to be paid in in the name of the other 
 partner, by whom, and in whose name, all the drafts are 
 drawn, the court will infer that ruch partner was per- 
 mitted to apply the partnership funds to his own use.(c) 
 And where one partner, intrusted with the entire man- 
 agement of the partnership concern, withdraws money 
 for his separate use, which he openly and without dis- 
 guise or concealment enters in the partnership books, 
 this is not such a fraud as will entitle the joint creditors 
 to prove against the separte estate.(c?) Where, how- 
 ever, the debt does not arise out of contract, but out of 
 a fraudulent breach of the obligations existing between 
 the partners, a case of exception is formed to the general 
 rule, and under such circumstances it has been decided 
 and understood from Fordyce's case(c) down to the pre- 
 
 (tt) Ex parte Lodge, Co. B. L. 505. S. C. 1 Ves. jun. 166. See 
 also 9. Ves. &l Bea. 213. Ex parte Batson, Co. B. L. 503. Ex 
 parte Grill, ibid. 
 
 ib) Ex parte Harris, 1 Rose, 129. 437. S. C. 2 Ves. &i Bea. 210. 
 
 \c) Id ibid. 
 
 (rf) Ex parte Smith, 1 Glyn &; James. 74. S. C. 6 Madd. 2. 
 
 {e) Ex parte Cuit, Co. B. L. 500. 
 
 53
 
 318 THE CONSEQUENCES OF A 
 
 sent time, that the funds subtracted shall be considered 
 as detached from the general partnership balance, and 
 as forming a distinct debt due from one estate to the 
 other. In such cases the court has said, it is against 
 conscience that the separate creditors should resist the 
 restoration of that which the separate debtor, from whom 
 the joint creditors seek payment, has so unrighteously, 
 against the consent of his partners, and in fraud of their 
 contract, taken out of the joint fund. And to constitute 
 a fraudulent subtraction within the meaning of this ex- 
 ception, any taking in violation of express or implied 
 contract is presumptively sufficient. This was clearly 
 and emphatically advanced by Lord Eldon on a recent 
 occasion,(/) when he thus expressed himself: " I now 
 lay down, that if, in either the expressed or imphed terms 
 of an agreement for a partnership, there is a prohibition 
 of the act, and it is done without the knowledge, con- 
 sent, privity, or subsequent approbation of the other 
 partner, before the bankruptcy; and to the intent to 
 apply partnership funds to private purposes, that is, 
 prima facie a fraud upon the partnership. To illustrate 
 this, I will put the simple case of a partnership between 
 two; and, by the articles, all the money is 
 [ *319 ] *to be paid in to their joint names at a particu- 
 lar bank, and they are prohibited from drawing 
 out more than 50/. a month each for individual pur- 
 poses; that during the month of January they mutually 
 observed those articles by paying in, and on the first of 
 February, one, instead of 50/. draws out 550/., and upon 
 the next day a bankruptcy happens ; if it is made out 
 that this overdrawing was for private purposes, and 
 without the knowledge, consent, privity, or subsequent 
 approbation of the other, as it was for private purposes, 
 and therefore must be for the increase of the individual's 
 estate; and as it was against the covenanted rights, or 
 rather the prohibitions, affecting both, and without the 
 knowledge, consent, privity, or subsequent approbation 
 of the copartner, it is as much a fraud within Lord 
 Thurlow^s rule, as if, according to the expression I am 
 
 (/) Ex parte Harris, 2 Ves. & Bea. 214.
 
 DISSOLUTION BT BANKRUPTCY. 319 
 
 informed I formerly used, he had stolen the property." 
 In the foregoing case, his lordship directed the commis- 
 sioners to inquire whether the money was applied by the 
 single partner to his separate use, without the know- 
 ledge, privity, or approbation of his copartner, and if so, 
 he declared that the joint creditors were entitled to prove 
 against the separate estate.(^) And in a late case, 
 where by the course of bankers, business stock was in- 
 vested for capital in the name of one of the partners, 
 who appropriated part thereof without the privity of the 
 others, and afterwards retained it, but was by the firm 
 charged with the dividends on it, and the transaction 
 treated as a sale and appropriation to his separate use, 
 it was held, that it was not an acquiescence, amounting 
 to subsequent approbation, and that the joint estate was 
 entitled to prove for such sum against the separate 
 estate of that partner.(A) In another case of a fraudu- 
 lent subtraction of partnership property by one partner 
 who became bankrupt, the two others remaining solvent, 
 and having paid the debts of the partnership, a question 
 arose whether the solvency of the two prevented them 
 from having that benefit against the separate estate 
 w^hich the creditors of the partnership would have had if 
 all three had become bankrupt. It was contended that 
 they could not, as they would be entering into competi- 
 tion with their own creditors ; that the two could not be 
 represented as creditors of the bankrupt partner in this 
 transaction, as in fact the three were so. But it was 
 said by the court, that equity would modify the transac- 
 tion, and put it in such circumstances that the 
 *equitable remedy of the two solvent partners [ *320 ] 
 should not be defeated by the fact that they 
 might not have a legal remedy. That in bankruptcy 
 there is both a legal and an equitable jurisdiction, and 
 previously to the bankruptcy the solvent partners ni'ght 
 have filed a bill to compel the other to replace the money 
 so fraudulently obtained : that right could not be taken 
 from them by the bankruptcy, and the fact that the sepa- 
 
 {g) S. C. 1 Rose, 129. 
 
 [h) Ex parte Watkins, 1 Mont. & M. 57.
 
 320 THE CONSEqUENCES OF A 
 
 rate creditors have a right to the separate estate; as 
 though in law the two solvent partners could not strictly 
 be the creditors of the one, and though if all were sol- 
 vent the two could not maintain an action against one 
 of them, yet in equity the money so abstracted by that 
 one is the debt of the two, to be applied by them as 
 trustees of the three : and the bankruptcy could not alter 
 that.(i) So, in the instance which has been before ad- 
 verted to, of the acting partner withdrawing part of the 
 joint funds for his separate use, if, instead of avowing the 
 fact at the time, he, by the entries in the books, disguis- 
 ed tl\e transaction, or wholly omitted and concealed it, 
 the joint creditors would have a claim upon the separate 
 estate in competition with the separate creditors, to the 
 extent of the sum withdrawn.(^) In general, however, 
 cases of this kind must be decided upon their particular 
 circumstances, and the conclusion of law, as to fraud, 
 must depend upon the nature of those circumstances. 
 But it may be observed, that the conduct of the parties 
 in a partnership may supercede the stipulations of the 
 articles, and raise a presumption of assent to a different 
 agreement, and an approbation of a different mode of 
 dealing with the partnership funds, from their knowledge 
 of, and acquiescence in it. Therefore, where the arti- 
 cles of partnership provided that the partners should not 
 draw out for their own individual use more than a cer- 
 tain sum every month, and that the money belonging to 
 the concern should be lodged in the hands of a banker 
 in their joint names, but after the formation of the part- 
 nership, the uniform practice had been for one partner 
 to lodge the money of the concern with his own private 
 money in the hands of a banker in his own name, and 
 he had also been in the habit of paying and drawing out 
 money as he saw occasion, and it appeared that the 
 other partner was aware of this departure from the arti- 
 cles, for he not only kept the books, but the amount of 
 
 the sums received and laid out by his copartner 
 [ *321 ] were regularly communicated to him, *Lord 
 
 Eldon, on a petition being presented by the as- 
 
 (i) Ex parte Yonce, 3 Ves. & Bea. 31.- S. C. 2 Rose, 40. 
 {h) Ex parte Smith, 1 Glyn & James. 74. S. C. 6 Madd. 2.
 
 DISSOLUTION BY BANKRUPTCY. 321 
 
 signees under a joint commission for liberty to prove 
 against the separate estate of the one partner a sum of 
 money, as having been applied by him to his own pri- 
 vate use in violation of the partnership articles, held that 
 such proof could not be admitted, because the one part- 
 ner having knowingly acquiesced in what necessarily 
 gave to the other the whole controul over the joint funds, 
 he must abide by the consequences of his own conduct, 
 notwithstanding the perversion was in defiance of the 
 original partnership contract.(/) 
 
 When the claims upon the partners and the joint funds 
 are fully satisfied, (for as between a joint debtor and a 
 joint creditor there cannot in any case be a competi- 
 tion,) (m) one partner may successfully assert a right to 
 satisfaction of a debt due to the partnership from his co- 
 partner out of the surplus of the joint estate, in prefer- 
 ence to the separate creditors of the latter ; and if that 
 fund should prove insufficient to discharge the demand, 
 he may likewise insist on coming upon the separate es- 
 tate pari passu with the separate creditors.(7i) Under 
 what circumstances such a right of retainer and such 
 proof is allowed we will now inquire. The principle 
 upon which the right of the solvent partner to the surplus 
 of the joint estate, in exclusion of the separate creditors 
 of his bankrupt partner, proceeds, we have already had 
 frequent occasion to notice, and it is this, — that after 
 payment of the partnership debts, the first object of a 
 court of equity is, to place the partners themselves upon 
 a footing of equality, by reimbursing one partner what- 
 ever he may have advanced beyond his proportion, or by 
 making him refund the excess of his share which he may 
 have subtracted.(o) The rights of the partners inter se 
 are secondary and subservient only to those of the joint 
 creditors, and although the assignees of a bankrupt part- 
 
 (/) Ex parte Harris, 1 Rose. 437. S. C. 2 Ves. & Bea. 210. 
 
 (m) Ex parte Kendal, 17 Ves. 521. Ex parte Adams, 1 Rose, 30.5. 
 
 in) Ex parte Terrell, Buck, 345. Fereday v. Wightwick, 1 Tom- 
 lyn's Rep. 250. Ex parte Reeve, 9 Ves. 589. 
 
 (o) Taylor v. Fields, 4 Ves. 396. S. C. 15 Ves. 559. n. Croft v. 
 Pyke, 3 P. Wms. 183. West v. Skip, 1 Ves. jun. 239. S. C. 2 
 Swanst. 586. Button v. Morrison, 17 Ves. 209. Ex parte King, ib. 
 115. In re Wait, 1 Jac. & Walk. 609.
 
 321 THE CONSEQUENCES OF A 
 
 ner have a lien upon his surplus share in the joint estate, 
 yet that cannot be ascertained until the claims upon the 
 joint fund, both by creditors and by the partnership, are 
 
 discharged. There may not be any demands 
 [ *322 ] from third persons, *but yet if one partner has 
 
 a claim upon the other, the latter cannot take 
 any thing until the claim of the former is satisfied. In 
 fact the actual interest of the insolvent partner may be 
 great, it may be little, or it may be nothing at all.(jo) 
 Where, therefore, there is a surplus of joint estate, the 
 interest of a bankrupt partner in it is not available to his 
 separate creditors until any subsisting demand of his co- 
 partner against it is discharged. This principle, which 
 is founded in equity and justice, was established in an 
 early case.(^) There Richardso?is, senior and junior, and 
 Gonson were partners, and Gonson embezzled and wast- 
 ed the joint stock, and contracting private debts became 
 a bankrupt. The court seemed to think that out of the 
 produce of the goods the debts owing by the joint trade 
 ought to be paid in the first place, and that out of Gon- 
 soii's share satisfaction must be made for what Gonson 
 had wasted or embezzled, and that the assignees could be 
 in no better condition than the bankrupt himself, and were 
 entitled only to take what his third part would produce af- 
 ter debts paid and deductions for his embezzlement. This 
 rule has been confirmed by a decree made by Lord Talbot 
 in a case in which a bill was filed by Gos and Neaulme 
 Gi'omvegan against the assignees of Prevost, setting forth 
 that Goss, Gromvcgan, and Prevost, became partners ; 
 that Prevost was intrusted with the goods in the shop and 
 warehouse, but embezzled the co-partnership stock, and 
 applied the same to his own use, and suffered the part- 
 nership debts to be unpaid, and having contracted pri- 
 
 (/)) In re Wait, ante. 
 
 (q) Richardson v. Gooding, 2 Vern. 293. It seems that a general 
 loan of money by one partner to another, which has no relation to and 
 is not applied to the partnership trade, does not give to the lender a 
 specific lien upon the share of the borrower, so as to entitle him to be 
 preferred to separate creditors, either in the case of a bankruptcy or 
 after the death of a partner, where his effects have become subject to 
 the rule of distributing assets. 8ee the judgments of Lord Chief Jus* 
 tice Lee and Lord Hardwicke in Ryal v. Rowlcs, 1 Atk. 181. 184.
 
 DISSOLUTION BY BANKRUPTCY. 322 
 
 vate debts on his own account, became a bankrupt, and 
 a separate commission was taken out against him. A 
 question being raised whether Frevosfs share of the part- 
 nership stock ought not to be appUed in the first place to 
 pay what he was indebted to the partnership, Lord 7a/- 
 bot ordered an account of what Prevost had embezzled of 
 the co-partnership estate, and that the partnership debts 
 should, in the first place, be paid as far as the co-partner- 
 ship estate would extend ; and that if any of the partner- 
 ship estate remained after the joint debts were 
 paid, then the same to be *divided, and the part- [ *323 ] 
 nership to be paid out of Prevost'' s share what he 
 had embezzled.(r) And it has been settled by subse-' 
 quent adjudications, that if the surplus is not sufficient to 
 pay the solvent partner all that is due upon his debt, he 
 is entitled to come in with the separate creditors of the 
 other partner upon his separate estate.(s) A retired 
 partner, who had permitted his name to be continued, has 
 been held not entitled to prove, until a discharge by in- 
 demnity or otherwise from the joint creditors was pro- 
 duced.(^) 
 
 Where one partner remains solvent^ and is a creditor of 
 his bankrupt co-partner, there is no doubt but that proof 
 of his debt may be admitted under a separate commission 
 against the latter ;(ii) although, if there be any outstand- 
 ing joint debts, they must either be discharged,(?;) or the 
 
 (r) Goss V. Dufresnoy, Davies, 371. 2 Eq. Abr. 110. See also 
 Hankey v. Garret, 1 Ves. jun. 236. S. C. 3 Bro. C. C. 457. 
 
 (s) Ex -parte King, 17 Ves. 115. Ex parte Terrell, Buck, 345. 
 
 {t) Ex parte Ellis, 2 Glyn & James. 312. 
 
 («) Ex parte Drake, cited 1 Atk. 225. Craven v. Knight, 2 Ch. 
 Rep. 226. There is a case which militates against this rule, in which 
 it seems to have been decided that such proof could not be admitted. 
 It was an application by a person who stated that he had been fraudu- 
 lently induced to engage in a partnership, and to pay a premium of 
 1000/., upon admission as a member of the firm, to prove such lOOOZ. 
 upon the bankruptcy of the person with whom he had been so fraudu- 
 lently induced to join in partnership ; and Lord Eldon, after observing 
 that, although the petitioner might have an equity to be considered as 
 never having been a partner, yet that it was extremely difficult to say as 
 to third persons he was not a partner, ordered that the petitioner be at 
 liberty to enter a claim, but not to prove with the separate creditors. 
 Ex parte Broome, 1 Rose, 69. 
 
 [v) Ex parte Taylor, 2 Rose, 175.
 
 323 THE CONSEQUENCES OF A 
 
 joint estate must be indemnified before such proof will 
 be admitted, since the proof of a partner will not be al- 
 lowed to come in conflict with that of the joint credit- 
 ors.(w) And formerly, where the claim of an individual 
 partner originated in his having discharged joint debts, it 
 w^as essential, in order to entitle him to prove against the 
 separate estate of his bankrupt partner for his propor- 
 tion, that the debts should have been discharged, and the 
 claim should have arisen antecedently to the bankruptcy. 
 For if the right of calling upon the bankrupt partner for 
 contribution did not accrue until after he became bank- 
 rupt, the only redress the solvent partner had was by 
 action at law or by bill in equity.(x) The rule, how- 
 eyer, in that respect, is now inverted, and by Sir 
 [*324] Samuel Romilly''s *Act,(y) the debt, if paid sub- 
 sequently to the bankruptcy, cannot be made the 
 foundation of an action, but must be proved under the 
 commission. Thus, where upon a dissolution of partner- 
 ship between three partners, two of the three assigned to 
 the other all their share in the partnership debts- and ef- 
 fects, and the other covenanted to pay all debts due from 
 the partnership, and to indemnify the two from the pay- 
 ment of the same, and from all actions and costs by rea- 
 son of the nonpayment of the same, and afterwards be- 
 came bankrupt, when the two were obliged to pay ; upon 
 the question, whether they could have proved under his 
 commission. Lord Ellenhorough observed, that though 
 they were liable at law as co-debtors with the bankrupt, 
 for his and their own debt, yet in equity he was solely 
 liable, and they were sureties ; for by the covenant he 
 became, as between the parties to the covenant, the prin- 
 cipal debtor; the debt was his debt, although as to other 
 parties the solvent partners still remain liable, and there- 
 fore when they paid the debt, they paid in his discharge, 
 and the court accordingly held their claim discharged by 
 the certificate.(r) And in a more recent case it was de- 
 
 (w) Ex parte Ogilby, 3 Ves. & Bea. 133. S. C. 2 Rose, 177. 
 (x) Wright V. Hunter, 1 East, 20. S, C. 5 Ves. 792. 
 (y) 49 Geo. 3. c. 121. s. 8, repealed and re-enacted by the 6 Geo. 
 4. c. 16. s. 52. 
 
 (z) Wood V. Dodgson, 2 Man. & Selw. 195.
 
 DISSOLUTION BY BANKRUPTCY. 324 
 
 cided, that where on the dissolution of a partnership the 
 continuing partners covenant to pay all the joint debts, 
 on the bankruptcy of such partners, the outgoing part- 
 ner may prove the amount of debts which he has been 
 compelled to pay since the dissolution.(a) So where 
 upon the retirement of one partner, the continuing part- 
 ners taking the concern in its actual state, undertook by 
 deed to indemnify the former, it being then, as to part- 
 nership effects, insolvent ; and upon the death of one, 
 and the bankruptcy of the other continuing partner, the 
 retiring one had been called upon to pay ; it was held, 
 that the permitting the one to retire without taking from 
 him the proportion of the deficiency, did not necessa- 
 rily make the deed fraudulent as against the remaining 
 partners, and that the former was therefore entitled to 
 prove under the commission.(Z») And where a dissolu- 
 tion of the partnership has taken place previously to the 
 bankruptcy of some of the partners, and those part- 
 ners, on closing the transactions of the partnership, 
 have been found indebted to the others, proof of the 
 debt will be admitted under the commission: 
 *and if the bankrupts have covenanted by the [ *325 ] 
 deed of dissolution to pay the debt, it will be no 
 objection to the proof of the solvent partners that they 
 subsequently bargained by parol for a mode of payment 
 which infected the debt with usury, for such an agree- 
 ment amounts only to an accord, which cannot be con- 
 sidered a performance or satisfliction of a specialty; and 
 it is settled that where a bona fide debt is due, the right 
 to claim it is not invalidated by a subsequent usurious 
 agreement.(c) Thus, in a late case, it appeared that A, 
 B, and C carried on the business of bankers in copart- 
 nership ; A advanced large sums of money to the con- 
 cern, which he raised by selling out stock, and he took 
 separate bonds for 18,000/. from B, and C conditioned 
 for replacing of 9000/. three per cent, consols by each, 
 being their respective proportions of the stock sold by 
 
 (a) Parker v. Ramsbottom, 3 B. & C. 257. S. C. 5 D. & R. 138. 
 (6) Ex parte Carpenter, 1 Mont. & M. 1. 
 
 (c) Com. Dig. Usury, (B.) Pollard v. Scholey, Cro. Eliz. 20. Fer- 
 rall V. Shaon, 1 Saund.'294. Gray v. Fowler, 1 H. Bl. 462. 
 
 54
 
 325 THE CONSEQUENCES OF A 
 
 A. The stock not being replaced, A brought actions 
 and recovered judgments on the bonds. A afterwards 
 retired from the concern, and at that time 20,000/. three 
 per cent, consols was due to him ; by the deed of dis- 
 solution B and C covenanted to replace it by four instal- 
 ments, and that if they failed to do so, A might resort to 
 the judgments recovered on the bonds; and further, that 
 he should have a lien on certain specified securities for 
 that debt. One instalment was replaced when due, but 
 B and C having failed to replace the second, a new ar- 
 rangement (not under seal) was entered into, whereby it 
 was agreed that the transaction should be considered as 
 a loan of money from the first, and that the sum pro- 
 duced by the sale of the 15,000/. three per cent, consols 
 which remaineded due, which was 10,083/. should be the 
 debt, and be repaid at a future day with five per cent, 
 interest. The value of 15,000/. three per cent, consols 
 at the date of this last agreement was 8437/. Before 
 any part of the 10,083/. was paid, B and C became 
 bankrupts, and at the issuing of the commission, two out 
 of the three remaining days fixed by the deed of disso- 
 lution for the retransfer of stock had passed. It was 
 held that the second agreement was void for usury, but 
 that the deed of dissolution remained binding, and that 
 A might prove under the commission against B and C 
 for the 15,000/. three per cent, consols ; the value of the 
 two instalments due before the bankruptcy to be ascer- 
 tained by the price of consols on the days when those 
 
 sums respectively became due ; the value of the 
 [ *326 ] third *to be taken at the price of consols on the 
 
 day when the commission issued, with a rebate 
 for the interval between that day and the day fixed for 
 the retransfer of that instalment; and further that A 
 still had the lien given by the deed.(£?) The right of 
 solvent partners who have paid all the joint debts to 
 prove against the separate estate, is also sustainable on 
 the ground that they are in the nature of sureties or per- 
 sons liable, and accordingly entitled to prove under the 
 provisions of Sir Samuel Romilly's Act; a right which 
 
 (rf) Parker v. Ramsbottora, 3 B. & C. 257. S. C. 5 D. & R. 138.
 
 DISSOLUTION BY BANKRUPTCY. 326 
 
 has been expressly recognised in several cases, wherever 
 it does not affect creditors claiming in competition with 
 them. Thus, where the acting partner of a firm had 
 made an unauthorised use of the partnership name, by- 
 creating liabilities, the produce of which he had applied 
 to his separate use, and became bankrupt ; the solvent 
 partners having, after the bankruptcy, satisfied the lia- 
 bilities out of their own funds, and paid all the partner- 
 ship debts, were held entitled to prove the whole amount 
 so charged by the bankrupt upon the partnership funds 
 against his separate estate ; and Lord Eldon said " that 
 if it were necessary to seek any support to the moral 
 justice of the case, the 49 Geo. 3. c. 121. s. 8. would 
 supply it; and he considered that the solvent partners 
 were entitled to prove under the description in the act of 
 persons liable.^\e) So, a solvent partner has been held 
 entitled to prove against the estate of a bankrupt co- 
 partner the amount of the balance due to him upon the 
 partnership account, first satisfying the partnership debts, 
 or indemnifying the bankrupt's estate against them.(/) 
 And in another case under a joint commission, the sepa- 
 rate estate of one was determined to have a lien on the 
 other's share of a surplus of the joint estate, in respect 
 of a debt proved upon bills drawn by the one in the 
 name of the firm for a separate debt; and that the 
 joint creditors might come in with separate creditors 
 for the deficiency.(g) So in a recent case, where under 
 a separate commission accounts of the joint and sepa- 
 rate estates had been kept, and there was a surplus of 
 the former, the bankrupt being indebted upon taking 
 the partnership accounts, it was holden that the sol- 
 vent partners were entitled to the surplus, and if it 
 were insufficient, they were to be at liberty 
 *to prove against the separate estate for the dif- [ *327 ] 
 ference.(^) But it seems that proof will not 
 now be admitted by a solvent partner against the sepa- 
 
 (e) Ex parte Yonge, 3 Ves. & Bea. 31. S. C. 2 Rose, 40. See 
 also Ex parte Ogilby, 3 Ves. & Bea. 133. S. C. 2 Rose, 177. 
 
 (f) Ex parte Taylor, 2 Rose, 175. 
 
 (g) Ex parte King, 17 Ves. 115. 
 {h) Ex parte Terrell, Buck, 345.
 
 327 THE CONSEQ,UENCES OF A ' 
 
 rate estate until the joint debts are actually paid, and 
 mere proof has been said to be payment only so far 
 as it produces payment.(i) Where a solvent partner 
 has paid all the joint debts, it has been a question whe- 
 ther, if the estate of one of the bankrupts is insufficient 
 to pay 20s. in the pound, the solvent partner will be al- 
 lowed to prove the deficiency of each estate against the 
 estate of the other? Sir John Leach has, in two in- 
 stances,(A:) determined against such right. His Honour 
 has considered that proof is equivalent to payment 
 without regard to the amount of the dividend, and that 
 the principle is, that the surety is to prove for such sum, 
 as, at the time of the bankruptcy, the principal debtor 
 was bound to pay or provide. It must be observed, 
 however, that considerable doubts have been entertained 
 of the soundness of this doctrine,(/) and that it has been 
 considered that the equitable principles applicable to 
 cases of principal and surety, independent of contract, 
 as to enforcing contribution, have not been sufficiently 
 attended to in them. A solvent partner has been appoint- 
 ed receiver of the partnership property, but without a 
 salary.(m) ' 
 
 Formerly, if a creditor proved a debt under a com- 
 mission of bankruptcy, it did not amount to a conclusive 
 election to take under the commission, for a creditor has 
 been suffered to make his election of proceeding at law 
 against the bankrupt himself, after having proved his 
 debt and received two dividends, upon condition of re- 
 funding what he had received.(n) But, by a modern 
 statute,(o) it is enacted, that the proving or claiming a 
 debt under a commission by any creditor shall be deemed 
 an election by the creditor to take the benefit of the 
 commission, with respect to the debt proved or claimed, 
 
 (i) Ex parte Moore, 2 Gl. & James. 165, overruling the decision 
 of the Vice-Chancellor in S. C. Buck, 492. See also Ex parte Carter, 
 2 Gl. & James. 2.33. Ex parte Ellis, ibid. 312. 
 
 (A;) i;.r;;ar/e Watson, 4 Madd. 477. S. S. Buck, 450. Ex parte 
 Smith, Buck, 492. 
 
 (I) Ex parte Hunter, Buck, 552. 
 
 \ni) Ex parte Stoveld, 1 Glyn & James. 303. 
 
 (n) Co. B. L. 146. 
 
 (o) 49 Geo. 3. c. 121. s. 14. See the 6 Geo. 4. c. 16. s. 59.
 
 DISSOLUTION BY BANKRUPTCY. 327 
 
 provided that where any such creditor shall have brought 
 any action against the bankrupt jointly with any other 
 person, his relinquishing such action against 
 *the bankrupt shall not in any manner affect it [ *328 ] 
 against such other person. This clause does 
 not extend to prevent a creditor, who proves a joint 
 debt under a commission against one partner, from 
 suing the others.(yj) And where separate commissions 
 were issued against three out of four partners, to which 
 they conformed and passed their examinations, and an 
 order was made by the Lord Chancellor, allowing the 
 joint creditors to prove their debts under the commission 
 of one of the three ; under that order a joint creditor 
 proved his debt, and afterwards sued all the partners 
 for the same debt, and arrested one of the other two 
 under whose commission he had not proved ; it was de- 
 termined by the Court of King's Bench that the proof of 
 the debt against the estate of one was not an election 
 within the meaning of the statute, so as to prevent the 
 creditor proceeding against the others by action, and 
 therefore that the bankrupt arrested was not entitled to 
 be discharged out of custody.(9) But where two part- 
 ners gave a joint and several bond to a third person, 
 who afterwards became indebted to one of them, and 
 the other having became bankrupt, the obligee proved 
 the bond under the commission, and then brought a joint 
 action against both the partners, to which the bankrupt 
 pleaded his certificate j the Lord Chancellor held that 
 the obligee, having elected to proceed severally by prov- 
 ing the bond under the commission, was not at liberty 
 to bring a joint action upon it, but must proceed against 
 the solvent partner alone.(r) And before the passing of 
 the foregoing statute, if a creditor had debts due to him 
 from the bankrupt of distinct natures, or in different 
 rights, he was at liberty to prove one under the commis- 
 
 (p) Heath V. Hall, 4 Taunt. 326. 
 
 [q) Young v. Glass, 16 East, 252. It has been said, that in equity, 
 the creditor could not proceed against any of the bankrupts, Mont. 
 Dig. of New Decis. in Bank. 1st part, p. 42. n. {z). See JEx parte 
 Bolton, Buck, 12. 
 
 (r) Bradley v. Millar, 1 Rose, 273.
 
 328 THE CONSEQUENCES OF A 
 
 sion, and proceed at law for the recovery of the other.(s) 
 But in a late case it was laid down, that if a creditor 
 has debts due to him from the same person of a dis- 
 tinct nature, and he proceeds at law for the reco- 
 very of the one, and afterwards proves, or claims to 
 prove the other under the commission, such proof or 
 claim operates as a relinquishment of the action pre- 
 viously brought. Thus, where one partner arrested, 
 and was proceeding in an action against his 
 [ *329 ] ^copartner on a promissory note, and after- 
 wards had a claim entered upon the proceedings 
 under a commission against him on a letter of guaran- 
 tee, it was held that such claim was an election to take 
 the benefit of the commission, and that it operated as a 
 relinquishment of the action.(^) However, in a more 
 recent case, where the bankrupt paid for goods sold and 
 and delivered by a bill of the exact amount, and after- 
 wards by a second and distinct contract, purchased 
 others, for which afterwards a bill was also given ; upon 
 his becoming bankrupt, the first bill was proved under 
 the commission, at which time the second was out- 
 standing in the hands of a third person, to whom 
 it had been indorsed for valuable consideration, but it 
 had been dishonoured, and notice thereof given to the 
 vendor; it was subsequently returned to him, and he 
 commenced an action on it in the Court of King's 
 Bench ; it was held, upon the construction of the latter part 
 of the clause of the 6 Geo. 4. c. 16. s. 59, and with refer- 
 ence to the decisions at law, that the effect of proof was 
 an election only as to the particular debt proved; and 
 that to constitute distinct debts, it is not requisite that 
 they should be of distinct natures, but it is sufficient if 
 they arise upon distinct contracts, and the vendor was 
 therefore not precluded from proceeding at law.(M) 
 
 (s) Ex parte Botterill, 1 Atk. 109. Ex parte Matthews, 3 Atk. 816. 
 
 (t) Ex parte Glover, 1 GTlyn & James. 270. It seems that the 
 statute does not apply to actions for distinct demands brought subse- 
 quent to proof or claim. Id. ibid. ; and see Ex parte Dickson, 1 Rose, 
 98. Ex parte YizxAenherg, 1 Rose, 204. Ex parte Chambers, 1 Mont. 
 & M. 130. 
 
 (m) Ex parte Edwards, 1 Mont. & M. 116, reversing the decision of 
 the Vice Chancellor ; semble, it would not have varied the right, if the
 
 DISSOLUTION BY BANKRUPTCY. 329 
 
 When the bankrupt under whose commission the credit- 
 or has proved is, for the sake of conformity, a necessary 
 party to an action against the other partners, — as a 
 court of law will not, if he be joined, interfere by order- 
 ing a nolle prosequi to be entered, — the Lord Chancellor 
 will direct the creditor to indemnify the bankrupt against 
 all the expenses of the action, and not to take advantage 
 of the verdict and judgment against him ; and if an in- 
 demnity be not given, he will order the bankrupt's name 
 to be struck out.(i>) 
 
 Both joint and separate creditors^ whatever doubts may 
 have been entertained as to their respective rights 
 to receive satisfaction, *have always been allow- [ *330 ] 
 ed to prove their debts under joint and separate 
 commissions, for the purpose of assenting or objecting to 
 the certificate. (w) This natural justice requires, for all 
 debts, whether joint or separate, are equally discharged 
 by the certificate under either a separate or a joint com- 
 mission. The statutes say nothing about joint or sepa- 
 rate debts, or joint or separate commissions, but dis- 
 charge the bankrupt generally from all debts due or 
 owing by him before he became bankrupt ; and a joint 
 debt is the debt of each partner, as well as the debt of 
 all the partners jointly. After the passing of the statute 
 4 & 5 A7in. c. 17, a doubt arose whether the certificate 
 obtained by one partner or joint debtor should discharge 
 the other, or he should still be liable to the debt as if the 
 bankrupt had never been discharged. To remove which, 
 by the statute 10 Ann. c. 15. s. 3.(^) it was enacted and 
 declared, that " the discharge of any bankrupt or bank- 
 rupts, by force of the said act, or any other acts relating 
 to bankrupts, from the debts by him, her, or them, due 
 and owing at the time that he, she, or they did become 
 a bankrupt, shall not be construed, nor was meant or 
 
 vendor had, at the time of his proof on the first bill, also been the 
 holder of the second. Id. ibid. ; and see Watson v. Medex. 1 B. & 
 A. 121. Harley v. Greenwood, 5 B. &; A. 95. Bridgett v. Mills, 4 
 Bingh. 18. 
 
 iv) Ex parte Read, 1 Ves. & Bea. 346. S. C. 1 Rose, 460. 
 
 {w) Ex parte Taitt, 16 Ves. 193. Whitm. B. L. 276. See the 6 
 Geo. 4. c. 16. s. 62. 
 
 (x) Re-enacted by the 6 Geo. 4. c. 16. s. 121.
 
 330 THE CONSEGtUENCES OF A 
 
 intended to release or discharge any other person or 
 persons who was or were partner or partners with the 
 said bankrupt in trade, at the time he, she, or they be- 
 came bankrupt, or then stood jointly bound or had made 
 any joint contract together with such bankrupt or bank- 
 rupts for the same debt or debts from which he was dis- 
 charged as aforesaid, but that, notwithstanding such 
 discharge, such partner and partners, joint obligor and 
 obligors, and joint contractors with such bankrupt and 
 bankrupts as aforesaid, shall be and stand chargeable 
 with and liable to pay such debt and debts, and to per- 
 form such contracts, as if the said bankrupt and bank- 
 rupts had never been discharged from the same." The 
 expediency and necessity of this legislative provision, 
 although no doubt introduced ex majori cautela, may still 
 be open to argument and observation. It is difficult to 
 conceive how the signing a bankrupt's certificate could 
 have operated as an ordinary release with regard to any 
 third person; for it is the act of parliament which gives 
 
 that release, in consequence of the certified con- 
 [ *331 ] formity of the bankrupt to the ^requisitions of 
 
 the bankrupt laws. A man, by signing a certi- 
 ficate, does not release his own debt, unless the requi- 
 site number of creditors afterwards sign ; and if they do 
 sign, the debts of those who do not sign are as much re- 
 leased as the debts of those who do sign. But however 
 this may have been, independently of the statute, all 
 question on the subject is put at rest by its enactment. 
 It has been decided that a creditor by signing the certi- 
 ficate of a surviving partner does not thereby release the 
 estate of a deceased partner.(?/) In a late case, upon 
 the petition of the solvent partner, to whom no want of 
 due diligence was imputable, the certificate of his bank- 
 rupt partner was stayed until the partnership accounts 
 could be taken before the commissioners.(2') But where 
 a certificate under a separate commission is lying before 
 the Lord Chancellor for allowance, it will not be stayed 
 merely because a joint commission is issued. And if the 
 certificate is fairly obtained, the Lord Chancellor will 
 
 (y) Sleech's case, 1 Meriv. 570. 
 
 (z) Ex parte Hadley, 1 Glyn &, James. 193.
 
 DISSOLUTION BY BANKRUPTCY. 331 
 
 allow it, and to give it effect will impound the separate 
 commission in the bankrupt office instead of superseding 
 it(a) 
 
 We will now proceed to examine the law of set-off 
 under commissions against partners, which respects joint 
 and separate commissions equally, and regulates both 
 the collection and distribution of the estate of the bank- 
 rupts. The right of set-off in these cases, may be con- 
 sidered either as it is given by statute, and therefore 
 exists at law, or as it prevails in equity. To the former 
 we will, in the first instance, advert. When, at the time 
 of the act of bankruptcy, there are cross demands sub- 
 sisting between the bankrupt and a creditor, the latter, 
 by setting-off his debt against the demand upon him, 
 stands in a better situation than those creditors who, 
 not being indebted to the bankrupt's estate, can only 
 prove their debts under the commission, and receive di- 
 vidends. In equity, long anterior to the statutes per- 
 mitting a set-off, a party might avail himself of any 
 cross-demand, and preclude his creditor from recovering 
 more than the balance which might be due to him on a 
 fair adjustment of accounts. And though the spirit of the 
 bankrupt laws is to make an equal distribution amongst 
 all the creditors, yet this must, in justice, be 
 governed by the nature of the dealings *between [ *332 ] 
 the parties; and as it may be fairly presumed, 
 that where mutual transactions have taken place be- 
 tween a bankrupt and another trader, they have respec- 
 tively given greater credit to each other than would have 
 taken place in any separate ex parte dealings ; it is there- 
 fore just, that, in the case of bankruptcy, their mutual 
 demands should be set against each other. Formerly, 
 indeed, it was determined, that the statute for setting-off 
 mutual debts did not extend to assignees of bankrupts, 
 because the debts cannot be mutual, unless the remedies 
 are so likewise ;(6) but the case of bankruptcy has in 
 several instances been the object of legislative provi- 
 
 (a) Ex parte Tobin, 1 Ves. & Bea. 308. 
 
 {b) Ryal V. Larkin, 1 Wils. 155. Ball. N. P. 177. But see Re- 
 doubt V. Brough, Cowp. 135. Anon. 1 Mod. 215, contra. 
 
 55
 
 332 
 
 THE C0NSEQ,UENCBS OF , A * i \ 
 
 sioii,(c) and now by a late statute(J) it is enacted " t\M 
 where there has been mutual cradit given by the bank- 
 rupt and any other person, or where there are mutual 
 debts between the bankrupt and any other person, the 
 commissioners shall state the account between them, and 
 one debt or demand may be set against another, not- 
 withstanding any prior act of bankruptcy committed by 
 such bankrupt before the credit given to or the debt con- 
 tracted by him; and what shall appear due on either 
 side on the balance of such account, and no more, shall 
 be claimed or paid on either side respectively ; and every 
 debt or demand hereby made provable against the estate 
 of the bankrupt, may also be set-off in manner aforesaid 
 against such estate : provided, that the person claiming 
 the benefit of such set-off had not, when such credit was 
 given, notice of an act of bankruptcy by such bankrupt 
 committed." It is observable, that this statute, as well 
 as the statutes which preceded it, unlike the statutes of 
 set-off, relate not only to mutual debts, but embrace also 
 mutual credits. We have already inquired(e) what are 
 to be considered as mutual debts, and therefore capable 
 of being set against each other. Our observations in 
 this place will consequently be directed to ascertain 
 what is a mutual credit within the statute, and in what 
 cases, as affecting partners, it is allowed to form the sub- 
 ject-matter of set-off. Mutual credit is a term of more 
 comprehensive signification than mutual debts; it imports 
 something beyond what is conveyed by the idea of a mu- 
 tuality of debt. Lord Mansfield has observed, 
 [ *333 ] that the *legislature provided for mutual credit, in 
 order to avoid the injustice which would ensue, 
 were the right of set-off confined to cases of mutual debts 
 only.(y) And the courts, both of law and equity, have 
 not only ascribed to mutual credit, as contradistinguished 
 from mutual debts, a more extended operation, but the 
 term, of itself extensive, has been enlarged by a most 
 liberal construction. It has been applied to cases where 
 
 (c) 4 Anne, c. 17. s. 11. 7 Anne, c. 25, s. 4. 5 Geo. 1. c. 24. 5 
 Geo. 2. c. 30. s. 28. 46 Geo. 3. c. 135. s. 3. 
 
 (d) 6 Geo. 4. c. 16. s. 50. (e) See ante, p. 137. 
 (/) French v. Fenn, Co. B.L. 538.
 
 DISSOLUTION BY BANKRUPTCY. ' 333 
 
 parties have been trusting each other at the time of the 
 bankruptcy, and has never been narrowed to pecuniary 
 demands which were then hquidated: and, a doctrine 
 which seems founded on notions of natural equity, the 
 statute authorises the bringing into mutual account a 
 great variety of items, which could not be made the 
 subject of set-off. The term mutual credit is, however, 
 confined to demands on such credits only as, in their 
 nature, will terminate in a debt. For instance, mutual 
 credit arises where a debt is due from one party, and 
 credit is given by him to the other for a sum of money 
 payable at a future day, because it will then become a 
 debt ; and so, where there is a debt on one side, and a 
 delivery of property, with directions to turn it into mo- 
 ney, on the other ; for the credit given by the delivery of 
 the property will, on a sale, assume the character of a 
 debt.(^) But where there is a mere deposit of property, 
 without any authority to convert it into money, as a 
 sale is not contemplated by the parties, no debt can ever 
 arise out of it, and therefore it is not a credit within the 
 intent of the statute.(/i) And a guarantee which is 
 merely a contract to indemnify upon a contingency, 
 cannot form the subject of a mutual credit, because it is 
 in the nature of a claim for unliquidated damages.(i) 
 Neither is mutual credit constituted by the deposit of a 
 security for a specific purpose ; as if a person, previously 
 to his bankruptcy, leave a bill with his creditor, under a 
 promise by the latter that he will get it discounted, or 
 advance the money on it, this does not create a 
 mutual credit.(^) *The legislature, in using the [ *334 ] 
 term mutual credit^ meant only such credit and 
 
 Ig) Easum v. Cato, 5 B. & A. 861. 
 
 (/i) Rose V. Hart, 2 B. Moore, 547. S. C. 8 Taunt. 499 ; but see 
 Ex parte Deeze, 1 Atk. 228. Ex parte Ockenden, ibid. 235. 
 
 (i) Sampson v. Burton, 4 B. Moore, 515. S. C. 2 Brod. &, Bingh. 
 89. See Glennie v. Edmunds, 4 Taunt. 775. Hancock ». Entwisle, 
 3 T. R. 435. 
 
 {k) Key v. Flint, 1 B. Moore, 451. S. C. 8 Taunt. 21. See also 
 Ex parte Flint, 1 Swanst. 38. Buchanan v. Findlay, 9 B. & C. 738. 
 These cases proceed on the principle, that where goods or bills are de- 
 posited for a specific object, and the bailee will not or cannot perform 
 the object, he is bound to return them, the property of the bailor not 
 being divested or transferred until the object is performed.
 
 334 THE CONSEQUENCES OP A 
 
 debts as form the subject of an account or debt which 
 may be set against some other account ; and where this 
 occurs, mutual credit may be constituted, though the 
 parties did not mean particularly to trust each other.(/) 
 And a trust between two parties has been held to be a 
 mutual credit.(m) Therefore where three persons joined 
 in an adventure to purchase and sell some pearls, and 
 one only was to advance the money and to sell them, 
 but the profit and loss were to be divided between them 
 in thirds ; one of the parties became a bankrupt, and the 
 party Avho was to sell the pearls was allowed to set-off a 
 debt due to him from the bankrupt, for goods sold before 
 the bankruptcy, in an action commenced against him by 
 the assignees, against the third of the adventure due to 
 the bankrupt, although the pearls were not sold, nor the 
 produce received till after the bankruptcy.(n) Directors 
 or trustees of a company incorporated by charter, or act 
 of parliament, cannot set-off a debt due to them in their 
 individual characters, against a demand made upon them 
 by the assignees of a bankrupt, for stock due to the 
 bankrupt from the company in their corporate capa- 
 city.(o) But where there was an express by-law, sub- 
 jecting the stock of each member to any debts he should 
 owe the company, and the banker of the company was 
 indebted to them for a balance in his hands, and became 
 a bankrupt, the company was allowed to set-off the stock 
 which the bankrupt held in the company against the ba- 
 lance due to them upon the banking account.(j9) 
 
 In the construction of the former acts relating to this 
 subject, it was held as a general rule, that no debt or 
 credit could be opposed to each other by way of set-off, 
 unless each debt or credit accrued or was given either 
 before the bankruptcy,(y) or upwards of two calendar 
 
 (/) Hankey v. Smith, 3 T. R. 507. 
 
 (m) Atkinson v. Elliott, 7 T. R. 380. 
 
 (n) French v. Fenn, Co. B. L. (7th ed.) 536. 
 
 \o) Melioruchi v. Royal Exch. Ass. Company, I Eq. C. Abr. 9. 
 
 (p) Gibson v. Hudson's Bay Company, 1 Eq. C. Abr. 9. S. C. 1 
 Stra. 645. Child v. Same, 2 P. Wms. 207. 
 
 (5') Ex parte Boyle, Co. B. L. 542. A payment after the bank- 
 ruptcy upon a mere liability existing before, is capable of set-off within 
 the clause as to mutual credit. Id. ibid. Ex parte Wagstaff, 13 Ves. 65.
 
 DISSOLUTION BY BANKRUPTCY. 334 
 
 months before the commission issued, founded on a 
 prior secret and unknown act of bankruptcy ;(r) 
 *and this construction must also be referred to [ *335 ] 
 the general rule in bankruptcy, that no creditor 
 whose debt did not arise before the bankruptcy can ob- 
 tain relief under a commission. Therefore, if goods are 
 originally pledged for a specific sum, and, after acts of 
 bankruptcy committed by the pawner, the pawnee ad- 
 vance a further sum upon them, this latter advance does 
 not constitute a case of mutual credit, and the pawnee 
 acquires no hen on the goods as against the assignees of 
 the bankrupt, in respect of such subsequent advance.(s) 
 But if the ground of the proposed set-off constituted a 
 credit in its origin, though not strictly a debt before the 
 act of bankruptcy, it may, as we have seen, be set off 
 under the clause of mutual credit.(0 Doubts have been 
 entertained, whether in an action by the assignees under 
 a joint commission for money paid between the times of 
 the bankruptcy of the two partners, there can be a set-off 
 of a debt due before the bankruptcy of either of the 
 partners.(M) 
 
 The right of set-off in bankruptcy is, in general, gov- 
 erned by the same principles as prevail at law, and there- 
 fore a strict mutuality is necessary ; and, as the statute 
 relating to mutual credit was intended to give a certain 
 extension to the statutes of set-off, it must, as it introdu- 
 ces new remedies, be construed strictly, and cannot be 
 applied to cases not within its letter. Thus, where A 
 had a joint demand against B and C, who were also 
 creditors of A, B having, by deed, made himself sepa- 
 rately liable to A on account of the original joint de- 
 mand, was holden not entitled to set off the joint demand 
 due to himself and C.(v) And in a recent case,(^^)) in 
 which two out of three partners became bankrupts, and 
 their assignees, with the solvent partner, brought an ac- 
 
 (r) Southwood v. Taylor, 1 B. &; A. 471. See the 6 Geo. 4. c. 16. 
 s. 81. 
 
 (s) Birdwood v. Hart, 5 Price, 593. 
 
 \t) CuUen's B. L. 199. Ouchterlony v. Easterby, 4 Taunt. 888. 
 
 (w) Smith V. Goddard, 3 Bos. & Pul. 465. 
 
 (u) Ex parte Ross, Buck, 125. 
 
 {w) Staniforth v. Fellows, 1 Marsh. 184.
 
 335 THE CONSEqUENCES OF A 
 
 tion against a broker, for the proceeds of bills belonging 
 to the firm in his hands ; it was held, that the broker was 
 not entitled to set the amount of the bills against a debt 
 due to him from the firm. Facts of such a description 
 cannot be said to constitute a case of mutual credit, 
 either within the letter or the meaning of the statute ; 
 not within its letter, because the statute only relates to 
 mutual cjedits between bankrupts and other persons, and 
 
 not to credit existing between bankrupts to- 
 [ *336 ] gether with a solvent person *on the one side, 
 
 and a third person on the other ; nor within its 
 meaning, because, notwithstanding the bankruptcy of 
 some of the partners, the person claiming the right of 
 set-oflf has still a solvent partner to whom he may resort 
 for the recovery of his debt. Where bills were drawn 
 by one partner, and accepted by the defendant, and dis- 
 counted by the firm for his convenience, having money 
 in their hands of his at the time, it was held that between 
 the parties it constituted a mutual credit, and the part- 
 ners could not, by paying away the bills which were af- 
 terwards returned to them, put an end to that mutual 
 credit so as to deprive the defendant of his right to set- 
 off any debt due from the firm to him against the sum 
 claimed by them, or their assignees, from him, as such 
 acceptor.(.2:) 
 
 We will now inquire in what cases a set-qf is allowed 
 in equity. Equitable set-off is where, by reason of the 
 nature of the cross demand, there can be no set-off at 
 law ;(y) and there is this difference between set-off in 
 equity and set-off at law, that in equity it prevailed long 
 before the statutes ;(z) (1) and these being enabling sta- 
 tutes, they do not defeat or control the original jurisdic- 
 tion of courts of equity in cases where there would have 
 been an equitable set-off previous to the statutes. The 
 Lord Chancellor, therefore, sitting in bankruptcy, exer- 
 
 (x) BoUand v. Nash, 2 B. & Cr. 105. S. C. 2 M. & Ry. 189. 
 
 (y) Whyte v. O'Brien, 1 Sim. & Stu. 551. 
 
 {zj Per Lord Eldon, Ex parte Blagden, 19 Ves. 467. 
 
 (1) See Duncan-^. Lyon, 3 Johns. Cha. Rep. 358, 359.
 
 DISSCKLUTIOIV BYWBANKRUPTCY. 336 
 
 cising an equitable, as well as a legal jurisdiction, will 
 extend that jurisdiction to cases of set-off that are not 
 only not within the immediate operation of the statutes,(a) 
 but even to cases where an action would not Jie at com- 
 mon law, and where the Court of Chancery would not, 
 upon a bill, decree an account.(6) Under particular cir- 
 cumstances, where great injustice would otherwise pre- 
 vail, and there is a natural equity going beyond the statute, 
 the Lord Chancellor will, where a bankrupt is a creditor 
 of a principal and surety, and a debtor to the principal, 
 restrain the assignees from proceeding at law, either 
 against the principal and surety, or against the surety se- 
 parately ; and will order the joint and separate debts to be 
 set-off. Thus, where Ann Stephens directed her bankers 
 to sell exchequer annuities, and to invest the pro- 
 duce *in navy annuities, and the bankers inform- [ *337 ] 
 ed her they had followed her directions, and an 
 entry was made in her banking book to that effect in 
 October 1785, and credit was given to her regularly for 
 the dividends ; afterwards in the year 1796, her brother, 
 having a separate account with the bankers, proposed 
 to borrow of them 1000/. upon the security of the joint 
 and several note of himself and his sister, which was 
 agreed to, and the note given accordingly. The bankers 
 became bankrupts ; and it then appeared that they had 
 not purchased the navy annuities, and that the docu- 
 ments which they had exhibited to Ann Stephens, in 
 proof of the purchase, were false. The assignees of 
 the bankrupts brought an action against the brother 
 alone upon the note ; and the brother and sister peti- 
 tioned to be at liberty to set off what was due upon the 
 note against the debt due to Ann Stephens from the 
 bankrupts ; and Lord Eldon, upon the ground of the 
 fraud practised upon An7i Stephens, restrained the as- 
 signees from proceeding at law, and ordered the amount 
 of the note to be set ofT against the demand Ann Ste- 
 phens had upon the bankrupts, on account of the sum 
 
 (a) Ex parte Stephens, 11 Ves. 27. Ex parte Hanson, 12 Ves. 
 348. James v. Kynnier, 5 Ves. 108. 
 (6) Cullen's B. L. 196.
 
 337 THE CONSEQUENCES OP A 
 
 charged as invested in the purchase of navy annuities.(c) 
 But, generally speaking, the rule of law, that joint and 
 separate debts cannot be set against each other, prevails 
 in equity. Therefore, a debtor to one partner individu- 
 ally is not entitled to have the debt due from him de- 
 ducted from or set against a demand which he has upon 
 the firm, whether the debt due from him, when paid, is 
 to be applied in satisfaction of the claims of joint or of 
 separate creditors. If the money be wanted for pay- 
 ment of separate creditors, he clearly has not a right to 
 retain ; and he is equally destitute of such a right, if it 
 be intended to apply the money in discharge of the de- 
 mands of joint creditors. In the latter case he is not 
 called upon to pay his debt, in the same character in 
 which he would receive, as a joint creditor. His right 
 is not co-extensive with his obligation. His obligation 
 is to pay the whole : his right is to receive only a part, 
 
 namely, his proportionate dividend with the 
 [ *338 ] other joint creditors.(<Z) There are, *however, 
 
 cases which militate against the general princi- 
 ple, and in which separate have been allowed to be set 
 against joint debts. In a case before Lord Hardwicke,(e) 
 the petitioner, who was a creditor under a separate com- 
 mission against A, and a debtor under a joint commis- 
 sion against A and B, prayed that an action brought by 
 the assignees for the debt he owed to the joint commis- 
 sion might be stayed, and that his demand upon the 
 separate estate might be allowed as a set-off against the 
 debt he owed to the joint estate : the Lord Chancellor 
 doubted whether the debt could be set off under the 
 statute relating to mutual debts, because different per- 
 sons were concerned in one debt and in the other, and 
 in distinct rights ; but as the petitioner's case appeared 
 
 (c) Ex parte Stephens, 1 1 Ves. 24. On the above case being sub- 
 sequently quoted as an authority, Lord Eldon observed, " There are 
 certain difficulties in the decision of Ex parte Stephens, which per- 
 haps the strong circumstances of fraud in that case could alone have 
 obviated." Ex parte Blagden, 2 Rose, 251. S. C. 19 Ves. 467. 
 
 (rf) Addis V. Knight, 2 Meriv. 117. And see Stephenson v. Chis- 
 well, 3 Ves. 566. Lanesborough v. Jones, 1 P. Wms. 325. Bac. 
 Abr. tit. Bankrupt (G). 
 
 (e) Ex parte Edwards, 1 Atk. 100.
 
 DISSOLUTION BY BANKRUPTCY. 338 
 
 to be a hard one, he referred it to the commissioners to 
 see how much the petitioner owed to the joint estate, 
 and how much was owing to him from the separate es- 
 tate, and directed them to certify the same to him ; and 
 he stayed the action, and reserved further consideration 
 until the commissioners had certified. Nothing further 
 appears from the report of this case, which, therefore, 
 can hardly be considered as a direct and positive adju- 
 dication of the question ; but in a subsequent case(/) 
 Lord Rosslyn seems to have treated it as an authority, 
 observing that there could be no purpose in directing 
 the account, but with a view to allow it. In that case 
 a separate commission was taken out against Shepherd^ 
 one partner, and the solvent partner, Williams, paid the 
 joint debts ; and a debtor to the partnership, being also 
 a separate creditor of the bankrupt, petitioned to set oft* 
 his separate debt against the bankrupt's share of the 
 joint debt, and to prove for the residue of his separate 
 debt. The Lord Chancellor granted the petition, and 
 said, that "in equity it would be very hard, where it 
 appeared that all the joint debts were paid, and the other 
 partner was satisfied, and there was a surplus in which 
 he was interested in one moiety, and the indebted part- 
 ner in the other, if to the extent of that moiety the cre- 
 ditor of that partner could not set off." But the authority 
 of this latter decision has been considerably shaken: 
 Lord Eldon in a late case(^) having expressed his dis- 
 approbation of it. There, under a separate commission 
 against one partner, a debt was proved by a creditor 
 who was indebted to the partnership in a larger amount, 
 and an action was brought for the dividend. 
 *A petition was presented to stay the action, [ *339 ] 
 and to obtain relief by a set-off*. Lord Eldon 
 observed, " In the case Ex parte Quinten the partnership 
 debts were all paid. I do not quite understand it : but 
 if there are debts which cannot be set oft" at law, can it 
 be said that all the aflfairs of the bankruptcy are to be 
 suspended until all the accounts are cleared, in order to 
 see what rights of set-oft* there may be in the result ? 
 
 (/) Ex parte Quinten, 3 Ves. 248. 
 \g) Ex parte Twogood, 11 Ves. 517. 
 56
 
 339 
 
 THE CONSEQUENCES OF A 
 
 That should have been considered before that case was 
 determined. The consequence will be, that where there 
 are joint and separate debts which cannot be set off 
 against each other at law, in every bankruptcy the pro- 
 ceedings must be suspended till the accounts are taken, 
 and it is seen what the joint estate will pay, and what 
 the separate will pay. Another difficulty, in that case, 
 which I do not understand, is this : the commission was 
 against Shepherd alone. Williams paid all the partner- 
 ship debts. Then, if demands were due to both, those 
 demands would be recovered in their names; and then, 
 if upon the account between them there was a clear sur- 
 plus to Shepherd, that would be part of his general sepa- 
 rate estate, to be handed over as such to his assignees, 
 in trust for all his separate creditors ; and would not be 
 left in the pocket of one creditor, who paid that joint 
 debt, but would be divisible, as part of the separate es- 
 tate, among all the separate creditors. The circum- 
 stance, that there was a great number of other separate 
 creditors, Avas not in the least attended to in that case. 
 If it could be made out that all the separate creditors 
 were paid also, there would be a clear equity, not upon 
 the ground of set-off, but an equity, that, from that 
 moment, Shepherd''s share would be held for that indi- 
 vidual creditor. But if the assianees, who had a riffht 
 to take the account, were to take that, then it would be 
 in trust, not for that individual creditor, but for all the 
 separate creditors ; whose equity is, that all the joint 
 debts being paid, if there is a surplus, that shall be di- 
 vided, not according to the individual rights of the cre- 
 ditors, but according to the rights the partners have as 
 between themselves, though that surplus may be consti- 
 tuted by the specific money of the joint debtor Avho paid 
 to the joint estate. Had not Williams, paying the part- 
 nership debts, a right, by virtue of the partnership credits, 
 to get those credits into his own hands, to set himself 
 right ? I do not deny that there is a good deal of natural 
 equity in the proposition upon which this petition stands ; 
 
 but, pursuing it through all its consequences, it 
 [ *340 ] would so disturb *all the habitual arrangement 
 
 in bankruptcy, that I dare not do it." So, where
 
 DISSOLUTION BY BANKRUPTCY. 340 
 
 part owners of a ship were jointly indebted to the mas- 
 ter, who became a bankrupt, and the bankrupt was 
 indebted to several of the part owners, distinct from the 
 account relating to the ship, Lord Eldon held, that the 
 latter could not set off their separate debts against the 
 respective proportions of their debt due to the bankrupt's 
 estate jointly with the other part owners.(A) But where 
 a joint bond was given to a banker by a principal and 
 surety, and the principal was a creditor of the banker on 
 his separate account to an amount exceeding the bond, 
 and the banker becoming bankrupt, his assignees brought 
 an action upon the bond ; the principal presented a peti- 
 tion, praying that he might be allowed to set off and 
 prove the balance. Lord Erskine made the order, upon 
 the ground that the statute of set-oft' was passed only 
 to prevent circuity. That if the bankruptcy had not 
 occurred, a plea of set-oft' could not have been put in 
 to an action by the banker ; but the moment he obtained 
 judgment, the principal in the bond would have brought 
 his action against the banker for the separate debt ; and 
 if the surety had paid the joint debt, would have repaid 
 him by the money recovered in that action. That as- 
 signees take subject to all equities attaching upon the 
 bankrupt, and as the condition of the bankrupt, if he had 
 remained solvent, would have been as represented, that 
 must be the condition of the assignecs.(i) And under 
 particular circumstances, as where there is a clear series 
 of transactions in w^iich joint credit has been given, a 
 joint debt may, in equity, be set against a separate de- 
 mand.(^) (1) 
 
 Ih) Ex parte Christie, 10 Ves. 105. 
 
 (i) Ex parte Hanson, 12 Ves. 346. S. C. 18 Ves. 232, and 1 
 Rose, 156. 
 
 {k) Vulliamy v. Noble, 3 Meriv. 618. 
 
 (1) Although a person having a claim against a mercantile company, 
 cannot set off such claim against a debt due from himself to one of the 
 partners ; yet it is competent for him to charge that partner, in equity, 
 (in extinguishment of the debt) for so much of the surplus of the 
 partnership property as may be due to such partner on a settlement of 
 the partnership accounts ; for the purpose of which settlement, and also
 
 340 THE CONSEQUENCES OP A 
 
 Although the Court of Chancery is the grand forum 
 for the determination of questions arising in bankruptcy, 
 yet they are not unfrequently agitated in the courts of 
 common law ; and it will here be proper briefly to ex- 
 plain in what cases assignees must, either alone, or 
 jointly with a solvent partner, assert the rights of the 
 firm on the behalf of creditors, and likewise the mode 
 and manner in which they must sue. Where all the part- 
 ners are adjudged bankrupts, and an assignment of their 
 
 effects is regularly made by the commissioners 
 [ *341 ] to certain persons as *assignees, every right of 
 
 action possessed by the bankrupts vests in the 
 assignees, by relation to the time when the acts of bank- 
 ruptcy were committed.(/) And the assignees, not being 
 restricted by the legislature from bringing actions at law 
 without the consent of the creditors, have the same re- 
 medies to recover the joint property with which the 
 bankrupts themselves were invested, and where there is 
 a choice of remedies may adopt that which, in their dis- 
 cretion, they may think proper.(m) But every species 
 of present interest being, by the assignment, divested 
 out of the bankrupts and vested in their assignees, the 
 latter can alone enforce any right or claim which may 
 arise or result in favour of the estate of the bankrupts ; 
 and if all or one of the bankrupt partners join in an ac- 
 tion with their assignees, as they or he cannot sue, and 
 therefore ought not to be introduced on the record as 
 plaintiffs, the defendant may plead the bankruptcy in 
 ha.r.(n) And where one only of the partners becomes 
 bankrupt, an action founded on a joint contract, or to 
 recover payment of a joint debt, must be brought by the 
 solvent partner jointly with the assignees of his copart- 
 
 (l) See Ex parte Birkett, 2 Rose, 71. 
 
 {m) 2 Black. Com. 485. Hussey v. Fiddall, 12 Mod. 324. S. C. 
 3 Salk. 59. 
 
 (n) Eckhardt v. Wilson, 8 T. R. 140. See also Kinnear v. Tar- 
 rant, 15 East, 622. 
 
 that of ascertaining and adjusting his own claim against the company, 
 all the partners shall be made defendants to his bill. Dunbar v. Buck 
 et al. 6 Munf. 34.
 
 DISSOLUTION BY BANKRUPTCY. 341 
 
 ner, who succeed to the state- and condition of the bank- 
 rupt.(o) Even where two partners have stopped pay- 
 ment, and a commission of bankrupt is taken out against 
 one of them only, a debtor to the firm, who knows of 
 the stoppage, cannot, in an action by the partner who 
 has not been declared a bankrupt and the assignees of 
 the bankrupt partner, refuse to pay money due to them, 
 on the ground that the former may have committed an 
 act of bankruptcy; because, although there may be 
 peril in paying a man who is known to have stopped 
 payment, yet that affords no defence to an action for a 
 debt justly due to him.(^9) Formerly, it was necessary 
 for the assignees of the bankrupt partner to have ob- 
 tained the consent of the solvent partner, before an ac- 
 tion could have been instituted in their joint names to 
 recover a debt due to the joint estate ; for, had the action 
 been instituted without his express concurrence, he might, 
 by a release, have defeated any claim which the assig- 
 nees might have had against a joint debtor ; and 
 courts of law, as *we have seen,(<7) would not [ *342 ] 
 have controlled his legal power to release the 
 action, unless a very strong case of fraud were made 
 out. But this legal capacity of the solvent partner to 
 release a joint claim is now restrained, and his actual 
 consent to the instituting an action in his name, jointly 
 with that of the assignees, is no longer requisite. By a 
 late statute(r) it is enacted, " that in any commission 
 against any one or more member or members of a firm, 
 the Lord Chancellor may, upon petition, authorise the 
 assignees to commence or prosecute any action at law 
 or suit in equity, in the names of such assignees and of 
 the remaining partner or partners, against any debtor of 
 the partnership, and may obtain such judgment, decree, 
 or order therein, as if such action or suit had been in- 
 stituted with the consent of such partner or partners ; 
 
 (o) Thomason v. Frere, 10 East, 418. Graham v. Robertson, 2 T. 
 R. 282. 
 
 (/;) Prickett v. Down, 3 Carapb. 131. S. P. Franklin v. Lord 
 Brownlovv, 14 Ves. 557. See also Fuller v. Gibson, 2 Cox, 24. 6 
 Geo. 4. c, 16. s. 84. 
 
 {q) See ante, p. 61. (r) 6 Geo. 4. c. 16. s. 89.
 
 342 THE CONSEq,UENCES OF A 
 
 and if such partner or partners shall execute any release 
 of the debt or demand for which such action or suit is 
 instituted, such release shall be void, provided that every 
 snch partner, if no benefit is claimed by him by virtue 
 of the said proceedings, shall be indemnified against the 
 payment of any costs in respect of such action or suit ; 
 and that it shall be lawful for the Lord Chancellor, upon 
 the petition of such partner, to direct that he may re- 
 ceive so much of the proceeds of such action or suit as 
 the Lord Chancellor shall think fit." 
 
 Where a joint commission issues against all the part- 
 ners, and assignees are appointed under it, the assignees, 
 in any action instituted by them in relation to the estate 
 of the bankrupts, must all join, or the nonjoinder will 
 furnish a ground of nonsuit.(s) And a joint commission 
 of bankruptcy, having neither a joint or separate opera- 
 tion, according as it relates to the joint estate of the bank- 
 rupts collectively, or the separate estate of each bankrupt 
 individually, it follows that the assignees under such a 
 commission may recover either a joint debt due to the 
 firm, or a separate debt due to a single partner. In an 
 action which has for its object the enforcing payment of 
 a joint debt, .the assignees must in their declaration dis- 
 close a joint title, and must show that they legally repre- 
 sent all and each of the parties to whom, before the bank- 
 ruptcy, the debt or duty was due. And they must make 
 
 out a title as assignees of all the bankrupts exist- 
 [ *343 ] ing at *the time of the bankruptcy of each ; for if 
 
 the right of the defendant to the subject matter in 
 dispute was perfect before the completion of their title 
 as assignees, they cannot recover. Thus, where judg- 
 ment was entered up on a warrant of attorney given by 
 two parties, and a Jieri facias isued, returnable on the 
 second of May, On the first of that month the sheriflf's 
 officer received from the defendants the money directed 
 to be levied. On the second of May one of them com- 
 mitted an act of bankruptcy, and the other on the fifth. 
 On the eleventh a commission of bankrupt issued, and on 
 
 (s) Snellgrove v. Hunt, 1 Chit. Rep. 71. S. C. 2 Stark. N. P. 
 C. 424. Aldritt v. Kittridge, 6 B. Moore, 569. In equity the rule is 
 in some eases relaxed. See Wilkins v. Fry, 1 Meriv. 244.
 
 DISSOLUTION BY BANKRUPTCY. 343 
 
 the nineteenth the sheriff paid over the money to the 
 execution creditor ; in an action by the assignees, it was 
 held that he was entitled to retain it, inasmuch as he was 
 not to be considered a creditor having security at the 
 time of the bankruptcy, within the meaning of the pro- 
 viso in the 6 Geo. 4. c. 16. s. 108, since after payment of 
 the money to the sheriff, the original debt was extin- 
 guished, and he no longer retained his character of a 
 creditor of the bankrupts.(^) But the assignees under a 
 joint commission may in the same action include debts 
 due to the partners jointly, and those which are due to 
 each separately ; for the whole property being transferred 
 to them under the commission, they are equally the as- 
 signees of each, as of all. Therefore, a declaration by 
 the assignees of two partners, bankrupts, containing 
 counts on debts due to them jointly, and counts on debts 
 due to them separately, was held good on demurrer.(w) 
 Where, however, assignees under a joint commission sue 
 on a separate contract, they must describe themselves as 
 the assignees of the single partner with whom the con- 
 tract was made, without noticing the others.(v) There- 
 fore where A, who was in partnership with B, committed 
 an act of bankruptcy, and afterwards, but before the 
 . bankruptcy of B, the sheriff seized goods which had be- 
 longed to A and B, under an execution against them ; 
 it was held that the assignees of A and B under a 
 joint commission could not, suing as such, recover A's 
 share of the property therein.(tf)) But where in 
 an action of trover by the assignee of *bahk- [ *344 ] 
 rupt partners, the declaration consisted of one 
 count only, in which the possession was stated to be in 
 the partners, and it appeared in evidence, that the greater 
 part of the goods in question belonged to one of the 
 partners only, before the commencement of the partner- 
 ship, and had never been brought into the partnership 
 
 U) Morland v. PeHatt, 8 B. & C. 722. And see Notley v. Buck, 
 ibid. 160. Wymer v. Kemble, 6 B. & C. 479. 
 
 (^<) Graham v. Mulcaster, 4 Bingh. 115, 
 
 \v) Stonehouse v. De Silva, 3 Campb. 399. Harvey v. Morp^an, 2 
 Stark. N. P. C, 17. S. P. Per Park, J., Hoggu. Bridges, 8 Taunt. 
 200. 
 
 {iv) Hogg V. Bridges, 8 Taunt. 200. S. C. 2 B. Moore, 122.
 
 344 THE CONSEQUENCES OF A 
 
 fund, but it was proved that the residue of the goods was 
 part of the joint estate, Lord Kenyan ruled that the 
 plaintiff, under that declaration, was entitled to recover 
 the value of such goods only as had been proved to have 
 belonged to both the partners as partners ; although had 
 there been a count in the declaration stating the posses- 
 sion in the assignee, the whole might have been re- 
 covered, inasmuch as the commission was joint, and the 
 assignment under it passed both separate and joint 
 effects. (.r) If there has been any promise to the as- 
 signees, or cause of action since the bankruptcy, a count 
 adapted to such demand should be inserted in the decla- 
 ration ; and where two partners became bankrupts, and 
 the defendant, between the two acts of bankruptcy, re- 
 ceived money jointly belonging to them from their clerk, 
 and the assignees of the two partners, in their action to 
 recover it, declared only for money had and received to 
 the use of the two partners before they became bank- 
 rupts, and in another count to the use of the plaintiffs as 
 assignees, it was decided that the plaintiffs could not re- 
 cover, because they should have declared in one count 
 for money had and received to their use as assignees of 
 the partner who had committed an act of bankruptcy at 
 the time the money was paid.(y) 
 
 Where a joint commission has not been awarded 
 against a bankrupt firm, but separate commissions have 
 alone issued against each of its members, as the joint 
 estate and consequent right of sustaining an action in 
 respect of it is centered in the assignees of all the bank- 
 rupts jointly, it follows that they must all join in an 
 action to recover a joint demand. (^) In such a case it 
 is only necessary, that the assignees who appear as plain- 
 tiffs on the record should represent all the persons inter- 
 ested and should unite in themselves all the interest of 
 those parties. Therefore, where there was a firm 
 [ *345 ] consisting of three partners, *two of whom being 
 
 (x) Cock V. Tuntio, cited 2Selw. N. P. 1316. 
 
 ly) Smith v, Goddard, 3 Bos. & Pul. 465. It may be doubtful 
 whether any form of declaration would entitle the assignees to recover 
 in such a case. See ante, p. 307. 
 
 {z) Hancock v. Haywood, 3 'J'. R. R. 433.
 
 DISSOLUTION BY BANKRUPTCY. 345 
 
 engaged in partnership with two others, the four be- 
 came bankrupts, and a joint commission being issued 
 against them, a separate commission was afterwards 
 awarded ao-ainst the third partner in the firm of the three, 
 under both which commissions the plaintiffs were elected 
 assignees, it was held that, inasmuch as the entire rights 
 of the three vested in them, they might declare as their 
 assignees.(a) (1) And even where the plaintiffs sued and 
 declared as assignees of A and B, and also as assignees 
 of C, for a joint demand due to all the bankrupts, the de- 
 claration was holden good on a motion in arrest of judg- 
 ment.(6) Where separate commissions issue against the 
 several partners, and different persons are appointed as- 
 signees under them, although they must all join in an 
 action to recover a joint demand, yet they cannot sue as 
 joint assignees, but must state their several and respec- 
 tive interests in the declaration.(c) And the assignees 
 of A, a bankrupt, and also of B, a bankrupt, under sepa- 
 rate commissions, cannot recover in the same action a 
 joint debt due from the defendant to both the bankrupts, 
 and also separate debts due to each, because the bank- 
 rupts themselves could not have joined in bringing one 
 action for their separate debts, and therefore the joinder 
 of the two causes of action by their assignees is impro- 
 per ; but if in such an action, the jury have assessed the 
 damages severally on the separate counts, the court will 
 arrest the judgment on those counts only which demand 
 the debts due to each bankrupt separately .(</) The as- 
 signees of one of the partners cannot maintain trover 
 against the executor of the solvent partner, for goods de- 
 
 (a) Scott V. Franklin, 15 East, 428. 
 
 (6) Slreatfield v. Halliday, 3 T. R. 779. 
 
 ((•) Ray V. Davies, 2 B. Moore, 3. Probably, on motion in arrest 
 of judgment after verdict, such an omission would have been holden 
 good, as, according to Slreatfield v. Halliday, there would have been 
 nothing to show that the assignees did not claim under a joint commis- 
 sion against all the partners. 
 
 {(I) Hancock v. Haywood, 3 T. R. 433, recognised by Lord Ellen- 
 borough in De Cosson v. Vaughan, 10 East, 65. See also Richardson 
 V. Griffin, 5 Mau, & Selw. 297. 
 
 (1) Graham et al. v. Mulcaster, 4 Bingh. 115. 
 57
 
 345 * THE CONSEqUENCES OF A 
 
 livered to him during the life of the solvent partner, al- 
 though after the act of bankruptcy upon which the 
 commission issued, because the representatives of the 
 solvent partner and the assignees of the bankrupt are 
 tenants in common.(e) (1) And, for the same reason, 
 
 where joint effects are delivered by the solvent 
 [ *346 ] partner to *a joint creditor, the assignees of the 
 
 bankrupt cannot, after the death of the former 
 partner, sustain an action of trover against such creditor, 
 notwithstanding the delivery be over-reached by the act 
 of bankruptcy. (y) 
 
 The Lord Chancellor exercises a discretionary power 
 to supersede a commission of hankriiptcy in the case of 
 partners as well as others, if from the circumstances of 
 the case he shall deem it necessary or proper. There- 
 fore, if the petitioning creditor's debt be insufficient ;(^) 
 or if he be an infant, and therefore incapable of giving the 
 bond to the great seal ;(A) or if there is not sufficient 
 evidence of the trading, or of the act of bankruptcy ; or 
 if the commission be not proceeded in for a length of 
 time, and the delay be not occasioned by the bankrupt 
 himself against the will of the petitioning creditor ;(i) or 
 if the bankrupts are not described in the commission ac- 
 cording to their legal or known description ;(Jc) or if the 
 party against whom the commission is directed be a feme 
 covert, and it be founded upon a trading prior to her 
 marriage,(/) or be an infant,(wi) or a lunatic,(/i) or an 
 uncertified bankrupt,(o) or if one of the partners be 
 dead at the time of issuing the commission against the 
 
 (e) Smith v. Stokes, 1 East, 363. 
 
 (/) Smith V. Oriell, 1 East, 368. 
 
 ( g) But see the 6 Geo. 4. e. 16. s. 18. 
 
 {li) £x parte Barrow, 3 Ves. 554. Ex parte Benjamin, Buck, 44. 
 
 {i) Ex parte Puleston, 2 P. Wms. 545. Ex parte Smith, 1 Rose, 
 332. Ex parte Fletcher, ibid. 454. Harrison's case, 3 Ves. & Bea. 
 174. Ex parte Luke, I Glyn & James. 361. 
 
 {k) Ex parte Beckwith, 1 Glyn <fe James. 20. 
 
 (/) Ex parte Mear, 2 Bro. C. C. 266. (w) See ante, p. 261 . 
 
 (n) Ibid. (o) Ibid. 
 
 (1) Murray v. Murray, 5 Johns. Cha. Rep. 60.
 
 DISSOLUTION BY BANKRUPTCY. 346 
 
 firm;(/?) a writ of supersedeas under the great seal will, 
 in all these cases, issue to set aside the commission. 
 And formerly, where a joint commission could not be 
 supported as to any one of the partners against whom 
 it was sued out, it was superseded against all ; but now 
 such a commission may be superseded as to one or more 
 of the partners, without prejudice to its validity against 
 the rest.(^) A commission of bankruptcy against part- 
 ners may also be superseded before it has been open- 
 ed, on notice of the application being given to the 
 bankrupts,(r) and with the consent of the petitioning 
 creditor (s) or after it has been opened it may 
 *be superseded at any time after the second [ *347 ] 
 meeting,(/) with the consent of all the creditors 
 who have proved their debts at the time the application 
 for a supersedeas is made,(i^) provided the bankrupts 
 have duly surrendered,(z;) and ai'e not under commitment 
 for not answering to the satisfaction of the commission- 
 ers.(z«) Upon a petition by the bankrupts to supersede 
 a commission, the Lord Chancellor generally directs an 
 issue to try the bankruptcy.(^) But where the commis- 
 sion plainly appears to be taken out fraudulently or 
 vexatiously,(y) or it is manifestly invalid, the court will 
 order it to be superseded upon a petition by the bank- 
 rupt for that purpose, without directing an issue or an 
 action, notwithstanding the petitioning creditor is desi- 
 rous to try its validity.(^) A commission being super- 
 seded, it is as if it had never existed, and the persons 
 against whom it was directed are restored to all the 
 
 ( p) Ante, p. 266. 
 
 }q) 6 Geo. 4. c. 16. s. 16. {r) Anon, i Glyn & James. 23. 
 
 \h) Ex parte Trigwell, 1 Ves. &; Bea. 348; and see Ex parte Law, 
 4 Madd. 273. 
 
 {t) See general order, 21st August, 1818, 3 Madd. 392. 
 
 {u) Ex parte Duckworth, 16 Ves. 416. And see Ex parte King, 
 2 Ves. jun. 40. Ex parte Jackson, 8 Ves. 533. Ex parte Crisp, 1 
 Atk. 134. 
 
 (o) Ex parte Jones, 11 Ves. 409. Ex parte Roberts, 1 Madd. 72. 
 Ex parte Wilkinson, 1 Glyn & James. 387. But see Ex parte Brown, 
 2 Swanst. 290. 
 
 (w) Ex parte Bean, 17 Ves. 47. Ex parte McGennis, 18 Ves. 289. 
 
 he) Ex parte Wilson, 1 Atk. 218. {y) Id. ibid. 
 
 (z) Ex parte Gallimore, 1 Madd. 67.
 
 347 THE CONSEQ,UENCES OF A 
 
 rights they antecedently enjoyed. Although there is 
 nothing express to be found upon the subject in the 
 books, there can be little doubt that the partnership, sus- 
 pended by the commission, will be re-established upon its 
 original footing, and that the partners will continue to 
 possess the partnership effects, and to carry on the part- 
 nership trade, according to tlieir previous agreement, 
 and subject to the rules of law we have formerly investi- 
 gated.(a) 
 
 [*348] SECTION IV. 
 
 The Consequences of a Dissolution by Death. 
 
 We will now endeavour to explain the consequences 
 which ensue the dissolution of a partnership firm by the 
 death of one of its menibers; and these may be arrange 
 ed under several heads. They may be considered, first, 
 as they relate to survivorship ; secondly, as they affect 
 suits between the surviving partner and the representa- 
 tive of the deceased ; thirdly, as they apply to suits 
 either by the survivor against third persons, or by third 
 persons against him ; and lastly, as they regard proceed- 
 ings against the assets of the deceased partner. 
 
 We have stated in a former part of this work,(i) that, 
 for the benefit of trade and commerce, in order that the 
 fruits of each person's labour and industry should de- 
 scend to his children and family, stock used in a joint 
 undertaking by way of partnership in trade is always 
 considered as common, and not as joint property, and 
 consequently that there is no survivorship therein. Jus 
 accrecsendl inter mercatores pro henejicio commercii locum 
 non hahet.(c) And in an old case(c?) it was said by the 
 Lord Keeper, "The custom of merchants is extended to 
 all traders to exclude survivorship." As it is not neces- 
 
 la) See Wats, on Partn. 357. 
 
 {b) See ante, p. 31. (c) Co. Litt. 182. a. 
 
 (d) Jeffreys v. Small, 1 Vern. 217. See also Annand v. Honi- 
 wood, Ca, in Cha. 129,
 
 DISSOLUTION BY DEATH. 348 
 
 sary, therefore, to provide against the right of survivor- 
 ship, which in other cases would attach, it follows that 
 on the death of one partner, his representatives become 
 tenants in common with the survivor of all the partner- 
 ship effects in possession.(l) But with respect to choscs 
 in aclion, survivorship so far exists at law, as that the 
 remedy or right to reduce them into possession vests 
 exclusively in the survivor ;(2) although, when they are 
 recovered, the survivor is regarded barely in the light of 
 a trustee, and the representatives of the deceased have, 
 in equity, the same right of sharing and participating in 
 them which their testator or intestate would have pos- 
 sessed had he been living.(e)(3) So, with respect to 
 real estate, we have seen(y") that where it is pur- 
 chased with the partnership *funds, and for part- [ *349 ] 
 nership uses, it is, on the death of any of the 
 partners, to be treated as a chattel interest, and that it 
 does not descend according to the rules of the common 
 law; for, notwithstanding former decisions to the con- 
 trary,(^) it appears now to be settled that the mere fact 
 of a joint purchase of land for the purpose of a partner- 
 nership, is of itself sufficient to change the nature of the 
 property, so as, on the death of any one of the part- 
 ners, to render it distributable in the same manner as 
 the shares of the partnership in the personal stock.(/^) 
 And where a partner, since deceased, contracted in his 
 own name for a lease of premises to be employed in the 
 partnership trade, the Court of Chancery restrained his 
 representatives from disposing of the lease when granted, 
 
 (e) Martin y. Crompe, 1 Ld. Raym. 340. (/) Ante,^. 34. 
 
 (g-) Tliornton v. Dixon, 3 Bro. C. C. 199. Balmain v. Shore, 9 
 Ves. 500. 
 
 (A) Townsend v. Devaynes, Mont, on Partn. in notes, p. 67. Selk- 
 rig V. Davies. 2 Dow. P. C 242. And see ante, p. 35. 
 
 (1) Dorsey^s Ex. v. Dorsey^s Mm. 4 TIarr. k, McHen. Rep. 231. 
 
 (2) Whether a dormant partner is entitled, upon the death of the 
 active one, to take possession of the partnership effects, and settle the 
 partnership concerns. T^usere. Johnson v. Ames, 6 Pick. Rep. 330. 
 
 (3) Case v. Abeel, 1 Paige's Cha. Rep. 393.
 
 349 THE CONSEQUENCES OP A 
 
 except for partnership purposes, and with the assent of 
 the surviving partner.(/) 
 
 It seems to be doubtful whether the goodwill of a com- 
 mercial trade^ carried on in partnership, survives^ or forms 
 a portion of the partnership stock. Lord Rosslyn^ on 
 the one hand, has determined(^) that in such a case the 
 goodwill of a trade carried on without articles survives, 
 and is not to be considered partnership stock to which 
 the representatives of a deceased partner have any 
 right. On the other hand, Lord Eldon has expressed 
 his doubts of the propriety of that determination, con- 
 sidering it difficult to draw any solid distinction between 
 the lease of the partnership premises, which is clearly a 
 part of the joint stock, and the goodwill, which consists 
 in the habit of the trade being conducted on those pre- 
 mises.(/) But whatever doubts may, in this respect, 
 
 exist as to the good-will of a mercantile trade, 
 [ *350 ] a very intelligible ^distinction has been suggested 
 
 between a commercial and a professional asso- 
 ciation. Sir John Leach has intimated, that where a 
 partnership is formed between professional persons, sur- 
 geons for instance, and one dies, it would be difficult to 
 maintain that the other is obliged to give up his business, 
 and sell the connexion for the joint benefit of himself 
 and the estate of his deceased partner. His honour ad- 
 ded, that when such partnerships determine, unless there 
 be stipulations to the contrary, each must be at liberty 
 to continue his own exertions ; and where the determi- 
 
 {%) Airier V. Fouracre, 3 Swanst. 489. One of the objects of the bill, 
 as originally framed, was to restrain the landlord from granting a lease 
 to the representatives of the deceased partner ; but hoxdr Eldon observed, 
 that as the contract vi^as with the deceased alone, unless there was evi- 
 dence that the landlord knew that it was made on behalf of the partner- 
 ship, the surviving partner had no equity against him, and that the land- 
 lord could not in such a case be compelled to grant a lease to the 
 survivor. 
 
 Ik) Hammond v. Pouglas, 5 Ves. 539. 
 f \l) Crawshay v. Collins, 15 Ves. 227. If partners become bank- 
 rupts, the goodwill of their trade passes to their assignees, who may 
 sell it for the benefit of the creditors. Such a sale, however, will not 
 operate to prevent the partners setting up the same trade again, and in 
 the same place. Crutwell v. Lye, 17 Ves. 335. S. C. 1 Rose, 123.
 
 DISSOLUTION BY DEATH. 350 
 
 nation is occasioned by the death of one, the right of the 
 survivor cannot be affected.(?n)(l) 
 
 It has before been observed, that a partner cannot by 
 will leave his interest in the business to a legatee, nor 
 has the executor or administrator of a deceased partner 
 any claim to be admitted a partner.(?i) It is usual, how- 
 ever, in articles of partnership, to provide for that con- 
 tingency ; and by special agreement, one or all of the 
 partners may severally secure the reversion of their in- 
 terest in the partnership business to their representative 
 or assignee.(o) But a surviving partner cannot, under 
 any circumstances, refuse to admit a legatee, if he him- 
 self claims any benefit under the will.(;?) And where 
 the deed of partnership stipulates to permit the personal 
 representative, or any other nominee of a deceased part- 
 ner to become partner, it is of course only optional, and 
 not imperative on them to become such partners ; and 
 although they will be entitled to a reasonable time -to 
 inspect and examine the accounts, yet they cannot insist 
 on having the accounts taken before electing to become 
 partners.(^) In the event of their refusal to succeed the 
 testator on the terms of the partnership, the death puts 
 an end to the concern, but not upon a dissolution wrought 
 by exclusion of the appointees, for they never become 
 partners.(r) Where a partner, having a power to no- 
 minate a person to succeed him, by will directed his ex- 
 ecutors to carry on the trade, and bequeathed to them 
 his share of the capital, with a power to dissolve the 
 partnership, or nominate any other person to succeed 
 him or them, and by a codicil he desired that if his 
 
 (m) Farr v. Pearce, 3 Madd. 74. 
 (n) Crawshay v. Maule, 1 Swanst. 509. 
 
 (o) Pearce v. Chamberlain, 2 Ves. 33. Godfrey v. Browing, cited 
 ibid. Balmain v. Shore, 9 Ves. 500. 
 [p] Crawshay v. Maule, supra, 
 (q) Pigott V. Bagley, 1 M'Clelland &; Younge, 569. 
 (r) Kershaw v. Matthews, 2 Russ. 62. 
 
 (1) Partners in the practice of physic, are within the law merchant 
 which excludes the jus accrescendi between traders. ^Uen v. Blan- 
 chard, 9 Cow. Rep. 631.
 
 351 THE CONSEQUENCES OF A 
 
 [ *351 ] *executors continued to trade, and his grand- 
 sons attained twenty-one, his executors, or the 
 survivor of them, would nominate them partners in his 
 place, and bequeathed to his grandsons a certain sum 
 a-piece, payable out of the profits of the trade, so soon 
 as they became partners, but directed such legacies to 
 sink into the estate, if the grandsons died before twenty- 
 one, or declined the partnership. In another codicil he 
 expressed himself thus : — " It shall be entirely in the dis- 
 cretion of my executors, whether to appoint D. (one of 
 the grandsons) to be a partner or not, any direction in 
 my will or codicil to the contrary notwithstanding ; and 
 if they do not think proper to appoint him, the legacy 
 given to him to be void." Both grandsons having at- 
 tained twenty-one, commenced a suit in equity against 
 the executors, to be admitted partners from the time 
 they attained that age, for an account of the profits from 
 that period, and for payment of their legacies. One of 
 the executors stated, that he had always been desirous 
 for their admission into the partnership, but the other 
 refused under an idea that the terms of the will and codi- 
 cil w^ere not compulsory. But the court w^as of opinion, 
 that as there w^as no declaration by the executors either 
 before or at the time the grandsons attained twenty-one 
 that they w^ere unfit to be admitted, and there was a dif- 
 ference of opinion among the executors upon the sub- 
 ject, the legatees were entitled to the relief they sought 
 in its full extent. (s) 
 
 We have seen(^) that, as to future dealings, a part- 
 nership is terminated by the death of one of the part- 
 ners; but although, in that point of view, death ipso facto 
 operates as a determination, yet a partnership cannot to 
 all intents and purposes be said to be dissolved by death. 
 The representatives of a deceased partner are not strictly 
 partners with the survivor ; but still that community of 
 interest subsists between them which is necessary for 
 the winding up of the aflfairs, and which requires that 
 what was partnership property before, shall continue so 
 for the purpose of distribution according to the rights of 
 
 (s) Wainwright v. Waterman, 1 Ves. jun. 311. 
 \() See ante, p. 219.
 
 DISSOLUTION BY DEATH. 351 
 
 the partners.(M) This event generally is, and ought 
 always to be, contemplated and provided for in 
 the articles of partnership. Positive ^covenants [*352] 
 between the parties as to the continuing of the 
 business, the distribution of the property, and the settle- 
 ment of accounts, upon such a contingency, often pre- 
 vent a great deal of confusion, hardship, and injustice. 
 In the absence of express negative stipulation, the ex- 
 ecutor has a right to insist upon the application of the 
 joint property to the payment of the joint debts, and a 
 division of the surplus ;(v) and if, within a reasonable 
 time the survivor do not account with him and come to 
 a settlement, a court of equity will grant an injunction 
 restraining him from disposing of the joint stock, and 
 from receiving the outstanding debts.(i^) So the sur- 
 viving partners have equally the power of insisting that 
 the partnership accounts shall be finally taken' and the 
 joint affairs wound up. But to a suit by them for that 
 purpose, the personal representative of the deceased 
 partner is a necessary party ; for as the accounts to be 
 adjusted relate to partnership dealings, which took place 
 during his lifetime, and the adjustment of which must 
 affect his personal estate, his executor or administrator 
 has such an interest in the question that he will not be 
 concluded by any decree made in his absence. It may 
 happen, however, that no person filling the character of 
 legal personal representative exists; but where that is 
 
 (m) Ex parte Williams, 11 Ves. 5. Wilson v. Greenwood, 1 
 Swanst. 480. S. C. 1 J, Wilson, 223. Crawshay ». Maule, 1 Swanst. 
 506. S. C. 1 J. Wilson, 181. Beak v. Beak, 3 Swanst. 627. ^pp. 
 VuUiamy v. Noble, 3 Meriv. 614. 
 
 (v) Ex parte Ruffin, 6 Ves, 128. Where by the articles of part- 
 nership for a term of seven years, it was provided that on the death of 
 any one, the concern should be carried on until the end of the term, as 
 if he had been living, for the joint benefit of the surviving partner and 
 the representatives of the deceased, and then the stock should be di- 
 vided according to the respective interests ; it was held, that as the ar- 
 ticles could not be literally performed by the division of the property 
 and interest in continuing contracts, the settlement could only be by a 
 sale of the whole, and division of the proceeds. Cook v. CoUingridge, 
 1 Jac. 607. 
 
 {w) Hartz v. Schrader, 8 Ves. 317. 
 
 58
 
 352 THE CONSEQUENCES OF A 
 
 the case, the ecclesiastical court will, on the refusal of 
 the next of kin after citation, grant a limited administra- 
 tion to a person nominated by the surviving partners, if 
 such a grant is shown to be essential to the due prose- 
 cution of the suit.(a;) In a late case it w^as determined 
 that the executor of a deceased partner could not file a 
 bill against the surviving partners and the assignees 
 under a commission of bankruptcy issued against them, 
 charging that the commission was concerted, and pray- 
 ing for an account against the survivors, or if the com- 
 mission was valid, that he might prove for what was 
 
 due, on the ground that the proper course to 
 [ *353 ] *impeach the validity of the commission was 
 
 by petition in the bankruptcy, and not by bill.(y) 
 When a suit is instituted for an account of the part- 
 nership stock, the principal question is, in what manner 
 the accounts are to be taken, so as to produce a final 
 arrangement. They may be taken in various ways : the 
 distinction, however, is, that where there is not a special 
 agreement directing the mode in which the accounts 
 shall be adjusted, they must be taken in the way ordi- 
 narily adopted by a court of equity ; but where a special 
 agreement has been made relative to their adjustment, it 
 will be abided by, and be acted upon as furnishing the 
 rule by which the adjustment is to be governed, provided 
 the parties themselves have observed it.(r) The right 
 possessed by partners of determining inter se the mode 
 and manner in which the accounts shall be settled on 
 their deaths respectively is necessarily unrestricted, and 
 whatever course may be agreed upon, it must form the 
 basis of any settlement between the representatives of 
 the deceased and the surviving partner. Partners may 
 lawfully stipulate, by the articles of partnership, that the 
 accounts shall be made up annually, and that if any 
 error shall happen to be made in stating them, it shall 
 be rectified during the lifetime of both parties ; and where 
 there is such a stipulation, an account settled during 
 
 (x) Cawthom v. Challie, 2 Sim. & Stu. 127. 
 
 [y) Bailey v. Vincent, 5 Madd. 48. 
 
 (z) Jackson v. Sedgwick, 1 Swanst. 469.
 
 DISSOLUTION BY DEATH. 353 
 
 their lives will, notwithstanding error, be conclusive 
 after their deaths.(«) (1) But if the articles themselves 
 prescribe the mode in which the accounts are to be ad- 
 justed, and the partners for several years not only do 
 not adhere to them, but engage in business to which 
 their application would work injustice, the executors of 
 a deceased partner will not be entitled to insist upon the 
 account being taken in conformity with the stipulations 
 contained in them. Thus, where three persons, on enter- 
 ing into partnership as ship agents and insurance bro- 
 kers, stipulated in the articles for an annual settlement 
 of accounts, and for payment to the representatives of a 
 deceased partner of an allowance, in lieu of profits since 
 the last annual account, proportioned to the amount of 
 his share of profits during two years preceding, and the 
 partners, afterwards engaging in the exportation of 
 goods on their joint account, the returns of 
 which could not be ascertained at the ^limited [ *354 ] 
 period, omitted for several years to settle annual 
 accounts, it was determined that the stipulations in the 
 articles were waived in equity; and an injunction was 
 granted to restrain the representatives of a deceased 
 partner from proceeding on a bond given by the surviv- 
 ing partners, for repayment of his share according to the 
 articles, before the settlement of accounts of transac- 
 tions pending at his decease, on which a loss was sub- 
 sequently sustained.(6) So, where the articles provided 
 that there should be a yearly adjustment of the accounts 
 upon a certain day in March, and that in case of the death 
 of either, he should not be entitled to any interest in the 
 concern from the date of the last yearly settlement; the 
 previous last annual adjustment having taken place in 
 November preceding the death of one of the partners in 
 February J it was held that his representatives were en- 
 titled to the profits up to that day.(c) The account, 
 
 (a) Gainsborough v. Stork, Barnard, 312. 
 
 (b) Jackson v. Sedgwick, 1 Swanst. 460 ; and see Geddes v. Wal- 
 lace, 2 Bligh, 270. 
 
 (c) Petty V. Janeson, 6 Madd. 146. 
 
 (1) See Heartt v. Corning, Ex., 3 Paige's Cha. Rep. 566.
 
 354 THE CONSEQUENCES OF A 
 
 where the articles do not prescribe the manner in which 
 it is to be taken, or the provisions respecting its adjust- 
 ment have been waived, must, according to the practice 
 of a court of equity, commence with the last stated ac- 
 count; and if there be not any stated account, it must 
 be taken from the time of the commencement of the 
 partnership.(c?) In taking the account, profits accrued 
 after the death of one partner are considered as an ac- 
 cession to the capital, and as joint property: for though 
 a partnership is ipso facto determined by the death of a 
 partner, yet if the surviving partners carry on the trade 
 with the capital of the deceased, instead of converting 
 the assets, and coming to a settlement with the execu- 
 tors, the latter are entitled to a rateable share of the 
 profits during the time that the capital has been so em- 
 ployed, partners being under an implied obligation " to 
 use the joint property for the benefit of all whose pro- 
 perty it is ;"(e) the account, therefore, is to end with the 
 
 state of the stock at the time of the death of the 
 [ *355 ] partner, *and the proceeds thoreof until it is 
 
 got in.(/) But an allowance will be made to 
 the surviving partner for his management of the trade, 
 where he carries it on for the joint account without any 
 obligation to do so under the partnership deed ;(^) al- 
 though where the trade is continued in pursuance of an 
 agreement in the co-partnership articles, which contains 
 no provision for an allowance to the survivor for his 
 
 [d) Beak v. Beak, Finch, 190, Where the object of a suit is not 
 only to have a partnership, but other distinct accounts taken, the de- 
 cree referring it to the master should expressly direct him to take the 
 account of the partnership ; for it seems to be a rule in the offices of the 
 masters, not to take a partnership account, unless particularly directed 
 to do so. WooUey v. Gordon, 1 Tamlyn's Rep. 11. 
 
 (e) Brown v. Litton, 1 P. Wms. 140. Hammond v. Douglas, 5 
 Ves. 539. Hill v. Burnham, and Coxwell v. Broraet, cited 15 Ves. 
 220, 223. Brown v. De Tastet, 1 Jac. 284. 
 
 (/) Beak v. Beak, Finch, 190. A sale of the share of the deceased 
 by his executor to the partners, for the purpose of being resold to him, 
 has been held void, and his_ estate entitled to the portion of the profits, 
 as if his interest in the partnership still continued. Cook v. Colling- 
 ridge, 1 Jac. 607. 
 
 ( g) Brown r. De Tastet, 1 Jac. 284.
 
 DISSOLUTION BY DEATH. 355 
 
 trouble in managing the concern, he is not in a situation 
 to claim any al]owance.(/i) (1) 
 
 When an infant or other person becomes entitled to 
 the share of a deceased partner, and the share is con- 
 tinued in the trade either in the case of the intestacy of 
 the deceased, or of his testacy without an express direc- 
 tion in the will to that effect, the party entitled has the 
 option of taking either the interest, or the profits that 
 have arisen from the use of the capital. But, inasmuch 
 as the principle of the option given is, whether the party 
 will or not elect to ratify the employment of the capital, 
 if he do so elect, he cannot ad libitum take interest or 
 profits for different periods, but must abide by his elec- 
 tion for the whole period. Circumstances may, indeed, 
 arise to entitle him to divide his election, and to take 
 profits for one and interest for another part of the 
 period, as if the property were subsequently embarked in 
 a new trade, or at a diflferent place, or in adventures 
 substantially new at the same place ; but, in all cases, a 
 decree will be made, directing an inquiry, whether the 
 account of interest or of profit is most advantageous, 
 and the option will be given for the larger sum.(^) So, 
 where A, B, and C, carried on business as bankers in 
 partnership, and were interested in the profits and losses 
 of such banking concern respectively, as follows : A for 
 five-twelfths, B for two-twelfths, and C for five-twelfths : 
 a commission of bankruptcy was awarded against them, 
 but the full amount of the joint and separate debts of 
 the bankrupts, with interest, was paid. To complete 
 such payment, real estates of great value, belonging to 
 A were sold by the assignees, and on the whole 
 A contributed ^considerably beyond his propor- [ *356 ] 
 
 {h) Burden v. Burden, 1 Ves. & Bea. 170, where, under such cir- 
 cumstances, the survivor bona fide incurs expenses on the erroneous 
 supposition that he is sole owner of the business, in the taking of the 
 account he will be allowed a moiety. Id. ibid. 
 
 (i) Heathcote v. Hulme, 1 Jack. & Walk. 122. 
 
 (1) Franklin v. Robinson, 1 Johns. Cha. Rep. 157. Bradford v. 
 Ktmberly et al. 3 Johns. Cha. Rep. 431. Holmes v. Higgins, 1 Barn. 
 & Cresw. Rep. 74. Causten v. Burke, 2 Harr. & Gill, 295.
 
 356 THE CONSEqUENCES OF A 
 
 tionate share of the losses of the firm. Part of the 
 said estates were sold during the life of A ; part were 
 contracted to be sold, but not sold, at the time of his 
 death ; and the remainder M^as sold since his death, and 
 a surplus remained in the hands of the assignees : it was 
 determined, that the heir of A, as such, had no claim in 
 respect of the estates of A sold in his lifetime, the same 
 being converted out and out, and the produce must be 
 taken as it was found ; but that the surplus monies in the 
 hands of the assignees, to the amount of the produce of 
 the estates sold after the death of A, belonged to the 
 heir at law, with four per cent, interest, unless rents and 
 profits were claimed.(^) 
 
 The surviving partner having at law the right to the 
 custody, care, and management of the joint estate, a 
 court of equity will not, generally speaking, on a bill 
 being filed against him for an account of the partnership 
 transactions, deprive him of his legal right by appoint- 
 ing a receiver ; because, notwithstanding the death of 
 one, the confidence in the other partner remains.(/) But 
 if he be guilty of such acts of mismanagement and im- 
 proper conduct as satisfactorily establish that he cannot 
 safely be intrusted with the joint estate, the court will 
 then exercise its power, and will appoint a receiver to 
 collect in the debts, and dispose of the property.(m) 
 And where, upon a bill for a discovery and an account, 
 it appeared that there were many outstanding debts, and 
 that the surviving partner was carrying on a distinct 
 trade with the debtors to the joint estate, and forbore to 
 call upon them for payment of the joint debts, the court 
 directed that a receiver should be appointed unless the 
 survivor, within a limited time, gave security for pay- 
 ment of a moiety of the amount of the debts.(n) But 
 if both partners are dead, and the representatives of the 
 one institute a suit for an account against the represen- 
 
 {k) Banks v. Scott, 5 Madd. 493. 
 
 (/) Philips V. Atkinson, 2 Bro. C. C. 272 ; and see Hartz v. Schra- 
 der, 8 Ves. 317. 
 
 {m) Philips V. Atkinson, supra. 
 
 {n) Estwick v. Coningsby, 1 Vern. 118.
 
 DISSOLUTION BY DEATH. 356 
 
 tatives of the other, the court will, as a matter of course, 
 grant a receiver ; for the confidence which subsisted dur- 
 ing the lives of both, and continued after the death of a 
 single partner, ceases with the death of the survivor and 
 does not extend to his representatives.(o) A court of 
 equity will not, on the application of the executor of a 
 deceased partner, restrain the surviving partners from 
 using the name of the deceased in the firm of 
 *their trade ; because, by continuing his name [ *357 ] 
 in the partnership firm, no liabilty can be en- 
 tailed upon his estate, and although it may be a fraud 
 upon the public, yet that circumstance will not entitle the 
 executor to an injunction.(p) 
 
 Where the executors of a deceased partnei> fihng their 
 bill for an account, have got all the partnership books 
 and accounts, the defendant regularly ought to file a cross 
 bill for an account and discovery.(<jr) But if he states, 
 by his answer, that the bill calls for a discovery which 
 he cannot make completely without seeing the partner- 
 ship books and accounts, and that he verily believes 
 those books and accounts (to the joint possession of 
 which both partners were entitled) are in the hands of 
 the plaintiffs, the court, although it will not order the 
 accounts to be produced, will on motion stay proceedings, 
 for want of a sufficient answer, until he has been as- 
 sisted with an inspection.(r) And in such a case, a 
 relaxation of the general rule is no more than obvious 
 justice requires.(s) When surviving partners claim to 
 be creditors of a deceased partner, in respect of a balance 
 due on his separate account, arising out of distinct trans- 
 actions with the partnership, it has been held at law that 
 no legal debt exists under such circumstances ;(/) but 
 nothing is more clear than the right of equitable creditors 
 to be satisfied, where an account has been decreed ; and 
 no distribution of assets can take place until the accounts 
 
 (o) Philips V. Atkinson, supra, 
 (p) Webster V. Webster, 3 Swanst. 490. n. 
 }q) Anon. 2 Dick. 778. Wilby v. Pistor, 7 Ves. 412. 
 (r) Pickering v. Rigby, 18 Ves. 484. 
 
 \s) The Princess of Wales v. Earl of Liverpool, 1 Swanst. 125. 
 (f) Bosanquet V. Wray, 2Mar8h. 319. S. C. 6 Taunt. 597. And 
 see ante, p. 118.
 
 357 
 
 THE CONSEQUENCES OF A 
 
 of all the creditors, of every description, have been gone 
 into. The fact that the debtor was a partner in the firm 
 of the creditors, however it may alter the nature of their 
 debt, is of no weight at all with reference to their right 
 to have the accounts taken.(i/) And where, on the dis- 
 solution of a partnership, one partner for a valuable 
 consideration, covenants to pay the joint debts, and to 
 indemnify the other partner against them, and the cove- 
 nantor dies, leaving joint debts undischarged, of which 
 the covenantee is compelled to pay some, the latter may, 
 
 by a bill in equity, not only reimburse himself out 
 [ *358 ] of the assets of the deceased, but may have *those 
 
 assets applied in discharge of the remainder of 
 the joint debts.(v) (1) 
 
 With respect to actions eitJier by or against surviving 
 partners^ they differ in no essential particulars from ac- 
 tions brought by or against the whole firm, except in the 
 person by whom in the one case, and against whom in 
 the other, the right in dispute is to be asserted. We 
 have already had occasion frequently to remark that, on 
 the death of one partner, all legal rights and remedies 
 appertaining to the partnership formally vest in the sur- 
 vivor. The right of action must necessarily survive j 
 otherwise, according to the technicalities of law, there 
 would be a failure of justice ; for the rights of the ex- 
 ecutor and of the survivor being of several natures, if 
 they joined in the same suit there consequently must be 
 several judgments, which in a single action is not allow- 
 ed.(w) Substantially, however, the right of the repre- 
 sentatives of the deceased is not varied by this legal 
 anomaly; for there being no survivorship in point of 
 interest, the instant any joint choise in action is reduced 
 
 iu) Paynter v. Houston, 3 M6riv, 302. 
 
 \v) Musson V. May, 3 Ves. &; Bea. 194. 
 
 {w)Kem^ V. Andrews, Carth. 170. S. C. 3 Lev. 290. 1 Shaw, 188. 
 
 (1) The case of Kerr v. Hawthorne et at. 4 Yeates, 170, would 
 seem to have been decided with a view to the principle stated in the 
 text.
 
 DISSOLUTION BY DEATH. 358 
 
 into possession by the legal process of the survivor, the 
 ricrht of the representatives to their distributive propor- 
 tion attaches.(^) So with respect to joint contracts 
 entered into with a firm, and from which a joint legal 
 responsibihty results, it can at law, after the death of 
 one partner, be enforced against the survivor alone, and 
 finally against the representatives of the last survior ;{y) 
 for the law considers partnership contracts, which are 
 joint in form, as producing only a joint obligation, which 
 on the death of one, attaches exclusively upon the sur- 
 vivor.(z) (1) Indeed the reason which has been advanced 
 as operating to prevent personal representatives from 
 asserting jointly with the survivor, a right resulting to 
 the partnership firm, applies with undiminished force, if 
 a right accruing to a stranger from the firm should be 
 attempted to be enforced against them and the survivor. 
 Executors or administrators, if legally responsible, could 
 only contract such a responsibility by the assumption of 
 their representative characters ; and it therefore 
 follows, that they could *only be charged de [*359] 
 bonis testatoris, whereas the surviving partner 
 would be liable de bonis propriis ; so that the judgments 
 must be different, as they applied either to the survivor 
 or to the representatives of the deceased partner. And 
 little inconvenience arises from the present rule, for, not- 
 withstanding the surviving partner is liable for the whole 
 debt in the first instance, he can call upon the executor 
 of his copartner for a contribution ; nor is there any 
 hardship upon the creditor, since, in the event of the**in- 
 solvency of the surviving partner, we shall presently see 
 that he has a remedy in equity against the estate of the 
 deceased. 
 
 Although, by the death of one partner, a joi7it debt or 
 
 (x) Kemp V. Andrews, Carth. 170. S. C. 3 Lev. 290. 1 Shaw. 
 188. Martin v. Crompe, 1 Ld. Raym. 340. 
 
 (y) Calder v. Rutherford, 3 Brod. & Bingh. 302. 
 
 (z) Anon. 1 Mod. 45. Hyat v. Hare, Comb. 383. Smith v. Bar- 
 row, 2 T. R. 470. 
 
 (1) Burgtvin v. Hostler's Mm. Tayl. Rep. 124, 
 59
 
 359 THE CONSEQUENCES OF A 
 
 duty is extinguished in law, as far as regards the enforc- 
 ing it against his representatives or his estate, yet a 
 court of equity has, upon general principles, laid down, 
 that there shall be a recourse against the assets of a de- 
 ceased debtor. At law, a partnership contract is joint 
 only ; but equity, adopting the law-merchant to its full 
 extent, holds it to be both joint and several: indeed, 
 were the surviving partner, who ought in the first in- 
 stance to be called upon to pay, not capable of answer- 
 ing the demand, it would, notwithstanding the legal claim 
 is dissolved, be inconsistent with equitable notions that 
 the estate of the deceased partner should remain solvent 
 without satisfying the joint engagements. (a) It was for- 
 merly matter of doubt with Lord Thurlow, whether the re- 
 presentative of a deceased partner could be used in 
 equity ;(6) but it is now completely settled, on the pre- 
 sumption of insolvency in the surviving partners, that the 
 deceased partner's estate remains liable, until the debts 
 which affected him at the time of his death have been 
 fully discharged.(c)(l) And this equitable doctrine seems 
 to have been carried so far as to have enabled the joint 
 creditors, subject only to the right of priority in respect 
 of debts of a superior degree, to come in upon the sepa- 
 rate estate of the deceased pari passu with separate 
 
 (a) Lane v. Williams, 2 Vern. 277, 292. Gray v. C his well, Q Ves. 
 125. See also dictum of Lord Hardwicke in Primrose v. Bromley, 1 
 Atk. 90. 
 
 (b) Hoare v. Contencin, 1 Bro. C. C. 27. 
 
 (c) VuUiamy v. Noble, 3 Meriv. 619. And see Newland v. Cham- 
 pion, 1 Ves. Sen. 105. Stephenson v. Chiswell, 3 Ves. 566. 
 
 (1) Marshall et al. v. De GrooVs Mm. 1 Caines' Ca. 123. Storer 
 V. Hinckley's Ex. Kirkby's Rep. 147. Long et al. v. KeppeWs Ex. 1 
 Binn. 123. Van Reimsdyk v. Kane et al. 1 Gallis. Rep. 630. Ha- 
 mersley v. Lambert et al. 2 Johns. Cha. Rep. 508. Sale v. Bish- 
 man's'^Ex. 3 Leigh's Rep. 548. Cope v. Warner, 13 Serg. & Rawle, 
 411. But if the surviving partner has secured the debt by giving bond 
 with surety for it, the surety must be proceeded against at law, before 
 the estate of a deceased partner can be had recourse to in equity, upon 
 the death and insolvency of such surviving partner. Linney's Adm. v. 
 Dare's Mm. 2 Leigh's Rep. 588. And it makes no difference that the 
 partner, whose estate is sought to be subjected to the payment of the 
 debt, was a secret partner. Coke v. Burnett's Ex. 6 Munf. 464.
 
 DISSOLUTION BY DEATH. 
 
 360 
 
 creditors, on the ground that a decree for payment 
 of debts, when obtained, operated as much for the 
 ♦benefit of the joint as of the separate credi- [ *360 ] 
 tors.(rf) But Lord Eldon, considering that the 
 accident of death ought not to. place the joint creditors 
 upon a better footing, as against separate creditors, than 
 they would have been placed in had the party lived 
 and become a bankrupt, limited this equitable right, and 
 determined that, as in bankruptcy, the joint creditors 
 could only claim the surplus of the separate estate of the 
 deceased after satisfaction of the separate debts.(e)(l) 
 But subject to this limitation alone, which obviates jus- 
 tice to the separate creditors required should be inter- 
 posed, joint creditors, whose claims were consummate in 
 the lifetime of all the partners have an indisputable right 
 of resorting against, and of having their demands satis- 
 fied out of the assets of a deceased partner. And those 
 assets will be an available fund to joint creditors in all 
 cases in which the deceased, had he been living, would 
 have been liable qua partner; and, therefore, notwith- 
 standing the claims, sought to be enforced, may have 
 arisen out of a fraudulent misappropriation, by one part- 
 ner, of funds or securities intrusted by the creditors of 
 the firm, yet if the deceased was instrumental to the 
 misappropriation, or if (he not being being privy to it) 
 the firm, of which he was at the time a member, was be- 
 nefited by an application to its use of those funds or secu- 
 rities, or their produce, his estate will be liable to make 
 good the losses which the creditors may have sustained. 
 Thus, in a late case, where a creditor deposited ex- 
 
 {d) Burn v. Burn, 3 Ves. 573. 
 
 (e) Gray v. Chiswell, 9 Ves. 118. In a creditor's suit for adminis- 
 tering the assets of B, a joint creditor of A & B has been permitted to 
 prove, it appearing that A had become a bankrupt, and that there were 
 no joint assets. Cowell v. Sike, 2 Russ. Ch. C. 191. 
 
 (1) See Bell v. Neivman, 5 Serg. & Ravvle, 78, Speny^s Estate, 1 
 Ashm. Rep. 347, and JVoddrop v. Price's Ex. 3 Desaus. Cha. Rep. 
 203. Hall V. Hall, 2 McCord's Cha. Rep. 302, McCulloch v. Da- 
 shieWs Adm. 1 Har. &; Gill. 96, for the rule in Pennsylvania, South 
 Carolina, and Maryland, of distribution of insolvent estates in the 
 hands of personal representaves.
 
 360 
 
 THE CONSEQUENCES OF A 
 
 chequer bills with a partnership firm, without giving any 
 power or authority to sell or dispose of them, but they 
 were afterwards sold, and the produce apphed to the use 
 of the partnership, it was decided that the estate of a 
 deceased partner, in whose lifetime the sale took place, 
 was responsible in respect of this breach of trust, not- 
 withstanding he was not actually privy to the sale.(/) 
 So where the customer of a banking firm (knowing that 
 an individual partner took into his own hands, for the 
 convenience and as the act of the firm, the general ma- 
 nagement both of stock in the public funds belonging to 
 the house, and of that intrusted to it by their customers,) 
 appointed them his agents to purchase stock on his 
 [ *361 ] ^'account, and to receive the accruing dividends ; 
 and some stock being bought, it was invested in 
 the name of the individual partner who afterwards, but 
 in the lifetime of a deceased partner, sold it, and applied 
 the proceeds to the use of the partnership ; it was held 
 that the customer was entitled, as against the estate of 
 the deceased, to consider it as a debt, or to have the 
 stock specifically replaced at his option.(^) And where 
 stock has been transferred, as a collateral security, to a 
 partnership, under an express agreement, that no part of 
 the stock should be sold without notice ; although the 
 account of the party who made such transfer may be 
 considerably overdrawn, it will be a fraud to sell the 
 stock, without notice, and apply the produce to the use 
 of the partnership ; continuing to treat the stock as un- 
 . sold, and giving the transferer credit for the dividends : 
 and, supposing this fraud to have been practised in the 
 lifetime of a partner, who dies before its discovery, his 
 estate (whether he was or was not privy to the transac- 
 tion) remains liable to replace, specifically, the whole 
 stock sold, and not merely the balance due, after giving 
 credit to the partnership for the sums overdrawn.(//!) 
 So, where it has been the habit of partners in a banking 
 house to take transfers of stock, as a security for ad- 
 vances made to their customers under an obligation that 
 
 (/) Clayton's case, 1 Meriv. 575. 
 (g) Baring's case, 1 Meriv. 611. 
 
 (h) Ward's case, ibid. 624.
 
 DISSOLUTION BY DEATH. 361 
 
 the stock so taken should remain in their hands as a 
 security only, not to be dealt with except by the autho- 
 rity, of the person making each several transfer ; if the 
 banking house, in fraud of the agreement, sell out the 
 stock, and apply the produce to partnership purposes, the 
 assets of a deceased partner will be liable, so far as the 
 fraudulent conversion took place during his lifetime. If 
 part of the stock so sold has subsequently been replaced, 
 this will be esteemed such an appropriation as, upon the 
 bankruptcy of the partnership, will entitle the party or 
 parties who made the transfer to a specific lieii on the 
 stock repurchased, which will be deemed to have a sort 
 of " ear mark" in their favour ; and they will, of course, 
 be entitled to prove under the commission for the residue 
 of their debts, as well as to go against the estate of a 
 deceased partner of the banking house to make good 
 any deficit.(i) But the liability of the estate of a de- 
 ceased partner is, of necessity, confined to those claims 
 alone which were consummate at the time of his death ; 
 for it would be the reverse of equity to throw 
 upon it the burthen *of paying debts, to the [ *362 ] 
 contracting of which the deceased could not 
 have been instrumental, and from which his estate could 
 not possibly have derived any benefit. Besides, the 
 death of a partner of itself works a dissolution of the 
 partnership •,{k) and there is the high authority of Lord 
 Eldon for saying, that notice of a dissolution so effected, 
 is not necessary to protect the estate of the deceased 
 from future liability. (/) Therefore, where bills were de- 
 posited by a customer in the hands of his bankers, who, 
 in breach of their trust, but after the death of one of the 
 firm, sold them, it was determined that the estate of the 
 deceased partner was not answerable, although the cus- 
 tomer was ignorant of the fact of his death.(m) And 
 
 {i) VuUiamy v. Noble, 3 Meriv. 619. 
 
 \k) Crawshay v. Maule, 1 Swanst. 509. Gillespie v. Hamilton, 3 
 Madd. 251. 
 
 (/) ViiUiamy v. Noble, 3 Meriv. 614.- On this ground a court of 
 equity will not restrain the surviving partners from using the name of 
 a deceased partner in the firm of the trade. Webster v. Webster, 3 
 Swanst. 490. n. 
 
 im) Brice's case, 1 Meriv. G20. 
 
 •A
 
 362 THE CONSEQ,UENCES OF A 
 
 where the bills have been lodged with a banking house, 
 part of which bills have been fraudulently sold before the 
 decease of one of the partners, and part after his death ; 
 the assets of the deceased partner are answerable only 
 for such part of the produce of the bills as were impro- 
 perly disposed of in his lifetime.(n) And notwithstand- 
 ing joint creditors have an equitable right against the 
 estate of a deceased partner for debts due from the firm 
 at the time of his death, yet they may, by their conduct, 
 manifest an intention of transferring the sole liability to 
 the survivors. What shall be considered a waiver of this 
 right, or in other words, what sort of dealing with the 
 survivors shall, in such cases, operate the discharge of 
 the estate of a deceased partner, appears to be unsettled 
 by decision. Lord Elclon has laid down generally that 
 the right standing only upon equitable grounds, if the 
 dealing of a creditor with the surviving partners has 
 been such as to make it equitable that he should go 
 against that fund, he would not upon general rules and 
 principles be entitled to the benefit of such a demand.(o) 
 But to oust the prima facie claim which the joint credi- 
 tors have upon the assets, it must be shown that their 
 subsequent dealings are of such a nature as to shift the 
 equitable obligation to pay from the estate of the deceased 
 partner ; such as clearly and unequivocally demonstrate 
 
 the intention of the creditors to give credit to the 
 [ *363 ] surviving ^partners exclusively. A continuation 
 
 by the creditor of his dealing with the surviving 
 partners, if unattended by circumstances from which his 
 relinquishment of all right against the assets of the de- 
 ceased can be inferred, will not alone produce the effect 
 of exoneration. For instance, in the case of a banking 
 concern (between which and any other partnership there 
 is no difference in principle as to the equity of the cre- 
 ditor against the deceased partner's estate), a creditor, 
 after the death of one partner, does not, by leaving 
 money in the hands of the survivors, raise a new con- 
 tract, nor relinquish any benefit resulting to him from 
 
 {n) Houlton's case, 1 Meriv. 616. 
 (o) Ex parte Kendal, 17 Ves. 526.
 
 DISSOLUTION BY DEATH. 363 
 
 his old security. If, therefore, he continue to draw 
 drafts upon the survivors, and act upon their acknow- 
 ledged liability to the extent that his convenience and 
 occasions may happen to require, he does not thereby 
 release the estate of the deceased ; for, although, by the 
 act of drawing upon them, he affirmatively recognises 
 the survivors as his debtors, yet that affirmative act does 
 not negatively show that all others who originally con- 
 tracted liability are exonerated.(^7) (1) So if the credi- 
 tor continue to deal with the surviving- partners, by both 
 drawing out and paying in money, whereby the debt 
 due to him is iricreased, but never at any time reduced, 
 this does not amount to an acquittal of his claim upon 
 the deceased partner.(</) And in a case in which one 
 of three members of a firm of bankers died, and after 
 his death a new partnership was formed by the surviving 
 partners and other persons ; and creditors of the old 
 partnership, for money paid into the bank upon notes 
 payable with interest, received interest upon such notes 
 from the new partnership, who re-issued several of the 
 common cash notes of the old partnership, it was deter- 
 mined that the creditors of the old partnership might, 
 upon the bankruptcy of the new firm, proceed against 
 the assets of the deceased partner.(r) And acts done 
 by a creditor, subsequent to the death of one partner, 
 from which an inference might be drawn of his having 
 adopted the surviving partners as his debtors, will not 
 have the effect of exonerating the estate of the 
 deceased from liability for a debt *previously [*364] 
 incurred to that creditor, by a breach of trust 
 
 ip) Sleech's case, 1 Meriv. 563. Gough v. Davies, 4 Price, 200. 
 
 (q) Palmer's case, ibid. 623. In this case distinct accounts must 
 have been kept, and the money paid by the survivors must in their ac- 
 count have been appropriated in payment of their debt, otherwise the 
 decision is not perfectly reconcileable with that in Clayton's case, post. 
 See the observation of Best, J., in Simson v. Ingham, 2 B. &;C. 72. 
 
 (r) Daniel t'. Cross, 3 Ves. 277. See also Jones v. Sutton, cited 
 ibid. 278. 
 
 (1) Hamersley v. Lambert ct al. 2 Johns. Cha. Rep. 508. See Orr 
 V. Chase, 1 Meriv. Rep. 729, App.
 
 364 
 
 THE CONSEQUENCES OP A 
 
 committed by the firm, of which the creditor was at the 
 time ignorant.(5) But if the creditor of a banking firm, 
 after the death of one of the partners, continue to deal 
 as usual with the survivors ; and before he pays in any 
 sums of money to his account, draws sums out of the 
 house, and the balance, although it varies from time to 
 time, is upon the whole increased by such subsequent 
 dealings; yet the subsequent payments by the surviving 
 partners will, where the accounts both posterior and 
 anterior to the death of the partner are blended, be 
 taken in reduction of the balance due at the death of 
 that partner, and his estate be held discharged pro tanto ; 
 because the balance for which alone the deceased part- 
 ner was liable, being once diminished to any given 
 amount, it cannot, as against his estate, be again aug- 
 mented by subsequent payments made, or subsequent 
 credit given to the surviving partners.(^) For it is a 
 general rule, that where one of several partners dies, and 
 the partnership is in debt, and the surviving partners 
 continue their dealings with a particular creditor, and 
 the latter joins the transactions of the old and the new 
 firm in one entire account, then the payments made, 
 from time to time, by the surviving partners, must be 
 applied to the old debt.(^f) But this rule applies only 
 where both accounts are blended, and does not deprive 
 the creditor of his legal right of applying, to the credit 
 of the old, or of a new account, payments made to him, 
 without any application of them by the surviving part- 
 ners. Indeed, if the general rule were invincible, it 
 might, where the deceased is indebted to the partner- 
 ship, be productive of this hardship to the surviving 
 partners, that the old debt would be satisfied by their 
 money. The creditor, therefore, where the surviving 
 partners do not make a specific application at the time 
 of payment, has the right of making a rest, and of open- 
 ing a new account, to which he may ascribe payments 
 made without appropriation after the death of the part- 
 
 Uy Clayton's case, 1 Meriv. 575. (/) S. C. Ibid. 585. 
 
 {ii) Simson v. Ingham, 2 B. &; C, 72. Simson v. Cooke, 1 Bingh. 
 452. Williams v. Rawlinson, 3 Bingh. 76.
 
 DISSOLUTION BY DEATH. 364 
 
 ner. This was decided in a late case,(?;) in which a bond 
 was given by country bankers to the several persons 
 constituting the firm of a London banking house, con- 
 ditioned for remitting money to provide for bills, 
 and for *the repayment of such sums, as the [*365] 
 London bankers might advance, on account of 
 persons constituting the firm of the country banking 
 house or any of them, associated or not with other per- 
 sons. One of the partners in the country bank died, a 
 considerable balance being then due to the London 
 bankers. It was the course of business between the two 
 houses, for the London bankers to send to the country 
 bankers monthly accounts of receipts and payments. In 
 the month following the death of the deceased partner, 
 the London bankers received sums, in payment, more 
 than sufficient to discharge the balance then due ; but, 
 during the same time, they advanced money on account 
 of the country bankers to an equal amount. In the first 
 instance, the London bankers entered in their books all 
 receipts and payments made, after the death of the de- 
 ceased partner, to the account of the old firm, but they 
 did not transmit any account to the country bankers 
 until two months after the death of the deceased part- 
 ner, and then they transmitted two distinct accounts : 
 one the account of the old firm, made up to the day of 
 the death of the partner; and another, a new account, 
 containing all payments and receipts subsequent to that 
 time. And it was held, that the entries in the books of 
 the London bankers did not amount to a complete appro- 
 priation by them, of the several payments to the old 
 account, such appropriation not being complete until it 
 was communicated to the party to be aflfected by it ; 
 and, therefore, that the London bankers, notwithstanding 
 those entries, were entitled to apply the payments re- 
 ceived, subsequently to the death of the deceased partner, 
 to the debt of the new firm. With respect to the time 
 when the creditors should prosecute their demands 
 against the surviving partners, in order to retain their 
 right of resorting to the estate of a deceased partner, no 
 
 (u) Simson v. Ingham, supra. 
 60
 
 365 THE CONSEQUENCES OF A 
 
 rule of convenience exists which requires them to do it 
 within any assigned or arbitrary hmitation. If such a 
 rule were established, it is doubtful whether the estate 
 of a deceased partner would, upon the whole, be much 
 benefited by it; for if creditors were told, that the only 
 way in which they could preserve their recourse against 
 the estate of a deceased partner, was by using all possi- 
 ble diligence to compel an immediate payment, by the 
 surviving partners, of the whole of their balances, there 
 are very few houses which could stand such a sudden 
 and concurrent demand as that would necessarily bring 
 r *'^CC 1 "P^" them. A firm might be reduced to a state 
 •- ^ *of bankruptcy, which, in the ordinary course 
 
 of business, would have been able to fulfil all its engage- 
 ments; and a demand would be brought upon the estate 
 of a deceased partner, from which it might otherwise 
 have wholly escaped. Expediency, therefore, being taken 
 into the consideration, it is impossible to see what bene- 
 ficial purpose would be answered by compelling credi- 
 tors to the rigorous course of exacting payment within 
 a definite period, as the condition upon which alone the 
 hold which equity gives them on the estate of a deceased 
 partner could be retained. (z^;) It has therefore been held 
 that the equity of a creditor against the estate of a de- 
 ceased partner is not barred by eight months nonclaim, 
 and an intermediate payment by the surviving partners 
 of part of the debt.(a') (1) The creditors of the surviving 
 partners, if they have themselves no demand against 
 the separate estate of the deceased partner, cannot com- 
 pel the joint creditors of the survivors (being also legal 
 creditors of the firm, as originally constituted,) to go 
 
 (w) Sleech's case, 1 Meriv. 569. 
 
 {x) Id. ibid. See also Lane v. Williams, 2 Vern. 277, 292. Daniel 
 V. Cross, 3 Ves. 277. 
 
 (1) See Hamp.rsley v. Lambert et al. 2 Johns. Cha. Rep. 508, and 
 observe the period of nonclaim, and intermediate payment, in that case» 
 Chancellor Kent observed, when giving judgment, "that neither delay, 
 nor lapse of time, nor dealing with the survivor, nor calling for and re- 
 ceiving part of the debt from the survivor, amounted to a waiver, or 
 bar, of the claim upon the assets of the deceased." See also Sale v. 
 Dichman's Ex. 3 Leigh's Rep. 548.
 
 DISSOLUTION BY DEATH. 366 
 
 against the separate estate of the deceased ; unless the 
 survivors, if they were solvent, could turn those credi- 
 tors, suing them, against the estate of the deceased. 
 The equity of the creditors, in such cases, is worked out 
 through the equities which the partners have as between 
 themselves.(y) Where, on a dissolution of partnership, 
 a creditor of the firm gave his security to the outgoing 
 partner, in satisfaction of a debt due to the outgoing 
 partner from the continuing partner ; it was agreed be- 
 tween the parties that whatever sums should become 
 due from the outgoing to the continuing partner for 
 business to be done on his account, should be applied in 
 liquidation of the above debt ; the outgoing partner died, 
 and his executors recovered against the joint creditor 
 on his security; the continuing partner who survived 
 became insolvent, and the creditor filed a bill against the 
 executors of the deceased and the survivor ; and it was 
 ordered that the creditor should have satisfaction from 
 the assets of the deceased, and that the money due from 
 the deceased to the surviving partner for work done 
 since the dissolution, should be set off against the debt 
 originally due from the survivor to the deceased on the 
 dissolution.(z) 
 
 *According to the principles of the common [ *367 ] 
 law, the creditors of a deceased partner or trader 
 had no remedy against his real assets, which by his 
 death descended to his heir. Even creditors by bond 
 or other specialty, in which the heir was not expressly 
 bound, could not enforce their claims against the assets 
 which the heir might take by descent in fee simple ; for 
 as Lord Coke has observed,(a) " the executor doth more 
 actually represent the person of the testator, than the 
 heir doth the person of the ancestor. For if a man 
 bindeth himself, his executors are bound, though they be 
 not named ; but so it is not of the heir." And creditors 
 by specialties which affected the heir, provided he had 
 assets by descent, were, before the statute 3 & 4 Wm. 
 and Mary, c. 14, defrauded of their securities, if the 
 
 (y) Ex parte Kendal, 17 Ves. 521. Ex parte Yallop, 15 Ves. 69. 
 \z) Cheetham v. Crom, 1 McClelland & Yoiuige, 307. 
 (a) Co. Liu. 209. (a.)
 
 367 THE CONSEqUENCES OF A 
 
 debtor had devised his real estates; because the remedies 
 which they had against the heir of the debtor could not 
 be enforced against his devisee.(6) However, the law 
 in this respect is much altered by a modern act of par- 
 liament,(c) which enacts, " that when any person, being 
 at the time of his death a trader, within the true intent 
 and meaning of the laws relating to bankrupts, shall die 
 seised of or entitled to any estate or interest in lands, 
 tenements, hereditaments, or other real estate, which he 
 shall not by his last will have charged with or devised 
 subject to or for the payment of his debts; and which, 
 before the passing of this act, would have been assets 
 for the payment of his debts due on any specialty in 
 which the heirs were bound ; the same shall be assets to 
 be administered in courts of equity for the payment of 
 all the just debts of such person, as well debts due on 
 simple contract as on specialty ; and that the heir or 
 heirs at law, devisee or devisees of such debtor, shall be 
 liable to all the same suits in equity, at the suit of any 
 of the creditors of such debtor, whether creditors by 
 simple contract or by specialty, as they were before the 
 the passing of this act liable to, at the suit of creditors 
 by specialty, in which the heirs were bound; provided 
 always, that in the administration of assets by courts of 
 equity, under and by virtue of this act, all creditors by 
 specialty, in which the heirs are bound, shall be paid the 
 full amount of the debts due to them, before any of the 
 creditors by simple contract or by specialty, in which 
 the heirs are not bound, shall be paid any part of their 
 demands." To entitle joint creditors to proceed under 
 
 this act of parliament against the real assets of 
 [ *36S ] a deceased ^partner, it is necessary that the 
 
 partnership or the trade should have continued 
 until the time of his death ; since, if, before that event, 
 he ceases to be a trader, the provisions of the statute do 
 not apply.(rf) But if a person labouring under a mortal 
 disease, were to quit his trade, for the purpose of ex- 
 onerating his estate, and letting it descend to his heir, it 
 
 (6) 2 Black, Com. 378. (c) 47 Geo. 3. Sess. 2. c. 74. s. 1. 
 
 (d) Keene v. Riley, 3 Meriv. 346. See also Carter v. Dean, 1 
 Swanst. 64.
 
 DISSOLUTION BY DEATH. 368 
 
 would be difficult to avoid the imputation of such fraud 
 as would frustrate the design.(e) Where the heir at law 
 is under age, it seems that a sale of the estate cannot be 
 decreed during his minority, but must be postponed until 
 he is of full age.(/) 
 
 Before concluding this treatise, we will advert to the 
 cases in which courts of equity have assumed a juris- 
 diction to reform instruments, which, either by the fraud 
 or mistake of the drawer, admit of a construction in- 
 consistent with the true agreement of the parties. For 
 example, relief has been granted upon a joint bond or 
 security, as if it had been joint and several, against the 
 representatives of the party first dying ; the intention (as 
 Avhere credit had been previously given to the different 
 persons who entered into the obligation) being gathered 
 from the cirumstances of the case, and it being con- 
 sidered that the bond was made joint, instead of joint 
 and several, by mistake. It is true Lord Eldon has ex- 
 pressed some surprise at the introduction of such an 
 equity, thinking that where parties have entered into a 
 joint, instead of a joint and several contract, a court of 
 equity ought to leave it to its fate as a joint contract ; 
 but so far from intimating a doubt of the existence of 
 the doctrine, his lordship has expressly admitted it and 
 acted upon it.(^) A court of equity, proceeding upon 
 the intention, would, indeed, by decree in the lifetime of 
 the deceased have rectified the security, so as to have 
 made it conformable to the intention of the parties ; it 
 therefore places the creditor in no better situation than 
 he would have been in if he had sued in the lifetime of 
 the debtor, by holding, after the death of the latter, 
 that the security shall be regarded according to the 
 form in which, it must be presumed, it was ori- 
 ginally intended to be framed.(A) In fact a *court [ *3G9 ] 
 of equity ascribes to the securities no other 
 
 (e) Hitchon v. Bennett, 4 Madd. 183. 
 
 (f) Lechmere v. Brasier, 2 Jac. &, Walk. 290. See Pott v. Galini. 
 1 Sim. & Stu. 209. 
 
 (g) Ex parte Kendall, 17 Ves. 519. Gray v. Chiswell, 9 Ves. 125. 
 See also Ball v. Storie, 1 Sim. & Stu. 210. Ex parte Halket, 19 Ves. 
 474. 
 
 (A) Gray v. Chiswell, supra. Underbill v. Horwood, 10 Ves. 227.
 
 369 THE CONSEq.UENCES OF A 
 
 effect than it was the purpose of the parties themselves 
 to have given to them. Thus, where one of two per- 
 sons to whom a joint loan was made, by mistake filled 
 up the bond given to secure it as a joint, instead of 
 a joint and several bond, Lord Hardwicke, on the 
 ground of the mistake, relieved the obligee by effec- 
 tuating his claim against the assets of a deceased obli- 
 gor.(i) So, where a partnership firm, indebted on simple 
 contract, intended that a bond should be given for the 
 debt by which each should be separately bound ; and, in 
 pursuance of such intention, a bond was, through mis- 
 take and ignorance of the parties, filled up as a joint 
 bond, and was executed only by the senior partner in the 
 name of the partnership firm, but with the privity of the 
 other partners who were present at the execution ; the 
 creditor was held entitled, as against simple contract 
 creditors, to come in as a specialty creditor upon the 
 estate of any of the partners.(A:) And in all cases in 
 which a security is, by mistake, executed as a joint in- 
 stead of a separate security, or as a separate instead of 
 a joint security, it does not affect the equitable right of 
 the creditor to consider his debt separate or joint, ac- 
 cording to the real intention of the parties.(/)(l) Relief 
 of this nature has also frequently been granted against 
 the estate of a deceased partner, where a joint security 
 only has been given for a partnership debt contracted in 
 the way of trade, the legal remedy upon which, by the 
 death of one, survived against the other alone, the 
 ground of the equity being, that qua partners they were 
 each of them liable for the whole debt ; and therefore, 
 as a several antecedent liability existed, independently 
 of the instrument by which the debt was secured, the 
 right of the creditor to enforce it severally ought not to 
 be impaired by the circumstance of a joint security only 
 
 (i) Simpson v. Vaughan, 2 Atk. 31. See also Primrose v. Brom- 
 ley, 1 Atk. 90. {k) Burn v. Burn, 3 Ves. 573. 
 
 (l) Thomas v. Fraser, ib. 399. In re Bate, ib. 400. n. In re Free- 
 man, ib. 
 
 (I) See what is said by Gibson, J., Bell v. Newman, 5 Serg. & 
 Rawle, 90.
 
 DISSOLUTION BY DEATH. 369 
 
 having been taken. This species of reHef was first ad- 
 ministered in an early case ;(m) in which one partner 
 had given a joint promissory note for money borrowed 
 by him on the joint account, and the other partner dy- 
 ing, the holder of the note brought a bill to have satis- 
 fiction out of the estate of the deceased, and it was 
 decreed to be proper in equity to follow his es- 
 tate for satisfaction, becawse the note *was given [ *370 ] 
 for a partnership debt. And in a case before 
 Lord Hardwickc, in which similar relief was prayed, 
 though he doubted a little at first, whether it sufliciently 
 appeared that the security was intended to be separate 
 as well as joint, yet when it was ascertained that the 
 money had been borrowed in the course of a partnership 
 dealing, he thought the equity was perfectly clear.(7i) 
 So, in Jacomb v. Harwood,(o) it is evident Sir John 
 Strange was of opinion, that the estates both of the de- 
 ceased and the surviving partners were liable to the 
 payment of a joint note, though it was not necessary to 
 resort to that equity in the particular case, inasmuch as 
 the surviving partner, as the executor of the deceased 
 partner, had executed a mortgage to secure the debt, 
 which it was held to be within his competency to do.{p) 
 The same principle had been before acted upon by 
 Lord Chancellor Parker, in a case in which a creditor 
 held the joint bond of two partners, and upon a disso- 
 lution of the partnership, it was agreed that all the joint 
 bonds should be discharged by one of the partners, to 
 whom afterwards an application for payment was made 
 by the creditor, when it was stipulated between them 
 that the interest upon the bond should be increased, and 
 some of the increased interest was in consequence paid. 
 The latter partner having subsequently become bank- 
 rupt, it was held, that the creditor had an equitable claim 
 . upon the assets of the other partner who had died, not- 
 withstanding he had proved his debt, and received a 
 dividend, under the commission against the bankrupt 
 
 (m) Lane v. Williams, 2 Vern. 277, 292. 
 
 (n) Bishop v. Church, 2 Ves. sen. 100, 371. S. C. reported on a 
 different point in 3 Aik. 691. 
 
 (o) 2 Ves. sen. 365. (p) See VuUiamy v. Noble, 3 Meriv. 614.
 
 370 THE CONSEQUENCES OF A DISSOLUTION BY DEATH. 
 
 partner.(9^) So, where a person kept a cash account 
 with three merchants who were in partnership, and they 
 becoming indebted to him, a joint bond, signed by one 
 partner only in the name of the partnership, was dehver- 
 ed for the balance due, after which one partner with- 
 drew from the partnership, and another died, of which 
 events, and of the introduction of new partners in their 
 places respectively, the obligee had express notice sent 
 to him ; but he nevertheless continued to correspond 
 with the new firm, in respect of the cash balance in their 
 hands ; Sir Thomas Plumcr declared that the bond, 
 though in its form joint, must in equity be taken as the 
 
 joint and several bond of all the partners, and, 
 [ *371 ] consequently that the representatives *of the 
 
 deceased partner were liable to make good the 
 money due on it.(r) But every joint covenant is not to 
 be considered in equity as the several covenant of each 
 of the covenantors ; for where it is purely matter of ar- 
 bitrary convention growing out of no antecedent liability 
 in all or any of the covenantors to do what they have 
 thereby undertaken, and it is not pretended that there 
 was any mistake in drawing the deed, or that there was 
 any agreement for a covenant of a different sort, the 
 extent of the covenant can be measured only by the 
 w^ords in which it is conceived. Therefore, where the 
 executor of a deceased partner, instead of winding up 
 the partnership concern, and dividing what might re- 
 main after satisfying all claims upon it, made an ar- 
 rangement with the surviving partners, by which he was 
 immediately to receive what was estimated to be his tes- 
 tator's share of the joint estate, he releasing all interest 
 in the residue to the other partners, from whom he ob- 
 tained a joint covenant of indemnity against any claims 
 upon the firm ; it was determined that as no equity ex- 
 isted which could have entitled him to demand from the 
 other partners such an indemnity, there was not a 
 ground on which any other than its legal operation and 
 eflfect could be ascribed to the covenant.(s) 
 
 (q) Heath v. Perceval, I P. VVnis. 682. S. C. 1 Stra. 303. 
 (r) Orr v. Chase, cited 1 Meriv. 559, and reported ibid. 729. 
 (s) Sumner i'. Powell, 2 Meriv. 30.
 
 (375) 
 
 APPENDIX. 
 
 No. I. 
 
 DEED OF PARTNERSHIP between Three Persons as 
 Auctioneers and Surveyors, of whom Two had previously 
 been engaged in the same Business, and the Third had 
 acted as Clerk to one of them, with ordinary Clauses. 
 
 This Indenture, made, &c. between A of, &c. of the first part ; 
 B of, &c. of the second part ; and C of, &c., now clerk and assist- 
 ant to the said A, of the third part : whereas, each of them the 
 said A and B has, for several years last past, and up to the day of 
 the date of these presents, carried on, for his own benefit and on 
 his separate account, the business of surveyor, auctioneer, estate 
 agent, and appraiser, and it has been agreed, that the business so 
 carried on by them respectively as aforesaid shall, from the day 
 of the date hereof, be carried on by the said A, B, and C in co- 
 partnership, for the period upon the terms, and under and subject 
 to the agreements, provisions, and stipulations hereinafter con- 
 tained : Now this indenture witnesseth, that in pursuance of the 
 said agreement, and in consideration of the mutual trust and con- 
 fidence which the said A, B, and C hav6 and repose in each other, 
 each and every of them the said A,'B, and C doth hereby for 
 himself, his heirs, executors, and administrators, covenant, pro- 
 mise, and agree with and to the other and others of them, and his 
 and their respective executors and administrators, in manner fol- 
 lowing, (that is to say) : — 
 
 1. That they, the said A, B, and C, shall and will become co- 
 partners in the business of surveyors, auctioneers, estate agents,and 
 appraisers from the day of the date hereof; and shall and will re- 
 main and be copartners in the said business for the term of four- 
 teen years, to be computed from the day of the date hereof, but 
 subject to the provisoes for determining the said co-partnership 
 hereinafter contained, (that is to say) — Provided always, that if 
 the said A and B, or the said C, shall be desirous of determining 
 the said copartnership as far as regards the said C, and of such 
 their or his desire, shall give one calendar month's notice in 
 writing, under their or his respective hands or hand to the other 
 or others of them, or leave such notice at the place where the said 
 business shall, for the time being, be carried on ; then and in such 
 case, from and after the expiration of the said one calendar 
 
 61
 
 376 APPENDIX. 
 
 month's notice, the copartnership hereby intended to 
 [ *376 ] be *established shall, in regard to the said C, absolutely 
 
 cease and determine : Provided further, that if either of 
 them the said A and B shall be desirous of determining the said 
 copartnership in toto, and of such his desire shall give to the 
 other of them three calendar months' notice in writing, or leave 
 such notice at the place aforesaid, then and in such case, and im- 
 mediately after the expiration of such three calendar months' no- 
 tice, it shall be referred to G of &c., H of &c., and K of &c., or 
 such one or more of them as shall be then living and willing to 
 act in the matter as referee or referees, to determine whether the 
 said copartnership should or should not be dissolved, and upon 
 what terms and conditions ; and for that purpose all necessary ac- 
 count books, papers, and documents shall be produced and sub- 
 mitted to them : and in case the said G, H, and K, or such one or 
 more of them as shall undertake to act as referee or referees, shall 
 by any writing under their or his hands or hand to be delivered 
 to each of them, the said A, B, and C personally, or to be left at 
 the place aforesaid, determine, award, and direct, that the said co- 
 partnership shall be dissolved, and by the same writing shall 
 specify the terms and conditions on and subject to which the 
 same shall be dissolved, then and in such case, from the day on 
 which such writing under the hands or hand of the said referees 
 or referee shall be so delivered or left as aforesaid, the copartner- 
 ship hereby intended to be established shall, in regard to all the 
 said partners, absolutely cease and determine. 
 
 2. That in case the said C shall depart this life before the ex- 
 piration of the said term of fourteen years; or in case the said 
 copartnership shall, under or by virtue of the power hereinbefore 
 contained, be determined so far as regards the said C only, then 
 the said copartnership shall be continued by the said A and B, to 
 the end of the said term of fourteen years, upon such and the 
 same terms, and under and subject to such and the same agree- 
 ments, provisions, and stipulations (including the power of deter- 
 mining the said copartnership by the said A and B,) as are con- 
 tained in these presents to all intents and purposes whatsoever, as 
 if the copartnership had been originally formed between the said 
 A and B, and these presents had been made and entered into be- 
 tween and by them alone. 
 
 3. That the firm and style of the said copartnership shall be A, 
 B, and C. 
 
 4. That the business of the said copartnership shall be carried 
 
 on at the house and premises of the said A in aforesaid, in 
 
 the rooms now appropriated by him to his said business, or at such 
 other place or places as the said partners shall hereafter agree 
 upon. 
 
 5. That from the day of the date of these presents, and from 
 time to time, and at all times during the said copartnership, the
 
 APPENDIX. 376 
 
 said A shall permit and suffer the rooms in his said house now ap- 
 propriated to his said business, and also such other part or parts 
 of his said house and premises as shall or may be necessary for 
 carrying on the copartnership business, to be used, occupied, and 
 enjoyed for that purpose: but such house and premises shall not 
 to any further extent be considered as partnership property. 
 
 *6. That such part of the said house and premises as r #077 -1 
 are not used for the purposes of the copartnership L J 
 
 business, shall be exclusively held, used, occupied, and enjoyed 
 by the said A, without any molestation or interruption by the 
 said B and C, or either of them. 
 
 7. That on the determination of the said copartnership, either 
 by effluxion of time, or otherwise, the said A shall and may re- 
 tain the said house and premises, and continue to carry on therein 
 his said business in the manner in which he now carries on the 
 same, and as if the said copartnership had never existed, 
 
 8. That all the debts which on the day of the date hereof are 
 due and owing to the said A in respect of his said business, and 
 all the gains and profits which shall arise from the sale of the 
 
 — — — estate, situate in the county of , and from any business 
 
 connected with and necessary for completing such sale, shall be 
 received and retained by, and be the exclusive property of, the 
 said A. 
 
 9. That the rent, and all taxes, assessments, and outgoings 
 whatsoever, including repairs, which during such time as the 
 business of the said copartnership shall be carried on in the said 
 
 house and premises in aforesaid, or which shall be due and 
 
 payable in respect of the same or any other premises taken for 
 the purpose of the said copartnership business, and the salaries, 
 maintenance and wages of all clerks, servants, and workmen to 
 be employed in the said business; and all expenses, losses, and 
 damages which shall be paid, sustained, or incurred in carrying 
 on the same, or in any wise relating thereto, shall be paid and 
 borne with and out of the monies and effects of the said copart- 
 nership, and the gains and profits arising from the same. 
 
 10. That the said A and B shall be entitled to the net gains 
 and profits arising from the business of the said copartnership, 
 after deducting the salary or allowance made to the said C as 
 hereinafter mentioned, in the shares and proportions following: 
 (that is to say,) the said A shall be entitled to two equal third 
 parts or shares thereof, and the said B shall be entitled to the 
 remaining equal third part or share thereof. 
 
 11. That if either of the said partners, with the assent of the 
 others of them, shall lend, advance, or bring into the said part- 
 nership concern any sum of money, he shall be entitled to debit 
 the said copartnership with interest for the same, after the rate of 
 five pounds per cent, per annum, for such period as the same 
 shall remain, with such consent as aforesaid, to the credit of the
 
 377 APPENDIX. 
 
 said copartnership, the same to be payable half-yearly; and such 
 partner is also to be at liberty to withdraw the principal money 
 so lent or advanced or brought in, at his free will and pleasure. 
 
 12. That in each year of the said copartnership, it shall be 
 lawful for the said A to take out of the monies and effects of the 
 said copartnership any sum or sums of money not exceeding the 
 
 sum of pounds quarterly duringthe said copartnership; and 
 
 for the said B in like manner to take out any sum or sums of 
 
 money not exceeding the sum of pounds quarterly, which 
 
 sums shall be in part satisfaction of their respective shares in the 
 
 residue of the said net gains and profits. 
 r*378] *13. That the said C shall, during the first three years 
 of the said copartnership, receive out of the gains and 
 
 profits of the said business a salary or allowance of pounds a 
 
 year; and during the fourth year of the said copartnership a 
 
 salary or allowance of pounds a year; and in the fifth and 
 
 every subsequent year of the said copartnership in which the 
 net and clear gains and profits of the said business shall amount 
 
 to pounds a year or upwards, a salary or allowance of 
 
 pounds a year: but in the fifth or any subsequent year of the 
 said copartnership, in which the said net gains and profits shall 
 
 not amount to pounds a year, then a salary or allowance of 
 
 pounds a year; every such salary or allowance to be paid 
 
 to the said C in equal quarterly portions. 
 
 14. That on the thirty-first day of December now next ensu- 
 ing, and on every succeeding thirty-first day of December during 
 the continuance of the said copartnership, a full and general 
 account and rest shall be made and taken by the said partners of 
 the monies, debts, and effects belonging and due, or owing to the* 
 said copartnership, and of all such debts as shall be due and 
 owing from or by the said copartnership in respect of the busi- 
 ness thereof, which from time to time shall be written either into 
 the ledger belonging to the said copartnership, or into two sepa- 
 rate books, and shall be signed and subscribed by each and every 
 of the said partners within one calendar month after the time 
 appointed for the taking thereof respectively. And that after 
 such subscription, each and every of the said partners shall be 
 bound and concluded by every such account respectively, unless 
 some manifest error shall be afterwards found therein, and be 
 signified by writing by one of the said partners to the other or 
 others of them, and in which 'case such error only shall be rec- 
 tified. 
 
 15. That with all convenient speed, after the settlement of 
 such yearly account, what shall appear the net gains and profits 
 arising from the business of the said copartnership during the 
 year, ending on the days hereinbefore appointed for the taking of 
 such account (after deducting such salary or allowance to the said 
 C as aforesaid,) shall, after deducting the sums to be taken out by
 
 APPENDIX. 378 
 
 the said A and B, in part satisfaction of their respective shares 
 thereof as aforesaid, be taken out and divided between the said 
 A and B, in the proportions in which they shall respectively be 
 entitled thereto as hereinbefore is mentioned. 
 
 16. That proper books of account shall be kept by the said 
 partners, and that entries shall be made therein of all such mat- 
 ters, transactions, and things, as are usually written and entered 
 into books of account, kept by persons engaged in concerns of a 
 similar nature. 
 
 17. That the said books of account, and all securities, letters, 
 papers, and writings, which shall from time to time relate to or 
 concern the said copartnership or the business thereof, shall re- 
 main and be kept at the office where the said business shall be 
 for the time being carried on; and that the said A and B shall, at 
 all times, have free access to inspect, examine, cast up, and copy 
 out the same, without any hindrance or denial of or by the other 
 of them. 
 
 18. *That the cash of the said copartnership shall be [ *379 ] 
 
 kept at the banking-house of , (or at such other 
 
 banking-house as the said A and B may agree upon,) in the joint 
 names or account of all the said partners; but no draft or checks 
 for any copartnership money shall be drawn except by the said 
 A and B. 
 
 1 9. That each and every of the said partners shall be just and 
 faithful to the other of them in all receipts, payments, accounts, 
 dealings, and transactions, on account of, or relating to, the said 
 copartnership; and shall and will give and render to the other 
 or others of them a just and faithful occount of the same, when 
 and so often as the same shall be reasonably required. 
 
 20. That neither the said B, nor the said C, during the con- 
 tinuance of the said copartnership, either by himself or them- 
 selves,- or with any other person or persons whomsoever, directly 
 or indirectly shall engage in any other business whatsoever, with- 
 out the consent, in writing, of the said A. 
 
 21. That in all cases where there shall be occasion to give any 
 bond, note, or other security, for the payment of any sum or 
 sums of money on account of the said copartnership, such bond, 
 note, or other security, shall be respectively executed and signed 
 by the said A and B, or by one of them, with the previous con- 
 sent, in writing, of the other of them. 
 
 22. That if any of the said partners shall give any such bond 
 note, or other security, which shall not be signed and executed as 
 last aforesaid, the same shall be deemed a dissolution of the said 
 partnership so far as regards the party so giving such bond, note, 
 or other security. 
 
 23. That neither of the said partners shall purchase or contract 
 for any goods, wares, merchandize, article or thing whatsoever,
 
 379 
 
 APPENDIX. 
 
 for or on account of the said copartnership, without the consent, 
 in writing, of the said A and B. 
 
 24. That within two calendar months after the expiration of 
 the said term of fourteen years, or after the dissolution of the said 
 copartnership in pursuance of either of the provisoes for that 
 purpose hereinbefore contained, an account, in writing, shall be 
 stated and settled between the said partners of all the monies, 
 debts, and effects of or belonging to, and all the debts or sums of 
 money due and owing from or by the said copartnership; and 
 upon the finishing of such account the partners shall forthwith 
 make due provision for the payment and satisfaction of such 
 debts and engagements as shall then appear to be due from the 
 said copartnership; and the balance of the said copartnership 
 monies, debts, and effects, and the profits thereof, and other the 
 matters to be included in such general account, shall after making 
 such provision as aforesaid, and paying to the said C the arrears 
 (if any) of his said salary or allowance, be divided between the 
 said A and B, or their respective executors or administrators, in 
 the shares and proportions in which they shall be respectively 
 entitled thereto; and after making such division, such instrument, 
 in writing, shall be executed by all the said partners respectively, 
 for facilitating the getting in of outstanding debts and effects, 
 and for indemnifying each other touching the premises, and 
 
 for vesting the sole right and property in the said re- 
 r *380 ] spective shares *of and in the said monies, debts, and 
 
 effects, in the partners to whom the same respectively 
 shall upon such division belong, and for releasing to each other 
 all claims on account of the said copartnership as are usual in 
 cases of the like nature, or as shall be necessary for carrying into 
 effect any order or direction to be made by such referees or 
 referee as aforesaid, in case the said copartnership shall be dis- 
 solved by their or his direction. 
 
 25. That within two calendar months after the determination 
 of the said copartnership, by the death of either of them the said 
 A and B (in case the said copartnership shall be so determined,) 
 an account in writing shall be stated and settled of all debts or 
 sums of money due and owing to, and of all debts or sums of 
 money due and owing from, or by the said copartnership; and 
 within one calendar month after such last-mentioned account 
 shall be so stated and settled, the survivor of them, the said A 
 and B, shall execute and give to the executors or administrators 
 of him so dying sufiicient security for the due payment of such a 
 sum as on the preceding annual account shall appear to be the 
 amount of the share of the partner so dying of and in the clear 
 gains and profits of the business of the said copartnership for such 
 preceding year, and shall render and pay to the executors or ad- 
 ministrators of such deceased partner what, if any thing, shall be 
 otherwise due to him from the said partnership concern up to the
 
 APPENDIX. ' 380 
 
 preceding annual settlement, and enter into a bond to collect and 
 get in such of the outstanding debts and effects of the said copart- 
 nership, to a proportion whereof such deceased partner would be 
 entitled as aforesaid; and from time to time, as and when the re- 
 ceipts in respect thereof shall amount to 100/., pay the proportion 
 of such deceased partner to his executors or administrators; and 
 in cases such outstanding debts and effects shall not be collected 
 within twelve calendar months then next following, the same 
 shall be divided in such and the same manner as herein provided 
 for on the determination of the said copartnership by effluxion of 
 time. 
 
 26. That if at any time during the said copartnership, or after 
 the determination thereof, any dispute or controversy shall arise 
 between the said parties, or between any of them and the execu- 
 tors or administrators of the other or others of them, or between 
 their respective executors or administrators concerning any of 
 the clauses, covenants, and agreements herein contained, or any 
 other matter or thing whatsoever in any wise relating to the said 
 copartnership, the same shall be referred to the award or arbitra- 
 tion of such persons as shall be nominated or appointed for that 
 purpose by the parties in difference within thirty days next after 
 any such dispute or controversy shall happen; and in case such 
 arbitrators shall not agree in the premises within the space of 
 thirty days next after any such dispute or controversy shall be 
 referred to them, the same shall be referred to the determination 
 of such indifferent person as the said arbitrators by any writing, 
 under their hands shall nominate and appoint as umpire in the 
 premises; and that the award of such arbitrators is made in writ- 
 ing under their hands and seals, to be delivered to the parties in 
 difference within the time before limited, or in default thereof 
 the award of such umpire, under his hand and seal, to 
 be delivered to the parties in *difference within thirty [* 381 ] 
 days after he shall be so appointed, shall be binding and 
 conclusive on all the said parties; and that in case any or either 
 of the parties in difference shall neglect or refuse, by the space of 
 one calendar month after notice in writing given by the other or 
 others of them for that purpose, to join in the appointment of 
 such arbitrators as aforesaid, it shall be lawful for the arbitrator 
 or arbitrators to be chosen by the party or parties giving such 
 notice, to make an award which shall be binding in like manner 
 as if the party or parties so neglecting or refusing had chosen an 
 arbitrator who had actually joined therein. 
 
 And lastly, that for the further and better enforcing the per- 
 formannce and observance of every such award so to be made as 
 aforesaid, the reference or submission for or in respect of the same 
 shall be from time to time be made a rule of the Court of King's 
 Bench, according to the direction of the statute in that case made 
 and provided. In witness, &c.
 
 381 ' APPENDIX. 
 
 No. 11. 
 
 DEED OF COPARTNERSHIP between Six Persons as 
 Merchants luith some Special Clauses. 
 
 This Indenture made, &c. between A of &c. of, the first part; 
 B of, &c. of the second part; C of, &c. of the third part; D of, 
 &c. of the fourth part; E. of, &c. of the fifth part; and F. of, &c. 
 of the sixth part. Whereas the said A, B, C, D, E, and F, 
 have agreed to become copartners in the business of general 
 merchants for the term, and under, and subject to the provisions 
 conditions, covenants, and agreements hereinafter mentioned 
 and contained; Now this indenture witnesseth, that in pursuance 
 of the said agreement, and in consideration of the mutual con- 
 fidence which the said parties respectively repose in each other, 
 each and every of them the said A, B, C, D, E, and F, so far as 
 relates to the observance and performance by him, his executors 
 and administrator^, of the covenants and agreements hereinafter 
 contained on his and their parts to be observed and performed, 
 doth hereby for himself, his heirs, executors, and administrators, 
 covenant, promise, and agree with and to the others, and each 
 and every of the others of them, their and his executors and ad- 
 ministrators, in manner following (that is to say) : 
 
 That they, the said parties respectively, will become and con- 
 tinue copai'tners in the business of general merchants, from the 
 day of the dates of these presents, for the term of ten years thence 
 next ensuing. 
 
 That the firm or style of the said copartnership, shall be "A, 
 B and Co.," or such other firm or style as the said partners, or the 
 major part of them, shall hereafter agree upon. 
 
 That the business of the said copartnership shall be carried on, 
 
 at or in the house or warehouse in , or at or in 
 
 f *382 ] such other *place or places as the said partners, or the 
 major part of them, shall hereafter agree upon. 
 
 That the capital or joint stock of the said copartnership, shall 
 
 consist of the sum of , or such other sums of money as the 
 
 said partners, or the major part of them, shall hereafter agree 
 upon, and shall be brought in by the said partners in the propor- 
 tions following: (that is to say) three-fourteenth parts or "Shares 
 thereof by each of them the said A and B ; and two-fourteenth 
 parts or shares thereof by each of them the said C, D, E, and F. 
 
 That if one or more of the partners shall at any time neglect 
 or refuse to bring in his or their share or shares of the said capital 
 of the said copartnership at the time he or they ought to bring 
 in the, same, tiic amount of such share or shares, or such part 
 thereof as shall not be brought in, sliall be placed to the debit of
 
 APPENDIX. 382 
 
 the account of such partner or partners with the said copartnership, 
 and shall carry interest at the rate of 51. for 100/. by the year. 
 
 That if any one or more of the said partners shall at any time 
 neglect or refuse, for the space of three calendar months, after 
 being thereunto requested in writing by the others of the partners 
 for the time being, or the major part of them, to bring in his or 
 their share or shares of the said capital of the said copartnership, 
 it shall be lawful for the others of the said partners, or the major 
 part of them, to expel the partner or partners, so for the tinie 
 being offending in the premises from the said copartnership, in 
 like manner and upon the like terms as hereinfter is mentioned, 
 with respect to the expulsion of a partner in any of the events 
 hereinafter in that behalf mentioned. 
 
 That the said capital or joint stock, and the increase thereof, 
 and the gains and profits arising from the same respectively, shall 
 (subject as hereinafter is mentioned) be used and employed in the 
 business of the said copartnership. 
 
 That the rent and taxes of the house and warehouse in , 
 
 and of any other house and warehouse, in which the business of 
 the said copartnership shall, for the time being be carried on, and 
 all repairs, additions, and alterations which shall be made in or to 
 the same, and the wages or maintenance of the clerks, apprentices, 
 and servants who shall be employed in the business of the said 
 copartnership, and all other necessary expenses whatsoever which 
 shall be incurred in or about the said business or relating thereto, 
 and all debts and duties which shall be owing by reason or on ac- 
 count of the said joint trade, and any loss or damage which sliall 
 happen thereto by bad debts, decay of goods, suits at law or in 
 equity, or otherwise, shall be paid or borne by and out of the joint 
 stock of the said copartnership, and the gains and profits arising 
 from the business thereof, if the same shall be sufficient for that 
 purpose; and if not, then as to the deficiency by the said parties 
 out of their respective separate estates, in the like shares and pro- 
 portions in which they are hereinbefore required to bring in the 
 capital of the said copartnership. 
 
 That the said partners shall be entitled to the net gains and 
 profits of the business of the said copartnership (after making 
 such deductions as hereinbefore mentioned,) in the like shares and 
 proportions in which they arc hereinbefore required to bring in 
 the capital of the said copartnership. 
 
 "^That it shall be lawful for each and every of the said [ *383 ] 
 partners to draw out of the said copartnership busi- 
 ness by four equal quarterly portions, on the day of , 
 
 the day of , the day of , and the day 
 
 of , in every year during the said copartnership, for his own 
 
 separate use a sum of money equal in amount to pounds 
 
 for every one hundred pounds of his share in tiie capital of the 
 
 62
 
 383 APPENDIX. 
 
 said copartnership, to be accounted for on the next division of the 
 profits. 
 
 That each of them the said A and B, shall receive out of the 
 monies and effects of the said copartnership, as a recompense or 
 remuneration for his care and trouble in managing and carrying 
 
 on the business thereof, the yearly sum of pounds, and so 
 
 in proportion for any less time than a year; and that the said F 
 shall receive out of the same monies and effects, as a recompense 
 or remuneration for his care and trouble in attending to the 
 affairs and business of the said coijartnership, the yearly sum 
 
 of pounds, and so in proportion for any less time than a 
 
 year. 
 
 That in case any of the said partners shall, for the convenience 
 of the business of the said copartnership, and with the consent of 
 the others of the partners, or the major part of them, bring into 
 the said copartnership business any sum or sums of money by 
 way of loan, the same shall be immediately entered in the cash 
 book of the said copartnership, as a debt due from the concern to 
 the partner lending the same, and shall thenceforth become a 
 charge upon the partnership estate, and shall bear or carry inte- 
 rest after the rate of 51. for 100(. by the year; and the partner 
 lending such sum or sums of money shall be at liberty to take 
 such interest out of the cash of the said copartnership, by half- 
 yearly payments, from the time or respective times of lending 
 the same; and that the party lending shall not require the prin- 
 cipal to be repaid, and the partners not lending, or the major 
 part of them, shall not require the partner so lending to take 
 back the principal without six months' previous notice in writing 
 for that purpose being given by the party or parties requiring 
 the same to be repaid or accepted (as the case may be) ; and if 
 the party lending such sum or sums of money shall neglect or 
 refuse to take back the same, upon such notice as aforesaid, inte- 
 rest thereon shall cease from the time of the expiration of such 
 notice. 
 
 That the said partners respectively shall from time to time, 
 during the continuance of the said partnership, write or cause to 
 be written, in proper books of account to be kept for that pur- 
 pose, true, plain, and perfect entries of all monies, goods, wares, 
 merchandise, effects, and things belonging or relating to the busi- 
 ness of the copartnership, which shall be received, paid, sold, 
 delivered or contracted for, in the course of such trade or busi- 
 ness, and of all such other matters and transactions as shall be or 
 ought to be entered in the said books in the usual and regular 
 course of the said business; together with all such circumstances 
 of names, times and places, as may be necessary or useful for the 
 better manifestation of the state and proceedings of the business 
 of the said copartnership.
 
 APPENDIX. 384 
 
 That the said books of account, together with all 
 bonds, bills, *notes, drafts, securities, letters, and other [ *384 ] 
 papers and writings relating to the said business, shall 
 be kept at the counting-house, or other place where the copart- 
 nership business shall for the time being be carried on, and not 
 elsewhere; and that each and every of the said partners shall 
 and may, from time to time, and at all times, have free access to 
 inspect and examine, cast up, and copy out the same, at his own 
 free will and pleasure, without any hinderance or denial of or by 
 the others or any of the others of them. 
 
 That the said A, B, and F, shall devote the whole of their 
 time to the business of the said copartnership, and superintend 
 the management thereof, and shall faithfully and diligently em- 
 ploy themselves in and about the affairs and concerns thereof, 
 and carry on and conduct the same according to the best of their 
 skill and ability. 
 
 That the said C, D, and E, shall not be obliged to attend to 
 the business of the said copartnership any further than they shall 
 respectively think fit; but that so far as they shall attend thei-eto, 
 they shall carry an and conduct the same for the greatest benefit 
 and advantage of the copartnership. 
 
 That each and every of the said partners shall be just and 
 faithful to the others, and each of the others of them, in all buy- 
 ings, sellings, accounts, reckonings, receipts, payments, dealings 
 and transactions, in or about the said business of the said copart- 
 nership; and shall give and render unto the others, and each of 
 the others of them, a true and faithful account of the same, when 
 and so often as the same shall be reasonably required. 
 
 That none of the said partners shall, without the consent in 
 writing of the others, or other of them, use or employ any of the 
 monies, goods, or effects, belonging to the said copartnership, or 
 engage the credit thereof in any matter or thing whatsoever, ex- 
 cept upon the account, and for the use and benefit of the said 
 copartnership, and except in the regular and ordinary course of 
 business. 
 
 That none of the said partners shall or will, during the con- 
 tinuance of the said copartnership be concerned, or in any man- 
 ner engaged, in any other trade, manufacture, or business what- 
 soever. 
 
 That none of the said partners shall, without the consent of 
 the others of them, or the major part of them, take any appren- 
 tice, or articled clerk, to be employed in the business of the said 
 copartnership, or hire or dismiss any other clerk or servant em- 
 ployed ; or to be employed in the said business, against the consent 
 of the others of the said partners, or the major part of them. 
 
 That none of the said partners shall, at any time during the con- 
 tinuance of the said copartnership, without th^ consent in writing 
 of the others of them, or the major part of them, lend any of the
 
 384 APPENDIX. 
 
 monies, or deliver upon credit any of the goods belonging to the 
 said copartnership, to any person or persons whom the others of 
 the said partners, or the major part of them, shall, before the 
 lending or delivering of such monies or goods, have forbidden to 
 be trusted; or without the like consent, release or compound any 
 debt or debts due and owing to the said copartnership, except for 
 the full amount thereof first paid; or, without the like consent, 
 sign the certificate of any bankrupt indebted to the co- 
 r *385 1 partnership, *except in cases where the amount of the 
 debt shall be under /. ; and that each of the said part- 
 ners shall be accountable for, and shall make good unto this part- 
 nership, the whole of such debts and monies as he, or any other 
 person by his order or authority, shall receive or give any receipt 
 for. 
 
 That none of the said partners shall buy, order, or engage in 
 any contract for any goods or merehandise whatsoever, on account 
 of the copartnership, exceeding the value of /., without the 
 consent in writing of the others of them, or the major part of 
 them, for that purpose first had and obtained; and that if any of 
 them shall buy, order, or engage in any contract for any goods or 
 merchandise exceeding the value of /., without such consent as 
 aforesaid, then and in such case the others or other of them, shall 
 or may elect either to take such goods or merchandise on account 
 of the said copartnership, or to allow the same to remain for the 
 separate use of the party or parties who shall so buy, order, or 
 contract for the same. 
 
 That none of the said partners shall, without the consent in 
 writing of the others or other of them first obtained, enter into 
 any bond, or become bound as bail, surety or security, with or for 
 any person or persons whomsoever, or subscribe any policy of 
 insurance; or do, or knowingly suffer to be done, any act, matter, 
 or thing whatsoever, by means whereof the stock and effects, be- 
 longing or to belong to the said copartnership, shall or may be 
 seized, attached, extended, or taken in execution. 
 
 That each of the said partners shall, from time to time, and at 
 all times hereafter, save, defend, keep harmless, and indemnified, 
 the others of the said partners, and their respective executors and 
 administrators, and the capital or joint stock of the said copart- 
 nership, from and against his own separate debts and engagements, 
 and all costs, charges, damages, and expenses on account thereof. 
 
 That Messrs. M. and Company, or such other bankers as the 
 said parties shall mutually agree on, shall be the bankers of the 
 said copartnership; and all monies which shall be received by any 
 of the said partners in respect of the said copartnership business, 
 shall, with all convenient speed, after the same shall be received, 
 be paid into the banking-house for the time being agreed upon 
 by the said parties. 
 
 That no bill, promissory note, or other security, (except drafts
 
 APPENDIX. 385 
 
 or cheques upon the bankers of the said copartnership,) sliall be 
 drawn, accepted, or indorsed, in the name, or with the firm of the 
 copartnership, by any of the said partners, without the consent of 
 the others of the said partners, or the major part of them, for that 
 purpose first had and obtained. 
 
 That if any of the said partners sliall draw, accept, or indorse 
 any bill, note, or other security, in the name, or with the firm of 
 the said copartnership, without the consent of the others of the 
 said partners, or the major part of them, for that purpose first had 
 and obtained, every such bill, note, or other security, shall be 
 deemed to be given on the separate account of the partner or part- 
 ners drawing, accepting, or indorsing the same; and he or they 
 shall accordingly pay, satisfy, and discharge the same out of his 
 or their separate estate or estates ; and shall indemnify 
 and save *harmless the others and each of the others of f *386 1 
 them, their, and his heirs, executors, and administra- 
 tors, and their and his estate and effects respectively, from and 
 against the payment thereof, and all actions, suits, costs, damages, 
 and expenses on account thereof. 
 
 That on the first day of now next ensuing, and on 
 
 every succeeding first day of during the continuance 
 
 of the said copartnership, a general account or rest, in writing, 
 shall be made and taken by the said partners, or some or one of 
 them, either alone or with the concurrence of the others or other 
 of them, of all monies, debts, and effects, belonging, or due, or 
 owing to the said copartnership, and of all such debts as shall be 
 then owing by the said partners, for or on account of the said co- 
 partnership, to any person or persons whomsoever ; and also of 
 all such matters and things as are usually included in accounts of 
 the same nature; and that when, and so soon as the said yearly ac- 
 count, for the time being, shall be adjusted and settled, the same 
 shall be signed by all the said partners; and the said partners shall 
 afterwards be bound and concluded by each such yearly account, 
 unless some error to the amount of twenty pounds or upwards 
 shall appear therein, within three calendar months from the set- 
 tlement thereof respectively; and, in that case, the account or ac- 
 counts shall be opened and unravelled so far only as relates to the 
 error or errors which shall have appeared therein as aforesaid. 
 
 That after the settlement of every such yearly account, as 
 aforesaid, such part of the clear gains and profits of the preceding 
 year as the said partners, or the major part of them, shall mutually 
 agree upon, after payment or allowance of the yearly sums so 
 agreed to be taken out by them for their separate use as aforesaid, 
 shall be taken out and divided between the said partners, in the 
 proportions in which they are entitled to the same as aforesaid; 
 and the surplus or residue thereof shall, from time to time, be 
 added to, and go in augmentation of the capital of the said co- 
 partnership.
 
 386 APPENDIX. 
 
 That it shall be lawful for each of them the said A and B, at 
 any time after the expiration of the first three years of the said 
 copartnership term of ten years, to retire from and relinquish the 
 business of the said copartnership, on giving six calendar months' 
 previous notice in writing of his intention so to do to the others 
 of the said partners for the time being, or leaving such notice at 
 their usual or last known places of abode. 
 
 That if the said A or B, or both of them, shall, in pursuance of 
 the provision hereinbefore for that purpose contained, give or 
 leave notice in writing of hi^ or their intention to retire fi'om and 
 relinquish the said Ijusiness, the said A or B, or both of them, (as 
 the case may be,) shall, at the expiration of six calendar months 
 from the time when such notice shall have been so given or left 
 as aforesaid, be considered to have retired from the said copart- 
 nership; and the said copartnership shall, from that time, as to 
 the said A or B or both of them, cease and determine. 
 
 That if the said A or B, or both of them, shall retire from the 
 said copartnership, in pursuance of the prb vision hereinbefore for 
 that purpose contained; or if any one or more of the said partners 
 shall die while engaged in the said copartnership, then and in any 
 of the said cases, and when and so often as the same 
 [ *387 ] shall happen, *the retiring partner, his executors and 
 administrators, or the executors or administrators of the 
 deceased partner, (as the case may be,) and the continuing or sur- 
 viving partners or partner, their or his executors or administra- 
 tors, shall, within two calendar months next after such retirement 
 or death, fix a value on the part or share of the retiring or de- 
 ceased partner, of and in the stock, capital, and effects of the said 
 copartnership, and within twenty days after the value of such 
 part or share shall be so fixed as aforesaid, the continuing or sur- 
 viving partners or partner, their or his executors or administra- 
 tors, shall execute and give to the retiring partner, his executors 
 or administrators, or to the executors or administrators of the de- 
 ceased partner, (as the case may be,) a bond in a penalty double 
 the principal, conditioned for the_ payment of such value, with 
 interest for the same, after the rate of four pounds for one hun- 
 dred pounds by the year, to be computed from the retirement of 
 the retiring partner, or the decease of the deceased paatner, (as 
 the case may be,) in manner following (that is to say): — One 
 moiety or half part of such value at the expiration of twelve calen- 
 dar months after such retirement or death, and the remaining 
 moiety or half part of such value, at the expiration of eighteen 
 calendar months after such retirement or death; and the interest 
 of the said value, or of so much thereof as shall, for the time 
 being, remain due at the expiration of every six calendar months 
 after such retirement or death; and the continuing or surviving 
 partners or partner, their or his executors or administrators, shall 
 also, within twenty days after the value of the share of any retir-
 
 APPENDIX. 387 
 
 ing or deceased partner shall be so fixed as aforesaid, execute and 
 give to the retiring partner, his executors or administrators, or to 
 the executors or administrators of tlie deceased partner, (as the 
 case may be,) another bond in a sufficient or reasonable penalty, 
 for indemnifying him or them, and the estate and effects of 
 the retiring or deceased partner, (as the case may be,) from and 
 against the debts and engagements due and owing from the said 
 copartnership at the time of such retirement or death, and from 
 and against all actions, suits, damages, aod expenses whatsoever 
 in respect thereof; and the retiring partner, his executors or ad- 
 ministrators, or the executors or administrators of the deceased 
 partner, (as the case may be,) shall, within the said twenty days, 
 release and assign to the continuing or surviving partners or part- 
 ner, their or his executors or administrators, all his or their share, 
 right, title, and interest, of in and to the stock, monies, debts, and 
 effects, belonging, due, and owing to the said copartnership, and, 
 so far as possible, empower and enable them and him to recover 
 and receive the same. 
 
 That if any of the said partners shall, at any time during the 
 continuance of this copartnership, be found lunatic, then, and in 
 every such case, it shall be lawful for the others of the said part- 
 ners, or the major part of them, at any time thereafter, by any 
 writing under their hands, to be delivered to the committee of 
 the estate of such lunatic partner, or left at his last or usual place 
 of abode, to determine and dissolve the said copartnership as to 
 such partner, and to take to and purchase his share in the copart- 
 nership capital and effects, on the footing of the last 
 valuation or rest *vvhich shall have bccn'made thereof; [ *388 1 
 or if there shall have been no such valuation or rest 
 made within twelve calendar months immediately preceding the 
 determination or dissolution of the said copartnership at last 
 aforesaid, then, on the footing of a valuation to be made by the 
 continuing partners and the committee of the estate of the partner 
 so for the time being found lunatic, or by arbitrators to be ap- 
 pointed by them respectively, in like manner as is hereinafter 
 provided with respect to the settlement by arbitration of any 
 difference or dispute which may arise under or by virtue of 
 these presents; and that the value of such share to be ascertained 
 as aforesaid, together with interest thereon, after the rate of five 
 pounds for one hundred pounds by the year, to be computed from 
 the then last valuation or rest, or the determination or disso- 
 lution of the said copartnership as last aforesaid, (as the case may 
 be,) shall be secured to the committee of the estate of the partner 
 so for the time being found lunatic, by the joint and several bond 
 or obligation in writing of the continuing partners, at such times 
 and in such manner as hereinbefore is mentioned, with respect to 
 the payment of the value of the share in the copartnership effects
 
 388 APPENDIX. 
 
 of any partner who shall retire from the said copartnership, or 
 die during the continuance thereof. 
 
 That upon the entire or partial dissolution of the said copart- 
 nership, under any of the provisions hereinbefore contained, a 
 notice of the determination of the said partnership shall be signed 
 by all the partners ,and inserted in the London Gazette, and sent 
 to the customers of the said copartnership; and that if any of the 
 said partners shall neglect or refuse, for the space of three days 
 after being thereunto requested by the others, or any of the 
 others of them, to sign such notice, or shall by reason of lunacy, 
 illness, absence from the kingdom, or otherwise, be unable to 
 sign the same, then, and in every such case, it shall be lawful for 
 the partners to sign such notice, in or with the name, and as the 
 attorneys, of the partner or partners who shall so neglect or re- 
 fuse, or be incapable to sign the same as aforesaid. 
 
 That it shall be lawful for each of them the said A and B, at 
 any time or times while engaged in the said copartnership, by 
 deed or writing under his hand and seal, and at any time here- 
 after, while engaged in the said business, by his last will and tes- 
 tament in writing, or any codicil or codicils thereto in writing, 
 to nominate and appoint one of his sons to succeed to his share 
 in the said copartnership business, and the capital or joint stock 
 and future gains and profits thereof; and to assign, bequeath, or 
 otherwise make over the same share to such son accordingly; 
 provided always, that no son of the said A or of the said B shall 
 succeed to his father's share in the said business, under this pre- 
 sent provision, unless at the time of his nomination thereto he 
 shall be of the age of twenty-one years, and shall, within one 
 calendar month next after his nomination, signify his intention to 
 succeed to such share, to the continuing or remaining partners, 
 by some writing under his hand, to be given to them, or left for 
 them at the counting-house where the copartnership business 
 shall, for the time being, be carried on. 
 
 That in case any son of the said A or of the said B, 
 r *389 1 shall ^succeed to his father's share in the said copartner- 
 ship business, under the provision lastly hereinbefore 
 contained, he shall from that time be an acting partner in the said 
 business in respect of such share, and shall be entitled to such 
 share, upon the same terms and conditions, and with, under, and 
 subject to the same benefits, advantages, powers, provisions, res- 
 trictions, duties, regulations, conditions, and agreements, and in 
 every respect in the same manner, as his father would have been 
 entitled to the same if he had lived and remained a partner in 
 respect thereof, save and except the powers of nomination, or 
 appointment and assignment, or bequest lastly hereinbefore con- 
 tained. 
 
 That with all convenient speed after any person or persons shall 
 
 I
 
 APPENDIX. 389 
 
 be admitted a partner or partners in the said copartnership busi- 
 ness under the provision hereinbefore for that purpose contained, 
 such deeds of covenant and other deeds, acts, matters, and things 
 shall be prepared, made, done, and executed by and between the 
 said parties, as counsel learned in the law shall reasonably advise 
 or require, for placing the admitted partner or partners in the situ- 
 ation of the party in respect of whose share he or they shall be 
 admitted, and for subjecting such partner or partners to the co- 
 venants and agreements herein contained, so far as the same relate 
 to or concern the share in respect of which he or they shall be so 
 admitted. 
 
 That at the end or expiration or determination of this copart- 
 nership, a final settlement of accounts in writing shall be made by 
 the partners for the time being, of all the stock in trade, debts, and 
 effects, of or belonging and due and owing to the said copartner- 
 ship, and also of the debts and engagements due and owing from, 
 or to be performed by, the said copartnership; and upon the 
 statement of such last-mentioned account, the said partners, or the 
 major part of them, shall make such provision for the payment and 
 satisfaction of the debts and engagements which shall then appear 
 to be due from, or to be performed by, the said copartnership, as 
 they shall think fit and proper; and subject thereto the said stock 
 in trade, debts, and effects of or belonging and due and owing to 
 the said copartnership, and so to be included in such last-men- 
 tioned account as aforesaid, shall be allotted, divided, and appor- 
 tioned unto, between, and amongst the partners for the time being 
 entitled thereto, in such lots, shares, manner, and form as the 
 said partners, or the major part of them, shall, in their or his own 
 discretion, think proper to order or direct; and after making such 
 division, such instruments in writing shall be executed by the said 
 partners, for facilitating the getting in of the debts and effects 
 outstanding, and for indemnifying each other touching the pre- 
 mises, and for vesting the sole right and property in the said re- 
 spective shares and allotments of the said stock, effects, and 
 premises, in the parties to whom the same respectively shall, upon 
 such division, belong, and for releasing to eacli other all claims 
 and demands on account of the said copartnership, as are usual 
 in cases of the like nature. 
 
 That if an}^ doubt, difference, or question shall at any time 
 hereafter arise or happen between or amongst the said parties to 
 these presents, or any of them, or between any of them 
 and the *exccutors or administrators of the other or [ *390 ] 
 others of them, or between their respective executors, 
 administrators, or assigns, touching the coustruction of these pre- 
 sents, or any clause, matter, or thing herein contained, or any 
 account, or rest, or valuation, or appraisement, to be made as 
 hereinbefore is mentioned, or any other matter, cause, or thing 
 whatsoever, in any wise relating to or concerning the said co- 
 
 63
 
 390 
 
 APPENDIX. 
 
 partnership, or the business thereof, and such doubt, difference, 
 or question shall not be settled and decided between or amongst 
 themselves, within one calendar month next after the same shall 
 have arisen; then, and in every or any such case, and when and 
 so often as the same shall happen, such doubt, difference, or ques- 
 tion shall, upon the request of any of the said partners, or their or 
 any of their executors or administrators, from time to time be 
 reduced into writing, and be committed or referred to the arbitra- 
 tion of three indifferent and competent persons, one of them to 
 be chosen by one of the parties in difference, and another of them 
 by the other party in difference, and the third by the two persons 
 who shall be so first chosen, so as that such three indifferent and 
 competent persons be chosen within two calendar months next 
 after such request; and the award, order, or determination of the 
 said three persons so to be chosen as aforesaid, or any two of 
 them, in the matter or matters referred to them, shall be binding 
 and conclusive upon the said parties in difference, and their res- 
 pective heirs, executors, administrators, and assigns, and shall be 
 performed, observed, and kept by them accordingly, without any 
 further suit or trouble whatsoever, so as such award, order, or 
 determination be made and set down in writing, under the hands 
 and seals of such three persons, or any two of them, within the 
 space of twenty-one days next after all the said three persons 
 shall have been so appointed as aforesaid. 
 
 That if any such doubt, difference, or question as aforesaid 
 shall arise, and any of the said partners, or his or their executors, 
 administrators, or assigns, shall, by any writing under his or their 
 hand or hands, to be giveil to the other partner or partners, or their 
 or his executors, administrators, or assigns, or left at his or their 
 usual or last known place or places of abode, request such other 
 partners or partner, or their or his executors, administrators, or 
 assigns, to refer such doubt, difference, or question to arbitration, 
 and to nominate some indifferent and competent person to be an 
 arbitrator therein on his or their behalf, and the person or persons 
 to or for whom such request shall be so given or left as last afore- 
 said shall, for the space of two calendar months next after such 
 request, refuse or neglect so to do; then, and in such case, and so 
 often as the same shall happen, it shall and may be lawful to and 
 for the person or persons giving or leaving such request, by 
 writing under his or their hand or hands, to choose and appoint 
 some indifferent and competent person to act as an arbitrator on 
 the part of the party or parties so refusing or neglecting as afore- 
 ' said; and the two persons who shall be so chosen arbitrators, as 
 last hereinbefore is mentioned, shall thereupon, or in a reasonable 
 time thereafter, choose an umpire between them ; and the award 
 or determination of such arbitrators or umpire, as last 
 r *391 1 liereinbefore *is mentioned, in the matters which shall 
 be so referred to them as aforesaid, shall, to all intents,
 
 APPENDIX. ' 391 
 
 effects, constructions, and purposes, be as valid, effectual, binding, 
 and conclusive, as if the person chosen as arbitrator by the person 
 or persons so giving or leaving such request as aforesaid had 
 been chosen by the person or persons to or for whom such re- 
 quest shall have been given or left. 
 
 And that for the further and better enforcing the observance 
 and performance of every or any award, order, or determination, 
 to be made as aforesaid, the reference or submission for or in 
 respect of the same shall from time to time be made a rule of one 
 of his Majesty's Courts of King's Bench or Common Pleas, at 
 Westminster, according to the direction of the statute in that case 
 made and provided. In witness, &c. 
 
 No. III. 
 
 DEED POLL for continning or renewing a Partnership for 
 a further Term, to be indorsed upon the Partnership Deed. 
 
 To all to whom these presents shall come, the within-named 
 A, B, C, and D send greeting. Whereas the term of fourteen 
 years, mentioned and prescribed in and by the within-written 
 indenture, for the continuance of the partnership thereby agreed 
 to be entered into by and between the said parties, doth this day 
 expire; but the said parties, considering that it would be for' 
 their mutual benefit and advantage to extend and prolong the 
 said partnership, have agreed to continue partners in the within- 
 mentioned trade, mystery, and business of lead-merchants, and 
 in the manufactory and sale of all articles and things appertaining 
 to the lead trade, henceforth, for the further term of seven years, 
 upon the same terms and conditions, and subject to the same 
 regulations, stipulations, provisions, and agreements, as are within 
 expressed of and concerning the said partnership thereby created. 
 Now these presents witness, and each of them the said A, B, C, 
 and D doth hereby, for himself, his heirs, executors, and admin- 
 istrators, covenant, promise, and agree with and to the others 
 and other of them, their and his executors and administrators, 
 that they the said A, B, C, and D shall and will continue and be 
 copartners in the copartnership trade or business in which they 
 are now engaged under the within-written indenture, for the 
 term of seven years hence next ensuing, and fully to be complete 
 and ended, upon the same terms and conditions, and subject to 
 the same regulations, stipulations, provisions, and agreements, in 
 every respect, as are within expressed and declared, and in the 
 same manner as if the within-mentioned copartnership term of 
 fourteen years did not expire till the determination of the said 
 term of seven years; and shall and will, during the said term of
 
 391 APPENDIX. " 
 
 seven years, observe, perform, and keep the said conditions, 
 regulations, stipulations, provisions, and agreements, in like man- 
 ner as if the same were repeated or inserted in these presents. 
 In witness, &c. 
 
 [*392] *No. IV. 
 
 BEEB of BE LEASE and ASSIGNMENT from a Retir- 
 ing to a continuing Partner. 
 
 This indenture made, &c. between A, of &c. of the one part, 
 and B, of &c. of the other part. Whereas the said A and B have for 
 several years past carried on, in copartnership together, the trade 
 or business of booksellers and publishers: And whereas on the 
 
 ■ day of now last past, the said A, with the consent of 
 
 the said B, retired from the said copartnership, and it was there-- 
 upon agreed that he should receive and take, in satisfaction of 
 his share and interest in the said business, and the stock, monies, 
 merchandises, debts, and effects, of or belonging to the same, the 
 
 sum of pounds, with interest for the same, after the rate of 
 
 five pounds for one hundred by the year, to be computed from 
 
 the said day of now last past, by the instalments, at 
 
 the times, and in manner hereinafter mentioned; (that is to say,) 
 
 the sum of pounds, with interest thereon after the rate and 
 
 to be computed as aforesaid, on the day of ; the sum 
 
 of pounds, with interest thereon after the rate and to be 
 
 computed as aforesaid, on the day of ; and the sum of 
 
 pounds, with interest thereon after the rate and to be com- 
 puted as aforesaid, on the day of ; and that the pay- 
 ment of the same several sums of pounds, pounds, and 
 
 pounds, with interest as aforesaid, should be secured by the 
 
 bond of the said B in a sufficient penalty, and that the said A 
 should execute and give the release and assignment, and power 
 of attorney, hereinafter respectively contained: And whereas, in 
 pursuance and part-performance of the said agreement, the said 
 B has, by his certain bond or obligation in writing, bearing even 
 date herewith, become bound to the said A, his executors and ad- 
 ministrators, in the penal sum of pounds, subject to a con- 
 dition written under the said bond, for making the same void on 
 payment by the said B, his heirs, executors, or administrators, or 
 any of them, to the said A, his executors, administrators, or assigns, 
 
 of the said several sums of pounds, pounds, and 
 
 pounds, with interest for the same respectively, after the rate and to 
 be computed as aforesaid, by such instalments, at such times, and in 
 such manner as therein expressed. Now this indenture witnesseth, 
 that in pursuance and further performance of the said agreement,
 
 APPENDIX. 392 
 
 and in consideration of the premises, and of the sum of five shil- 
 lings of lawful money of Great Britain, by the said B to the said A 
 paid, at or immediately before the sealing and delivery of these 
 presents (the receipt whereof is hereby acknowledged,) he the said 
 A doth by these presents grant, release, assign, transfer, and set 
 over unto the said B, his executors, administrators, and assigns, all 
 the part or share, estate, right, title, property, and interest what- 
 soever of him the said A, of, in, and to the stock in trade, debts, 
 credits, capital, merchandises, and effects, and every 
 *part thereof, of or belonging, or due and owing, to the [ *393 ] 
 
 said copartnership, on the said day of 
 
 now last past. To have and to hold, receive and take, the said 
 part or share, and all and singular other the premises hereby 
 granted, released, and assigned, or intended so to be, and every 
 part thereof, unto the said B, his executors, administrators, and 
 assigns, for his own absolute use and benefit; but subject, never- 
 theless, to the payment and performance of the debts and engage- 
 ments which have been contracted or entered into by or on the 
 
 behalf of the said copartnership, and which on the said day 
 
 of now last past remained unpaid and unperformed. And 
 
 the said A doth herby nominate, constitute, and appoint the said 
 B to be the true and lawful attorney of him the said A, in his 
 name alone, or in the name of him the said A jointly with the 
 said B, to demand, sue foi', recover and receive, of and from all 
 and every the person or persons liable to deliver or pay the 
 same, respectively, the stock in trade, monies, debts, credits, 
 merchandises, and effects, belonging or due and owing to the 
 said copartnership; and on the delivery or payment thereof, or 
 of any part thereof respectively, to give, sign, and execute re- 
 ceipts, acquittances, releases, and other discharges for the same 
 respectively; and on nondelivery and nonpayment thereof, or of 
 any part thereof respectively, to commence and prosecute such 
 actions, suits, or other proceedings, at law or in equity, for reco- 
 vering or compelling the payment or delivery thereof respec- 
 tively, as he the said B shall think proper; and also to adjust, 
 settle, compound, and compromise, all accounts, reckonings, 
 transactions, and things whatsoever, relating to the said copart- 
 nership, or the business or affairs thereof; and generally to do 
 and perform any other act, deed, matter, or thing whatsoever, 
 relating to the premises, as fuily and effectually, to all intents 
 and purposes whatsoever, as the said A might or could do in his 
 own proper person, in case these presents had not been executed, 
 and the said A was personally acting therein; and whatsoever 
 the said B shall lawfully do, or cause to be done, in and about 
 the premises, the said A doth hereby for himself, his heirs, exe- 
 cutors, and administrators, covenant, promise, and agree with 
 and to the said B, his executors and administrators, to allow, 
 ratify, and confirm. And the said A doth hereby, for himself.
 
 393 APPENDIX. 
 
 his heirs, executors, and administrators, covenant, declare, and 
 agree with and to the said B, his executors, administrators, and 
 assigns, that he the said A hath not, at any time heretofore, made, 
 done, committed or executed, or knowingly or willingly per- 
 mitted or suffered, any act, deed, matter, or thing whatsoever, 
 whereby, or by reason or means whereof the said part or share, 
 and premises hereby granted, released, and assigned, or intended 
 so to be, are, is, can, shall, or may be in any wise impeached, 
 charged, affected, or encumbered: and further, that he the said 
 A, his executors or administrators, shall and will, from time to 
 time, and at all times hereafter, upon every reasonable request, 
 and at the costs and charges of the said B, his executors, admin- 
 istrators, or assigns, make, do, and execute, or procure to be 
 
 made, done, and executed, all such further and other 
 r *394 1 lawful and reasonable acts, deeds, matters, and *things, 
 
 for the better and more effectually granting, releasing, 
 assigning, and assuring the said part or share, and premises here- 
 by granted, and released, and assigned, or intended so to be, unto 
 the said B, his executors, administrators, and assigns, and for 
 enabling him and them %o recover and receive the same to and 
 for his and their own use and benefit, according to the true intent 
 and meaning of these presents, as by the said B, his executors, 
 administrators, or assigns, or his or their counsel learned in the 
 law, shall be reasonably devised, or advised and required. In 
 witness, &c. 
 
 No. V. 
 
 DEED of DISSOLUTION of a Partnership behveen Two 
 Persons, where One of them continues to carry on the Busi- 
 ness. 
 
 This Indenture, made. Sic, between A, of, &c. of the one part, 
 and B, of, &c. of the other part. Whereas, by articles of agree- 
 ment bearing date the day of , and made or ex- 
 pressed to be made between the said A of the one part, and the 
 said B of the other part, they the said A and B mutually agreed 
 to become partners together in the trade or business of a book- 
 seller and stationer, under the firm of , for the term of 
 
 twenty-one years, to be computed from the day of the date there- 
 of, if the said A and B should so long live, but determinable 
 nevertheless at any time during the said term, upon either of the 
 said parties giving six calendar months' notice, in writing, to the 
 other of them, of his desire to dissolve or discontinue the same; 
 and it was by ihe said articles agreed, that upon such dissolution 
 the accounts of the said copartnership should be settled and ad-
 
 APPENDIX. 
 
 394 
 
 justed up to the day of the expiration of the said notice, in like 
 manner as if the said copartnership had expired by effluxion of 
 time, and that the estate and interest of the party giving such no- 
 tice of and in the stock in trade, monies, debts, and effects of the 
 said copartnership, should be taken by and assigned to the other 
 of the said copartners at a fair vailuation and appraisement, and 
 that all proper deeds, conveyances, acts, matters, and things, 
 should be made and done by and between the said parties, which 
 should be requisite to carry such dissolution and assignment into 
 effect : And whereas the said parties, in pursuance of the said re- 
 cited articles of agreement, have carried on the said trade or busi- 
 ness in copartnership together until the day of 
 
 now last past: And whereas it has been agreed by and between 
 the said A and B, that the copartnership subsisting between them 
 under the said recited articles of agreement shall be dissolved from 
 the day of the date hereof, and that the copartnership estate and 
 effects shall be assigned to and henceforth become the property 
 of the said B: And whereas, in pursuance and part-perform- 
 ance of the said agreement, the stock in trade and effects of 
 the said copartnership have been valued and appraised at the 
 
 sum of pounds, with which valuation and appraisment 
 
 the said A and B are respectively satisfied, as they do 
 
 hereby respectively testify and *declare; and it has been [ *395 ] 
 
 agreed that the said stock in trade and effects shall be 
 
 taken by the said B, at the sum of pounds, being one moiety 
 
 of the said sum of pounds, and paid for by him to the said 
 
 A at the expiration of one year from the date of these presents; 
 
 and that the said sum of pounds shall be secured to the said 
 
 A, by the bond or obligation in writing of him the said B: And 
 whereas, in pursuance and further performance of the said agree- 
 ment, the said B hath this day delivered to the said A his certain 
 bond or obligation for securing to him the payment, at the time 
 and in manner aforesaid, of the principal money so agreed to be 
 secured to him as hereinbefore is mentioned and recited. Now 
 this indenture witnesseth, that in pursuance and further perform- 
 ance of the said agreement, and in consideration of the premises, 
 they the said A and B, with the mutual assent and consent of 
 each other, do, by these presents, determine and dissolve the said 
 copartnership in which they have been so engaged as hereinbe- 
 fore is mentioned, as from the day of the date of these presents, 
 and declare the same to be at an end, to all intents and purposes 
 whatsoever, and that the covenants and agreements expressed and 
 contained in the said hereinbefore recited articles of copartner- 
 ship shall also cease and determine, as from the day of the date 
 hereof. And this indenture further witnesseth, that in pursuance 
 and further performance of the said agreement on the part of the 
 said A, and in consideration of the premises, he the said A hath 
 bargained, sold, assigned, transferred, and set over, and by these
 
 395 APPENDIX. 
 
 presents doth bargain, sell, assign, transfer, and set over, unto the 
 said B, his executors, administrators, and assigns, all that the 
 moiety or half part, (the whole into two equal parts being con- 
 sidered as divided,) and all other the share and proportion of him 
 the said A, of and in all and singular the joint stock in trade, 
 goods, merchandises, estate, and effects whatsoever belonging to 
 the said copartnership hereby dissolved, or to the said parties 
 hereto in respect thereof; and also all and every the book and 
 other debts, and sum and sums of money whatsoever, due and 
 owing or belonging to the joint trade or copartnership, or to the 
 said parties, or him the said A, on account thereof, and all the 
 estate, right, title, interest, trust, property, possession, benefit, 
 claim, and demand whatsoever, both at law and in equity, of him 
 the said A, of, in, to, or concerning the same; and also of, in, to, 
 or concerning the entirety of the said stock in trade, estate, and 
 effects, and every or any part thereof, and of, in, and to all and 
 singular the books of account, bills, notes, securities, and other 
 papers and writings whatsoever relating thereto, or to any part 
 thereof, or to the said joint trade or copartnership. To have and 
 to hold the said moiety or half part, &c., or other share of or in 
 the said stock in trade, debts, and effects, and all and singular 
 other the premises hereby assigned or expressed, or intended so 
 to be, unto him the said B, his executors, administrators, and as- 
 signs, to and for his and their own proper use and benefit, abso- 
 lutely and for ever. And the said A doth hereby, for himself, 
 his heirs, executors, and administrators, covenant, promise, and 
 agree to and with the said B, his executors, administrators, and 
 assigns, in manner following; (that is to say,) that all monies, 
 debts, and other effects, which are now belonging or due or 
 
 owing to the said copartnership, so hereby dissolved as 
 r *396 ] ^aforesaid, shall be received, collected, and got in by 
 
 the said B, his executors, administrators, or assigns, at 
 the sole risk and costs of him the said B ; and that for that pur- 
 pose the said B, his executors, administrators, and assigns, shall 
 and may commence, take, and adopt such actions, suits, measures, 
 and proceedings, as to him or them shall seem expedient and 
 proper; and that for the better enabling him and them to receive, 
 collect, get in, and recover the same monies, debts, and effects, 
 he the said A, his executors and administrators, shall and will, 
 from time to time, and at all times hereafter, permit and suffer 
 his or their name or names to be made use of in all actions, suits, 
 and other proceedings whatsoever, which shall or may be com- 
 menced or prosecuted by him the said B in relation thereto, in 
 such manner and form as he the said B, his executors, adminis- 
 trators, or assigns, or his or their counsel learned in the law, shall 
 reasonably require in that behalf, (he the said A being from time 
 to time well and satisfactorily saved harmless, and indemnified 
 from and against all costs, damages, and expenses by reason
 
 APPENDIX. 396 
 
 thereof) ; and that he the said A, his executors and administrators, 
 shall not, nor will at any time or times hereafter, by himself or 
 themselves respectively, or by any agent or agents, receive or 
 take into his or their, or any of their possesgion, any of the same 
 monies, debts, and effects, or any part thereof respectively, nor 
 release or discharge the same, or any of them, nor release, dis- 
 continue, or become nonsuit in any action or suit which shall be 
 brought or commenced for the recovery of the same monies, 
 debts, and effects, or any of them, or any part thereof respective_- 
 ly, without the consent in writing of the said B, his executors, 
 administrators, or assigns, for that purpose first had and obtained, 
 nor do, execute, commit, or suffer, or be party or privy to any 
 act, deed, matter, or thing whatsoever, whereby or by means 
 whereof the said B, his executors, administrators, or assigns, 
 shall be hindered or obstructed from receiving, collecting, get- 
 ting in, or recovering the said monies, debts, and effects, or any 
 of them, or any part thereof; and further, that he the said A, his 
 executors and administrators, shall and will, from time to time, 
 and at all times hereafter, at the request, costs, and charges in 
 the law of the said B, his executors, administrators, and assigns, 
 make, do, and execute, or cause or procure to be made, done, 
 and executed, all and every such further and other lawful and 
 reasonable acts, deeds, assignments, conveyances, assurances, 
 matters, and things whatsoever, not only for the further and more 
 perfectly or satisfactorily assigning and assuring the part or 
 share, and premises, hereby assigned, or expressed, or intended 
 so to be, unto the said B, his executors, administrators, and as- 
 signs, but also for the better enabling him and them to recover, 
 receive, possess, and enjoy the same, to and for his and their own 
 proper use and benefit, according to the true intent and meaning 
 of these presents. And the said B, for himself, his heirs, execu- 
 tors, and administrators, doth hereby covenant, promise, and agree, 
 with and to the said A, his executors and administrators, that he 
 the said B, his executors, administrators, and assigns, shall and 
 will well and truly pay and satisfy, or cause to be paid and 
 satisfied, all and every the debt and debts, and sum and sums 
 of money, bill and bills of exchange, dues, claims, 
 and lawful demands whatsoever, *which now is or are, [ *397 ] 
 or which shall or may at any time hereafter be or be- 
 come, due or payable by or from them the said A and B, or either 
 of them, for or in respect of the said copartnership, or the stock 
 or effects thereof, and shall and will, from time to time, and at all 
 times hereafter, well and sufficiently save, defend, keep harmless 
 and indemnified, him the said A, his heirs, executors, and ad- 
 ministrators, and his and their lands and tenements, goods and 
 chattels, of and from the same, and of and from all and all manner 
 of actions, suits, and other proceedings wliatsoever, which shall or 
 may be had or prosecuted against him the said A, his executors 
 
 64
 
 397 APPENDIX. 
 
 or administrators, either solely, or jointly with the said B, his 
 executors or administrators, in respect thereof ; and shall and will, 
 from time to time and at all times hereafter, at the reasonable 
 request, and at the costs and charges of the said A, his executors, 
 administrators, and assigns, produce and show forth unto him or 
 them, or to any other person or persons by him or them lawfully 
 authorised in that behalf, or permit and sutler him, them, or any 
 of them, at the counting-house of the said B, to take copies or 
 abstracts of all, every, or any receipts, acquittances, discharges, 
 documents, and evidences of any payment or payments made of, 
 for, or on account of any debt or sum now due, or growing or 
 becoming due, from the said copartnership, or him the said A in 
 respect thereof, for the purpose of manifesting and authenticating 
 the payment of the same. And also that he the said B, his ex- 
 ecutors or administrators, shall and will well and truly pay, or 
 cause to be paid, unto the said A, his executors, administrators, 
 
 or assigns, the said sum of pounds, for which the said bond 
 
 of him the said B was so given as aforesaid, at the time therein 
 appointed for the payment of the same. And further, that he the 
 said B, his executors, administrators, and assigns, shall and will, 
 from time to time, and all times hereafter, save harmless and keep 
 indemnified the said A, his heirs, executors, and administrators, 
 from and against all costs, charges, damages, and expenses, which 
 he or they shall sustain or be put unto, or be liable to sustain or 
 be put unto, by reason or on account of his or their name or names 
 being used in any action or proceeding, or other matter or thing, 
 in pursuance of the power hereinbefore for that purpose con- 
 tained, or otherwise, on account of the assignment hereinbefore 
 made. And this indenture lastly witnesseth, that in pursuance 
 and further performance of the said agreement, and in considera- 
 tion of the premises, each of them the said A and B hath ac- 
 quitted, released, and for ever discharged, and by these presents 
 doth acquit, release, and for ever discharge, the other of them, 
 his heirs, executors, and administrators, and his and their eatates 
 and effects whatsoever and wheresoever, of and from all actions, 
 suits, claims, and demands whatsoever, which he hath, or other- 
 wise might or could have against or upon the other of them, his 
 heirs executors, or administrators, and his and their estates and 
 effects whatsoever and wheresoever, for, or by reason, or on ac- 
 count of the said copartnership hereby dissolved as aforesaid, or 
 for, or by reason, or on account of any act, deed, matter, or thing 
 whatsoever in any wise relating thereto, other than and except 
 such actions, suits, claims, and demands, as shall or may arise 
 upon, or by virtue of these presents. In witness, &c.
 
 APPENDIX. 
 
 398 
 
 *No. VI. [*398] 
 
 NATUSCH V. IRVING AND OTHERS. 
 
 The plaintiff on the behalf of himself and all others the share- 
 holders, members, or partners of the Jilliance B?^itish and Fo- 
 reign Life and Fire Assurance Compayiy, filed this bill against 
 the defendants, who were the presidents and directors of that 
 company, praying, amongst other things, a dissolution of the part- 
 nership, and, if necessary, a receiver, and an injunction to res- 
 train the defendants, and the clerks, agents, and servants of the 
 company, from effecting marine insurances, or transacting the 
 business of underwriting or insuring ships, or their cargoes or 
 freight, against the perils of the sea, and from lending money on 
 bottomry, in the name or on the account of the company, and from 
 using the name of the company for such purposes, and also from 
 carrying on the business of underwriting or lending money on 
 bottomry in any other name or firm at the place of business 
 where the business of the company had been hitherto carried on, 
 and from applying the capital of the company to any of such 
 purposses. 
 
 The bill stated, that in the month of February 1824 the de- 
 fendant Rothschild set on foot a plan for the formation of the 
 above-mentioned company, intimating that applications for shares 
 were to be made to himself or to his agent Mr. Cohen. The plain- 
 tiff shortly afterwards applied to become a shareholder, and re- 
 ceived horn Rothschild i\\e following answer: — "2. New Court, 
 Swithin's Lane, 1 5th March 1S24. — I beg to refer you to the 
 annexed prospectus, and to inform you that your name is inserted 
 for fifteen shares in the Alliance British and Foreign Life and 
 Fire Assurance Comjjany. You will please to pay, on or 
 before Friday the 19th instant, 10/. per share at the company's 
 office, pro tempore, No. 4, New Court, Swithin's Lane. The 
 success of all establishments of this description must necessarily 
 depend upon the individual exertions of the proprietary, but 
 calculating (as the presidents and directors confidently do) upon 
 such exertions on the part both of their foreign and British 
 shareholders, they feel no hesitation in predicting that this in- 
 stitution will speedily become one of the first in Europe both in 
 profit and utility." The prospectus which accompanied this 
 letter was headed and entitled, " The Alliance British and Fo- 
 reign Fire and Life Assurance Company, capital 5,000,000/. 
 sterling," and stated the defendants to be the presidents and 
 directors of the company. The body of it was thus expressed: — 
 "The object of this institution is to combine the highest public 
 utility with the greatest individual benefit to the proprietors. 
 It is confidently expected this will be attained in a greater de- 
 gree than has ever yet been realized, owing to the extensive
 
 398 APPENDIX. 
 
 connections, both foreign and domestic, of the parties with whom 
 the company originates, and the large capital to be invested 
 therein, by means of which the company will be able 
 [ *399 ] to avail *itself of every opportunity beneficial to its in- 
 terests, and to defray its expenses with the least possible 
 diminution of profits. The following is an outline of the plan 
 upon which the institution is intended to be conducted, which 
 plan will be further matured by the presidents and directors, un- 
 der the ablest legal and professional advice, and will be com- 
 pleted in such a way as counsel may recommend; and the shares 
 are tendered to the parties, who have offered to subscribe for 
 them, upon this express condition, that all further details shall re- 
 main with the presidents and directors, and that the shareholders 
 shall execute such deed or deeds as may be deemed requisite." 
 The prospectus then stated, amongst other things, that the capi- 
 tal was to be divided into fifty thousand 100/. shares; that every 
 shareholder, as the condition of holding his shares, would be re- 
 quired to insure a sum equal to the amount of his subscription in 
 the Fire, or 1000/. in the Life department of the company; and 
 that the company would commence business on Tuesday the 
 23d of March 1824, under the conduct of the five presidents and 
 sixteen directors (those presidents and directors being the defen- 
 dants), who would unitedly form the Board of Direction. After 
 many other details which it is unnecessary here to enumerate, 
 the prospectus proceeded in these words: "In addition to the 
 specified objects of the institution, namely Fire and Life assur- 
 ances, it is intended that the company shall grant life annuities, 
 endowments for infants, and benefit policies in all cases connect- 
 ed with life contingencies, and shall avail itself of the advantage 
 continually offering in the purchase q/" life contingent risks, and 
 such other descriptions of property as the law may sanction.^' 
 On the faith of the repixsentations contained in the prospectus, 
 the plaintiff" accepted the offer of the fifteen shares, and on the 
 19th March he paid at the company's office the sum of 150/., 
 being the amount of the call of 10/. on each of his shares. On 
 that occasion he received a printed certificate as follows : "./^Z- 
 liance British and Foreign Life and Fire Assurance Com- 
 pany, No. 4. Neiv Court, St. Swithin's Lane. Capital, five 
 millions sterling. This is to certify that Frederick Natusch, 
 Esq. of St. Stvithin's Lane, has become a subscriber for fifteen 
 shares of 100/. each in the Alliance British and Foreign Life 
 and Fire Assurance Company, on which ten pounds per cent, 
 have been paid, and that on executing such deed or deeds as the 
 Board of Direction shall deem requisite for furthering the objects 
 stated in the prospectus, the said Frederick Natusch, Esq., will 
 be entitled as a proprietor of the said shares to all the benefits and 
 emoluments thereof This certificate to be void, and the deposit 
 to be forfeited, on failure to execute such deed or deeds within
 
 APPENDIX. 399 
 
 three months after notice in the London Gazette. London, 
 24th March, 1S24. — N. M. Rothschild entered in the com- 
 pany's books L. D., (no assignment is valid unless regularly- 
 made in the books of the company) No. 35,220 and 35,234." 
 The plaintiff also effected an assurance on his life for the sum of 
 1500/., and on the 31st of March he paid the premium required 
 for such assurance. 
 
 On the 27th August 1824, advertisements appeared in some 
 of the public papers, .which purported that the Alliance Com- 
 pany would, on the 1st of Septeinber, commence the 
 business of marine *insurance, and the plaintiff in con- [ *400 ] 
 sequence wrote on the same day to Mr. Hamilton, the 
 secretary of the company, requesting to be informed whether the 
 fact was so; and stating that he conceived such a proceeding 
 would materially affect his interest, not only as a partner, but in 
 respect of the contract of insurance he had effected with the com- 
 pany on his life. To this letter he on the 30th of the same month 
 received the following answer from the secretary: — " I have laid 
 your letter of the 27th instant before the Board of Direction of 
 the Alliance Company, and am desired by them to return you 
 the following answer to it. The rumour to which you allude is 
 well founded — the company will commence marine assurance 
 business on the 1st of September. The Board, however, do not 
 conceive that your interest can be prejudiced by this determina- 
 tion. It is true that 15 shares were assigned to you by Mr. Roths- 
 child at your particular request, upon which shares you have 
 paid a deposit of 10/. per cent.; but as you have not executed the 
 deed of settlement, and as your name is not enrolled under the 
 act, you are not subjected to any of the liabilities attached to the 
 company. If you are dissatisfied with the course intended to be 
 pursued, you may receive back your deposit with interest from 
 the date of its payment ; and the Board request that you will 
 consider this as a regular tender thereof. With regard to the in- 
 surance effected by you on your life, and which (looking either 
 at the date of the proposal for or of the completion of it) must 
 have been so effected, with knowledge on your part that the com- 
 pany intended to carry on the business of marine insurance, the 
 Board are ready and willing to cancel the policy, and return the 
 premium, and to assist you in transferring your assurance to any 
 other office in whose solidity you may have more confidence than 
 in that of the Alliance.^' After receiving this communication, 
 the plaintiff on the 31st August rejoined as follows : " Your in- 
 formation, that I have not executed the deed of settlement, was 
 the first notice I had received that any such deed had been pre- 
 pared,(a) and upon that part of the subject it is unnecessary to 
 
 (a) It was stated in the bill that notice of a deed having been prepared 
 was inserted in the London Gazette of the 10th of Ait^usf, but that the plain- 
 tiff had not at the time seen or heard of it.
 
 400 APPENDIX. 
 
 say more, than that I am ready to execute any deed, in con- 
 formity with the prospectus annexed to the receipt signed by 
 Mr. Rothschild for my deposit. The arrangement respecting 
 the enrolment I do not understand, and therefore do not enter 
 into it. It is, I conceive, competent to me to insist, that the bu- 
 siness in which I am a partner shall be carried on according to the 
 agreement which united the partners together; and I cannot think 
 my doing so will entitle the managers of that partnership to pay 
 me out my capital, and deprive me of a share in a concern of 
 which I have the highest opinion. And therefore I do most re- 
 spectfully, but most decidedly, require that the presidents and 
 directors abstain from any contracts or engagements relating to 
 marine insurance, as not being contemplated by myself and those 
 who joined the company upon the terms of the prospectus re- 
 ferred to; and I, as decidedly, require an undivided attention, 
 on the part of the managers and the officers of the 
 r *401 1 institution, to the *objects defined in the prospec- 
 tus referred to. In answer to the last paragraph of 
 your letter, I beg to state that, so early as February last, I offer- 
 ed to insure my own life with the Alliance Company, so soon 
 as the arrangements could be completed, and that neither then 
 nor at any subsequent period did I conceive that it was in the 
 power of the managers to undertake risks foreign to the purpose 
 for which the company was formed.. As to marine insurances, 
 my own determination not to be involved in them, as a member 
 of the Alliance partnership, was very impressively stated to Mr. 
 Rothschild, on occasion of an interview had with him by his 
 own desire on the subject of my petition to Parliament. The 
 presidents and directors will do me the justice to feel that my 
 conduct has been plain and consistent. I have throughout ap- 
 proved the institution as a partnership for life and fire insurance 
 and the purchase of annuities, and as distinctly disapproved the 
 dangerous business of marine insurance being appended. I have 
 therefore endeavoured, and shall continue to preserve my full 
 share of the full benefit to be derived from the former, in a dis- 
 tinct insulated exertion of the influence of the partners; and I 
 have resisted, and shall to the utmost of my power oppose, the 
 latter unauthorized employment of the capital of the company, 
 and the time and talents of its managers and officers." The 
 plaintiff subsequently attended for the purpose of executing the 
 deed of settlement; but, on discovering that the only deed pre- 
 pared for execution by the subscribers was one which contained 
 a recital of the repeal of so inuch of the act of the 6 Geo. I. (a) 
 as prohibited the effecting of marine assurances by partnerships 
 or companies, and that it was intended to extend the objects of 
 the Alliance Company to marine insurances and lending money 
 
 (a) 5 Geo. 4. c. 114. This act received the royal assent on the 24th June, 
 1824.
 
 APPENDIX. 401 
 
 on bottomry, and that the deed contained the necessary provi- 
 sions for enabling the company to carry on such business, he 
 refused to execute it, as not being conformable to the terms on 
 which the company was formed. In pursuance of the advertise- 
 ments, the defendants, on the 1st of September, 1824, com- 
 menced, and, at the time of the filing of the bill, continued to 
 carry on the business of underwriting. 
 
 The bill,- — after stating the various facts already mentioned, 
 the willingness of the plaintiff to execute any deed which the 
 defendants might lawfully require for furthering the objects 
 stated in the prospectus, and denying that he acquiesced in and 
 submitted to the intention of the defendants to extend the busi- 
 ness and transactions of the company to marine insurance, and 
 to the lending of money on bottomry, — charged, that a deed 
 containing provisions for enabling the defendants, as presidents 
 and directors of the company, to undertake the business of 
 marine insurance, was not a deed of settlement authorised by the 
 terms upon which the company was formed; that the engaging 
 in such business would render all the members of the company 
 liable to the bankrupt laws, though not otherwise subject thereto; 
 that all the defendants, other than Rothschild, were privy and 
 assented to the publishing of the prospectus, and autho- 
 rised the writing of the *letter of the said Rothschild, [ *402 ] 
 and adopted all his acts; that various copies of the pros- 
 pectus were circulated by and under the directions of the defen- 
 dants; and that the extension of the transactions and business of 
 the company to marine insurance or underwriting was in direct 
 contravention with the true and obvious construction and whole 
 scope of the prospectus and other documents. 
 
 The injunction was applied for, before answer, upon the usual 
 certificate and affidavit. Counter affidavits were produced on the 
 part of the defandants, by one of which it was stated, that shortly 
 after it had been determined to form the Alliance Company, 
 the existence of an intention to apply for an act of parliament or 
 charter, enabling the company to effect marine insurance, was 
 currently reported, and was a common subject of conversation 
 amongst mercantile men. The affidavit also alleged that, about 
 the end of March, 1824, repeated allusions were made to the 
 same subject in the daily papers, and further it stated circum- 
 stances which would lead to the inference, that the plaintiff must, 
 about the time he became a shareholder, have been aware of the 
 determination of the defendants to extend the objects of the com- 
 pany to marine insurance. It was likewise insinuated that the 
 suit was instigated and promoted by the committee of under- 
 writers at Lloyd's, and that it was intended that the costs and 
 expenses thereof should be borne and paid by them. The in- 
 junction being asked, the Lord Chancellor directed the plaintiff 
 to answer the affidavits filed for the defendants, with liberty for
 
 402 APPENDIX. 
 
 them to reply, and the defendants were ordered to discontinue 
 their advertisements in the mean time, and to confine their busi- 
 ness to as few risks as possible. In consequence of this direction 
 the plaintiff filed a further affidavit, in which he denied havfng 
 received any notice or intimation, at or before the time he be- 
 came a shareholder, that the business of marine insurance was to 
 form one of the objects of the company. He also stated therein 
 that, on the 5th June, 1S24, after the bill for the repeal of the act 
 of the 6 Geo. 1. had been read a second time in the House of 
 Commons, he had an interview with the defendant Rothschild^ 
 and then explained in very strong terms his opinion of the dan- 
 ger and impolicy of a joint stock company undertaking the risks 
 of marine insurance; and at the same time intimated his entire 
 disapprobation of the company engaging in such business, and his 
 determination to oppose the same by every legal means. He 
 likewise stated, that so far from having either directly or indi- 
 rectly acquiesced in the company's engaging in the business of 
 underwriting,he not only remonstrated with the defendsmt Roths- 
 child on the subject, but took an active part in opposing every 
 measure tending to enable the company to engage in such busi- 
 ness. Other affidavits were filed on the part of the plaintiff, in 
 one of which it was alleged, that, so 'far from its being a matter 
 of notoriety that the defendants intended to add the business of 
 marine insurance to the objects specified in the prospectus, the 
 solicitor employed for the company, in the course of passing a 
 bill introduced into the House of Lords for the purpose of enabling 
 
 the company to sue and be sued in the name of their 
 r *403 1 *chairman, cautiously abstained from avowing any such 
 
 intention; and in answer to a question addressed to him 
 before a committee of Peers on the said bill, whether it was in- 
 tended that the company should engage in the business of marine 
 insurance, he replied that he knew nothing except in his profes- 
 sional capacity of solicitor to the company, and submitted that he 
 was not bound to disclose what came to his knowledge in that 
 character. The remainder of the affidavits produced for the 
 plaintiff were made by shareholders in the company, who assert- 
 ed that they became such shareholders upon the faith and credit 
 of the prospectus, in which the business and objects of the com- 
 pany were confined to fire and life insurance, and other life risks, 
 and that they wholly disapproved of and never acquiesced in the 
 extension of the concerns of the company to maritime insurance. 
 The defendants filed counter-affidavits, and amongst them one by 
 the defendant Rothschild, in which he insisted that the plaintiff 
 could not, in offering to become a shareholder, have relied upon 
 the statements in the prospectus, because at that time the pros- 
 pectus was not prepared, and it was not issued and made public 
 until the 15th of March. He admitted having had an interview 
 with the plaintiff, at which the plaintiff objected to the company
 
 APPENDIX. 403 
 
 extending its operations to marine insurance, but denied that the 
 plaintiff stated his opinion of the danger or impolicy of a joint 
 stock company undertaking the risks of marine insurance. The 
 points relied upon by the defendants, as affording particular an- 
 swers to the plaintiff's bill, are noticed seriatim by the Lord 
 Chancellor, and it is therefore unnecessary to repeat them here. 
 His lordship being furnished with all the papers, was pleased, in 
 Trinity vacation, 1824, to forward from the country the follow- 
 ing remarks upon the case: — 
 
 " The repeal of the act of George I. put an end to the disa- 
 bilities imposed upon societies or partnerships as to underwriting 
 against marine risks. 
 
 " That repeal could not, I think, operate to change the rules 
 of law or equity, which, as rules governing partnerships, would 
 have regulated their concerns among themselves, if such repealed 
 act had never existed. 
 
 "If the Alliance Company, which the act of the 17th June, 
 1824, (a) treats as Men formed to affect assurances upon lives and 
 survivorships, and against loss or damage by fire, and represents 
 that several persons had formed themselves into a company, and 
 raised considerable sums of money in order to effect such assur- 
 ances, could not by express contract, or authority by implication 
 vested in its directors, or any select part of its body, engage the 
 partners in marine risks; and if the plaintiff, on behalf of himself, 
 and others, had a right to prevent the company, as that com- 
 pany, from so doing, several points are made on the part of the 
 defendants against the plaintiff, as such points as ought to operate 
 to discharge his complaint. 
 
 "1. It is urged that the plaintiff has not executed the deed of 
 settlement. To this it may be answered, that if the 
 company *had no right to engage him in marine risks, [ *404 ] 
 they had no right to tender to him for execution any 
 deed which did so engage him; and that if the prospectus 
 and certificate are to be considered as evidences of the partner- 
 ship contract, the certificate allows three months after notice in 
 the London Gazette for execution. The deed was not lying 
 for execution till the 10th August in Mr. Pearce's office. The 
 plaintiff represents that his information that there was such a 
 deed was received from Mr. Hamilton's letter of the 30th 
 Jiugust.{h) 
 
 " 2. That the plaintiff's name not being enrolled under the 
 
 (c) 5 Geo. 4. c. 137. 
 
 (6) In the margin of the manuscript his lordship wrote as follows: "It 
 seems to me that this must be understood to be a deed relative to fire and life 
 assurances, and the other specified objects, and those only, however great 
 might be the powers given by it to any part of the body with respect to such 
 objects. Mr. Rothschild's certificate does not, it may be said, give the title 
 to benefits and emolumenis till the deed is executed, but then it must be a 
 
 65
 
 404 APPENDIX. 
 
 act, he is not subject to any of the liabilities attached to the com- 
 pany. This does not appear to be the true construction of the 
 act. A memorial of the several members is only required to be 
 enrolled within six months; and if the act is to be taken to re- 
 quire enrollment sooner, non-observance of the act could not free 
 the party neglecting to observe it from liabilities. The act pro- 
 vides, that no action shall be brought under the authority of the 
 act by the company till there has been an enrollment, but it does 
 not negative proceedings against the company or its members, 
 and the 7th section seems to proceed upon that distinction. If 
 this notion, that a person subscribing, but of whose name a me- 
 morial has not been rolled, was countenanced, it would perhaps 
 be a little difficult to determine who are the partners now subject 
 to liabilities, it not appearing how many of the 340 who have 
 executed the deed in respect of 22,400 shares,(a) or how many of 
 the members entitled to the residue of the 50,000 shares, have or 
 have not had their names enrolled. 
 
 '' 3. An offer is made to the plaintiff that he may receive back 
 his deposit with interest from the date of the payment, and he is 
 desired to consider himself as having received notice thereof. 
 But it is not, I apprehend, competent to any number of persons 
 in a partnership (unless they show a contract rendering it compe- 
 tent to them) formed for specified purposes, if they propose to 
 form a partnership for very different purposes, to effect that for- 
 mation by calling upon some of their partners to receive their 
 subscribed capital and interest and quit the concern ; and, in effect, 
 merely by compelling them to retire upon such terms, so to form 
 a new company. This would as to partnerships, 'be a most dan- 
 gerous doctrine. Where a partnership is dissolved (even where 
 it can be in a sense dissolved the instant after notice to dissolve 
 is given, if there be no contract to the contrary,) it must still con- 
 tinue for the purpose of winding up its affairs, of taking and set- 
 tling all its accounts, and converting all the property, means and 
 assets of the partnership existing at the time of the dis- 
 r *405 1 solution, as beneficially as may be for *the benefit of 
 all who were partners, according to their respective 
 shares and interests; and the other partners cannot say to him, to 
 whom they have given an offer of his deposit and interest. Take 
 that, and we are a new company, keeping the effects, means, 
 assets and property of the old, as the property of the new part- 
 nership. 
 
 "4. The company will indemnify the plaintiff against loss by 
 its transactions already had, or hereafter to be had, not for the 
 
 proper deed relating to the specified objects; and in law a person may, by his 
 own fault, be subject to liabilities, though not entitled to emoluments." 
 
 (a) It was stated in the affidavits that upwards of 340 members, holding 
 together upwards of 22,400 shares, had executed the deed of settlement.
 
 APPENDIX. 
 
 405 
 
 specified purposes of the institution. But the right of a partner 
 is to hold to the specified purposes his partners whilst the partner- 
 ship continues, and not to rest upon indemnities with respect to 
 what he has not contracted to engage in. 
 
 "5. A dissatisfied partner may sell his shares for double what 
 he originally gave for them. But he cannot be compelled to part 
 with them for that reason; it may be his principal reason for 
 keeping them, having the partnership concern carried on accord- 
 ing to the contract. The original contract and the loss which his 
 partners would sufier by a dissolution, is his security that it shall 
 be so carried on for him and them beneficially, and with aug- 
 mented improvement in the value of his shares and their shares. 
 "Upon the whole, T do not find that, upon taking the sup- 
 position in page 1. to be true, in law there is any sufficient matter 
 contained in the above points made in the affidavits on the part of 
 the defendants. 
 
 "The repeal of the act 6 Geo. I. which merely made it lawful 
 for societies or partnerships, however numerous their members 
 might be, to insure against marine risks, could not make it lawful 
 for companies or societies, which were formed for specified pur- 
 poses of insurances upon lives and against fire, to insure against 
 marine risks, unless the contracts by which such companies were 
 formed, either expressly or impliedly (where individual partners 
 did not consent to embarking in new projects, either originally 
 or subsequently to the formation of the companies), created an 
 authority in some part of the body to bind all the body to the 
 adoption of such new undertakings. 
 
 "Upon the best consideration I can give this case, I think the 
 original contract of this society was to form a life and fire assu- 
 rance company; and that in the original institution the objects 
 are all specified, except what fall under the general words, ' the 
 purchase of such other descriptions of property as the law may 
 sanction' At that time the law did not sanction marine in- 
 surances by such a body. It might never sanction them. The 
 words ^purchase of will probably be taken as connected with 
 the words ^such other descriptions of property as the law 
 may sanction,' and the general words be taken to mean things 
 ejusdem generis. If it was thought that the prospectus had a 
 reference to marine insurances, there could be no reason for a 
 non-avowal of the purpose so to insure, when the matter was 
 before Parliament. It is intimated in an affidavit that the pros- 
 pectus ought not to be considered as forming the plan of the in- 
 stitution, but there seems to be enough in the affidavits to prove 
 that it did; and if Mr. Rothschild is right in intimating 
 that it did not, it seems difficult to maintain what *ad- [ *406 ] 
 ventures the directors may not engage this company to 
 undertake. 
 
 *<For such and other reasons the matter has been also discussed
 
 406 
 
 APPENDIX. 
 
 before me upon the ground, that by reason of the plaintiff's ac- 
 quiescence in the extension of the plan, he is not (whether others 
 are or are not, upon a bill filed by him, it is said is not material) 
 at liberty to contravene the purpose of extending the transactions 
 of the company to marine insurances, and this deserves much 
 consideration. 
 
 "If six persons join in a partnership of life assurance, it seems 
 clear that neither the majority, nor any select part of them, nor 
 five out of the six, could engage that partnership in marine in- 
 surances, unless the contract of partnership expressly or impliedly 
 gave that power; because if this was otherwise, an individual or 
 individuals, by engaging in one specified concern, might be im- 
 plicated in any other concern whatever, however different in its 
 nature, against his consent. 
 
 "But if a part of the six openly and publicly professed their 
 intention to engage the partnership in another concern, and clearly 
 and distinctly brought this to the knowledge of one or more of 
 the other partners, and such one or more of the other partners 
 could be clearly shown to have acquiesced in such intention, and 
 to have permitted the other partners to have entered upon and to 
 have engaged themselves and the body in such new projects, and 
 thereby to have placed their partners, so engaged, in difficulties 
 and embarrassments, unless tiiey were permitted to proceed in 
 the farther execution of such projects, if a court of equity would 
 not go the length of holding that such conduct was consent, it 
 would scarcely think parties so conducting themselves entitled to 
 the festinuni remedium of injunction, 
 
 " It may be taken that the principle that would apply to the 
 partnership of six, will apply to this partnership of 600 or 700; 
 340 have executed in respect of not quite half the number of 
 shares; there probably may be therefore 600 or 700 members. 
 To those who have not had occasion to observe the boldness of 
 speculation, it may seem astonishing that persons, and so many 
 in number, should have engaged themselves in a speculation so 
 little explained, and undertaken to execute deeds, of the contents 
 of which they had so little information. To those who know the 
 difficulty of applying the rules of law and equity to societies 
 constituted of such numbers of persons not incorporated, it is not 
 matter of surprise that persons, ignorant of those difficulties, 
 should become members of such societies; it may be matter of 
 surprise to them, that persons who know the difficulty of apply- 
 ing those rules should becom-e members, even where the nature 
 of the speculation is clearly explained, and full information is 
 given of the contents of the deeds to be executed. Much has 
 been done with respect to the difficulty alluded to, by pro- 
 visions how those who have demands upon such societies are to 
 sue, and how such societies are to be sued ; much remains to be 
 done, and particularly as to rendering simple and eflfectual the
 
 APPENDIX. 406 
 
 remedies of the members of such societies against each other. It 
 is observed that the members of this society under- 
 writing will be each liable to the bankrupt *laws. [ *407 1 
 That depends upon the act of parliament which is to 
 take effect in May .next. (a) Shares may devolve to feme 
 coverts, infants, &c.; but whatever are the difficulties, courts 
 must struggle to remedy them, and to prevent particular mem- 
 bers of those bodies from engaging other members in projects in 
 which they have not consented to be engaged, or the engaging in 
 which they have not encouraged, assented to, empowered, or ac- 
 quiesced in expressly or tacitly, so as to make it not equitable 
 that they should seek to restrain them. The principles which 
 a court would act upon in the case of a partnership of six must, 
 as far as the nature of things will admit, be applied to a partner- 
 ship of 600. 
 
 " I have read the affidavits originally and since sent to me, 
 repeatedly and with great attention. Since I received the latter, 
 it has been impossible for me, in point of time, to put together 
 (even as cursorily as I have written without time to correct 
 them) the preceding observations. (6) The present impression 
 upon my mind is, that in a matter important as this certainly is, 
 it may be difficult to arrive at a conclusion perfectly satisfactory, 
 when it is to be formed without the opportunity of calling for 
 explanations, which a hearing in town would afford. As I read 
 the affidavits, and on repeatedly reading them, such explanations, 
 it appears to me, may be necessary. They who seek to embark 
 a partner in a business not originally part of the partnership con- 
 cern, must make out clearly that he did expressly or tacitly 
 acquiesce. To determine whether this is made out requires a 
 very accurate and critical attention to every word in the affida- 
 vits, and to the want of words in them. To exemplify this, the 
 plaintiff in his affidavit states, that after the bill had been read 
 a second time in the House of Commons, he had an interview 
 with Mr. Rothschild; that he stated to him in strong terms his 
 opinion of the danger" of the undertaking, his reasons for that 
 opinion, his entire disapprobation of the company engaging in 
 marine insurances, and he swears that he expressed his determi- 
 nation to oppose the same by every legal means. Mr. Roths- 
 child in his affidavit admits, that in the conversation the plaintiff 
 objected; he denies that he stated his opinion of the danger, but 
 he omits entirely to notitie, vvhether the plaintiff did or did not 
 (as he swears he did) express his determination to oppose the 
 
 (a) 5 Geo. 4. c. 98. s. 2. by which an underwriter is declared to be a trader 
 liable to the bankrupt laws, and see 6 Geo. 4. c. 16. s. 2. Formerly it was 
 held that an underwriter, merely in that character, could not be a bankrupt. 
 Ex parte Bell, 15 Ves. 355. 
 
 (b) This sentence was literally transcribed frotn the copy of the observa- 
 tions with which I was furnished.
 
 407 APPENDIX. 
 
 same by all legal means, an expression, both as to its nature 
 and the time when it was made, extremely important. 
 
 " So again the plaintiff states in his affidavit, that he believes 
 the presidents and directors took upon themselves such offices, 
 and were privy to and assented to the publishing the prospectus, 
 and authorised the writing of the said letter of the said Nathan 
 Meyer Rothschild, and have ever since acted as presidents and 
 
 directors. To this I find no contradiction, (c) 
 r *408 ] " On the other hand, though it is no objection to the 
 plaintiff that he is an underwriter at Lloyd's, yet it 
 may deserve consideration, whether he is really sueing for him- 
 self, or for the members of Lloyd 's, not members of this com- 
 pany. Respectable the members of Lloyd's are, but it is alleged 
 that the plaintiff's suit is their suit, that he is suing at their cost 
 and charges; this is not negatived, and it may be material. 
 
 " It will require some time to analyse with sufficient particula- 
 rity the affidavits. That time I have not had, and after it has 
 been had, probably more information must be called for. I wish, 
 therefore, to know by post whether the parties can make any 
 arrangement, by indemnities to the plaintiff in the mean time or 
 otherwise, which would give the court the opportunity of publicly 
 hearing this matter when it meets, having then the advantage of 
 counsel and such further information as both parties can give. If 
 they cannot agree upon some such arrangement, I shall proceed 
 to state the effect of the affidavits as they strike me, and either 
 deny the injunction or grant it, or order some interim arrange- 
 ment as soon as I hear from them, and have time sufficient for the 
 
 purpose. 
 
 "Eldon, C." 
 
 Additional affidavits were subsequently filed, both on the be- 
 half of the plaintiff and the defendants, with the view of supply- 
 ing the omissions suggested by his lordship, and the injunction 
 was granted. A new company was afterwards formed for the 
 purpose of engaging in marine insurances. 
 
 (c) The Lord Chancellor observed in the margin, " A statement to Mr. 
 Rothschild, it may be contended, is in effect a statement to the presidents and 
 directors."
 
 ( 409 ) 
 APPENDIX.— No. I. 
 
 AN ACT 
 
 RELATIVE TO LIMITED PARTNERSHIPS.(1) 
 
 (Pamp. Laws, Penns. 1835-6, p. 143.) 
 Section 1. Be it enacted by the Senate and 
 House of Representatives of the Commonwealth of 
 Pennsylvania in General Assemhly met, and it is 
 hereby enacted by the authority of the same, That 
 limited partnerships for the transaction of any agri- 
 cultural, mercantile, mechanical, mining, and trans- 
 porting of coal, or manufacturing business, within 
 this state, may be formed by two or more persons, 
 upon the terms, with the rights and powers, and sub- 
 ject to the conditions and liabilities herein prescribed; 
 but the provisions of this act shall not be construed to Banking and 
 authorise any such partnership for the purpose of jj^^ur JJ-^^^e 
 banking or making insurance. 
 
 Sec. 2. Such partnerships may consist of one or General and 
 more persons, who shall be called general partners, ^P^^^^^l P=^^^- 
 and who shall be jointly and severally responsible as 
 general partners now are by law, and of one or more 
 persons who shall contribute in actual cash payments, 
 a specific sum as capital to the common stock, who 
 shall be called special partners, and who shall not be 
 liable for the debts of the partnership beyond the fund 
 so contributed by him or them to the capital. 
 
 Sec. 3. The general partners only shall be autho- General part- 
 rised to transact business and sign for the partnership, ^^[^ °" ^ ^° 
 and to bind the same. 
 
 Sec. 4. The persons desirous of forming such part- 
 nership shall make and severally sign a certificate, 
 which shall contain: — 
 
 I. The name or firm under which such partnership A certificate 
 . , ,1.1 to contain — 
 IS to be conducted. 
 
 II. The general nature of the business intended to 
 be transacted. 
 
 III. The names of all the general and special part- 
 ners interested therein, distinguishing which are gene- 
 
 (1) A bill authorising limited partnerships, has passed the 
 Assembly of Rhode Island, by an overwhelming majority, 
 Jan. 1837.
 
 410 
 
 APPENDIX. 
 
 Certificate to 
 be acknovv- 
 
 Certificate to 
 be recorded, 
 and where. 
 
 Affidavit of 
 general part- 
 ners. 
 
 Liability in 
 case of false 
 statement. 
 
 Terms of 
 partnership 
 to be pub- 
 lished. 
 
 ral and which are special partners, and their respec- 
 tive places of residence. 
 
 IV. The amount of capital which each special part- 
 ner shall have contributed to the common stock. 
 
 V. The period at which the partnership is to com- 
 mence, and the period at which it will terminate. 
 
 Sec. 5. The certificate shall be acknowledged by 
 the several persons signing the same, in the manner, 
 and before the same persons, that deeds are now ac- 
 knowledged, and the said acknowledgment shall be 
 certified in the same manner as the acknowledgment 
 of deeds are now certified. 
 
 Sec 6. The certificate so acknowledged and certi- 
 fied, shall be recorded and filed in the office of the re- 
 corder of deeds of the proper county, in which the 
 principal place of business of the partnership shall be 
 situated, and shall also be recorded by him at large, in 
 a book to be kept for that purpose open to public in- 
 spection: If the partnership shall have places of busi- 
 ness situated in difierent counties, a transcript of the 
 certificate and of the acknowledgment thereof, duly 
 certified by the recorder in whose office it shall be 
 filed, and under his official seal, shall be filed and re- 
 corded in like manner in the office of the recorder of 
 every such county. 
 
 Sec. 7. At the time of filing the original certi- 
 ficate, with the evidence of the acknowledgment there- 
 of, as before directed, an affidavit of one or more of 
 the general partners shall also be filed in the same of- 
 fice, stating the sums specified in the certificate to have 
 been contributed by each of the special partners to the 
 common stock, and to have been actually, and in good 
 faith, paid in cash. 
 
 Sec. 8. No such partnership shall be deemed to 
 have been formed until a certificate shall have been 
 made, acknowledged, and filed and recorded, nor until 
 an affidavit shall have been filed as above directed; and 
 if any false statement be made in such certificate or 
 affidavit, all the persons interested in such partnership 
 shall be liable for all the engagements thereof, as gene- 
 ral partners. 
 
 Sec. 9. The partners shall publish the terms of 
 the partnership, when registered, for at least six weeks 
 immediately after such registry, in two newspapers, 
 to be designated by the recorder of deeds of the 
 county in which such registry shall be made, and to 
 be published in the county or counties in which their
 
 APPENDIX. 
 
 411 
 
 business shall be carried on; and if such publication 
 be not made, the partnership shall be deemed general. 
 
 Sec. 10. Affidavits of the publication of such notice Affidavits. 
 by the printers of the newspapers in which the same 
 shall be published, may be filed with the recorder, 
 directing the same, and shall be evidence of the facts 
 therein contained. 
 
 Sec. 11. Every renewal or continuance of such Renewal of 
 partnership beyond the time originally fixed for its partnerships, 
 duration, shall be certified, acknowledged, and re- 
 corded, and an affidavit of a general partner be made 
 and filed, and notice be given in the manner herein 
 required for its original formation, and every such 
 partnership which shall be otherwise renewed or 
 continued, shall be deemed a general partnership. 
 
 Sec. 12. Every alteration which shall be made in Alterations of 
 the names of the partners, in the nature of the busi- partnerships, 
 ness, or in the capital or shares thereof, or in any 
 other matter specified in the original certificate, shall 
 be deemed a dissolution of the partnership, and every 
 such partnership which shall in any manner be carried 
 on after any such alteration shall have been made, 
 shall be deemed a general partnership, unless renewed 
 as a special partnership, according to the provisions 
 of the last section. 
 
 Sec. 13. The business of the partnership shall be 
 conducted under a firm, in which the names of the 
 general partnership only shall be inserted, without the 
 addition of the word " Company," or any other gene- Company, 
 ral term, and if the name of any special partner shall 
 be used in such firm, with his privity, he shall be 
 deemed a general partner. 
 
 Sec. 14. Suits in relation to the business of the Suits. 
 partnership may be brought and conducted by and 
 against the general partners, in the same manner as if 
 there were no special partners. 
 
 Sec. 15. No part of the sum which any special Liability for 
 partner shall have contributed to the capital stock, ' 
 shall be liable for any debts previously contracted by 
 the general partners, nor shall any part of such sum 
 be withdrawn by him, or paid or transferred to him 
 in the shape of dividends, profits, or otherwise, at any 
 time during the continuance of the partnership; but ^"*!^^^''' *"'^ 
 any partner may annually receive lawful interest on ^"^^ 
 the sum so contributed by him, if the payment of such 
 interest shall not reduce the original amount of such 
 capital, and if after the payment of such interest, any 
 - 66
 
 412 APPENDIX. 
 
 profits shall remain to be divided, he may also receive 
 
 his portion of such profits. 
 Original capi. Sec. 16. If it shall appear that by the payment of 
 tal not to be interest or profits to any special partner, the original 
 impairc , capital has been reduced, the partner receiving the 
 
 same shall be bound to restore the amount necessary 
 
 to make good his share of capital, with interest. 
 A special Sec. 17. A special partner may, from time to time, 
 
 partner may examine into the state and progress of the partnership 
 examine into concerns, and may advise as to their management, but 
 the concerns, , , ,, ' , ■^ ^ ^ ■ i. r xt, 
 
 &,c. he shall not transact any busmess on account ot tne 
 
 partnership, nor be employed for that purpose as 
 agent, attorney, or otherwise; if he shall interfere con- 
 trary to these provisions, he shall be deemed a gene- 
 ral partner. 
 Liability of Sec. 18. The general partners shall be liable to. 
 general part- account to each Other and to the special partners, for 
 "^"" the management of their concern, both in law and 
 
 equity, as other partners now are by law. 
 Fraud. ^^c. 19. Every partner who shall be guilty of any 
 
 fraud in the affairs of the partnership, shall be liable 
 civilly to the party injured, to the extent of his 
 damage. 
 Sale, assign. Sec 20. Every Sale, assignment, or transfer of any 
 mentor trans- of the property or effects of such partnership, made 
 fer, vvhen in- -^^ g^^j^ partnership when insolvent, or in contempla- 
 ' tion of insolvency, or after or in contemplation of the 
 insolvency of any partner, with the intent of giving a 
 preference to any creditor of such partnership or in- 
 solvent partner over other creditors of such partner- 
 Judgment ship, and every judgment confessed, lien created, or 
 and lien also security given by any such partner under the like cir- 
 '^°^^' cumstances and with the like intent, shall be void as 
 
 against the creditors of the partnership. 
 Sale, assign- Sec. 21. Every such sale, assignment, or transfer 
 ment, &c., as of any of the property or effects of the general or 
 to creditors, gpgcial partner made by such general or special part- 
 ner when insolvent, or in contemplation of insol- 
 vency, or after or in contemplation of the insol- 
 vency of the partnership, with the intent of giving 
 to any creditor of his own or of the partnership a pre- 
 ference over creditors of the partnership, _and every 
 judgment confessed, lien created, or security given by 
 any such partner under the like circumstances and 
 with the like intent, shall be void as against the credit- 
 ors of the partnership. 
 Liability. Sec. 22. Every special partner who shall violate 
 
 any provision of the two last preceding sections, or
 
 APPENDIX. 413 
 
 who shall concur in or assent to any such violation by 
 the partnership, or by any individual partner, shall be 
 liable as a general partner. 
 
 Sec. 23. In case of the insolvency or bankruptcy Rights of 
 of the partnership, no special partner shall, under any creditors, 
 circumstances, be allowed to claim as a creditor, until 
 the claims of all the other creditors of the partnership 
 shall be satisfied. 
 
 Sec. 24. No dissolution of such partnership by Dissolution, 
 the acts of the parties, shall take place previous to the 
 time specified in the certificate of its formation, or in 
 the certificate of its renewal, until a notice of such 
 dissolution shall have been filed and recorded in the 
 recorder's office in which the original certificate was 
 recorded, and published once in each week for four 
 weeks, in a newspaper printed in each of the counties 
 where the partnership may have places of business. 
 NER MIDDLESWARTH, 
 Speaker of the House of Representatives. 
 THOMAS S. CUNNINGHAM, 
 Speaker of the Senate. 
 
 Approved — The twenty-first day of March, A. D. 
 eighteen hundred and thirty-six. 
 
 JOS: RITNER.
 
 ( 414) 
 
 APPENDIX.— No. II. 
 
 OF LIMITED PARTNERSfflPS. 
 
 (1 Revised Laws, New York, page 763.) 
 Sec. L For what purposes limited partnerships may be formed. - 
 
 2. To consist of general and special partners ; their respective 
 
 liabilities. 
 
 3. General partners only, to transact business. 
 
 4. Certificate to be signed by all the partners ; its contents. 
 
 5. Certificates before whom, and how to be acknowledged. 
 
 6. In what counties to be filed and recorded. 
 
 7. Affidavit also to be filed ; its contents. 
 
 8. Partnership when deemed formed ; eflFect of false certificate, 
 
 &c. 
 
 9. Terms of partnership how to be published ; effect of omission. 
 
 10. Affidavits of publication, where to be filed ; effect as evidence. 
 
 11. Renewals, &,c. of partnership, how to be made. 
 
 12. Alterations, deemed dissolution of partnership. 
 
 13. In what firm and names, business to be carried on. 
 
 14. Suits to be in names of general partners. 
 
 15. Special partner not to withdraw his capital ; may receive 
 
 interest, <^-c. 
 
 16. When to refund interest received by him. 
 
 17. Rights of special partners ; restrictions upon them. 
 
 18. Liability of general partners to account. 
 
 19. Liability and punishment of partners guilty of fraud. 
 
 20. Assignments, &c.in certain cases, to give preference to cre- 
 
 ditors, void. 
 
 21. Certain assignments, &c. of property of general partners, 
 
 void. 
 
 22. Certain acts of special partner to render him liable. 
 
 23. Special partners not to claim as creditors on insolvency of 
 
 firm. 
 
 24. Dissoluton by acts of partners, how made and published. 
 
 Purposes of SECTION. 1. Limited partnerships for the transac- 
 limited part- ^Jqj^ of ^ny mercantile, mechanical, or manufacturing 
 nerships. business, within this state, may be formed by two or 
 more persons, upon the terms, with the rights and 
 powers, and subject to the conditions and liabilities 
 herein prescribed; but the provisions of this Title 
 shall not be construed to authorise any such partner- 
 ship for the purpose of banking, or making insur- 
 ance. (1) 
 Liabilities of Sec. 2. Such partnerships may consist of one or 
 general and jjiore pcrsons, who shall be called general partners, 
 special part- ^^^ ^^^^^ ^^^^^ ^^ jointly and severally responsible as 
 
 (1) The different sections of this Title, except the tenth, and 
 where otherwise noted, are taken, with variations, from the act 
 of 1822, p. 259.
 
 APPENDIX. 
 
 415 
 
 general partners now are by law; and of one or more 
 persons who shall contribute, in actual cash payments, 
 a specific sum as capital, to the common stock, who 
 shall be called special partners, and who shall not be 
 liable for the debts of the partnership, beyond the 
 fund, so contributed by him or them to the capital. 
 
 Sec. 3. The general partners, only, shall be au- Business, hj 
 thorised to transact business and sign for the partner- JJ^nJlcted, 
 ship, and to bind the same. 
 
 Sec. 4. The persons desirous of forming such part- Certificate to 
 nership, shall make and severally sign a certificate, ^fj ^Jj^^^^JJ 
 which shall contain. ners: its 
 
 1. The name or firm under which such partnership contents, 
 is to be conducted : 
 
 2. The general nature of the business intended to 
 be transacted : 
 
 3. The names of all the general and special partners 
 interested therein, distinguishing which are general, 
 and which are special, partners, and their respective 
 places of residence : 
 
 4. The amount of capital which each special part- 
 ner shall have contributed to the common stock: 
 
 5. The period, at which the partnership is to com- 
 mence, and the period, at which it will terminate. 
 
 Sec. 5. The certificate vshall be acknowledged by To be ac- 
 the several persons signing the same, before the chan- knowledged. 
 cellor, a justice of the supreme court, a circuit judge, 
 or a judge of the county courts; and such acknow- 
 ledgment shall he made and certified in the same man- 
 ner, as the acknowledgement of conveyances of land. 
 
 Sec 6. The certificate so acknowledged and certi- When to be 
 fied, shall be filed in the office of the clerk of the f^f^J""^ '^ 
 county in which the principal place of business of the 
 partnership shall be situated, and shall also be record- 
 ed by him at large, in a book to be kept for that pur- 
 pose, open to public inspection. If the partnership 
 shall have places of business situated in different coun- 
 ties, a transcript of the certificate, and of the acknow- 
 ledgment thereof, duly certified by the clerk in whose 
 office it shall be filed, under his official seal, shall be 
 filed and recorded in like manner, in the office of the 
 clerk of every such county. » 
 
 Sec. 7. At the time of filing the original certificate. Affidavit to be 
 with the evidence of the acknowledgment thereof, as " ^ ' 
 before directed, an affidavit of one or more of the 
 general partners shall also be filed in the same office, 
 stating that the sums, specified in the certificate, to 
 have been contributed by each of the special partners
 
 416 APPENDIX. 
 
 to the common stock, have been actually and in good 
 faith paid in cash. 
 When part- Sec. 8. No such partnership shall be deemed to 
 "^"h'pdeem- j^g^.g been formed, until a certificate shall have been 
 oime . jjjg^(je^ jjcknowledged, filed, and recorded, nor until an 
 affidavit shall have been filed, as above directed ; and 
 Consequence if any false statement be made in such certificate or 
 of false certi. affidavit, all the persons interested in such partnership, 
 ficate. &.C. gj^^j^ ^^ Yi2ih\e for all the engagements thereof, as gen- 
 eral partners. 
 Terms of Sec. 9. The'partners shall publish the terms of the 
 
 partnership to partnership when registered, for at least six weeks im- 
 e pu IS e . jjjg^jjg^^g]y j^fi-gj. gyg]^ registry, in two newspapers, to 
 be designated by the clerk of the county in which 
 such registry shall be made, and to be published in the 
 ' senate district in which their business shall be carried 
 
 Effect of on ; and if such publication be not made, the partner- 
 omission, gj^jp gj^^jj ^g deemed general. 
 
 Proof of pub- Sec. 10. Affidavits of the publication of such no- 
 lication. tice, by the printers of the newspapers, in which the 
 
 same shall be published, may be filed with the clerk' 
 directing the same, and shall be evidence of the facts 
 therein contained. 
 Renewals, Sec. H. Every renewal or continuance of such 
 
 &c. of part- partnership, beyond the time originally fixed for its 
 nership. duration, shall be certified, acknowledged and record- 
 
 ed, and an affidavit of a general partner be made and 
 filed, and notice be given, in the manner herein re- 
 quired for its original formation; and every such part- 
 nership which shall be otherwise renewed or con- 
 tinued, shall be deemed a general partnership. 
 Dissolved by Sec. 12. Every alteration which shall be made in 
 alterations, the names of the partners, in the nature of the busi- 
 ness, or in the capital or shares thereof, or in any 
 other matter specified in the original certificate, shall 
 be deemed a dissolution of the partnership; and every 
 such partnership, which shall in any manner be carried 
 When deem- on after any such alteration shall have been made, 
 parfner^hi'p shall be deemed a general partnership, unless renew- 
 ed as a special partnership, according to the provisions 
 of the last section. 
 Names com- Sec. 13. The business of the partnership shall be 
 posing firm, conducted under a firm, in which the names of the 
 general partners, only, shall be inserted, without the 
 addition of the word " company," or any other gene- 
 ral term ; and if the name of any special partner shall 
 be used in such firm, with his privity, he shall be 
 deemed a general partner.
 
 APPENDIX. 417 
 
 Sec. 14. Suits in relation to the business of the Suits, in 
 partnership, may be brought and conducted, by and "'^"^"^ "'*™^^- 
 against the general partners, in the same manner as if 
 there were no special partners. 
 
 Sec. 15. No part of the sum, which any special Capital of 
 partner shall have contributed to the capital stock, special part- 
 shall be withdrawn by him, or paid or transferred to witlidrawn. 
 him, in the shape of dividends, profits or otherwise, 
 at any time during the continuance of the partnership; 
 but any partner may annually receive lawful interest when he 
 on the sum so contributed by him, if the payment of may receive 
 such interest shall not reduce the original amount of ^"^^'"^^** 
 such capital; and if, after the payment of such inter- 
 est, any profits shall remain to be divided, he may 
 also receive his portion of such profits.(l) 
 
 Sec 16. If it shall appear, that the payment of in- When to re- 
 terest or profits to any special partner, the original ^""'^ interest, 
 capital has been reduced, the partner receiving the 
 same, shall be bound to restore the amount necessary 
 to make good, his share of capital, with interest. (1.) 
 
 Sec. 17. A special partner may, from time to time, Ri(,htsofspe- 
 examine into the state and progress of the partnership cial partners, 
 concerns, and may advise as to their management; 
 but he shall not transact any business on account of Restrictions, 
 the partnership, nor be employed for that purpose as 
 agent, attorney, or otherwise. If he shall interfere, 
 contrary to these provisions, he shall be deemed a 
 general partner. 
 
 Sec is. The general partners shall be liable to General part- 
 account to each other, and to the special partners, for ners to ac- 
 their management of the concern, both in law and ^o""*- 
 equity, as other partners now are, by law. 
 
 Sec 19. Every partner who shall be guilty of any Punishment 
 fraud in the parnership, shall be liable civilly to the of partners 
 party injured, to the extent of his damage; and shall fj'aud. 
 also be liable to an indictment for a misdemeanor, 
 punishable by fine or imprisonment, or both, in the 
 discretion of the court by which he shall be tried. 
 
 Sec 20. Every sale, assignment, or transfer of any Certain trans- 
 of the property or efl'ects of such partnership, made by ^^""^ ^°^''- 
 such partnership when insolvent, or in contemplation 
 of insolvency, or after, or in contemplation of, the 
 insolvency of any partner, with the intent of giving 
 a preference to any creditor of such partnership or in- 
 solvent partner, over other creditors of such partner- 
 
 (1) Laws of 1827, p. 249 ; of 1822, p. 259, 5 11.
 
 418 APPENDIX. 
 
 Certain judg- ship; and every judgment confessed, lien created, or 
 ments and se- security given, by such partnership, under the like 
 cunues void, circumstances, and with the like intent, shall be void, 
 
 as against the creditors of such partnership. 
 Certain trans- Sec. 21. Every such sale, assignment, or transfer of 
 fers, «fec. of any of the property or efiects of a general or special 
 \yy^geneTa\ ^ Partner, made by such general or special partner, 
 partners, void, when insolvent, or in contemplation of insolvency, 
 or after or in contemplation of the insolvency of the 
 partnership, with the intent of giving to any creditor 
 of his own, or of the partnership, a preference over 
 creditors of the partnership; and every judgment con- 
 fessed, lien created, or security given, by any such 
 partner, under the like circumstances, and with the 
 like intent, shall be void, as against the creditors of 
 the partnership. 
 When special Sec. 22. Every special partner, who shall violate 
 partner to be- ^^y provision of the two last preceding sections, or 
 who shall concur in, or assent to, any such violation 
 by the partnership or by any indidvidual partner, 
 shall be liable as a general partner. 
 When not to S^c. 23. In case of the insolvency or bankruptcy 
 dito™ ^^ °'^^' ^^ ^^^ partnership, no special partner shall, under any 
 circumstances, be allowed to claim as a creditor, until 
 the claims of all the other creditors of the partnership 
 shall be satisfied. 
 Dissolution Sec. 24. No dissolution of such partnership by 
 ^Irtners°^ the acts of the parties, shall take place previous to 
 ^ ° " the time specified in the certificate of its formation, 
 or in the certificate of its renewal, until a notice of 
 such dissolution shall have been filed and recorded in 
 the clerk's ofiice in which the original certificate was 
 recorded, and published once in each week for four 
 weeks, in a newspaper printed in each of the counties 
 where the partnership may have places of business, 
 and in the state paper.
 
 ( 419 ) 
 
 APPENDIX.— No. III. 
 
 AN ACT 
 
 TO AUTHORISE LIMITED PARTNERSHIPS WITHIN 
 THE STATE OF MARYLAND. 
 
 Extract from the Laws of Maryland, printed by J. Hughes at Anna- 
 polis, Vol. ix. ch. 213. Passed Feb. 24th, 1826. 
 
 Sec. 1 . Be it enacted by the General Assembly of Limited part- 
 Maryland, That it shall and may hereafter be lawful "j^^^'jj^jij^''' 
 to form limited copartnerships for the transaction of 
 business within this state, according to the provisions 
 of this act: Provided, that nothing herein contained Proviso. 
 shall be so construed, as to authorise such partnerships 
 for any banking purpose whatsoever — or for any busi- 
 ness or concern connected with insurance. 
 
 Sec. 2. And be it enacted, That partnerships to General and 
 be formed under this act, shall consist of one or more special part- 
 partners severally and jointly responsible, as the case "^"* 
 may be, according to the existing laws and rules of 
 law on that subject, who shall be called general part- 
 ners, and one or more partners who furnish certain 
 funds for capital in the common stock, whose liability 
 shall not extend farther than the fund which he or 
 they have furnished to the partnership stock, and 
 shall be called special partners. 
 
 Sec. 3. And be it enacted. That such partner- Names of the 
 ships shall be conducted under a name or firm con- firm, 
 sisting of all the names of all the partners interested, 
 except special partners. 
 
 Sec. 4. And be it enacted, That no special part- Special part- 
 ner shall transact any business on account of the part- "^''^ restnct- 
 nership, nor be employed for that purpose as agent, 
 attorney, or otherwise, under the penalty of being 
 liable as general partners: Provided, that this section 
 shall not be construed to prevent the special partners 
 from examining into the state and progress of the 
 partnership concern, and advising as to its manage- 
 ment. 
 
 Sec. 5. And it be enacted, That before any part- 
 nership under this act, shall be carried into effect, the 
 name or firm under which the same is to be conducted, 
 
 67
 
 420 
 
 APPENDIX. 
 
 Registry shall 
 desitfnate. 
 
 and the names of all the general and special partners 
 interested therein, distinguished separately, together 
 with their places of residence, shall be registered in a 
 Register kept, book to be kept for that purpose, at all times open to 
 the public inspection, in the office of the clerk of the 
 county court of the county in which the principal 
 business of the partnerships shall be carried on: and 
 if the partnership have at any time places of business 
 situated in different counties of the state, the name 
 and title of the firm, shall be registered in like man- 
 ner in every such county. 
 
 Sec. 6. And be it enacted, That the said registry 
 shall also designate the amount of the capital furnished 
 by every special partner, and the period at which the 
 partnership is to commence and terminate; and all 
 renewals or continuances of partnerships, shall be 
 registered in like manner; and all dissolutions, and 
 alterations of the partnership prior to the originally 
 proposed continuance of the same, shall also be regis- 
 tered as aforesaid. 
 
 Sec. 7. And be it enacted, That it shall be the 
 duty of one or more of the general partners, at the 
 time of registering as aforesaid, to file an affidavit of 
 the actual bona fide advance or payment of the sum or 
 sums by the general partners, according to the registry 
 of the amount of the same, and that no capital shall 
 be advanced to the common stock or partnership, but 
 in cash payments by the special partners, and such 
 affidavit shall be made, by one or more of the general 
 partners who are authorised by the partnership to 
 transact and manage their concerns, and if any person 
 shall be guilty of any false swearing in the premises, 
 he shall be deemed to have committed perjury, and 
 shall be punished accordingly; and it shall be the 
 duty of all the partners interested in any such part- 
 nership, to see that the requirements of the 5tli, 6th, 
 and 7th sections of this act are complied with; and it 
 shall be the duty of each special partner, to make and 
 file in the same manner an affidavit of the amount of 
 money advanced and actually paid into said partner- 
 ship fund by himself. 
 
 Sec. 8. And be it enacted, That it shall not be 
 lawful for any such partnership, or any member thereof, 
 in contemplation of bankruptcy or otherwise, to make 
 any such conveyance or gift, transfer, or assignment 
 of his or their property or effects, or to confess any 
 judgment or create any lien whatsoever upon his or 
 their property or effects — with the intent or for the 
 
 Affidavits of 
 investments. 
 
 False swear- 
 ing. 
 
 Restrictions 
 on partners.
 
 APPENDIX. 421 
 
 purpose of paying or securing any one or more of his 
 or their creditors, partners, or others: and every such 
 sale, conveyance, gift, transfer, or assignment, and 
 every such judgment or other lien shall be, and the 
 same is hereby declared utterly void, and the partner 
 or partners so confessing or executing the same, or 
 knowing or consenting thereto, shall be liable as gene- 
 ral partners. 
 
 Sec. 9. And be it enacted. That the general part- Accounta- 
 ners in every such partnership, shall be held liable to ^'^''y- 
 account to each other for their management of their 
 joint concerns, and to the special partners, either in 
 law or equity, according to the law of pai'tnership as 
 now subsisting ; and if any of the partners shall be 
 guilty of fraud in the affairs of the partnership, be- 
 sides making good the party injured, he or they shall 
 forfeit and pay the sum of ^1000 upon conviction 
 thereof, to any person who will sue for the same, one 
 ^alf to his own use, and the other half to the use of 
 the state. 
 
 Sec. 10. And be it enacted. That no part of the 
 capital furnished by special partners, or profits made 
 to them by said partnership, shall be withdrawn, either 
 in the shape of dividends, purchase or otherwise, at Dividends 
 any time within the period during which the part- and claims 
 nership shall be continued, nor until the debts of said Prohibited, 
 partnership shall have been paid, nor shall any special 
 partner under any circumstances, be considered or 
 allowed to claim as a creditor, in case of the insol- 
 vency or bankruptcy of the partnership. 
 
 Sec. 11. And be it enacted, That the registry re- Certificate re- 
 quired by this act, shall not be made by the clerk of q'urcd. 
 the county, or be considered valid unless all the par- 
 ties, general and special, associated together, in every 
 such partnership, shall make and sign a certificate or 
 declaration before one of the judges of the judicial dis- 
 tricts of this state, in which the principal business of 
 the copartnership shall be carried on, containing the 
 statements required by the 5th and 6th sections of this 
 act, which shall be filed on the records in the said 
 clerk's office, and an exemplification of said certificate 
 shall be evidence of the matter tliercin contained in 
 all courts and places whatsoever. 
 
 Sec. 12. And be it enacted, That no general part- Permission to 
 ner shall be permitted to withdraw from the funds or wuiidraw. 
 effects of said partnership, more than his proper and 
 declared amount of profits, which shall be semi-annu-
 
 422 
 
 APPENDIX. 
 
 ally ascertained and certified on the books of the con- 
 cern by all the partners. 
 Suits to be Sec. 13. And be it enacted, That suits to be 
 
 brought. brought by any partnerships to be formed under this 
 act, shall be in the name or names of the general 
 partners only, and suits against such partnership shall 
 be brought against the general partner only, except 
 in cases where special partners shall be rendered lia- 
 ble as general partners, in which case suits may be 
 brought against such special partners, together with 
 the general partners. 
 Notice re- Sec. 14. And be it enacted, That it shall be the 
 
 quired. duty of such partners to publish the term of such 
 
 partnership as registered for at least six weeks after 
 such registry in one or more of the papers published 
 within the county in which their business shall be 
 Compensation carried on, and that the clerk of the county court in 
 to clerlt. which such registers shall be made shall be entitled 
 for every registry by this act, to such sum as they 
 are entitled to for other records. 
 License. Sec 15. And be it enacted, That every partner- 
 
 ship or firm that shall be established in virtue of this 
 act shall annually take out a license from the clerk of 
 the county court, of the county in which such part- 
 nership shall be formed, and for which they shall pay 
 a tax to the use of the state, at the time of obtaining 
 the same from said clerk, at the rate of one half of 
 one per centum on the capital furnished by the spe- 
 cial partners to said partnership.
 
 ( 423 ) 
 
 APPENDIX.— No. IV. 
 
 OF LIMITED PARTNERSHIPS. 
 
 (Rev. Stat, of Mass. Nov. 4tl], 1835, ch. 34, p. 304.) 
 
 Sec. 1. Limited partnerships may be formed except for banking and 
 insurance. 
 
 2. General and special partners, and their liabilities. 
 
 3. Certificates to be made by the partners, specifying names, 
 stock, &-C. 
 
 4. Certificates to be acknowledged and recorded — If false, all ^ 
 shall be liable as general partners. 
 
 5. Certificates to be published for six weeks, otherwise partner- 
 ship shall be deemed general. 
 
 6. Provision for renewal of partnerships. 
 
 7. Partnership style, &c. 
 
 8. Capital stock not to be withdrawn, &c. 
 
 9. Assignments, not valid, unless, &c. 
 
 10. Assent of creditors, to assignment, to be presumed, unless, 
 •fee. 
 
 11. Suits to be by and against the general partners, except, &c. 
 
 12 Dissolution, how effected. 
 
 13 Liability of partners, in cases not specially provided for. 
 
 14 Equity jurisdiction of supreme judicial court. 
 
 Sec. 1. Limited partnerships, for the transaction of Limited part- 
 mercantile, mechanical, or manufacturing business "'^''^'lips may 
 within this state, may be formed by two or more per- cept°for\ank- 
 sqns, upon the terms, and subject to the conditions ing and insu- 
 and liabilities, prescribed in this chapter; but nothing ranee, 
 contained in this chapter shall authorise such part- ' ' ^ . 
 nerships for the purpose of banking or insurance. 
 
 Sec. 2. The said partnerships may consist of one General and 
 or more persons, who shall be called general partners, special part- 
 and shall be jointly and severally responsible, as gen- J^i''/^' v",'^-,- 
 eral partners now are by law, and of one or more per- ^^Qg^ 
 sons, who shall contribute to the common slock a spe- 1835, 48 § 2. 
 cific sum, in actual cash payment, as capital, and who 
 shall be called special partners, and shall not be per- 
 sonally liable for any debts of the partnership, except 
 in the cases hereinafter mentioned. 
 
 Sec. .3. The persons forming such partnerships certificates to 
 shall make and severally sign a certificate, which shall be made by 
 contain the name or firm under which said partner- ^'^"^ partners, 
 ship is to be conducted, the names and respective names^sfock 
 places of residence of all the general and special part- &,c. 
 ners, distinguishing who are general and who are ^^"^^^ ^^' ^ ^• 
 special partners, tlie amount of capital, which each
 
 424 
 
 APPENDIX. 
 
 — to be ac 
 knovvledgcd 
 and recorded. 
 
 — if false, all 
 shall be liable 
 as general 
 partners. 
 1835, 48, § 4. 
 — to be pub- 
 lished for six 
 weeks, other- 
 wise, partner- 
 ship shall be 
 deemed gene- 
 ral. 
 1835, 48, § 5. 
 
 Provision for 
 renewal of 
 partnerships. 
 1835, 48 § 6. 
 
 Partnership 
 style, 8cc. 
 1835, 48, § 7. 
 
 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. 
 
 Sec. 4. No such partnership shall be deemed to 
 have been formed, until a certificate, made as afore- 
 said, shall be acknowledged by all the partners, be- 
 fore some justice of the peace, and recorded in the 
 registry of deeds of the county, in which the princi- 
 pal place of the 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 register of deeds, in whose 
 office it shall be recorded, shall be filed and recorded 
 in like manner, in the office of the register of deeds in 
 every such county; and if any false statement shall be 
 made in any such certificate, all the persons interest- 
 ed in the partnership shall be liable as general partners, 
 for all the engagements thereof. 
 
 Sec. 5. The partners shall, for six successive weeks 
 immediately after such registry, publish a copy of 
 the certificate abovementioned, in a newspaper print- 
 ed in the county, where their principal place of busi- 
 ness is situated; and if no such paper be there print- 
 ed, then in a newspaper printed in the city of Boston; 
 and in case such publication be not so made, the part- 
 nership shall be deemed general. 
 
 Sec. 6. 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 the 
 like manner as is provided in this chapter for the ori- 
 ginal formation of limited partnerships; and every 
 such partnership, which shall not be renewed, in con- 
 formity with the provisions of this section, shall be 
 deemed a general partnership. 
 
 Sec. 7. The business of the partnership shall be 
 conducted under a firm, in which the names of the 
 general partners only shall be inserted, without the 
 addition of the word company, or any other general 
 term; and the general partners only sliall transact the 
 business; and 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 partner.
 
 APPENDIX. 425 
 
 Sec. 8. During the continuance of any partnership, Capital stock, 
 under the provisions of this chapter, no part of the 3°^,^''„^''&c.^''' 
 capital stock shall be withdrawn, nor any division of 18.35, 48, ^ 8. 
 interest or profits be made, so as to reduce such capi- 
 tal stock below the sum stated in the certificates be- 
 fore mentioned; and if at any time during the con- 
 tinuance, or at the termination, of the partnership, the 
 property or assets shall not be suiTicient to pay the 
 partnership debts, then the special partners shall sever- 
 ally 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. 
 
 Sec. 9. No general assignment by said partner- Assignment 
 ship, in case of insolvency, or where their goods and not valid, un- 
 estate are insufficient for the payment of all their ^q^s 43 § 8. 
 debts, shall be valid, unless it shall provide for a dis- 
 tribution of the partnership property among all the 
 creditors, in proportion to the amount of their several 
 claims, excepting the claims of the government of the 
 United States, arising from bonds for duties, which 
 are first to be paid or secured. 
 
 Sec. 10. In case of an assignment, as provided for Assent of cre- 
 in the preceding section, the assent of the creditors '^}^°^^ '°^^' 
 shall be presumed, unless they shall, within sixty days bc^presumed, 
 after notice thereof, dissent, either expressly or by unless, Sec. 
 some act clearly implying such dissent; and no such 1835, 48, §8. 
 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 city of Boston, 
 within fourteen days after the making of such assign- 
 ment, provided, that notice of such assignment, made 
 by partners whose place of business is in Duke's coun- 
 ty or Nantucket, shall be given in some newspaper 
 printed in Boston, within sixty days from the date of 
 the assignment, in case no newspaper is printed in 
 those counties, respectively, where such place of busi- 
 ness is situated. 
 
 Sec. 11. All suits, respecting the business of such Suits to be by 
 partnership, shall be prosecuted by and against the ^'"^ agamst 
 general partners only, except in those cases, in which partncrs^'ex- 
 provision is made in this chapter that the special part- cept, <fec. 
 ners shall be deemed general partners, and that special 1835, 48, § 9. 
 partnerships shall be deemed general partnerships; in 
 which cases, all the partners deemed general partners 
 may join or be joined in such suits; and excepting also
 
 426 APPENDIX. 
 
 those cases, where special partners shall be held seve- 
 rally responsible, on account of any sums by them re- 
 ceived or withdrawn from the common stock, as be- 
 fore provided. 
 Dissolution, Sec 12. No dissolution of a limited partnership 
 how effected, g^all take place, except by operation of law, before 
 1835,48,H0.^j^g time specified in the certificate before mentioned, 
 unless a notice of such dissolution shall be recorded 
 in the registry, in which the original certificate, or 
 the certificate of renewal or continuation of the part- 
 nership was recorded, and in every other registry 
 where a copy of such certificate was recorded; and un- 
 less such notice shall also be published for six succes- 
 sive weeks in some newspaper printed in the county, 
 where the certificates of the formation of such part- 
 nership were published, according to the provisions 
 of this chapter; 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 printed in the city of Boston. 
 Liability of Sec. 13. In all cases not otherwise provided for in 
 partners, in ^his chapter, the members of limited partnerships shall 
 dally provf-" ^6 Subject to all the liabilities and entitled to all the 
 ded for. rights of general partners. 
 
 1835, 48, §11. Sec. 14. The justices of the supreme judicial court 
 ^icUon o^ s"j ^^y ^^^^ ^^^ determine in equity all questions arising 
 Court. under the provisions of this chapter. 
 
 1835, 48, § 11.
 
 (427) 
 
 INDEX. 
 
 ABATEMENT. . , , . a-- 
 
 Where one partner is improperly omitted as a plaintitl in 
 an action on a contract, the defendant may, but is not 
 obliged to plead the nonjoinder in abatement, 134, 135. 
 but where one of several, who ought to join in an action 
 of tort, is omitted, the matter must be pleaded in abate- 
 ment, 136. 
 if one of several part-owners sue alone for a tort, and the 
 defendant do not plead in abatement, the other part- 
 owners may afterwards sue separately, 137. 
 partner guilty of fraud, in respect of the particular con- 
 tract, cannot plead in abatement, 159. 166. n. 
 in actions on contracts against partners, the nonjoinder of 
 any of them must be pleaded in abatement, 165 — 170. 
 the objection cannot otherwise be made available, 167. 
 plea in abatement for nonjoinder must state all the parties 
 
 liable, ibid. 
 and must answer the whole writ or declaration, ibid. 
 what evidence will disprove such a plea, 16S. 
 pleas in abatement are not favoured by the court, ibid. 
 court will order the places of abode and additions of the 
 
 parties whose nonjoinder is pleaded to be given, 169. 
 in actions on joint bonds, deeds, or bills of exchange, a 
 single contractor, who is sued, must plead in abatement, 
 ibid. 
 rule applies to an action of debt on stat. 9 Anne, c. 14., 
 
 170. 
 plea in abatement not necessary where the plaintiff sets 
 
 out in the pleadings a joint contract, ibid. 
 and shows that the contractors not joined are alive, ibid. 
 objection to the nonjoinder of a joint contractor, 171. 
 a partner who has become a bankrupt and obtained his 
 certificate, must be joined, if the other partners plead 
 his nonjoinder in abatement, 175. 
 to a plea in abatement for the nonjoinder of a partner, the 
 plaintiff may reply that he was an infant, when, 175 — 
 178. 
 plea in abatement that there is a dormant partner not 
 
 joined, when sustainable, 178, 179. 
 whether a plea in abatement can be supported in an action 
 ex quasi contractu, quxre, 181 — 184. 
 68
 
 428 INDEX. 
 
 ABATEMENT— conlinued. 
 
 such a plea is not good in an action for a tort, 184, 185. 
 where a defendant pleads in abatement that he promised 
 jointly with A and B, A may prove that the defendant 
 was not authorised by the partners, 201. 
 so he may prove that the defendant was authorized, 202. 
 
 ACCOUNT. 
 
 Of the action of account between partners, 69, 70. 
 
 an action of covenant will lie on a covenant to account 
 annually, 71. 
 
 bill in equity for an account, 93. See tit. Equity. 
 
 of a plea of a stated account, 100 — 102. 
 
 when partners, carrying on the trade after a dissolution 
 with the partnership effects, must account to the others 
 for their shares of the profits made, 255. 
 
 joint creditors are not entitled to an account of the pro- 
 perty of a partnership, of which an uncertificated bank- 
 rupt was a member, against the assignees under the 
 first commission, 261. n. 
 
 solvent partner carrying on trade with the joint capital 
 after the bankruptcy of his partner, must account to 
 the assignees for their share of the profits, 302. 
 
 and, under such circumstances, the surviving partner must 
 account to the representatives of the deceased partner, 
 354. 
 
 how a defendant must proceed where the plaintiffs, call- 
 ing for an account, have got all the vouchers, 357. 
 
 when the surviving partner does not account with the 
 executors of the deceased within a reasonable time, a. 
 court of equity will enjoin him from disposing of the 
 stock and receiving the debts, 352. 
 
 ACCOUNTS. 
 
 Mode of taking accounts between partners, 105, 106. 
 where the articles contain clauses prescribing the mode, 
 
 105. 
 where those clauses have not been acted upon, ibid. 
 
 what allowances are made, ibid. 
 when interest is chargeable on money borrowed, 106. 
 where the number of partners exceeds two, the death of 
 
 one operates a dissolution of the partnership, and the 
 
 accounts are taken down to the time of his death, 219. 
 how taken between partners after a dissolution, 236. 
 under a joint commission of bankruptcy, distinct accounts 
 
 of the joint and separate estates are to be kept, 281. 
 where persons in trade have been connected in various 
 
 partnerships, and a joint commission issues against 
 
 them all, an order may be made for keeping distinct
 
 INDEX. 
 
 429 
 
 AC COVNTS— continued. 
 
 accounts of the different partnerships, as well as of the 
 separate estates, 282. 
 
 but where there have been various partnerships, and a 
 joint commission against one firm, in which some of 
 the parties were not engaged, there can only be the 
 common order for distinct accounts of the joint and 
 separate estates, ibid. 
 
 distinct accounts may, on petition, be ordered to be kept 
 under a separate commission, 311. 
 
 but where two separate commissions are taken out, distinct 
 accounts will not be ordered under each, 311. 
 [ where distirfct accounts have been ordered, the represen- 
 
 tative of the solvent partner may, by petition, apply for 
 an account of the surplus, notwithstanding it has been 
 paid over to the bankrupt, ibid. 
 
 the nominee of a deceased partner cannot insist on having 
 the accounts taken before electing to become a partner, 
 350. 
 
 of accounts between a surviving partner and the executors 
 of a deceased partner, 353. 
 
 how they are taken, ibid. 
 
 a surviving partner will be allowed a compensation for 
 carrying on the business, where he is under no obliga- 
 tion to do so, 355. 
 
 aliter, if he is bound to carry it on, ibid. 
 
 when he will be allowed a moiety of expenses incurred by 
 him, ibid. n. 
 
 ACT OF BANKRUPTCY. 
 
 Trover will not lie by the assigness of a bankrupt partner 
 for goods disposed of by the solvent partner after the 
 act of bankruptcy, 91. 306. 
 
 aliter of goods disposed of by the bankrupt partner, 305. 
 
 where money is paid by one partner after he had commit- 
 ted an act of bankruptcy, the defendant, in an action to 
 recover it, cannot set off a debt due to him from the 
 firm, 139. 
 
 act of bankruptcy by one partner a dissolution of the part- 
 nership, when, 227. 
 
 must be committed by each partner to 
 
 support a joint commission, 257. 
 when they must be committed, 258. 
 
 what are joint acts of bankruptcy, 258 — 260. 
 
 power of the solvent partner to dispose of the partnership 
 effects after the bankruptcy of his copartner, 306 — 308.
 
 430 INDEX. 
 
 ACTION. 
 
 Of the action of account between partners, 69. 
 
 covenant, 70. See tit. Covenant. 
 assumpsit, 72. See tit. Assumpsit. 
 
 in what cases partners must 
 join or sever, 87, 88. 
 trover, 90. See tit. Trover. 
 of the proper parties in actions on contracts by partners 
 against strangers, 125 — 132. 
 
 must all join, 125 — 129. 
 
 unless there be a severance by the act of the de- 
 fendant, 129. 
 assignees of bankrupt partner must sue jointly 
 
 with the solvent partner, 127. 
 infant partner must join, 128. 
 dormant partner may, but need not join, ibid. 
 nominal partner need not be joined, ibid. 
 no more than the persons really interested must 
 join, 130. 
 of the proper parties in actions on contracts by surviving 
 partners, 131: 358. 
 
 by joint stock 
 
 companies, 
 
 132, 133. 
 
 who must join in actions ex delicto, 133. 
 
 how advantage is to be taken of the omission of proper 
 
 parties in actions by partners upon contracts, 134, 135. 
 
 in actions of tort, 136, 137. 
 
 evidence in actions by partners against strangers, 139 — 
 
 142. 
 of the proper parties as defendants in actions on contracts 
 against partners, 165 — 181. 
 
 ought all to be joined, 165. 
 but nonjoinder of any must be pleaded in 
 abatement, ibid. 
 of the proper parties in actions against surviving partners, 
 
 172. 358. 
 
 against joint stock compa- 
 nies, 179—181. 
 
 it is doubtful whether a plea in abatement can be support- 
 ed in an action ex quasi contractu, 181 — 184. 
 
 such a plea is not good in an action for a tort, 184, 185. 
 
 evidence in actions against partners, 190 — 202. 
 
 where a solvent partner after the bankruptcy of his copart- 
 ner pays a joint debt, an action will not, it seems, lie to 
 recover a moiety, 307. 344. 
 
 where a partner brings an action against his copartner for
 
 INDEX. 431 
 
 ACTlOlSi— continued. 
 
 one debt, and afterwards has a claim entered under the 
 commission against him for a different debt, the claim 
 has been held an election as to both debts, 328. 
 creditor may prove for one debt and afterwards bring an 
 
 action for a distinct one, 329. n. 
 to constitute distinct debts, it is not necessary they should 
 be of distinct natures, but only that they should arise 
 on distinct contracts, ibid. 
 of actions by the solvent partner and the assignees of a 
 bankrupt partner, 340. 
 
 by the assignees under a joint commission, 342. 
 under separate commissions, 
 344. 
 ADMISSION. See tit. Limitations, Statute of. 
 
 An admission by one partner, after the fact of the partner- 
 ship is established, is binding on the firm, 63. 193. 
 admission by one partner, after a dissolution, when bind- 
 ing, 64. 196. 
 as to a transaction which oc- 
 curred previous to the part- 
 nership, when binding, 65. 
 197. 
 by a party that he is a partner, conclusive against 
 him, 192. 
 
 but not evidence of 
 
 partnership against 
 
 the others, 193. 
 
 where two persons are proved to be partners, an admission 
 
 by one that a bill was drawn by them, is evidence 
 
 against both, 194. 
 
 the admission of one part-owner of a ship is not binding 
 
 upon the others, ibid. n. 
 the admissions of the acceptor of a joint bill of exchange 
 in his answer to a bill in equity are not evidence against 
 the firm, ibid. n. 
 admission by a partner, not a party to the suit, when evi- 
 dence against his partners, 195. 
 AFFIDAVIT. 
 
 Affidavit made by one partner of a joint debt, when suffi- 
 cient, 142. 
 AGENT. 
 
 One partner may act in the character of agent for the firm, 
 
 42. 
 power of a joint agent to receive debts may be counter- 
 manded by any one of the partners, 252. 
 under a joint commission the separate creditors will be
 
 432 INDEX. 
 
 AGENT — continued. 
 
 permitted to appoint an agent for the separate estates, 
 when, 281. 
 formerly an agent would have been appointed for the joint 
 estate under a separate commission, 310. 
 AGREEMENT. 
 
 Agreement that participator in profit shall not be liable 
 for losses does not obviate his liability, 16. 
 is binding between the parties, ibid. 
 that a party shall not participate in profit, nor be 
 liable for loss, conclusive against a creditor who 
 is apprised of it, 25, 158. 
 for a partnership specifically enforced in equity, 
 
 109. 
 not if the partnership may be immediately after 
 
 dissolved, 110. 
 by way of deposit of title-deeds as a security to a 
 firm may be extended by a subsequent agree- 
 ment for the security of a new sum on a change 
 of partners, 125. 
 by way of deposit with a firm of five extended to a 
 
 firm of four, ibid. 
 that, on the death of one of two partners, the bu- 
 siness shall be carried on by his representatives, 
 does not extend to admit the representatives of 
 the other, 221. 
 between partners that the joint property shall be- 
 come the separate estate of one or more of the 
 partners, when valid, 238. 254. 267 — 271. 
 made on a dissolution that a particular book should 
 belong to one partner, and that a copy of it should 
 be delivered to the other, enforced in equity, 
 255. 
 between partners that on the bankruptcy of one 
 his share shall be taken by the others at a valu- 
 ation, whether valid, qusere, 300. 
 ALLOWANCE. 
 
 Partners entitled to an allowance under a joint commis- 
 sion, 296. 
 but not to a double allowance, one in respect of the joint 
 
 and the other of the separate estate, ibid. 
 the two estates are to be blended to ascertain whether one 
 
 allowance is to be made, ibid. 
 bankrupt under a joint commission paying \0s. in the 
 pound on the joint estate, is not entitled to an allow- 
 ance, unless the separate estate paid the same dividend, 
 ibid.
 
 INDEX. 433 
 
 ALLOWANCE— con^mi/erf. 
 
 bankrupt under a separate commission paying 18s. in the 
 pound on the joint estate, and 2*. on the separate estate, 
 not entitled to an allowance, ibid. 
 
 bankrupt under separate commission paying 20.?. in the 
 pound to separate creditors, not entitled to an allowance 
 against the right of joint creditors to the surplus, 297. 
 
 one partner may be entitled to an allowance though the 
 other is not, ibid. 
 
 separate estate of one partner paying 206-., and surplus 
 carried to joint estate, which paid 12*. 6d., entitles him 
 to an allowance, although no sufficient dividend paid on 
 the separate estates of the other partners, ibid. 
 
 allowance not payable until a final dividend is made, ibid. 
 ANNUITY. 
 
 Grant of an annuity to a retiring partner does not continue 
 his liability, when, 20. 237. 
 
 when it docs, 21. 237. 
 
 where an annuity granted to a retiring partner is condi- 
 tioned to be void on the eviction of the continuing 
 partner fi'om the partnership premises without any col- 
 lusion of his own, his bankruptcy is not an eviction, 
 237. 
 APPEARANCE. 
 
 How a plaintiff must proceed where partners, after having 
 been arrested or served with copies of a writ, neglect to 
 appear, 163. 
 
 one partner may appear for his copartners, ibid. 
 
 to compel the appearance of partners abroad, joint property 
 in England may be distrained, or the partners may be 
 outlawed, 164. 
 
 but the separate property of one partner cannot be dis- 
 trained, ibid. 
 
 the court will not discharge a partner, who is a prisoner, 
 before the outlawry is complete against his copartners, 
 unless he will appear for all, ibid. 
 
 appearance of partners as defendants in equity. 213. 
 APPRENTICESHIP. 
 
 A partner not acting or interfering in the trade, is not 
 liable to the penalties of the statute of apprenticeship, 
 158. 
 ARBITRATION. 
 
 One partner cannot bind another by a submission to arbi- 
 tration, (!>^. 
 
 but if he engage that his partner shall perform the award, 
 he will be answerable, 67. 
 
 an action at law docs not lie on a covenant to refer dis- 
 putes to arbitration, 72. 89.
 
 434 INDEX. 
 
 ARBITRATION— con/mwec?. 
 
 may be maintained notwithstanding an agree- 
 ment to refer the matter in dispute, 89. 
 agreement to refer disputes cannot be pleaded to a bill in 
 equity, 103. 
 
 nor can it be made the subject 
 of a bill for a specific per- 
 formance, ibid. 
 but it may be urged as a reason 
 why the court should not in- 
 terfere summarily, until resort 
 has been had to that mode of 
 redress, 104. 
 a partnership may be dissolved by an award, 229. 
 ARTICLES OF PARTNERSHIP. 
 
 A covenant in articles that no partner shall carry on the 
 
 same business for his own benefit is permitted, 7. 
 partnership is regulated by articles where they exist, 8, 9. 
 the subsequent transactions of partners may supersede 
 
 clauses in the articles, 9. 105. 
 a partnership commenced by articles unsealed, may be dis- 
 solved by a verbal notice, 224. 
 ASSETS. _ 
 
 Notice of the death of a partner is not necessary to protect 
 
 his assets from future liability, 248. n. 362. 
 where a partner, who has covenanted to indemnify his co- 
 partner against the joint debts, dies, equity will apply 
 his assets in discharge of those debts, 357. 
 of the liability of the assets of a deceased partner in equity, 
 
 359 — 362. 
 They are not liable in respect of claims that were not con- 
 summate at the time of his death, 361. 
 what sort of dealing with the survivors operates a dis- 
 charge, 362 — 365. 
 when the creditors of the surviving partners can compel 
 the joint creditors of the firm to go against the assets of 
 a deceased partner, 366 
 real assets of a deceased partner liable, 367. 
 but the trade must continue until the time of his death, 368. 
 ASSIGNEES. 
 
 The assignee of a partner, who does not act as a partner, 
 
 is not liable for losses inter se, 11. 
 an assignee who acts as a partner is liable to contribute to 
 losses during that time, but he may rid himself of that 
 liability by assigning to an insolvent, 12. n. 
 If two out of three assignjees pay the whole of the soli- 
 citor's bill, they must bring separate actions for con- 
 tribution against the third, 87.
 
 INDEX. 435 
 
 ASSIGISIEES— continued. 
 
 if one of two assignees sue in trover, the omission cannot 
 be pleaded in abatement, 137. n. 
 
 aliter in an action on a contract, 146 — 148. 371. 
 
 assignees must keep distinct accounts of joint and separate! 
 estates under a joint commission, 262 — 281. 
 
 what passes to assignees by the assignment under a joint 
 commission, 266 — 280. 
 
 separate creditors cannot vote for assignees under a joint 
 commission, 280. 
 
 but an inspector will be appointed of the separte estates 
 where they are insufficient to pay the separate creditors, 
 281. 
 
 assignees of a bankrupt partner are tenants in common 
 with the solvent partner of the joint effects, 298. 
 
 what passes to assignees by the assignment under a sepa- 
 rate commission, 299 — 304. 
 
 assignees entitled to their full share of the profits of an ad- 
 venture, although the creditors who supplied the means 
 to fit it out can only have a dividend, 301. 
 
 where a solvent partner, after an act of bankruptcy by his 
 copartner, pays a joint debt, an action, it seem, will not 
 lie by the assignees to recover a moiety, 307. 
 
 on the application of the solvent partner the assignees of a 
 bankrupt partner will be restrained from selling joint 
 property, 309. 
 
 but not on the application of the joint creditors, ibid. n. 
 
 assignees under a separate commission may be compelled 
 to administer the whole joint estate where the other 
 partner is dead or abroad, ibid. 
 
 formerly joint creditors could not vote in the choice of 
 assignees under a separate commission, 310. 
 
 but now, where a commission issues against one or more 
 partners of a firm, joint creditors may prove their debts 
 for that purpose, 316. 
 
 assignees may, on petition, be ordered to keep distinct 
 accounts under a separate commission, 311. 
 
 but where two separate commissions issue distinct accounts 
 will not be orderred under each, ibid. 
 
 of action by a solvent partner and the assignees of a bank- 
 rupt partner, 340. 
 
 when the assignees of a bankrupt partner may use the 
 name of the solvent partner in bringing actions, 342. 
 
 of actions by the assignees under a joint commission, ibid. 
 how they are to declare when suing for a joint 
 debt, ibid. 
 
 when suing for a separate 
 debt, 343. 
 69
 
 436 
 
 INDEX. 
 
 ASSIGNEES— con/inweo?. 
 
 of actions by assignees under separate commissions, 344. 
 how they must declare for a joint debt, 345. 
 ASSIGNMENT. 
 
 Assignment by the commissioners of a bankrupt's estate 
 relates to the first act of bankruptcy committed sub- 
 sequently to the petitioning creditor's debt, 228. n. 
 
 by one partner of joint property to secure his 
 separate debt remains subject to the joint 
 debts, 236. 
 under a joint commission, what passes by 
 
 it, 266 — 2 SO. 
 by one partner to the others of his interest in 
 the joint estate, when it operates a conver- 
 sion, 238. 254. 267 — 271. 
 where it is conditional, 255. 274. 
 need not be in writing, but must be express, 
 
 268. 
 by one of three partners of his interest 
 to one of the othor two does not discharge 
 it from joint debts, 269. 
 the bona fides of the transaction to be ex- 
 amined, ibid. 
 to divest joint creditors of their right of treat- 
 ing the property assigned as joint estate, 
 the transmutation must be complete before 
 the bankruptcy, ibid. 
 debts due to a partnership which are assigned 
 by some to the other partners remain in the 
 ordering of the partnership, until notice of 
 the assignment is given to the debtors, 275. 
 under a separate commission, what passes by 
 it, 299 — 304. 
 ASSUMPSIT. See tit. Action, and Abatement. 
 
 Action of assumpsit between partners, 72 — 88. 
 
 when it lies for breach of an agreement to become a- 
 partner, 72. 
 
 to recover the proportion of a joint pur- 
 chase, 73. 
 for not supplying the manuscript of a 
 a work to be printed on the joint ac- 
 count, ibid. 
 to recover a sum due on a balance struck, 
 
 ibid. 
 where the balance is final and not pre- 
 paratory only to a final account, 74. 
 and where there has been an express pro- 
 mise lo pay it, 75.
 
 INDEX. 
 
 437 
 
 ASSUMPSIT— con^mwe^. 
 
 where part of the joint funds are ex- 
 pressly appropriated to the use of one 
 V partner, ibid. 
 
 to recover money received to the sepa- 
 rate use of one partner, 76. 
 
 money entrusted to a member 
 of a benefit club, 77. 
 when it does not lie on an express promise, ibid. 
 when it lies to enforce contribution, 79. See tit. Contri- 
 bution. 
 
 to recover money paid by one partner on a bill 
 drawn by the other after a dissolution, 87. 
 to an action of assumpsit by several partners, the defen- 
 dant may plead the bankruptcy of one of them in bar, 
 128. 341. 
 when a solvent partner may maintain assumpsit against the 
 sheriff for seizing and selling joint effects, 211. 
 ATTACHMENT. 
 
 Attachment out of lord mayor's court against partnership 
 effects cannot be sustained where it is overreached by 
 an act of bankruptcy, 308. 
 aliter of an attachment in the colonies which are not sub- 
 ject to the bankrupt laws, ibid. 
 ATTAINDER. 
 
 Attainder of a partner for treason or felony vests all the 
 partnership effects in the crown, 216. 
 ATTORNEY. 
 
 The clerk of an attorney who transacts business on his 
 own account, but makes an allowance of part of the 
 profits to the attorney, is a partner with him, 15. 
 an agreement between an attorney and an unqualified per- 
 son to assist in the business and share the profits is ille- 
 gal, ib. n. 
 aliter of such an agreement between the widow of a de- 
 ceased attorney and her son, ibid. 
 where attornies are in partnership, either of them is liable 
 to the penalty for practising without a certificate, 162. 
 but they cannot be sued together as for one offence, ibid. 
 where attornies in partnership are employed by a client, 
 neither of them can act against him after a dissolution, 
 225. 
 AWARD. See tit. Arbitration. 
 BANK OF ENGLAND. 
 
 No body corporate or partnership consisting of more than 
 six persons, except the bank of England, can borrow on 
 their notes payable on demand, or at any time less than 
 six months from the time of borrowing, 27.
 
 438 INDEX 
 
 BANK OF ENGLAND— continued. 
 
 a partner in a Scotch banking house taking an office and 
 issuing their notes in England, is within the act, 28. 
 
 a commercial company who are not bankers, is not ibid. 
 
 secus, if the company be not established for trading pur- 
 poses, ibid ; sed quaere, and see ibid. n. (c). 
 
 unless an act of parliament empowers them, ibid. 
 
 where a company is empowed to raise money for a special 
 purpose, the purpose must be expressed on the face of 
 their notes, ibid. \ 
 
 BANKERS. 
 
 Firm of bankers, when liable for a prize in the lottery, 37. 
 
 w^hat is notice of a change in a firm of bankers, 248. 
 
 partner in a banking firm who, after obtaining his certifi- 
 cate, takes up the notes of the firm, admitted to prove 
 against the joint estate in bankruptcy, 292. 
 
 agreement between a customer and a firm of four bankers, 
 that the former should pay into the bank indorsed bills, 
 and should take in return the bankers' promissory 
 notes, vests in the bankers the property in all bills paid 
 in before their bankruptcy, 304. 
 
 but under such an agreement the property in bills paid in 
 after the bankruptcy of one or more of the partners re- 
 mains in the customer, ibid. 
 
 a customer by drawing drafts on the survivor of two 
 bankers, does not release the estate of the deceased 
 from a debt due from the firm at the time of his death, 
 363. 
 
 when the estate of the deceased is discharged by subse- 
 quent dealings with the survivor, 364. 
 
 BANKRUPTCY. See tit. Allowance, Assignees, Certifi- 
 cate, Commission of Bankruptcy, &c. 
 
 One partner may bind another by deed in bankruptcy, 60. 
 make the affidavit grounding the com- 
 mission, 68. 
 execute the bond to the lord chancellor, 
 
 ibid. 
 prove debts, ibid. 
 
 vote in the choice of assignees, ibid. 
 give a power of attorney to another to 
 
 act for the firm, ibid. 
 sign the bankrupt's certificate after a dis- 
 solution, ibid. 
 the act of one partner in bankruptcy considered as the act 
 
 of all, ibid. 
 a commission against a debtor to a firm on the petition of 
 a solvent partner is regular, ibid.
 
 INDEX. 
 
 439 
 
 BANKRUPTCY— cow^mwec?. 
 
 petition in bankruptcy signed by one partner in the pai't- 
 
 nership name is insufficient, ibid. n. 
 to assumpsit by several partners, the defendant may plead 
 
 the bankruptcy of one of them in bar, 128. 341. 
 in an action against a firm, a partner who has become a 
 bankrupt and obtained his certificate, must, where his 
 nonjoinder is pleaded, be made a defendant, 175. 
 if, when joined, he plead his bankruptcy, a nolle prosequi 
 
 may be entered, ibid. 
 what counts may be joined in an action against the solvent 
 
 partner, ibid. 
 a partner who pleads his bankruptcy is rendered a com- 
 petent witness for the defendants, if the plaintiff enters 
 3l nolle prosequi, 199.' 
 but if issue be taken on the plea he cannot be admitted, 
 
 ibid. 
 nor, in such a case is he on proof of his certificate entitled 
 
 to a verdict during the progress of the cause, ibid. 
 a partnership is dissolved by the bankruptcy of all or any 
 of the partners, 218. 227—229. 
 
 unless the commission be fraudulently 
 
 taken out for that purpose, 228, 229. 
 
 from what time the dissolution takes 
 
 place, 229. 
 
 of the bankruptcy of partners under a joint commission, 
 
 256—297. 
 allowance to partners under a joint commission, 296. 
 of the bankruptcy of a single partner, 324 — 358. 
 effect of it, 298. 
 
 it determines the control of the bank- 
 rupt over the joint estate, 305. 
 but not of the solvent partner, 306. 
 where a creditor, who has proved under the commission, 
 joins the bankrupt in an action against the solvent part- 
 ner he must indemnify him, 329. 
 of the certificate under joint or separate commissions, 329 
 
 —331. 
 of the right of set-off under partnership bankruptcies, 331 
 
 —340. 
 where two partners have stopped, and one is a bankrupt, 
 a debtor cannot refuse to pay money due to them, 341. 
 of superseding a commission against partners, 346. 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 See tit. Limitations, Statute of. 
 
 Where a company is empowered to raise money for a 
 special purpose only, they must express that purpose on 
 the face of their negotiable securities, 28.
 
 440 INDEX. 
 
 BILLS OF EXCHANGE, ^c— continued. 
 
 one partner may bind the firm by making, &c. joint bills 
 
 or notes, 38, 39, 147. 
 power to do so within the scope of his general authority, 
 
 38. 
 may indorse bills in a different name from that of the firm, 
 
 when, 39. 
 in what cases binding when made by a partner in his in- 
 dividual name, 39, 40. 
 partner individually liable, when, 39. 
 partners bound by a bill pledged in a separate transaction, 
 when, 41. 
 when not 42. 
 it is fraudulent for a separate creditor to take a joint secu- 
 rity for his debt, ^2, 43. 
 partners are not bound by a bill where the least fraud is 
 
 discoverable on the part of the holder, 43, 44. 
 as where a joint security is given by one partner in dis- 
 charge of an antecedent debt due from himself, 43. 
 bill accepted by on^ partner for a debt contracted by him- 
 self and another before the formation of a partnership 
 with a third, does not bind the third, 44. 
 covin avoids a bill in the hands of the covinous holder, 
 
 ibid. 
 partners are liable on a bill in a separate transaction if 
 taken by a person ignorant of the circumstances, 
 45—48. 
 
 to the bona fide indor- 
 see of the original 
 fraudulent holder,46. 
 151. 
 notwithstanding a stipu- 
 lation in the articles 
 that bills shall not be 
 circulated, 47. 
 issued by their clerk, 
 
 when, ibid. 
 although the holder after- 
 wards discovers the 
 misconduct of the sin- 
 gle partner, 48. 
 partners in a particular concern only are not liable on bills 
 drawn by one partner in the joint name in relation to 
 another concern, ibid. 
 where several partnerships carry on business under the 
 same firm, the holder of a bill may proceed against 
 either of them, when, 48. 158.
 
 INDEX. 441 
 
 BILLS OF EXCHANGE, ^a.— continued. 
 
 power of one partner to draw bills is only implied, 48. 
 
 the holder of a bill apprised of a negative stipulation in 
 the articles cannot sue the firm, 49. 
 
 and express notice from the rest of the partners that they 
 would not be liable, exempts them, ibid. 
 
 power of one partner to bind the firm in bill transactions 
 ceases on a dissolution of the partnership, ibid. 251. 
 
 where a dissolution is agreed upon, a party who knows of 
 it cannot charge the firm with a subsequent acceptance 
 by one partner without showing that the intention ta 
 dissolve was abandoned, 49. 
 
 even if the bill existed prior to the dissolution, it cannot 
 be afterwards endorsed, 50. 251. 
 
 nor can it be negotiated, although endorsed before, 50. 
 
 an express authority to one partner to receive debts after a 
 dissolution, does not empower him to draw a bill, 49. 
 
 not even upon a debtor to the house, ibid. 
 
 where the dissolution is not made notorious, the partners 
 are liable on bills afterwards issued, 50. 
 
 a member of a company cannot sue the company on a bill 
 drawn on the directors and accepted by the secretary on 
 their behalf, 78. 
 
 a court of equity will restrain a partner from negotiating 
 bills on his private account, 108. 
 
 will restrain a third person from negotiat- 
 ing bills he may have taken from one 
 partner in fraud of the others, ibid. 
 
 a bill given by one concern to another in which an indivi- 
 dual is a common partner cannot be enforced at law, 
 118. 
 
 satisfaction of a security to one firm is a satisfaction to the 
 other where there is a common partner, 120. 
 
 an action upon a bill is not maintainable against the ac- 
 ceptor by a firm, where one partner agrees to provide 
 for it, ibid. 
 
 a firm may sue upon a bill endorsed to them i7i blank 
 without proving a joint title, 131. n. 140. 
 
 aliter in an action on a bill endorsed specially to a firm^ 
 ibid. 
 
 subsequently admitted partner accepting a bill for a pre- 
 vious debt is liable on it, 193. 
 
 where one partner draws bills in his own name which are 
 discounted, the discounter cannot sue the firm, although 
 the proceeds are applied to the use of the partnership, 
 154. 
 
 but in such a case if the bill be drawn by one partner, with 
 the privity of the other, upon the firm, though the bill
 
 442 INDEX. 
 
 BILLS OF EXCHANGE, kc.—conthiued. 
 
 is not accepted, the partners are liable for the money 
 advanced, ibid. n. 
 
 creditor taking separate bills of one partner, when a dis- 
 charge of the joint liability, 156. 241 — 243. 
 
 a statement by three partners to a fourth that a bill had 
 been paid, on the faith of which the accounts after 
 a dissojution were settled, when no discharge of the 
 fourth, 157. 242. 
 
 to allege that a bill accepted by four persons was accepted 
 by three, or that a bill drawn by two was drawn by one, 
 is no variance in pleading, 169. 
 
 the acceptance of a bill by one partner in the joint name, 
 is evidence of the partnership against him, 192. 
 
 but it does not prove the partnership against the others, 
 193. 
 
 where two are proved to be partners, an acknowledge- 
 ment by one that a bill was drawn by them, is evidence 
 against both, 194. 
 
 the admissions of the acceptor of a joint bill in his answer 
 to a bill in equity are not evidence against the firm, 
 ibid. n. 
 
 notice of the dishonour of a bill when not necessary to be 
 given to a firm, 197. 
 
 proof of acceptance when evidence that the bill was regu- 
 larly drawn, ibid. 
 
 the joint maker of a note is competent to prove the de- 
 fendant's signature, 200. 
 
 one partner is competent to prove the want of authority 
 in another to draw a bill in the partnership name, 201. 
 
 notice of a dissolution to the endorsee of a bill, when not 
 effectual without notice to the payee, 249. 
 
 agreement between a customer and a firm of four bankers 
 that the former should pay into the bank endorsed 
 bills, and should take in return the banker's promissory 
 notes, vests in the bankers the property in all bills paid 
 in before their bankruptcy, 304. 
 
 but, under such an agreement, the property in bills paid 
 in after the bankruptcy of one or more of the partners 
 remains in the customer, ibid. 
 
 where bills are endorsed to a creditor by partners who 
 have committed acts of bankruptcy, nothing passes to 
 the creditor, 305. 
 
 nor in such a case would any thing pass by the endorse- 
 ment of the solvent partner, 307. 
 
 the estate of a deceased partner is not liable for the 
 amount of bills fraudulently sold by the firm after his 
 . death, 362.
 
 INDEX. 443 
 
 BOND. 
 
 Bond to secure money lent at five per cent, together with 
 a portion of profits, usurious, when, 25, 26. n. 
 ■^ not so if the lender is to share in the losses, 26, 27. 
 
 to a sole trader for the fidelity of his clerk is inop- 
 erative after the obligee enters into partnership, 
 123. 
 to several partners for the same purpose, termi 
 nates on the death or retirement of one, ibid. 
 
 or if the partnership is otherwise 
 
 materially altered, 124. 
 may be so framed as to meet any 
 change or alteration in the firm, 
 ibid. 
 the obligee of a joint and several bond, after proving the 
 debt under a commission of bankruptcy against one of 
 the obligors, cannot bring a joint action against both, 
 328. 
 when equity will grant relief on a joint bond as if it were 
 joint and several, 368 — 371. 
 BOTTOMRY. 
 
 A loan of money on bottomry by a partnership was for- 
 merly prohibited, but the prohibition is now relaxed, 29. 
 BROKER. 
 
 A broker purchasing goods for a merchant on an agree- 
 ment that, in lieu of brokerage, he should have a por- 
 tion of the profits and bear a portion of the losses, is a 
 partner to the world though not ititer se, 14. 
 so a broker who purchases free of commission, but is in- 
 terested in the adventure, is a partner, 15. 
 a broker employed to sell goods on an agreement that he 
 shall have all he can procure for them beyond a stated 
 sum is not a partner, 19. 
 a third person who is entitled to half the commission on 
 effecting policies of insurance for a broker is not a part- 
 ner with him, ibid. 
 CERTIFICATE. 
 
 One partner may sign a bankrupt's certificate either dur- 
 ing the partnership or after the dissolution, 68. 
 in an action against a firm, a partner who has become a 
 bankrupt, and obtained his certificate, must be joined 
 175. 
 a partner who (has obtained his certificate under a joint 
 
 commission is not competent to support it, 202, 
 joint creditors are not entitled to an account of the pro- 
 perty of a partnership of which an uncertificated bank- 
 rupt was a member against the assignees under the first 
 commission, 261. n. 
 
 70 '
 
 444 INDEX. 
 
 CERTIFICATE— con/mwec?. 
 
 where a certificate has been granted under a separate com- 
 mission, it is a reason why it should not be superseded 
 to make way for a joint commission, 265. 
 but it is notwithstanding in the discretion of the court to 
 
 supersede it, ibid. n. 
 where there has been delay on the part of the joint cre- 
 ditors, the court will not interfere, ibid. 
 but it will where there has been fraud on the part of the 
 
 bankrupt, ibid. 
 separate creditors may prove their debts under a joint 
 commission for the purpose of assenting to or dissent- 
 ing from the certificate, 280. 
 partner in a banking firm who, after obtaining his certifi- 
 cate, takes up the notes of the firm, allowed to prove 
 against the joint estate, 292. 
 what is not such a compounding with creditors as will 
 
 avoid a certificate, 295. 
 where a commission is superseded as to one or more part- 
 ners, a certificate subsequently obtained by the others 
 is not thereby affected, ibid. 
 a joint certificate will be allowed as separate after the 
 
 death of one of the bankrupts, ibid. 
 joint creditoi'S may prove under a commission against one 
 or more partners of a firm for the purpose of assenting 
 to or dissenting from the certificate, 310. 316. 
 certificate of one partner will discharge him from a cove- 
 nant to indemnify the other partners against the partner- 
 ship debts, 324. 
 certificate under a joint or separate commission is a dis- 
 charge of every debt, 330. 
 
 of a bankrupt partner not a discharge 
 
 of his copartner, ibid. 
 of the surviving partner does not re- 
 lease the estate of a deceased partner, 
 331. 
 of bankrupt partner stayed until the 
 partnership accounts could be taken, 
 ibid. 
 under a separate commission will not 
 be stayed because a joint commission 
 has been issued, ibid. 
 CHANGE OF FIRM. 
 
 The effect which a change of firm has upon guarantees to 
 
 the house, 123—125. 
 doubted whether a mortgage to a firm is available to a 
 new partnership formed by the addition of a new mem- 
 ber, 125.
 
 INDEX. 
 
 445 
 
 CHANGE OF FIRM— conti?iued. 
 
 an agreement by way of deposit of title-deeds as a security 
 
 to a firm may be extended by a subsequent agreement 
 
 for the security of a new sum on a change of partners, 
 
 125. 
 
 by way of deposit with a firm of five extended to a firm 
 
 of four, ibid. 
 what is notice of a change in a firm of bankers, 249. 
 where by construction of a written agreement it can be 
 inferred that the contract made with one firm should be 
 continued notwithstanding a change, it will be done, 304 
 CHARTER. 
 
 A royal charter is necessary to enable a company to hold 
 lands, 3. 
 CHOSES IN ACTION. 
 
 Of choses in action on the death of one partner, 358. 
 COAL MERCHANTS. 
 
 A partnership consisting of more than five coal merchants 
 is illegal, 29. 
 COMMISSION OF BANKRUPTCY. 
 
 A commission purporting to issue on the petition of one 
 of two partners is invalid, 68. 
 
 against a debtor to a firm on the 
 petition of the solvent partner 
 is regular, ibid. 
 secretary of a company who may sue and be sued for the 
 
 company cannot petition for a commission, 133. 
 a partner who has obtained his certificate under a joint 
 
 commission is not competent to support it, 202. 
 of a joint commission against partners, 256 — 297. 
 of the trading, 257. 
 of the acts of bankruptcy, ibid. 
 of superseding a commission against one part- 
 ner who has not committed an act of bank- 
 ruptcy, or against whom a previous commis- 
 sion had issued, ibid. 258, 264. n. 
 of the petitioning creditor's debt, 260. 
 joint commission may issue against two or more partners 
 
 of a firm, 261. 
 a joint and a separate commission against the same party 
 
 cannot legally subsist at the same time, 262. 
 a commission against a member or members of a firm is- 
 isued after a prior commission against two or more 
 members of the same firm, to whom to be directed and 
 how to be proceeded in, 263. 
 it is no ground for superseding a joint commission that 
 there is a prior separate commission in prosecution 
 against one of the partners in Ireland, 263.
 
 446 
 
 INDEX. 
 
 COMMISSION OF BANKRUPTCY— cow^mwec?. 
 
 the lord chancellor will supersede or remove a prior com- 
 mission, when, 263 — 266. 
 
 where it is for the benefit of the bankrupt's estate, 
 
 264, 
 where it is the least extensive, ibid. 
 
 it is no reason against superseding a separate commission 
 that a separate creditor will be deprived of his right of 
 voting in the choice of assignees, ibid. 
 
 when a separate commission will or will not be superseded 
 after a prosecution has been instituted against the bank- 
 rupt for not surrendering, ibid. 
 
 a separate commission will not be superseded where there 
 are not any joint effects, or the joint commission cannot 
 be sustained, 265. 
 
 nor until the adjudication of bankruptcy under the joint 
 commission, ibid. 
 
 where a certificate has been obtained, or sales have been 
 made under the first commission, it will not be super- 
 seded, but when necessary Avill be ordered to be brought 
 into the bankrupt office, ibid. 
 
 what arrangements will be made when a commission is 
 superseded, ibid. 
 
 a joint commission does not abate by the subsequent death 
 of one of the partners, 266. 
 
 what passes by the assignment under a joint commission, 
 266 — 280. 
 
 how the joint and separate creditors shall come in under a 
 joint commission, 280. 
 
 what are joint and what separate debts, 282 — 286. 
 
 of electing between the joint and separate estates, 286 — 
 290. 
 
 allowance to partners under a joint commission, 296. 
 
 of a separate commission against a partner, 324 — 358. 
 a joint debt will support it, 298. 
 when one partner maj^ sustain it against another, 
 
 ibid. 
 effect of it upon the partnership, ibid. 
 what passes by the assignment under it, 299 — 304. 
 
 under a separate commission the whole estate is adminis- 
 tered where the solvent partner is either dead or abroad, 
 309. 
 
 proof by a joint creditor of a joint debt under a separate 
 commission does not discharge the solvent partner, 328. 
 
 of the certificate under joint or separate commissions, 330. 
 
 of set-off" under partnership bankruptcies, 331 — 340. 
 
 of superseding a commission against partners, 346.
 
 INDEX. 447 
 
 COMPANIES. See tit. Crown, and Joint Stock Companies. 
 
 CONSENT. 
 
 The consent of all the parties is necessary to the formation 
 
 of a partnership, 4. 
 a stranger cannot be introduced into the partnership as a 
 
 partner without the consent of all, 5. 
 the consent of all the partners is necessary to enable a firm 
 
 to engage in adventures not originally contemplated, 6. 
 
 CONSOLIDATION. 
 
 When a consolidation of the joint and separate estates will 
 be ordered in bankruptcy, 294. 
 
 CONTRACT. See tit. Illegal Contracts. 
 
 How the contract of partnership is formed, 3. 
 
 where the same person is a partner in two concerns no 
 
 legal contract can arise between them, SS. 118. 
 a partnership contract produces only a joint obligation at 
 
 law, but in equity the obligation is joint and several, 
 
 211. 359. 
 
 CONTRIBUTION. 
 
 In what cases contribution may be enforced between part- 
 ners, 79—87. 
 
 not between general partners, 79. 
 
 one partner in a particular transaction who pays a joint 
 debt may recover contribution, ibid. 
 
 so if the debt and damages in an action on a contract be 
 levied against him, ibid. 
 
 the manager of a company may enforce contribution from 
 the members, when, ibid. 
 
 a partner paying the whole of a sum awarded as a com- 
 pensation for a breach of contract may enforce contri- 
 bution, ibid. 
 
 to entitle a partner to contribution the relation of partners 
 must exist intet' se, 80. 
 
 the manager or servant of a partnership, acting as a part- 
 ner, is not liable to contribute, ibid. 
 
 persons agreeing that whatever losses may be sustained 
 shall be borne individually are not bound to contribute, 
 ibid. . 
 
 that joint funds shall alone be applica- 
 to losses, are not responsible indi- 
 vidually, ibid. 
 
 and to entitle a partner to contribution in respect of a 
 debt there must have been an original joint legal liabili- 
 ty to pay it, 81. 
 or an equitable claim, ibid. 
 and the debt must have been actually paid, 82.
 
 448 
 
 INDEX. 
 
 CONTIBUTION— con^mwec?. 
 
 contribution cannot be enforced where the original con- 
 tract was malum in se, 82. 
 nor where the claim arose out of a prohibited transaction, 
 
 ibid. 
 distinction between payments made in the course of legal 
 
 and illegal contracts, 83. 
 formerly contribution could not be claimed for losses upon 
 
 marine insurances, 85. 
 there can be no claim of contribution amongst wrong- 
 doers, 86. 185. 
 unless where personal default is not attributable, 86. 
 ' where partners must join or sever in an action for contri- 
 bution, 87. 
 a bill in equity will lie to enforce contribution, 106. 
 
 when it is the preferable remedy, ibid. 
 when the only remedy, 107. 
 where both the joint and separate estates are liable for a 
 debt, if the joint estate pay more than its proportion, 
 the separate estate will in bankruptcy be ordered to 
 contribute, 316. 
 COVENANT. 
 
 A covenant in articles of partnership that no partner shall 
 engage in the same business on his own account is per- 
 mitted, 7. 
 of the action of covenant between partners, 70. 
 in what cases it lies, 70 — 12. 
 to recover a sum agreed to be advanced as 
 
 capital, 70. 
 for the nonpayment of a premium for being 
 
 admitted a partner, 71. 
 on a covenant to account annually, ibid. 
 
 to refer disputes does not lie, 72 . 
 to enforce payment of a stipulated penalty, 
 71, 72. 
 the effect of a covenant not to sue, 188. 
 
 when made with one of several debtors, ibid. 
 when with a single debtor, ibid. 
 how to proceed against joint debtors when such 
 a covenant has been made with one of them, 
 189. 
 joint covenant when considered joint and several in equity, 
 371. 
 CREDITORS. 
 
 On what principle the joint creditors are first paid out of 
 
 the joint estate after a dissolution, 235. 
 joint creditors are not entitled to an account of the pro- 
 perty of a partnership of which an uncertificated bank-
 
 INDEX. 449 
 
 CREDITORS— continued. 
 
 rupt was a member agjjinst the assignees under the first 
 commission, 261. n. 
 
 separate creditors may prove their debts under a joint 
 commission for the purpose of assenting to or dissenting 
 from the certificate, but they cannot vote in the choice 
 of assignees, 280. 
 
 how the joint and separate creditors shall come in under a 
 joint commission, 281. 
 
 where a joint creditor has taken a separate security, 282. 
 
 joint and separate creditors must elect between 'the joint 
 and separate estates, 286 — 290. See tit. Election. 
 
 separate creditors of one partner will not be allowed to 
 prove against the joint estate a debt due from the part- 
 nership to that partner, 290. 
 
 unless'the separate effects creating the debt were obtained 
 by actual or implied fraud, 292. 
 
 from what circumstances fraud will be inferred, ibid. 
 
 where under a commission against a dormant and an os- 
 tensible partner the joint creditors resort to the separate 
 estate of the latter, his separate creditors have a lien 
 upon any surplus of the joint estate to the extent which 
 their funds have been diminished, ibid. 
 
 several partners having distinct firms, dealing together as 
 distinct persons in the articles of distinct trades, may 
 prove as creditors, ibid. 
 
 but a debt for money lent by a minor firm to the aggre- 
 gate firm cannot be proved, 293. 
 
 nor can a debt from one partner to the other where the 
 firm consists of only two persons, ibid. 
 
 whether a partner can prove a debt under a commission 
 against his copartner, quxre^ ibid. n. 
 
 where the concern carried on by one partner is only a 
 branch of the joint concern, proof is not allowed, ibid. 
 
 when creditors are entitled to interest, 2D4. 
 
 a joint creditor may petition for a separate commission, 
 298. 
 
 joint creditors under a commission against one or more 
 partners may prove for the purpose of voting for as- 
 signees, or of assenting to or dissenting from the certi- 
 ficates, 310. 
 
 joint creditor who petitions for a separate commission may 
 receive a dividend out of the separate sstate, 311. 
 
 aliter if the commission be a joint one, ibid. n. 
 
 or if it issue against two or more partners of a firm, 
 312. n. 
 
 joint creditors are not entitled to a dividend out of the
 
 450 
 
 INDEX. 
 
 CREDITORS— con^mwed/. 
 
 separate estates until the separate creditors are satis- 
 fied, 311—316. 
 joint creditors may prove and receive a dividend if they 
 
 will discharge the separate debts, 315. 
 in what cases the assignees on behalf of the creditors on 
 
 the joint estate may prove against the separate estate, 
 
 316 — 321. 
 not in cases of contract, or where the firm was privy and 
 
 assented to the creation of the debt, 316 — 318. 
 aliter where the funds creating the debt have been taken 
 
 by the single partner with the fraudulent intention of 
 
 augmenting his separate estate, 318 — 321. 
 what is a fraudulent taking within the meaning of the 
 
 exception, 318. 
 a partner, who is a creditor of the partnership, cannot 
 
 prove in competition with the joint creditors, 321. 
 
 323. 
 when he will be entitled to the surplus of the joint estate 
 
 in preference to the separate creditors, 322. 
 and to prove against the separate estate for any deficiency, 
 
 323. 
 a retired partner, who permits his name to be continued, 
 
 not entitled to prove, unless he produces a discharge 
 
 from the joint creditors, ibid. 
 the bankruptcy and certificate of the continuiug partner 
 
 will discharge him from a covenant to indemnify the 
 
 retiring partner, 324. 
 a solvent partner may prove against the bankrupt partner 
 
 any debt due to him, provided he pay the partnership 
 
 debts, or indemnify the bankrupt's estate against them, 
 
 323. 
 payments by a solvent partner, after the bankruptcy of his 
 
 copartner, may be proved, 323 — 327. 
 proof by a joint creditor under a separate commission does 
 
 not discharge the solvent partner, 328. 
 under a decree for an account equitable creditors must be 
 
 satisfied, 357. 
 creditors in partnership in respect of a debt due from one 
 
 partner have a right in equity to have the accounts 
 
 taken, ibid. 
 joint creditors may in equity proceed against the assets of 
 
 a deceased partner, 359 — 366. 
 but they are entitled only to the surplus of the separate 
 
 estate after paying the separcte creditors, 360. 
 when the joint creditors of the surviving partners can 
 
 compel the joint creditors of the firm to go against the 
 
 assets of a deceased partner, 366.
 
 INDEX. 451 
 
 CREDITORS— continued, 
 
 when the creditors may resort to the real estate of a de- 
 ceased partner, 367. 
 
 CROWN. 
 
 The king may constitute companies for the management of 
 trade, 3. 
 
 may erect gildam inercatoriam^ ibid. 
 cannot make a total restraint of trade, ibid. 
 
 proceedings against partners at the suit of the crown, 214 — 
 217. 
 
 when the crown is entitled to all the partnership pro- 
 perty, 216. 
 DEATH. 
 
 After the death of one partner the survivor can alone sue 
 on a joint contract, 131. 
 
 and the personal representatives ofdhe last survivor after 
 the death of all the partners, 1 32. 
 
 on the death of one partner, the survivor is alone respon- 
 sible at law, 172. 
 
 so the personal representative of the last survivor is alone 
 responsible after the death of all, 173. 
 the death of one partner is a dissolution of the partner- 
 ship, 219 — 221. 
 
 although the number of partners exceeds two, 219. 
 
 the reason why it operates a dissolution stated, 219, 220. 
 
 partners may, by agreement, secure a devolution of their 
 interests upon others after their deaths, 220. 
 
 but without an agreement to that effect neither of tliem 
 can nominate a person to continue the trade, 221. 
 
 a surviving partner claiming a benefit under the will of 
 his deceased partner, cannot refuse to admit a legatee, 
 ibid. 
 
 agreement that, on the death of one of two partners, the 
 business shall be carried on by his representatives, does 
 not extend to the representatives of the other, ibid. 
 
 a partnership for term of years is dissolved by death, z'izfi?. 
 
 notice of the death of a partner is not necessary to protect 
 his estate from future liability, 248. n. 362. 
 
 a joint commission of bankruptcy does not abate by the 
 subsequent death of one of the partners, 266. 
 
 a joint certificate will be allowed as separate after the death 
 of one of the bankrupts, 295. 
 
 the consequences of the dissolution of a partnership by 
 death, 348 — 371. 
 
 where the nominee of a deceased partner refuses to succeed 
 him in the partnership, the death ends the concern, 221. 
 350. 
 
 71
 
 452 
 
 INDEX 
 
 DEATH — continued. 
 
 in what sense the partnership continues after the death of 
 a partner, 351. 
 
 the assets of a deceased partner are liable in equity to pay 
 the partnership debts, 359 — 366. 
 
 but not such claims as were not consummate before his 
 death, 361. 
 
 real estates of a deceased partner when liable, 367. 
 DEBTS. 
 
 on what principle the joint debts are to be first paid out of 
 the joint estate after a dissolution, 235. 
 
 deed of conveyance by one partner of real property in 
 trust to pay, first, any debt that might be owing by him 
 to the firm; secondly, his proportion of the partnership 
 debts; and thirdly, certain scheduled debts, how con- 
 strued in equity, 253. 
 
 separate debts are proveable under a joint commission, 
 262. 282. 
 
 and debts from inferior partnerships, ibid. 
 
 what are joint and what separate debts, 282 — 286. 
 
 money borrowed by one partner to pay for an estate, but 
 applied to pay partnership debts, cannot be proved 
 against the joint estate, 283. 
 
 loan of money to one partner and a subsequent loan of 
 ' it by him to the firm, does not create a debt as between 
 the original lender and the firm, ibid. 
 
 the application to partnership purposes of money borrowed 
 by one partner is evidence of a joint debt, 284. 
 
 payment of interest by a firm on a debt originally sepa- 
 rate, when it will make it joint, ibid. 
 
 of the debts of an old firm acknowledged as the debts of 
 of new firm, ibid. 
 
 when it must be shown that the creditors acceded to the 
 arrangement, ibid. 
 
 when the misapplication of trust-money by one partner, 
 who is a trustee, creates or does not create a joint debt, 
 285. 
 
 proof of debts against the joint or separate estate by a joint 
 and separate creditor, 286 — 290. 
 
 where there is a contract for double securities against dis- 
 tinct firms, 289. 
 separate creditors of one partner will not be allowed to 
 prove against the joint estate a debt due from the part- 
 nership to that partner, 290. 
 
 unless the separate effects creating the debt were obtained 
 by actual or implied fraud, 292. 
 
 from what circumstances fraud will be inferred, ibid. 
 
 several partners having distinct firms dealing together as
 
 INDEX. 453 
 
 DEBTS— conti7iued. 
 
 distinct persons in the articles of distinct trades may 
 prove their debts as creditors, 292. 
 
 but a debt for money lent by a minor firm to the aggre- 
 gate firm cannot be proved, 293. 
 
 nor can a debt from one partner to the other where the 
 firm consists of only two persons, ibid. 
 
 where the concern carried on by one partner is only a 
 branch of the joint concern, proof is not allowed, ibid. 
 
 whether a partner can prove a debt under a commission 
 againt his copartner, gusere, ibid. n. 
 
 when interest is allowed on debts, 294. 
 
 a joint debt will support a separate commission, 298. 
 
 joint debts may be proved under a separate commission, 
 or under a commission against two or more partners for 
 the purpose of voting for assignees, or of assenting to or 
 dissenting from the certificate, 310. 
 
 but not for the purpose of receiving a dividend out of the 
 separate estates, 311 — 316. 
 
 in what cases the assignees in respect of the joint estate 
 may prove against the separate estate, 316 — 321. 
 
 not in cases of contract or where the firm was privy and 
 assented to the creation of the debt, 316 — 318. 
 
 aliter where the funds creating the debt have been taken 
 by the single partner with the fraudulent intention of 
 augmenting his separate estate, 318 — 321. 
 
 what is a fraudulent taking within the meaning of the ex- 
 ception, 318. 
 
 of the proof of a debt by a partner, who is a creditor of 
 the partnership, against the surplus of the joint estate, 
 and against the separate estate for any deficiency, 321. 
 323. 
 
 a solvent partner may prove against the bankrupt partner 
 any debt due to him, provided he pay the partnership 
 debts, or indemnify the bankrupt's estate against them, 
 323. 
 
 a partner retiring under a covenant of indemnity may 
 prove outstanding debts paid by him under a commis- 
 sion against the continuing partner, 324. 
 
 but the bankruptcy and certificate of the continuing part- 
 ner will discharge him from such a -covenant, ibid. 
 
 payments by a solvent partner, after the bankruptcy of his 
 copartner, may be proved, 321 — 327. 
 
 proof by a joint creditor of a joint debt under a separate 
 commission does not discharge the solvent partner, 328. 
 
 of set-ofi" under partnership bankruptcies, 331 — 340. 
 
 when payments made by surviving partners will be ap- 
 plied in discharge of a debt due from the partnership 
 at the time of the death of a partner, 364.
 
 454 
 
 INDEX. 
 
 DECLARATIONS. 
 
 The declaration of one partner that the subject matter of 
 an action belonged to himself is evidence against the 
 firm, 65. 141. 
 the declaration of a person that he is a partner is binding 
 upon himself, when, 192. 
 
 of one partner is not evidence to prove the 
 partnership against the others, 193. 
 
 is evidence against the firm 
 after the fact of partner- 
 ship is established, 1 94. 
 although the partner making 
 the declaration is not a 
 party to the suit, 195. 
 after a dissolution, when evi- 
 dence against the firm, 
 196,197. 
 during a subsisting partner- 
 ship as to a transaction 
 which took place previous 
 to it, when binding on 
 others, 197. 
 when the declarations of partners after a dissolution are 
 evidence against them, ibid. 
 DEED. 
 
 One partner cannot bind another by deed, 58. 
 
 although the partnership is constituted by deed, 
 
 ibid. 
 unless an express power be reserved, ibid. 
 a deed executed by one partner in the presence and by the 
 
 authority of the other partners binds all, 59. 
 and it does not require a delivery by each partner, ibid. 
 a warrant of attorney executed by one with the consent 
 but in the absence of the other partner is sufficient, ibid. 
 in what case an express authority to execute a deed must 
 
 be shown, ibid. 
 a deed executed by one partner on the behalf of the firm 
 
 binds himself, ibid. 
 unless it was executed by him on the faith of its execution 
 
 by the others, 60. 
 one partner may bind tmother by deed in bankruptcy, ibid. 
 See tit. Bankruptcy. 
 
 and by a release under seal, ibid. See 
 tit. Release. 
 deed of conveyance by one partner of real property in 
 trust to pay, first, any debt that might be owing by him 
 to the firm; secondly, his proportion of the partnership 
 debts; and, thirdly, certain scheduled debts, how con- 
 strued in equity, 253.
 
 INDEX. 455 
 
 DISCLAIMER. 
 
 A disclaimer by a partner of any beneficial interest is no 
 reason why he should be discontinued a party to a suit 
 in equity, if the relief prayed applies to any period 
 when he was a partner, 100. n. 
 when a disclaimer of the partnership will absolve a part- 
 ner from liability, 149. 
 DISCOVERY. 
 
 When a bill for a discovery lies between partners and 
 what may be pleaded to it, 93 — 105. 
 DISSOLUTION. 
 
 Where goods are ordered by two partners previously to 
 a dissolution, but are delivered afterwards to one of 
 them, he is alone liable for their price, 149. 
 when the acts or declarations of a partner made after a 
 dissolution are evidence against the firm, 64, 196, 197. 
 the responsibility of partners may be removed by evi- 
 dence of a dissolution, 198. 
 how such evidence may be rebutted, ibid. 
 partnership for a single dealing when terminated, 218. 
 
 for a definite term dissolved by death, 2 1 9 — 
 . 221. 
 
 by confirmed in- 
 sanity, 221. 
 by bankruptcy, 
 218.227—229. 
 by effluxion of 
 time, 226. 
 for an indefinite term dissolved at pleasure, 
 
 223 — 226. 
 existence of engagements with third persons 
 no objection to a dissolution, 224. 
 In what cases a court of equity will interfere when the 
 dissolution of a partnership is opposed, 225. 
 
 inhibit the dissolution 
 of a partnership, ibid. 
 a partnership is dissolved by the marriage of a /erne sole 
 partner, 226. 
 
 by the decree of a court of equi- 
 ty, when, 226, 227. 
 by an execution, 229. 
 may be dissolved by an award, ibid. 
 the consequences of a dissolution, 230 — 256. 
 partnership continues notwithstanding a dissolution, until 
 
 the joint affairs are arranged, 231. 
 in what cases a receiver will be appointed, ibid. 
 
 not on the ground merely of a previous dissolu- 
 tion, ib.
 
 456 
 
 INDEX. 
 
 DISSOLUTION— cow^mi^eJ. 
 
 on a dissolution, either partner may insist on a sale of the 
 
 partnership effects, 234. 
 the consequences of a dissolution to the retiring partner, 
 236—252. 
 
 " to the remaining part- 
 ner, 252 — 256. 
 notice of the dissolution of a partnership how to be given, 
 
 248—251. 
 the consequences of a dissolution by bankruptcy, 256 — 
 347. 
 
 by death, 348—371. 
 DISTRINGAS. 
 
 Partnership property may be taken under 'a distringas 
 against two out of three partners for the purpose of 
 compelling the appearance of the former, 164. 
 but the separate property of the partner who appears can- 
 not be distrained, ibid. 
 DIVIDEND. 
 
 Joint and several creditor need not elect until the as- 
 signees are possessed of a fund to make a dividend, 287. 
 not allowed to change his proof 
 if he disturb a dividend, 288. 
 who has proved against one es- 
 tate not allowed to vary his 
 proof, unless he signify his 
 election of abandoning it be- 
 fore a dividend is declared, 
 ibid. 
 joint creditor who petitions for a separate commission, 
 
 entitled to a dividend out of the separate estate, 311. 
 aliter if the commission be a joint one, ibid. n. 
 or if it issue against two or more partners of a firm, 312. n. 
 joint creditors are not entitled to a dividend out of the 
 separate estates, until the separate creditors are satisfied, 
 313. 
 • unless they will discharge the separate debts, 315. 
 DORMANT PARTNER. 
 
 Who is a dormant partner, 13. 
 
 in what case executors are chargeable as dormant part- 
 ners, 16. 
 a dormant partner is not responsible on an engagement, 
 not on tlie joint account, where he was not known to 
 be a member of the firm, 42. 163. 
 a dormant partner may, but need not be joined in an ac- 
 tion by the firm, 128. 
 that the defendant's right of set-off may be affected is no 
 objection at the trial to his being joined, ibid.
 
 INDEX. 457 
 
 DORMANT FARTHER— continued. 
 
 in such a case an application to the court should be made 
 
 by the defendant for relief, 128. 
 when a dormant partner is competent to prove a contract 
 
 made with the firm, 141. 
 a dormant partner is not within the statute of apprentice- 
 ship, 158. 
 
 ^liable to third persons when disco- 
 vered, 162. 
 notwithstanding a private stipulation 
 
 to the contrary, ibid. 
 his liability not discharged by those 
 acts of a creditor which would 
 exonerate the ostensible partner, 
 ibid. 
 when a plea in abatement that there is a dormant partner 
 
 not joined as a defendant is sustainable, 178, 179. 
 a dormant partner need not give notice of a dissolution 
 unless the existence of the partnership is known, 251. 
 when he need not be included in a joint commission of 
 
 bankruptcy against the firm, 261, 
 the ostensible partner is reputed owner of the dormant 
 
 partner's share in the joint efiects, 278. 280. 301. 
 where under a commission against a dormant and an os- 
 tensible partner the joint creditors resort to the separate 
 estate of the latter, his separate creditors have a lien 
 upon any surplus of the joint estate to the extent which 
 their funds have been diminished, 292. 
 EFFLUXION OF TIME. See tit. Dissolution. 
 EJECTMENT. 
 
 A notice to quit signed by one partner in the names of all, 
 
 when sufficient, 66. n. 
 when an ejectment for the partnership premises is main- 
 tainable by one partner against another after a dissolution 
 without a notice to quit, 92. 
 where A. demised, but gave receipts for the rent in his 
 own name and those of his partners, he may neverthe- 
 less recover in ejectment on a demise stated to have 
 been made by himself, 130. 
 ELECTION. 
 
 A joint and several creditor must elect whether he will 
 
 prove against the joint or the separate estate, 286. 
 but he may come in on the surplus of the other, if there 
 should be any, ibid. 
 ^ this doctrine disapproved of, ibid. 
 
 to entitle a creditor to elect he must have both a joint and 
 
 a separate claim, 287. 
 when his election must be made, ibid.
 
 458 
 
 INDEX. 
 
 EhECTlOlSi— continued. 
 
 when a creditor is or is not allowed to withdraw his proof 
 
 against one estate and prove against the other, 287. 
 when the rule of election does not apply where there are 
 
 several firms composed of the same persons, 289. 
 proving or claiming a debt under a commission against 
 one partner is an election as to him, but it does not ope- 
 rate as a relinquishment of an action previously brought 
 against the other partners, 328. 
 so proof of a debt against one partner is not an election so 
 
 as to prevent the creditor from suing the others, ibid. 
 obligee of a joint and several bond by proving the debt 
 against one of the obligors elects to proceed severally 
 and cannot afterwards bring a joint action against both, 
 ibid. 
 creditor having distinct demands cannot it has been held 
 proceed at law for one, and afterwards prove for the 
 other, ibid. 
 as where a partner brings an action against his copartner 
 for one debt, and afterwards has a claim entered under 
 a commission against him for a different debt, the claim 
 is an election as to both debts, ibid. 
 but it has been determined since, that to constitute distinct 
 debts it is not necessary they should be of distinct na- 
 tures, but only that they should arise on distinct con- 
 tracts, and that the effect of proof is only an election as 
 to the particular debt proved, 329. 
 creditor may prove for one debt and afterwards bring an 
 
 action for a distinct one, ibid. 
 the personal representative or other nominee of a deceas- 
 ed partner is not entitled to have the accounts taken be- 
 fore electing to become a partner, 350. 
 a person who, on the death of a partner becomes entitled 
 to his share, may, if it be continued in the trade, elect 
 to take either interest or the profits that have arisen 
 from it, 355. 
 EQUITY. 
 
 A court of equity will not permit one partner to engage in 
 a concern directly adverse to the joint undertaking, 7. 
 partners are tenants in common in equity of real proper- 
 ty, 32. 
 where a deceased partner contracted for a lease of partner- 
 ship premises, there is no equity against the landlord to 
 restrain him from granting it, but the representatives 
 will be restrained from disposing of it, when granted, 
 except for joint purposes, 34. n. 349. 
 equitable remedies between partners, 93 — 115. 
 bill for an account, 93.
 
 INDEX. 459 
 
 EQTJITY— continued. 
 
 will not lie if the partnership is illegal, 94. 
 
 aliter as to the legal trade, if partners embark in two 
 
 trades, the one legal and the other illegal, ibid. 
 and, after the death of a partner, his executor cannot 
 refuse on account of profits made in an illegal part- 
 nership, ibid. 
 may be sustained against a corporation in the nature of 
 a partnership, ibid. 213. 
 
 notwithstanding a dissolution is not 
 prayed, 95. 
 when a dissolution must be prayed, 
 ibid. 
 it is a general rule that to a bill in equity all the partners 
 
 must be made parties, ibid. 
 what are the consequences if they are not, 96. 
 where one partner assigns a moiety of his share, an ac- 
 count may be directed between him and the assignee, 
 without making other partners parties, ibid. 
 in what cases the general rule is relaxed, ibid. 
 
 where the parties are numerous, ibid. 143, 
 
 212. 
 where the partnership is a bubble, 96. 
 doubtful whether it will be relaxed in the 
 case of legal societies, 97 — 99. 
 pleas to bill for an account, 99. 
 
 that the defendant is not a partner, ibid. 
 ^ when it must be accompanied by an answer, 
 
 100. 
 of a stated account, ibid. 
 
 when a bar and what it must disclose, 100 
 — 102. 
 stated account when opened on the ground of 
 fraud, 101. 
 
 what is a stated account, 102. 
 plea of the statute of limitations when sustainable, 102. 
 an agreement to refer the matter in dispute not good 
 103. 
 
 when it may be urged as an objection 
 to the summary interference of the 
 court, 104. 
 in what manner the account is taken, 105. 
 
 where the articles contain clauses prescribing the 
 
 mode, ibid. 
 where those clauses have not been acted upon, ibid. 
 what allowances are made, ibid. 
 when interest is chargeable on money borrowed, 
 106. 
 
 72
 
 460 INDEX. 
 
 EQUITY — continued. 
 
 partner not obliged to bring money into court, when, 106. 
 
 when he will be compelled, ibid. 
 a court of equity will enforce contribution, ibid. 
 
 in what case the only remedy is in equity, 107. 
 equity will interfere in cases of fraud, ibid. 
 
 where a premium for entering into a part- 
 nership has been fraudulently obtained, 
 ibid. 302. 
 where an understanding between the 
 
 partners has been violated, 107. 
 where one partner deals with the joint 
 employers on his own account exclu- 
 sively, 108. 
 where one partner pledges the firm in an 
 individual transaction, ibid. 
 will restrain a partner from negotiating bills on his 
 private account, z'^zW, 
 
 a third person from negotiating bills he 
 may have taken from one partner in 
 fraud of the others, ibid. 
 a partner from usingthe partnership name 
 and receiving the joint debts, although 
 the partnership may be dissolved by 
 the parties, ibid. 
 a partner, who has been guilty of a breach of good faith, 
 
 will not be relieved by injunction, 109. 
 will not restrain the surviving partners from using the 
 
 name of the deceased in their trade, ibid. 221. 356. 
 a party paying a deposit on a scheme which is a bubble 
 
 may recover it back in equity, ibid. 
 equity will decree a specific performance of an agreement 
 to enter into a partnership, ibid. 
 
 not if the partnership may be immedi- 
 ately after dissolved, 110. 
 on decreeing performance will not direct 
 an account of previous profits, ibid. 
 will interfere on breach of covenants in articles, 
 when; 111—113. 
 
 generally not, unless there is ground 
 
 for dissolving the partnership, 111. 
 
 in what cases where a dissolution is not sought, 
 
 112. 
 not where the case made is only a temptation 
 to the abuse of the partnership property, 
 113. 
 will not allow one partner to place himself in a situa-
 
 INDEX. 461 
 
 EQUITY — continued. 
 
 tion which gives him a bias against the due discharge 
 of his duty, 113. 
 the existence of the partnership must be apparent, or 
 ■^ the court will not interpose, ibid. 
 
 in what cases a receiver will be appointed, 114. See 
 
 tit. Receiver. 
 a contract or a security entered into or given by one 
 firm to another, of both of which the same person is 
 a comman member, may be enforced as an equitable 
 agreement, when, 119. 
 equitable remedies for partners against strangers, 142 — 
 144. 
 
 parties necessary to a bill, 142. 
 where a necessary party is out of the juris- 
 diction of the court, 143. 
 exception to the general rule, ibid. 
 when a joint stock company may file a bill in 
 the name of their sccretaryj ibid. n. 
 bill will lie by a solvent partner to be quieted in the 
 possession of the partnership effects when they 
 have been taken in execution b}^ a separate creditor, 
 144. 
 when an injunction to stay execution against a partner- 
 ship will be refused after a judgment at law, ibid. 
 release to one partner discharges all in equity, 187, 
 will relieve against an execution, 207. 
 equitable remedies against partners, 211 — 213. 
 partnership contract joint and several in equity, 212. 
 all the partners must be made parties to a suit, ibid. 
 unless where some are out of the jurisdiction of the 
 
 court, ibid. 
 service of subpoena on one partner when good service 
 
 on the other, 213. 
 the equitable jurisdiction by injunction is exercised 
 with caution when it will have the effect of stoppino- 
 a large trading concern, ibid. 
 a ^partnership will be dissolved by the decree of a 
 court of equity on the misconduct of partners, 218, 
 227. 
 in what cases equity will interfere when the dissolution 
 of a partnership is opposed, 225. 
 
 inhibit the dissolution of a 
 partnership, ibid. 
 court of equity will appoint a receiver after a dissolu- 
 tion, when, 231. 
 
 on a dissolution directs the joint effects to 
 be sold, 234.
 
 462 INDEX. 
 
 BQVITY— continued. 
 
 will order a sale on motion, when, 235. 
 will not entertain a suit upon the mere 
 speculation of possible injury, 239. 
 deed of conveyance by one partner of real property in 
 trust to pay, first, any debt that may be owing by 
 him to the firm, secondly, his proportion of the part- 
 nership debts, and, thirdly, certain scheduled debts, 
 how construed in equity, 253. 
 will enforce an agreement made on a dissolution that 
 a particular book should belong to one partner, and 
 that a copy of it should be delivered to the other, 
 255. 
 in what cases equity will allow a set-off where there 
 
 would be none at law, 336 — 340. 
 under a decree for an account equitable creditors niust 
 
 be satisfied, 357. 
 ci'editors in partnership in respect of a debt due from 
 one partner have a right in equity to have the ac- 
 counts taken, ibid. 
 where a partner, who has covenanted to indemnify his 
 copartner against the joint debts, dies, equity will 
 apply his assets in discharge of those debts, ibid. 
 of the liability of the assets of a deceased partner in 
 
 equity, 359 — 366. 
 what sort of dealing with the surviving operates a dis- 
 charge of the deceased partner, 362—365. 
 eight months non-claim on the survivor, and an inter- 
 mediate payment by him of part, is no discharge of 
 the equity of the creditor against the deceased, 366. 
 when equity will grant relief on a joint bond, as if it 
 were joint and several, 368 — 371. 
 EVIDENCE. See tit. Abatement, Admissions, Declara- 
 tions, Limitations, Statute of, and Witness. 
 
 Notice by one partner that the partnership has been dis- 
 solved, to what extent evidence against him, 92. 
 where the partnership is contested inter se, what evidence 
 
 is sufficient to establish it, ibid. 
 what is evidence of an adjustment between partners in a 
 
 particular adventure, ibid. 
 of the evidence in actions by partners against strangers, 
 
 139. 142. 
 when the partnership need not be proved, 139. 
 when it must be proved, ibid. 
 how it is proved, 140. 
 
 not necessary to produce the deed of copartnership, ibid. 
 names of partners may be suggested to witness, when, 
 ibid.
 
 INDEX. 463 
 
 EVIDENCE— co;^^^■«^«ec?. ^, ^ 
 
 in an action on a bill indorsed to a firm in blank, not ne- 
 cessary to prove a joint title, 131. n. 140. 
 aliter in an action on a bill indorsed sjiecially to a firm, 
 
 or in an action on a bill indorsed in blank to a particular 
 house where the action is brought by the members of 
 that house and additional parties, 140. 
 
 in what cases partners may be witnesses for the firm, 
 
 what evidence is sufficient to sustain a replication of a 
 subsequent demand and a refusal to a plea of tender by 
 partners, 1S9. 
 
 of the evidence in actions against partners, 190. 202. 
 
 slighter evidence is sufficient to establish the partnership 
 than where partners are plaintiff's, 190. 
 
 sufficient to show that the defendants have acted as part- 
 ners, 191. J -T.-^ 
 
 although the partnership is constituted by deed, ibid. 
 witness may be asked whether one has interfered in the 
 
 business "of the other, e6iV/. 
 verdict on issue, evidence of partnership, when, ihid. 
 release executed by defendants, evidence of partnership, 
 
 when, 192. 
 declaration or admission of a party that he is a partner 
 
 evidence against him to prove it, ibid. 
 acceptance by a partner of a bill in the joint name, evi- 
 dence against him of partnership, ibid. 
 entry at the excise office, when evidence of partnership 
 
 against the party making it, ibid. 
 letter of one partner admitting the partnership, when evi- 
 dence of it, ibid. 
 subsequent acts and admissions of a party evidence to 
 
 charge him as a partner, 193. 
 aliter, if it appear he was not a partner at the time of the 
 
 contract, ibid, 
 act or declaration of one partner not evidence of partner- 
 ship against the others, ibid. 
 nor are the acts of third persons evidence to charge par- 
 ties as partners, without showing that they were autho- 
 rised or adopted, ibid. 
 when the fact of partnership is established, the act or de- 
 claration of one partner is binding upon all, 63. 194. 
 although made by a partner who is no party to the suit, 
 
 195. 
 or although made after a dissolution, if it relate to a joint 
 transaction, 64. 196.
 
 464 
 
 INDEX. 
 
 EVIDENCE— con^mwec?. 
 
 aliter as to a transaction which has occurred since the 
 
 dissolution, 65. 197. 
 admission of a partner as to a transaction which occurred 
 
 previous to the partnership, when binding, ibid. 
 notice of the dishonour of a bill, when not necessary to be 
 
 given to a firm, 197. 
 proof of acceptance, when evidence that a bill was regu- 
 larly drawn, ibid. 
 responsibility of partners removed, by what evidence, 198. 
 
 by proof of notice that 
 they would not be 
 answerable, ibid. 
 by proof of a dissolu- 
 tion, ibid. 
 how such evidence may 
 be rebutted, ibid. 
 in what cases a partner may be a witness either for or 
 
 against his copartners, 198. 202. 
 the application to partnership purposes of money borrow- 
 ed by one partner is evidence that the debt is joint, 284. 
 EXECUTION. 
 
 Bill in equity will lie by the solvent partner to be quieted 
 
 in the possession of the partnership effects, when they 
 
 have been taken in execution by a separate creditor, 
 
 144. 
 
 when an injunction to stay execution against a partnership 
 
 will be refused, after a judgment at law, ibid. 
 execution against a firm, how to be enforced, and what 
 may be taken under it, 203. 
 
 against a single partner, what may be taken 
 under it, 203. 207. 
 
 how to be enforced against 
 
 the joint estate, 204. 
 equity will relieve against 
 
 it, 207. 
 court of law cannot inter- 
 fere for that purpose, 
 206. 
 writ of execution must correspond with the judgment, 208. 
 where some of the partners are dead, 209. 
 how it may be executed, ibid. 
 what is satisfaction under, ibid. 
 
 payment by one partner, ibid. 
 recovery against the sheriflf for the 
 
 escape of one, ibid. 
 discharge of one by the plaintiff, 
 ibid.
 
 
 INDEX. 465 
 
 EXECUTION— cow/m wee?. 
 
 what is not satisfaction under, 210. 
 
 discharo-e of one under the insol- 
 vent act, ibid. 
 escape of one, ibid. 
 death of one whilst in execution, 
 
 ibid. 
 caption of one under a ca. sa. ibid. 
 what is the measure of damages in an action against a 
 sheriff for not selling under a writ of execution against 
 one partner, 211. 
 a partnership is dissolved by an execution, 229. 
 au execution against partnership effects cannot be sustain- 
 ed where it is overreached by an act of bankruptcy, 
 308. 
 EXECUTORS AND ADMINISTRATORS. 
 
 Executors or administrators are not, in their representa- 
 tive capacity, partners with the survivors, 4. 
 when they are personally liable as partners, 16. 
 where a deceased partner contracted for a lease of partner- 
 ship premises, a court of equity will restrain his repre- 
 sentatives from disposing of it, when granted, except 
 for joint purposes, 34. n. 349. 
 cannot, as against creditors and legatees, refuse an account 
 of profits made by their testator or intestate in the course 
 of an illegal partnership, 94. 
 a court of equity will not, on the application of an exec- 
 utor of the deceased partner, restrain the survivors from 
 using the name of the deceased in their trade, 109. 221. 
 356. 
 executors of last surviving partner must alone sue on a 
 
 joint contract, 132. 
 and must aver in the declaration that their testator sur- 
 vived the other partners, 134. 
 executors of last surviving partner solely responsible at 
 law, 173. 
 
 are not entitled to their testator's share in the bu- 
 siness without an express agreement, 221. 
 where distinct accounts have been ordered to be kept 
 under a separate commission of bankruptcy, the repre- 
 sentative of the solvent partner may, by petition, apply 
 for an account of the surplus, notwithstanding it has 
 been paid over to the bankrupt, 311. 
 the executors of a deceased partner are tenants in common 
 
 with the survivor of the joint estate, 348. 
 it is not imperative on a pergonal representative to become 
 a partner, although nominated by the deceased partner 
 to succeed him, 221. 350.
 
 466 INDEX. 
 
 EXECUTORS AND ADUmmTRATORS— continued. 
 
 in what sense the partnership continues after the death of 
 
 a partner, 351. 
 executors may insist upon the application of the joi;it pro- 
 perty to the payment of the joint debts, and upon a di- 
 vision of the surplus, 352. 
 when the surviving partner does not account with the 
 executors of the deceased within a reasonable time, a 
 court of equity will enjoin him from disposing of the 
 stock and receiving the debts, ibid. 
 of the accounts between a surviving and the executors of 
 
 a deceased partner, 353. 
 a sale of the share of the deceased by his executor to the 
 partners for the purpose of being resold to himself, is 
 void, 355. n. 
 liabilty of the executors of a deceased partner in equity, 
 
 359 — 366. 
 not liable in respect of claims that were not consummate 
 
 at the time of the death of their testator, 361. 
 what sort of dealing between the creditors and the sur- 
 vivor operates their discharge, 362 — 365. 
 when equity will grant relief against the executors of a 
 deceased partner on a joint bond, 368 — 371. 
 EXTENT. 
 
 An extent against one partner binds only his actual in- 
 terest in the joint effects, 216. 
 FELONY. 
 
 The attainder of one partner for felony vests all the part- 
 nership effects in the crown, 216. 
 FRAUD. 
 
 A receipt by one partner, where fraud accompanies it, is 
 
 no discharge of the debt as to the other, 62. 
 where a premium has been fraudulently obtained as a con- 
 sideration for entering into a partnership, a court of 
 equity will order it to be returned, 107. 302. 
 when, on the ground of fraud, a court of equity will en- 
 join an outgoing partner from carrying on trade near to 
 his former partner, 107. 
 
 one partner from pledging the joint credit on his 
 own account, lOS. 
 one partner is bound by the contract of his copartner, al- 
 though it is a fraud upon him, 147. 
 a partnership cannot acquire a property in goods obtained 
 
 by the fraud of one of the partners, ibid. n. 
 a partner guilty of a fraud in a contract cannot, when sin- 
 gly sued upon it, plead the nonjoinder of iiis copartners 
 in abatement, 159. 166. n. 
 when a commission of bankruptcy is fraudulently issued,
 
 INDEX, 
 
 467 
 
 FRAUD — continued. 
 
 with the view of dissolving a partnership, it will be su- 
 perseded, 229. 
 it is fraudulent for one partner to allow the other to with- 
 draw money from the concern at the time it is insol- 
 vent, 237. 
 where a firm obtain separate effects from one partner 
 either by actual or implied fraud, the separate creditors 
 of that partner are entitled to prove against the joint es- 
 tate, 292. 
 the assignees on behalf of the joint estate may prove 
 against the separate estate where the debt originated in 
 fraud, 318—321. 
 a trader, labouring under a mortal disease, cannot quit his 
 trade for the purpose of exonerating his real estate 
 without subjecting himself to the imputation of fraud, 
 368. 
 GAZETTE. See tit. Notice. 
 
 When the Gazette is evidence of the dissolution of a part- 
 nership, 250. 
 GIFT. 
 
 A gift to two out of three partners, in compensation of a 
 loss sustained by the firm, does not make the subject of 
 it joint estate, 233. 
 GOOD-WILL. 
 
 Where one partner purchases of the other the good-will of 
 the trade, a court of equity will restrain the latter from 
 carrying on the same trade in the vicinity, 107. 
 one partner is not allowed to secure to himself the good- 
 will of the trade by renewing the lease of the partner- 
 ship premises clandestinely, 232. 
 a sale by one partner to the other of his share in the busi- 
 ness does not necessarily include the good-will, 239. 
 it is doubtful whether the good-will of a commercial part- 
 nership survives, 349. 
 aliter as to the good-will of a partnership between pro- 
 fessional persons, as surgeons, 350. 
 the good-will of the partnership trade passes under a com- 
 mission of bankruptcy, and may be sold, 349. n. 
 GUARANTEE. 
 
 When one partner can bind the firm by a guarantee, 56. 
 
 148. 
 where there is covin the firm is not bound, 57. 
 so if the guarantee relate to a separate transaction, ibid. 
 the firm will be bound by a guarantee, if the act of the 
 partner be subsequently recognized, ibid. 
 
 if it be consistent 
 with a previous 
 73
 
 468 INDEX. 
 
 GUARANTEE— co7i/znwec?. 
 
 course of deal- 
 ing, 57. 
 if the other part- 
 ners acquiesce 
 in it, ibid. 
 if it have refe- 
 rence to busi- 
 ness transacted 
 by them, 58. 
 in an action on a guarantee to secure repayment of an ad- 
 vance made by the firm, the firm may join, although 
 the guarantee be given to one partner, 122. 
 whether the partner to whom the guarantee is given can 
 
 maintain a separate action, qusere, ibid. 
 guarantee to a partnership for the fidelity of their clerk 
 
 or servant, how construed, 123 — 125. 
 a guarantee cannot form the subject of a mutual credit, 
 333. 
 ILLEGAL CONTRACTS. 
 
 Contribution cannot be enforced where the original con- 
 tract was malum in se, 82. 
 nor where the claim arose out of a prohibited transaction, 
 
 ibid. 
 a security for repayment of half the money paid by one 
 partner under an illegal contract has been held valid, 83. 
 but that decision has subsequently been denied, ibid. 
 ILLEGAL PARTNERSHIPS. See tit. Bank of England, 
 Bottomry, Coal Merchants, Insurance, and Joint 
 Stock Companies. 
 A bill in equity for an account will not lie, if the partner- 
 ship is illegal, 94. 
 aliier as to the legal trade, if partners embark in two 
 
 trades, the one legal and the other illegal, ibid. 
 and, after the death of a partner, his executor cannot re- 
 fuse an account of profits made in an illegal partner- 
 ship, as against creditors and legatees, ibid. 
 INDEMNITY. 
 
 Partners, by offering to indemnify a dissentient member 
 against loss, will not be permitted to engage the firm in 
 adventures not originally contemplated, 6. 
 when an indemnity is given by the remaining to the re- 
 tiring partner, 245. 
 a partner, retiring under a covenant of indemnity, may 
 prove outstanding debts paid by him under a commis- 
 sion against the continuing partner, 324. 
 when the continuing partner will be discharged from such 
 a covenant by his bankruptcy and certificate, ibid.
 
 INDEX. 
 
 4C9 
 
 INDEUmTY— continued. 
 
 where a creditor proves under a commission against onfe 
 partner, and afterwards joins him in an action against 
 jthe others, an indemnity will be ordered, 329. 
 
 where a partner who has covenanted to indemnify his co- 
 partner against the joint debts, dies, equity will apply 
 his assets in discharge of those debts, 357. 
 INFANT. 
 
 An infant may be a partner, 1. 
 
 but he will not be liable for losses, 2. 
 
 infant partner must join in an action by the firm, 128, 
 
 whether he must be joined in an action against the firm, 
 guasre, 175. 
 
 to a plea in abatement for his nonjoinder, the plaintiff may 
 reply his infancy, ibid. 
 
 or, without such a replication, may sliow that he has avoid- 
 ed the contract, 176. 
 
 what is the consequence of the plaintiff's taking issue on 
 the plea in abatement, where he cannot show an avoid- 
 ance of the contract, ibid. 
 
 a ratification by an infant after full age of a promise made 
 during minority must be in writing, ibid. n. 
 
 a party fraudulently obtaining a sale goods to an infant ia 
 liable either as principal vendee or as a partner, ibid. 
 
 an infant partner is responsible if he do not, on attaining 
 full age, disaffirm the partnership, 2. n. 176. 
 
 period within which an infant should repudiate it, 177. 
 
 to a plea of infancy the plaintiff may reply that the infant 
 ratified the contract after he was of age, ibid. 
 
 what must be proved in support of such a replication, z6iW. 
 
 where one defendant pleads infancy, the plaintiff inust com- 
 mence a new action against the rest, when, ibid. 
 
 infancy need not be pleaded specially, 178. 
 
 an infant partner cannot be made a bankrupt, 261. 
 
 an infant who, on the death of a partner, becomes entitled 
 to his share, may, if it be continued in the trade, elect 
 to take either interest or the profits that have arisen from 
 it, 355. 
 
 where the heir at law of a deceased partner is an infant, 
 his real estates cannot be sold during the minority, 368. 
 
 INSANITY. 
 
 When partnership is dissolved by the insanity of a part- 
 ner, 218. 221. 
 a lunatic cannot be made a bankrupt, 261. 
 
 INSURANCE. 
 
 Marine insurances by a partnership were formerly pro- 
 hibited, but the prohibition is now relaxed, 29.
 
 470 
 
 INDEX. 
 
 INSURANCE— con^/m^e^. 
 
 where one partner effects insurances for the partnership, 
 all are liable for the premiums, 52. 
 
 aliter where the insurances are effected by op^ part- 
 owner, ibid. n. 
 
 contribution could not formerly be enforced for losses upon 
 marine insurances underwritten by a partnership, 85. 
 
 the underwriter could not set up a secret partnership in 
 avoidance of a policy, 159. 
 
 where one partner insures his share or interest, the insu- 
 rance money is separate property, 233. 301. 
 INTEREST. 
 
 A joint interest is necessary to constitute a partnership as 
 between the parties themselves, 10. 
 
 the interest of partners in the stock in trade, 31, 32. 
 in real property, 32 — 35. 
 
 payment of interest by one partner when an admission of 
 the debt by the firm, 195, 196. 
 
 by a firm on a debt originally separate, 
 when it will make it joint, 284. 
 
 when creditors are entitled to interest on their debts in 
 bankruptcy, 294. 
 
 a person who, on the death of a partner, becomes entitled 
 to his share, may, if it be continued in the trade, elect 
 to take either interest or the profits that have arisen 
 from it, 355. 
 
 JOINT COMMISSION. See tit. Commission of bankruptcy- 
 
 JOINT DEBTS. See tit. Debts. 
 
 JOINT ESTATE. See tit. Property and Possession. 
 
 Real property purchased with the partnership funds, 
 though conveyed to one partner, forms part of the joint 
 estate, 34. 
 
 aliter if the purchase money was lent to that partner, ibid. 
 
 what is considered joint estate after a dissolution, 232 — 
 234. 
 
 in bankruptcy, 267 — 280. 
 
 when the joint is converted into separate estate by assign- 
 ment from one to the other partner, 238. 254. 267 — 
 271. 
 
 a dissolution merely does not convert the joint estate into 
 the separate property of the partner continuing the pos- 
 session, 268. 
 
 in what cases the joint may be converted into separate 
 estate by the acts of the partners, 271. 
 
 ships registered in the name of one, but in the ordering 
 of both partners, are joint property, 277. 
 
 assignees under a separate commission may be compelled
 
 INDEX, 471 
 
 JOINT ESTATE— contintied. 
 
 to administer the whole joint estate where the other 
 partner is dead or abroad, 309. 
 when the separate estate is entitled to be reimbursed out 
 of the joint estate what has been proved against it by 
 the joint creditors, 316. 
 where both joint and separate estates are liable for a debt, 
 if the joint estate pay more than its proportion, the se- 
 parate estate must contribute, ibid. 
 JOINT STOCK COMPANIES. 
 
 Companies are either incorporated or unincorporated, 2. 
 laws relating to unincorporated companies the same as in 
 
 ordinary partnerships, ibid. 
 each member is liable for the company's debts, 3. 17. 
 incorporated companies are not to be considered ordinary 
 
 partnerships, 3. 
 a company cannot engage in adventures not originally 
 contemplated without the consent of all the members, 7. 
 nor, in order to do so, compel a dissenting member to re- 
 ceive his subscribed capital and interest and withdraw, 
 ibid. 
 a person who pays his deposit on shares and afterwards 
 signs the deed of partnership, is a partner from the 
 time of the deposit, 13. 
 each member is liable to contribute towards what the 
 
 manager may have paid, 17. 80. 
 when a subscriber to a scheme may recover back his sub- 
 scription at law, 76. 
 how the expenses of bringing a scheme into operation are 
 
 to be borne, 77, and note, ibid. 
 a member of a company cannot sue the other members of 
 
 the company for work and labour, 78. 
 nor on a bill drawn upon the directors of the company, 
 
 and accepted by their secretary, ibid. 
 where a shareholder enters into an agreement with the 
 directors, with a clause exempting them from personal 
 liability on certain parts of it, he may sue them on the 
 other parts, ibid. 
 an unincorporated company, acting, or assuming to act, in a 
 corporate character, is not entitled to relief, in equity, 94. 
 a court of equity will not interfere with voluntary asso- 
 ciations, unless it is under an obligation to act, ibid. 
 a bill for an account will lie against a corporation in the 
 
 nature of a partnership, ibid. 213. 
 who must be made parties to a bill filed by some against 
 
 the other members of a company, 95 — 99. 
 a court of equity will compel the managers of a company 
 to appoint meetings of the proprietors, when, 104.
 
 472 
 
 INDEX. 
 
 JOINT STOCK COMPANIES— con^mwec?. 
 
 will not interfere with a company for the 
 
 pose of managing it, 111. 
 will restrain the members of a company 
 from embarking the company in a dif- 
 ferent business, 112. 
 a party paying a deposit on a scheme which turns out to 
 
 be a bubble may recover it back in equity, 109. 
 in actions by a company against strangers, who must be 
 
 made parties, 133. 
 stipulation, that two of the members shall carry on the 
 trade and bring actions, cannot be afterwards altered so 
 as to enable one only to sue without the consent of all, 
 ibid. 
 legislature sometimes' enables a company to sue in the 
 
 name of their secretary, 133, 
 but this does not enable the secretary to petition for a 
 
 commission of bankruptcy, ibid. 
 the company may in such a case file a bill in equity in his 
 
 name, 143. n. 
 liability of shareholders to third persons, 155. 
 in actions against a company, who must be, made parties, 
 
 179. 
 a company may sometimes be sued in the name of their 
 
 secretary, 180. 
 where enrolment of the names of the members is required, 
 
 a member whose name is not enrolled is liable, 181. 
 an incorporated company cannot set off a debt due to them 
 individually from a member, against a debt due to him 
 from them in their corporate character, 334. 
 unless there be an express bye-law enabling them to do 
 so, ibid. 
 KING. See tit. Crown. 
 LANDS. See tit. Real Property. 
 LEASES. 
 
 A partner taking a lease of the partnership premises in his 
 own name, deemed to hold them for himself and his co- 
 partners, 33. 
 
 renewing the lease clandestinely, a trustee for 
 the partnership, ibid. 232. 
 where a deceased partner contracted for a lease of partner- 
 ship premises, there is no equity against the landlord to 
 restrain him from granting it, but the representatives 
 will be restrained from disposing of it, when granted, 
 except for joint purposes, 34. 349 
 where partners take a lease for a term, they are not con- 
 sidered as contracting a partnership for the same term, 
 225.
 
 INDEX. 473 
 
 LIABILITY. See tit. Agreement. 
 
 A person may contract responsibility as a partner to the 
 
 world, though not as between himself and the firm, 10. 
 
 Assignee of a partner when not liable for losses inter se, 
 
 11. 
 when he is, and how he may discharge himself from that 
 
 liabity, 12. n. 
 a participator in the profits is liable for losses, notwith- 
 standing an agreement that he shall not sustain them, 16. 
 each partner is liable for the whole of the partnership 
 
 debts, 17. 
 a retiring partner receiving an annuity fairly proportioned 
 
 to his interest absolved from continued liability, 20. 
 aliter if notice of his retirement be not given, ibid. 
 or if he continue to participate in the profits, 21. 
 the annuity must also be certain and defined, not casual 
 
 and indefinite, ibid. 
 the reservation by a retiring partner of a contingent in- 
 terest will continue his liability, 22. 
 and he will be liable, if, in addition to an annuity, he is 
 to have a per-centage on sales to customers by him re- 
 commended, ibid. 
 the liability of a partner may be contracted without being 
 a partner in fact, 23. 
 
 when countervailed by notice, 25. 
 of the liability of partners for the acts of each other, when 
 done in the course of business, 36. 
 
 on simple contracts, 37. 50. 146. 
 
 for an act of assurance out of the 
 
 regular course of business, 37. 
 
 on bill or notes, 38. See tit. 
 
 Bills of Exchange. 
 where one partner acts as agent 
 
 for the rest, 41. 
 on purchases, 51. 147. 
 
 when fraudulent- 
 ly made, 52. 
 after a counter- 
 mand of autho- 
 rit)'^, 52. 
 for premiums of insurance, ibid. 
 for a debt fraudulently contract- 
 ed by one partner, 55 — 147. 
 for the fraudulent representa- 
 tions of a copartner, ibid. 
 in matters unconnected with the 
 
 partnership, 55. 
 where the party dealing with a
 
 474 INDEX. 
 
 LIABILITY— con/mwcfl?. 
 
 partner knows that thebenefit 
 is intercepted by him, ibid. 
 in transactions out of the usual 
 course of dealing, but con- 
 ducted with the knowledge of 
 the firm, 56. 
 under a guarantee, ibid. See 
 tit. Guarantee. 
 
 a deed, 58. See tit. Deed. 
 in legal proceedings, 63. 
 to third persons, 145 — 211. 
 a dormant partner is not responsible on an engagement 
 not on the joint account, where he was not known to 
 be a member of the firm, 42. 163. 
 partners are not liable where the party dealing with one 
 partner is aware of an agreement subjecting him to in- 
 dividual responsibility, 149. 
 partners in a coach concern having separate interests, 
 
 liable separately to tradesmen, when, 150. 
 liable jointly to passengers, ibid. 
 
 to render a person liable as a partner on a contract, he 
 must have had a joint interest in it at the time it was 
 made, 151 — 193. 
 no subsequent acknowledgement will render him liable, 
 
 ibid. 
 person permitted to share in goods after they are pur- 
 chased is not liable to the vendor, 151, 152. 
 secus if a joint interest attaches the instant the goods are 
 
 purchased, 152. 
 partners are not jointly responsible for the capital brought 
 
 in by any one partner, 153. 
 where there is neither communion of profit nor a joint 
 
 interest, there is no liability as a partner, ibid. 
 a person to be liable as a partner must have had credit 
 
 given to him as a member of the firm, 154. 
 members of a club, to what extent liable for goods ordered 
 
 by one, 155. 
 how the liability of a firm is extinguished, 156. 
 by actual satisfaction, ibid. 
 by taking a separate security, ibid. 
 
 243. 
 by a detriment sustained by the firm 
 through the means of the creditor, 
 ibid. 
 assignment of partnership effects to one partner, who un- 
 dertakes to pay the joint debts, does not discharge the 
 other, 156.
 
 INDEX. 475 
 
 hi ABILITY— co7itinued. . 
 
 promise by a creditor to exonerate a partner is no discharge, 
 
 157. 242. 
 
 taking separate notes of one partner for the joint debt no 
 discharge, when, 157. 241. , , , , •,, . i 
 
 a statement by three partners to a fourth that a bill had 
 been paid, on the faith of which the accounts after a dis- 
 solution were settled, when no discharge of the fourth, 
 
 157. 242. 
 dealing with the remaining and newly admitted partners 
 
 after the retirement of some of the old partners, is no 
 
 discharge of the latter, 158. 242. 
 of the liability of partners in actions quasi ex contractu, 
 
 159. 
 
 for wrongs, 160 — 162. 
 
 a party fraudulently obtaining a sale of goods to an infant 
 is liable either as a principal vendee or as a partner, 176. 
 - an infant partner who does not, on attaining full age, dis- 
 affirm the partnership is liable, 2. n. 177. 
 of the liability of one partner ia equity when the other is 
 out of the kingdom, 212. 
 
 partners engaging in smuggling trans- 
 actions, 214,215, 
 a retiring partner after a dissolution, 
 240 — 251. 
 
 when discharged by subsequent 
 dealings, 241—245. 
 of a continuing partner after a disso- 
 lution, 252—256. 
 of a surviving partner, 358. 
 of the executors of a deceased partner 
 359 — 366. 
 
 not liable in respect of claims that 
 were not consummate at the 
 time of the death of their tes- 
 tator, 361, 
 notice of the death of a partner not 
 necessary to protect his estate 
 from future liability, 248. n. 
 362. 
 what sort of dealing with the sur- 
 vivor operates a discharge of 
 the executors of a deceased 
 partner, 362. 
 
 LIBEL. See tit. Slander. 
 
 In the publication of libels by booksellers, one partner is 
 answerable for the acts of the other, 161. 
 74
 
 476 INDEX. 
 
 LIEN. 
 
 On a dissolution of partnership^ if one partner bona fide 
 transfers his interest to the other who becomes a bank- 
 rupt, the joint creditors have no lien, 238, 254. 267 — 
 271, 
 
 where, on a dissolution, it is agreed, that certain articles 
 shall belong to one partner, and that a fund shall be set 
 apart for the payment of debts the other partner has 
 no lien on those articles, if the fund prove deficient 
 239. 
 
 when, under a commission against a dormant and an osten- 
 sible partner, the joint creditors resort to the separate 
 estate of the latter, his separate creditors have a lien 
 upon any surplus of the joint estate to the extent which 
 their funds have been diminished, 292. 
 
 joint and separate creditors have respectively a lien upon 
 the surplus of each estate in bankruptcy, 294. 
 
 the lien of a solvent partner upon the joint estate is not 
 destroyed by the bankruptcy of his copartner, 306. 
 
 where stock transferred by a customer to a banking firm 
 
 as a security for advances has been sold, and part of it 
 
 is afterwards repurchased, the customer has, on the 
 
 bankruptcy of the firm, a specific lien on that part, 361. 
 
 LIMITATIONS, STATUTE OF. 
 
 A written memorandum is now necessary to take a case 
 out of this statute, 63. n. 195. n. 
 
 An acknowledgment by one partner of a debt is sufficient 
 to take it out of the statute against the others, 64. 195. 
 
 when the statute maybe pleaded in equity in bar of the 
 relief, 102. 
 
 when an action must be brought to avoid a plea of the sta- 
 tute where one partner resides abroad and the others in 
 England, 142. 
 
 in a joint action on a note, an acknowledgment by one 
 maker will revive the debt against the other, 194. 
 
 so an acknowledgment by one will have the same efiect in 
 a separate action against the other, 195. 
 
 when the payment of a dividend under a commission 
 against one maker will deprive the other of the benefit 
 of the statute, ibid. 196. 
 
 payment of interest on a note by one maker after the death 
 of the other will not take the case out of the statute as 
 against the executors of the latter, 196. 
 
 to destroy the efiect of a plea of the statute by one who is 
 jointly liable, the acknowledgment by the other must 
 be clear and explicit, ibid. 
 LIMITED PARTNERSHIPS. 
 
 What are limited partnerships, 5, 6.
 
 INDEXT. 477 
 
 LOAN. 
 
 A loan by the outgoing to the continuing partner at legal 
 interest, in addition to an annuity, does not continue 
 the partnership, 22. 
 
 to an individual partner to form his share of the 
 
 capital, does not create a joint debt, 153. 
 of money to one partner, and a subsequent loan of 
 it by him to the firm, does not create a debt as 
 between the original lender and the firm, 283. 
 a partner lending money to his partnership, or a minor 
 firm lending to the aggregate firm, not admitted to 
 prove against the joint estate in competition with the 
 joint creditors, 292. 
 a firm lending money to an individual partner will not be 
 admitted to prove against his separate estate in compe- 
 tition with separate creditors, 317. 
 LORDS' ACT. 
 
 A note for payment of the weekly allowance under the 
 
 Lords' act may be signed by one partner, 66. 
 it is binding though signed by one partner after a disso- 
 lution, ibid. 
 LUNACY. See tit. Insanity. ' 
 MANAGER. 
 
 The manager of a partnership, who acts as one of the part- 
 ners, is liable to the world in that character, 10. 23. 
 but he is not liable to loss as between himself and the firm, 
 
 11. 
 a manager is not liable to contribute any proportion of the 
 losses, 80. 
 MARRIAGE. 
 
 The marriage of a feme sole partner is a dissolution of the 
 partnership, 226. 
 MINES. 
 
 In what cases a receiver of a mine or colliery will be ap- 
 pointed, 115. 
 mines are liable to the joint debts, 2,33. 267. n. 
 MORTGAGE. See tit. Agreement. 
 
 It has been doubted whether a mortgage to a firm is avail- 
 able to a new partnership, formed by the addition of 
 another member, 125. 
 a mortgage by one partner to the others of his share iti 
 the joint stock is not available in bankruptcy, unless ex- 
 clusive possession be given, 301. 
 MUTUAL CREDIT. See tit. Set-off. 
 NOLLE PROSEQUI. 
 
 When one partner pleads his bankruptcy and certificate, 
 the plaintiff" may enter a nolle prosequi as to him, and 
 proceed against the rest, 175.
 
 478 
 
 INDEX. 
 
 NOLLE PROSEQUI— con^mwe^. 
 
 aliter where one pleads infancy, 177. 
 
 a partner who pleads his bankruptcy is rendered a compe- 
 tent witness for his copartners, if the plaintiff enters a 
 nolle prosequi, 199. 202. 
 
 where a joint' creditor sues a bankrupt partner under whose 
 commission he has proved, a court of law will not or- 
 der a nolle prosequi to be entered, 329. 
 NOMINAL PARTNER. 
 
 Who is a nominal partner, 12. 
 
 a person becomes so by lending his name, 23. 
 
 principle upon which a nominal partner is liable, ibid. 
 
 holding himself out as a partner is sufficient, ibid. 
 
 or allowing his name to be used on bills of parcels, 24, 
 
 a4vertising a dissolution, qusere whether sufficient, ibid. 
 
 consent or knowledge of the use of his name must be 
 shown, ibid. 
 
 a nominal partner, who stipulates that he shall not be liable 
 for losses, is not responsible to creditors who are aware 
 of the stipulation, 25. 158. 
 
 a nominal partner is not liable to contribute any propor- 
 tion of losses inter se, 80. 
 
 in an action by the firm, a nominal partner should be 
 joined, 126. 
 , unless it be shown that he has no interest, 129. 
 
 a debt incurred by a nominal partner may be set against 
 a debt due to the firm, 138. 
 
 when a nominal partner is a competent witness for the 
 firm, 141. 
 NOTICE. 
 
 Notice of the retirement of a partner is necessary to pro- 
 tect him from future liability, 20. 
 
 notice to one partner, in what cases considered as notice 
 to all, 66. 197. 
 
 by one partner available as a notice by the firm, 66. 
 that the partnership has been dissolved, to what 
 . extent evidence against him, 92. 
 
 when an ejectment will lie by one partner against another 
 without proving a notice to quit, ibid. 
 
 notice to quit signed by one partner in the names of all, 
 when sufficient, 66. n. 
 
 of the dishonour of a bill, when not necessary to be given 
 to a firm, 197. 
 
 that the firm will not be bound by the act of a single part- 
 ner, absolves them, 49. 149. 198. 
 
 a partnership for an indefinite term may be dissolved by 
 notice. 223.
 
 INDEX. 
 
 479 
 
 NOTICE— cona'nwe^. 
 
 notice of the death of a partner is not necessary to pro- 
 tect his estate from future liability, 248. n. 362. 
 
 of the dissolution of a partnership, how to be 
 
 given, 248—251. . i--ii r 
 
 of a dissolution to the indorsee of a bill, not et- 
 fectual without notice to the payee, 249. 
 payment to one partner, without notice that he has no 
 
 authority to receive, good, 252. , . „ •, 
 
 aliter if the payer have notice of the want of authority, 
 
 debts due to a partnership, which are assigned by some 
 to the other partners, remain in the ordering of the 
 partnership until notice of the assignment is given to 
 the debtors, 275. 
 OUTLAWRY. 
 
 A partner, who is abroad, and does not appear to an action 
 
 against the firm, may be outlawed, 163. 
 the courts will assist the plaintiflf in such a proceeding, 164. 
 where one of two partners is^outlawed, the other may be 
 
 proceeded against alone, 173. 
 how to declare in such a case, ibid. 174. 
 the outlawry of one partner does not alter the nature ot a 
 
 joint contract, 174. p , j u ^ i 
 
 judgment of outlawry against two of three debtors does 
 
 not make the debt separate, 174. 316. 
 a misnomer of the outlaw is a fatal variance, 174. 
 on the outlawry of one partner, all the partnership effects 
 are vested in the crown, 216. 
 OWNER. See tit. Possession. r .u i f 
 
 The ostensible partner is reputed owner of the dormant 
 partners share in the joint effects, 278—280. 301. 
 PARTICULARS, BILL OF. ,,,.,, , 
 
 when a party is entitled to the benefit of evidence beyond 
 the contents of his particular delivered under a judge s 
 order, 88. 
 PARTNERS See tit. Agreement, Liability. 
 Who may be partners, 1. 
 who are partners, 4. 
 persons who trade jointly, ibid, 
 who share profits, i6tc^. 
 who appear ostensibly as joint traders, ibid. 
 the representatives of a dece^ased partner arc not partners 
 
 with the survivor, ibid. 378. 
 nor a person introduced by one partner into the concern 
 
 without the consent of the other, 5. 
 partners cannot engage the firm in adventures not ori- 
 ginally contemplated without the consent ot all, 6.
 
 480 
 
 PARTNERS— con/mwec?. 
 
 INDEX. 
 
 although they offer to indemnify a dissenting partner 
 against loss, 6. 
 
 equity will restrain partners from engaging in a concern 
 directly adverse to their undertaking, 7. 
 
 a person may be partner to the world, though not a part- 
 ner inter se, 10. 
 
 distinction between, ibid. 
 
 assignee of a partner, when not liable for losses inter se,\\. 
 
 when he is, and how he may discharge himself from that 
 liability, 12. n. 
 
 who is an ostensible partner, 12. 
 
 who a dormant partner, ibid. 
 
 who a nominal partner, ibid. 
 
 a participator in the profits is chargeable as a partner, 13. 
 
 on what principle, 14. 
 
 each partner is liable for the whole of the partnership 
 debts, 17. 
 
 who are not partners, 18. 
 
 a traveller, clerk, or agent, paid by a portion of the sums 
 received, ibid. 
 
 a factor receiving a per-centage on the amount of goods 
 sold, ibid. 
 
 a person receiving an agreed sum on the sale of goods by 
 his recommendation, ibid. 
 
 distinction between an interest in the profits and the pay- 
 ment of a sum proportioned to them, as to constituting 
 a partner, ibid. 
 
 a person employed to sell goods upon an agreement that 
 he shall have all he can procure for them beyond a 
 certain sum, is not a partner, 1 9. 
 
 a person working a lighter, who is to receive one half her 
 gross earnings for his labour, not a partner, ibid. 
 
 aliter if the agreement had been to share ihe py^ojits, 19. 
 
 a grazier who, for depasturing cattle is to receive one-half 
 of the produce above their estimated value, not a part- 
 ner, ibid. 
 
 a person who, on effecting policies of insurance for a bro- 
 ker, is entitled to half the brokerage, not a partner, 20. 
 
 an agent paid by a proportion of the profits is not a part- 
 ner, ibid. 
 
 a man may become a nominal partner by lending his name, 
 23. 
 
 principle upon which a nominal partner is liable, ibid. 
 
 holding himself out as a partner is sufficient, ibid. 
 
 or allowing his name to be used on bills of parcels, 24. 
 
 advertising a dissolution leaves it equivocal, ibid.
 
 INDEX. 
 
 481 
 
 PARTNERS— con/mwec?. 
 
 consent or knowledge of the use of his name must be 
 
 shown 24. 
 partners are joint tenants of the partnership effects with- 
 out benefit of survivorship, 31. 
 of the power of one partner to bind the others, 36. 
 
 by what is done in the course of business, 37. 
 
 by simple contracts, 37. 50. 56—146. 
 
 by an act or assurance out of the regular 
 
 course of business, 37. 
 by a bill or note, 38. See tit. Bills op Ex- 
 change. 
 as agent, 41. 
 
 subsequent approbation implies previous 
 authority, ibid. 
 by sales, 51. 
 by purchases, ibid. 
 
 when fraudulently made, 52. 
 after a countermand of authority, ibid. 
 by effecting policies of insurance, ibid. 
 by a pledge of partnership effectwS, ibid. 
 
 after partition, 53. 
 by a debt fraudulently contracted, 55. 147. 
 by fraudulent representations, ibid. 
 in matters unconnected with the partnership, 
 
 55. 
 where the party knows that the benefit is in- 
 tercepted by a single partner, ibid. 
 out of the usual course of dealing where the 
 business is transacted with the knowledge 
 of the firm, 56. 
 by a guarantee, ibid. See tit. Guarantee. 
 by a deed, 58. See tit Deed. 
 by a release, 60. See tit. Release. 
 by a receipt, 62 See tit. Receipt. 
 in legal proceedings, 63. 
 by a submission to arbitration, 66. See tit. 
 
 Arbitration. 
 in bankruptcy, 68. See tit. Bankruptcy. 
 legal remedies between partners, 69. 
 
 by action of account, ibid. 
 
 covenant, 70. See tit. Covenant. 
 
 assumpsit, 72. See tit. Assumpsit. 
 
 trover, 90. See tit. Trover. 
 
 equitable remedies between partners, 93. See tit Equity. 
 
 legal remedies for partners against strangers, 116 — 142. 
 
 where the same person is a common partner in two con-
 
 482 INDEX. 
 
 PARTNERS— continued. 
 
 cerns, no legal contract can arise between them, 88. 
 
 lis. 
 
 when a contract between such parties may be enforced as 
 
 an equitable agreement, 119. 
 where an individual is a common member of two con- 
 cerns, satisfaction to him as a member of the one is 
 
 satisfaction to the other concern, 120. 
 where one partner cannot recover, it is a good defence to 
 
 an action by all, ibid. 
 no action can be maintained by partners, where one of 
 
 them resides and trades in an enemy's country, 121. 
 aliter if the trade be licensed, ibid. 
 or if the residence of the partner be unconnected with an 
 
 adherence to the enemy, ibid. 
 equitable remedies for partners against strangers, 142 — 
 
 144. 
 legal remedies against partners, 145 — 211. 
 equitable remedies against partners, 211 — 213. 
 proceedings against partners at the suit of the crown, 214 
 
 217. 
 the consequences of a dissolution to the retiring partner, 
 
 236 — 252. 
 
 to the remaining partner, 
 252—256. 
 the solvent partner will in some cases be appointed the 
 
 receiver of the joint estate, but without a salary, 232. 
 
 327. 
 of the bankruptcy of the partners, 256. 347. 
 the separate creditors of one partner will not be allowed 
 
 to prove against the joint estate a debt due from the 
 
 partnership to that partner, 290. 
 unless the separate effects creating the debt were obtained 
 
 by actual or implied fraud, 292. 
 from what circumstances fraud will be inferred, ibid. 
 when one partner may sustain a commission against his 
 
 copartner, 298. 
 the bankruptcy of a partner determines his controul over 
 
 the joint estate, 305. 
 but it does not effect the right of the solvent partner to 
 
 dispose of the joint estate for past purposes, 306. 
 in what cases the assignees, in respect of the joint estate, 
 
 may prove against the separate estate, 316 — 321. 
 not in cases of contract, or where the firm was privy and 
 
 assented to the creation of the debt, 316 — 318. 
 aliter where the funds creating the debt have been taken 
 
 by the single partner with the fraudulent intention of 
 
 augmenting his separate estate, 318 — 321.
 
 INDEX. 483 
 
 PARTNERS— con ^/nt^erf. 
 
 what is a fraudulent taking within the meaning of the ex- 
 ception, 318. 
 
 in what case one partner, a creditor of the partnership, 
 may claim the surplus of the joint estate, and prove 
 againist the separate for any deficiency, 321 — 323. 
 
 a partner retiring under a covenant of indemnity may 
 prove outstanding debts paid by him under a commis- 
 sion against the continuing partner, 324. 
 
 but the bankruptcy and certificate of the continuing part- 
 ner will discharge him from such a covenant, ibid. 
 
 a solvent partner may prove against the bankrupt partner 
 any debt due to him, provided he pay the partnership 
 debts, or indemnify the bankrupt's estate against them, 
 323. 
 
 payments by a solvent partner, after the bankruptcy of his 
 copartner, may be proved under a separate commission 
 against the latter, 321 — 327. 
 partners are sureties for each other within the meaning of 
 
 Sir Samuel Romilty^s act, 326. 
 proof by a joint creditor under a separate commission does 
 
 not discharge the solvent partner, 328, 
 where two partners have stopped, and one is a bankrupt, 
 a debtor cannot refuse to pay money due to them, 341. 
 of the death of partners, 348 — 371. 
 the liability of a surviving partner, 358. 
 
 of the assets of a deceased partner, 359 — 366. 
 not liable for claims which were not consum- 
 mate in his lifetime, 361. 
 what sort of dealing with the survivors ope- 
 rates a discharge, 362. 
 of real estates of a deceased partner, 367. 
 
 PARTNERSHIP. 
 
 Partnership defined, 1. 
 
 public or private, 2. 
 public partnership, what, ibid. 
 private partnership, what, and how formed, 3. 
 consent necessary to the formation of partnership, 4. 
 how testified, ibid. 
 implied as operative as express, ibid. 
 written articles not essential to constitute a partnership, 
 ibid. 
 
 a joint interest not alone sufficient, ibid. 
 partnership must be of some lawful trade, 5. 
 
 no distinction between that v/hich is malum 
 in se and that which is malum prohibi- 
 tum, ibid. 
 75
 
 484 INDEX. 
 
 PARTNERSHIP— co72^in wee?. 
 
 for importing prohibited goods invalid, 5. 
 partnerships are not confined to trades, ibid. 
 
 limited, 6. 
 partnership cannot be extended to purposes not contem- 
 plated without the consent of all the members, ibid. 
 an offer to indemnify a dissenting partner will not enable 
 the others to extend the operations of the partnership 
 ibid. 
 a covenant in articles of partnership that none of the part- 
 ners shall engage in the same business on his own ac- 
 count is permitted, 7. 
 partnership as between the parties, 7. 10. 
 
 regulated by the articles vvhere they exist, 8. 
 by the implied contract, if there are 
 not articles, ibid. 
 if there is no agreement to the contrary, the loss must be 
 
 equally borne, and the profits equally divided, ibid. 
 distinction between partnership with respect to the world 
 
 and partnership between the parties, 10. 
 wherever a partnership as to third persons is established, 
 
 it is presumed to exist between the parties, 12. 
 partnership as between the parties and third persons, 12, 
 
 13. 
 a partnership contract tainted by usury not valid, 25. 
 partnership for a single dealing, when terminated, 218. 
 
 for a definite term dissolved by death, 219 — 
 ' 221. 
 
 by confirmed in- 
 sanity, 221. 
 by bankruptcy, 
 
 227. 
 by effluxion of 
 time, 226. 
 for an indefinite term dissolved at pleasure, 
 
 223. 
 dissolved by the decree of a court of equity 
 upon the misconduct of partners, 226. 
 
 by the marriage of a feme sole 
 
 partner, ibid. 
 by an execution, 229. 
 by an award, ibid. 
 the existence of engagements with third persons is no ob- 
 jection to a dissolution, 224. 
 when a court of equity will interfere where the dissolution 
 of a partnership is opposed, 225. 
 
 inhibit the dissolution of a part- 
 nership, ibid.
 
 INDEX. 485 
 
 PARTNERSHIP— cow/mwec?. 
 
 the consequences of the dissolution of a partnership, 230 
 — 256. 
 
 partnership continues, notwithstanding a dissolution, until 
 the joint affairs are arranged, 231. 
 
 the consequences of a dissolution to the retiring partner, 
 236—252. 
 
 to the remaining part- 
 ner, 2 52 — 256. 
 
 notice of the dissolution of a partnership, how to be given, 
 248 — 251. 
 
 the consequences of a dissolution by bankruptcy, 256 — 347. 
 
 where a premium, payable by instalments, is agreed to be 
 paid to a sole trader for taking two persons into part- 
 nership with him, and the firm becomes bankrupt be- 
 fore all the instalments are due, they must nevertheless 
 be paid as they become due, unless fraud can be shown, 
 302. 
 
 partnership revives after a commission of bankruptcy 
 against partners is superseded, 347. 
 
 the consequences of a dissolution by death, 348 — 371. 
 
 PAYMENT. 
 
 Payment to one partner is payment to the firm, 62. 
 
 an acknowledgment of payment by one partner is con- 
 elusive against the demand of the other partner, 63. 
 
 where an individual is a common member of two concerns, 
 payment to him as a member of the one is payment to 
 the other concern in respect of the same debt, 120. 
 
 where there are several demands, a payment, which is 
 not at the time appropriated to either demand by the 
 debtor or the creditor, will be applied by the law to 
 the most burthensome, or if they are equally so, to the 
 oldest, 244. 
 
 partnership money applied in discharge of joint debt, 
 ibid. n. 
 
 payment to outgoing partner, after notice of dissolution, 
 when good, 252. 
 
 when payments made by surviving partners will be ap- 
 plied in discharge of a debt due from the partnership at 
 the time of the death of a partner, 364. 
 
 PENALTY. 
 
 Where a penalty is reserved on breach of a partnership 
 agreement to be sued for by one partner, it is no ob- 
 jection to his action that, if he incurred the penalty he 
 could not sue himself, 71.
 
 486 INDEX. 
 
 PLEADING. See tit. Abatement and Action. 
 
 In an action by a surviving partner he must declare as 
 
 survivor, 131. 
 but in an action against him he need not be charged as 
 
 survivor, 172. 
 it is no variance to allege that a bill accepted by four per- 
 sons w^as accepted by three only, or that a bill drawn 
 
 by two was drawn by one, 169. 
 where one of two partners is outlawed, how to declare 
 
 against the other, 173. 
 what counts may be joined in an action against a solvent 
 
 partner alone, 175. 
 to a plea of infancy the plaintiff may reply that the infant 
 
 ratified the contract after he was of age, 177. 
 what must be proved in support of such a replication, ibid. 
 how assignees under a joint commission must declare for 
 
 a joint debt, 342. 
 . how for a separate debt, 343. 
 
 how assignees under separate commissions must declare 
 
 for a joint debt, 345. 
 
 PLEDGE. 
 
 Power of one partner to bind the firm by a pledge of the 
 partnership effects, 52 — 54. 
 
 POSSESSION. 
 
 goods left in the possession of the bankrupt by the true 
 
 owner vest in the assignees, 271. 
 the possession must continue down to the time of the 
 
 bankruptcy, 272. 
 but a removal made in contemplation of bankruptcy is 
 
 fraudulent, fizfi?. 
 the goods must be left in the possession of the bankrupt 
 
 with the consent of the true owner, ibid. 
 in cases of partnership such consent will be inferred, when, 
 
 273. 
 possession by one partner after a dissolution not of itself 
 
 sufficient to convert the joint into separate estate, ibid. 
 unless the other partners are guilty of laches, ibid. 
 property wrongfull)'' withheld by one partner from the 
 
 others does not pass to his assignees, ibid. 
 property of an old in the possession of a new firm, when 
 
 it passes to the assignees of the latter, ibid. 
 property of a firm selling goods in the names of two of the 
 
 partners, when in the ordering of the two, 274. 
 possession by one partner of property under a conditional 
 
 assignment will vest it in his assignees, when, ibid.
 
 INDEX. 
 
 487 
 
 POSSESSION— co7i/im<e^. 
 
 debts due to a partnership are within the statute, 275. 
 
 and, when assigned by some to the other partners, they 
 remain in the ordering of the firm until notice of the 
 assignment is given to the debtors, ibid. 
 
 property in the possesion of one partner, under a trust to 
 pay the joint debts, does not pass to his assignees, 276. 
 
 a ship in the possession of one who is not the registered 
 owner, is within the statute, 277. 
 
 so are ships in the possession of two partners, but which 
 are registered in the name of one, ibid. 
 
 so is a ship registered in the names of two partners, but in 
 the possession of one, ibid. 
 
 the share of a dormant partner in the joint stock left in the 
 possession of the ostensible partner passes to the as- 
 signees of the latter on his bankruptcy, 278 — 280. 
 
 PRACTICE. 
 
 One partner can bind the others by an agreement to accept 
 
 common bail, 65, and see note, ibid. 
 in what manner the appearance of partners to an action 
 
 against the firm is to be enforced, 163. 
 
 PROFIT AND LOSS. 
 
 persons who share in pi:ofit and loss are partners inter se 
 
 and to the world, 1. 8. 10. 
 persons who participate in profits are partners to the 
 
 world, though not inter se, 4. 13 — 17. 
 distinction between an interest in profits and a payment 
 
 proportioned to a given quantum thereof, 17 — 20. 
 the assignee of a partner, who does not act as a partner, is 
 
 not liable for losses inter se, 11. 
 an assignee who acts as a partner is liable to contribute t) 
 losses during that time, but he may rid himself of that 
 liability by assigning to an insolvent, 12 n. 
 equity on decreeing the specific performance of an agree- 
 ment for a partnership will not direct an account of pre- 
 vious profits, 110. 
 of profits where the trade is continued to be carried on 
 with partnership effects after a dissolution, 255. 
 
 where the trade is carried on by the solvent partner 
 after the bankruptcy of his copartner, 302. 
 
 by the surviving part- 
 ner after the death of 
 his copartner, 354. 
 a person who, on the death of a partner, becomes entitled 
 to his share, may, if it be continued in the trade, elect
 
 488 INDEX. 
 
 PROFIT AND IuOSS—co7itinued. 
 
 to take either interest or the profits that have arisen 
 from it, 355. 
 
 PROMISE. 
 
 When a promise by one partner to pay to the assignee of 
 a creditor a debt owing by the firm to that creditor is 
 binding on the firm, 64. 197. 
 
 where one partner pays the whole of a joint debt under an 
 illegal contract, the law will not raise a promise by his 
 copartners to contribute their proportions, 84. 
 
 promise to three partners to pay for goods to be furnish- 
 ed to a third person does not extend to goods furnished 
 by two of them after one had withdrawn from the part- 
 nership, 123. 
 
 promise by creditor to exonerate a partner, no discharge, 
 157. 241. 
 
 PROMISSORY NOTES. See tit. Bills of Exchange. 
 
 PROOF OF DEBTS. See tit. Creditors and Debts. 
 
 Separate creditors may prove their debts under a joint 
 commission for the purpose of assenting to or dissent- 
 ing from the certificate, but they cannot vote in the 
 choice of assignees, 280. 
 
 separate creditors of one partner will not be allowed to 
 prove against the joint estate a debt due from the part- 
 nership to that partner, 290. 
 
 unless the separate effects, creating the debt, were obtain- 
 ed by actual or implied fraud, 292. 
 
 from what circumstances fraud will be inferred, ibid. 
 
 several partners having distinct firms dealing together as 
 distinct persons in the articles of distinct trades may 
 prove as creditors, ibid. 
 
 joint creditors may prove their debts under a commission 
 against one or more partners of a firm for the purpose 
 of voting for assignees, or of assenting to or dissentihg 
 from the certificate, 310. 
 
 but not for the purpose of receiving a dividend from the 
 separate estates, 313. 
 
 of proof by a firm against the estate of an individual part- 
 ner, 316 — 321. 
 
 by the solvent partner against the estate of the 
 bankrupt partner, 323. 
 
 PROPERTY. 
 
 Partners may possess personal or real property, 31, 32. 
 interest of partners in personal property, ibid. 
 in real property, 32 — 35.
 
 INDEX. 489 
 
 FROFERTY—conii7iued. 
 
 a partnership cannot acquire property in goods obtained 
 
 by the fraud of one of the partners, 147. n. 
 in what manner joint property may be effectually trans- 
 ferred by one partner to another after a dissolution, 238. 
 254. 267 — 371. 
 
 PURCHASE. 
 
 Power of one partner to bind the firm by the purchase of 
 goods, 51. 147. 
 
 although fraudulently 
 
 made, 52. 
 after a countermand 
 of authority, 52. 
 one partner falsely representing that he has made pur- 
 chases for a third person, the other partner is bound by 
 the representation, when, 147. 
 
 REAL PROPERTY. 
 
 At law partners are joint tenants of real property, 33. 
 
 in equity they are tenants in common, ibid. 
 
 real property considered as partnership stock, ibid. 232. 
 
 although conveyed to one partner, if it were purchased 
 with the joint capital, 34. 232. 
 
 semble that real property held by partners is, on the death 
 of one, distributable like personal, 34, 35. 349. 
 
 where real estates of one partner are sold in his lifetime 
 to pay partnership debts and there is a surplus, his heir 
 at law after his death has no claim to it, 355. 
 
 aliter as to a surplus arising from estates sold after the 
 death of the partner, 356. 
 
 real estates of a deceased partner liable to the partnership 
 debts, 367. 
 
 but the trade must continue until the 'time of his death, 
 368. 
 
 a trader, labouring under a mortal disease, cannot quit his 
 trade for the purpose of exonerating his real estate, 
 without subjecting himself to the imputation of fraud, 
 ibid. 
 
 where the heir at law of the deceased partner is an in- 
 fant, his real estates cannot be sold during his minority, 
 ibid. 
 
 RECEIPT. 
 
 A receipt given by one partner for a joint debt, upon set- 
 ting against it a private debt due from himself, is bind- 
 ing, 43. n. 
 
 a receipt by one partner is a discharge as to the other, 62. 
 
 aliter if there is any fraud, ibid.
 
 490 INDEX. 
 
 RECElFT—conti?iued. 
 
 receipt given by one partner for a debt after a dissolution, 
 when void, 252. 
 
 after a countermand 
 of agency when 
 valid, ibid. 
 
 RECEIVER. 
 
 A receiver will be appointed of the effects of a subsisting 
 partnership in a case of the grossest abuse, 114. 
 
 where there is a covenant to refer disputes, and it has not 
 been acted upon, a receiver will not be appointed, 115. 
 
 aliter if one partner be excluded from the partnership, 
 ibid. 
 
 principle upon w^hich the Court of Chancery appoints a 
 receiver, 115. 
 
 will always pause before it appoints one, ibid. 
 
 in what cases a receiver of a mine or colliery will be 
 appointed, ibid. 
 
 when a receiver will be appointed after a dissolution, 231. 
 
 not on the ground merely of a previous dissolution, un- 
 less a fraudulent breach of contract or duty be shown, 
 ibid. 
 
 on the bankruptcy of one partner, the solvent partner 
 sometimes appointed receiver, but without a salary, 
 232. 327. 
 
 on the death of one partner, a receiver will not generally 
 be appointed if there be a surviving partner, 356. 
 
 unless the survivor be guilty of mismanagement and im- 
 proper conduct, ibid. 
 
 where all the partners are dead, a receiver will be appoint- 
 ed, ibid. 
 
 REGISTER. 
 
 The registry acts relate to transfers made by the act of 
 the party only, and not to transfers by operation of law, 
 as from the commissioners to the assignees of a bank- 
 rupt, 277. 
 
 the registry of a ship is not conclusive evidence of the 
 property, ibid. 
 
 a ship registered in the name of B,, but of which A. has 
 the order and disposition, passes to A.'s assignees, on 
 his bankruptcy, ibid. 
 
 so a ship registered in the name of one partner, but in the 
 ordering of both, passes to the assignees of both, ibid. 
 
 so a ship registered in tlie names of two partners, but in 
 the ordering of one, passes to his assignees, ibid.
 
 INDEX. 491 
 
 REGISTER— co7itmued. 
 
 the registry acts do not prevent its being shown in what 
 proportions registered part-owners are entitled, 277. 
 
 RELEASE. See tit. Covenant. 
 
 A release by one partner of a partnership debt binds the 
 firm, 60. 
 
 unless there be gross collusion with the debtor, 61. 
 
 the effect of a release depends on the right in which it is 
 given, ibid. 
 
 a release by a joint obligee entitled only to a moiety does 
 not bind the other, 62. 
 
 a release to one partner enures to the benefit of all, 186. 
 
 whether the release be by deed or by operation of law, ib. 
 
 a release to one of two joint receivers is a release of both. 
 ibid. 
 
 so to one of two joint trespassers, ibid. 
 
 rule the same in equity, 187. 
 
 where the release is special, how it is construed, ibid. 
 
 a release executed by partners, when evidence of partner- 
 ship, 19^. 
 
 where a person is shown to be a partner with the defen- 
 dant, a release will not render him a competent witness, 
 200. 
 
 release by a solvent partner, after the bankruptcy of his 
 co-partner, when void, 342. 
 
 REMEDIES. 
 
 Legal remedies between partners, 69 — 92. 
 
 equitable remedies between partners, 93 — 115. 
 
 legal remedies for partners against strangers, 1 16 — 142. 
 
 equitable remedies for partners against strangers, 142 — 
 144. 
 
 legal remedies against partners, 145 — 211. 
 
 when trespass may be maintained against partners, 160. n. 
 
 when case, ibid. 
 
 equitable remedies against partners, 211 — 213. 
 
 proceedings against partners at the suit of the crown, 214 
 —217. 
 
 equitable remedies against the assets of a deceased part- 
 ner, 359—366. 
 
 SALE. 
 
 Power of one partner to bind the firm by a sale of part- 
 nership efiects, 51. 
 
 his authority to do so is implied from the nature of busi- 
 ness, ibid. 
 
 a sale to one partner of goods used in the partnership is 
 a sale to the partnership, 52. 
 76
 
 492 INDEX. 
 
 SALE — continued. 
 
 whether a sale of the whole joint property by one tenant 
 in common is a conversion, qiisere, 92. 
 
 sale of the whole of a ship by one part-owner is not a 
 conversion, ibid. n. 
 
 on a dissolution, either partner may insist on a sale of the 
 partnership effects, 234. 
 
 a court of equity will direct a sale by interlocutory order 
 on motion, when, 235. 
 
 a sale by one partner to the other of his share in the busi- 
 ness does not necessarily include the good-will, 239. 
 
 where sales have taken place under a separate commis- 
 sion, it is a reason why it should not be superseded to 
 make way for a joint commission, 265. 
 
 power of one partner to dispose of the partnership effects 
 after the bankruptcy of his co-partner, 306. 
 
 on the application of the solvent partner, the assignees 
 under a separate commission will be restrained from 
 selling the joint property, 509. 
 
 but the assignees under a joint commission will not be re- 
 strained from so doing on the application of the joint 
 creditors, ibid. n. 
 
 a sale of the share of the deceased by his executor to the 
 other partners, for the purpose of being resold to him- 
 self, is void, 355. n. 
 
 SEPARATE COMMISSION. See tit. Commission of Bank- 
 ruptcy. 
 SEPARATE DEBTS. See tit. Debts. 
 SEPARATE ESTATE. 
 
 Real estates purchased by a partner with money lent to 
 
 him by the firm, are his separate property, 34. 
 where one partner insures his interest in the joint pro- 
 perty, the money recovered on the policy forms part 
 of his separate estate, 233. 301. 
 a gift to two of three partners in compensation of a loss 
 sustained by the firm is the separate property of the 
 two, 233. 
 when the joint is converted into separate estate by assign- 
 ment from one to the other partner, 238. 254. 267 — 
 
 271. 
 
 a dissolution merely does not convert the joint estate into 
 the separate property of the partner continuing in pos- 
 session, 268. 
 
 in what cases the joint may be converted into separate 
 estate by the acts of the partners, 271.
 
 INDEX. 
 
 493 
 
 SEPARATE ESTATE— co7itmued. 
 
 ships registered in the names of two, but in the ordering 
 
 of one partner, are his separate property, 277. 
 what passes as separate estate by the assignment under a 
 
 separate commission, 299 — 304. 
 separate estate entitled to be reimbursed expenses incurred 
 
 in recovering joint property, 309. 
 joint creditors are not entitled to a dividend out of the 
 separate estates until the separate creditors are satisfied, 
 311—316. 
 separate estate, when entitled to be reimbursed out of joint 
 estate what has been proved against it by the joint cre- 
 ditors, 316. 
 where both joint and separate estates are liable for a debt, 
 if the joint estate pay more than its proportion, the 
 separate estate must contribute, ibid. 
 joint creditors are in equity only entitled to the surplus of 
 the separate estate of a deceased partner after paying 
 separate creditors, 360. 
 SERVANT. See tit. Manager. 
 SET-OFF AND MUTUAL CREDIT. 
 
 In what cases a set-off is allowed in actions by partners 
 
 against third persons, 137. 
 the debts must be mutual and due in the same right, 138. 
 a separate debt cannot be set against a joint demand, un- 
 less by agreement, ibid. 
 advances made by bankers upon a bond given by their 
 customer to one in trust for the rest may be set off, ibid. 
 a debt contracted by one partner in the name of the firm 
 
 may be set against a debt due to the firm, ibid. 
 a joint debt contracted by a nominal partner may be set 
 
 against a debt due to the firm, ibid. 
 if a trade be conducted by one partner a separate debt due 
 from him may, it has been said, be set against a debt 
 due to the firm, ibid, sed quxre. 
 where money is paid by one partner after an act of bank- 
 ruptcy, the defendant, in an action to recover it, cannot 
 set off a debt due to him from the firm, 139. 
 of set off in actions by surviving partners, ibid. 
 in actions against partners, 189. 
 
 against surviving partners, 190. 
 under partnership bankruptcies, 331. 
 mutual credit, what is, 332 — 334. 
 what is not, 333. 
 
 when it must be given to admit of being 
 set off, 334, 
 in an action by a solvent partner and the assignees of two
 
 494 INDEX. 
 
 SET-OFF AND MUTUAL CREDIT continued. 
 
 bankrupt partners for money due to the firm, the de- 
 fendant cannot set off a debt due from the firm, 335. 
 
 of set-off in equity, 336. 
 
 difference between it and set-oS" at law, ibid. 
 
 in what cases allowed, ibid. 
 
 in case of fraud, ibid. 
 
 generally the rule of law, that a joint cannot be set against 
 a separate debt, prevails in equity, 337 — 340. 
 
 a. separate debt due to a principal allowed to be set against 
 a joint debt due from the principal and a surety, 340. 
 
 where there is a clear series of transactions to justify it, a 
 joint may be set against a separate debt, ibid. 
 SHIP. See tit. Register. 
 
 The owners of a ship are not joint-tenants, but tenants in 
 common, 32. n. 
 
 the sale of the whole of a ship by one part-owner is not 
 equivalent to destruction, so that the co-tenant may 
 maintain trover, 92. n. 
 
 the admission of one part-owner of a ship is not binding 
 on the others, 194. n. 
 
 SLANDER. 
 
 Partners may maintain a joint action for slander averring 
 special damage in the partnership trade, 118. 
 
 and without a statement of such damage, ibid. 
 
 where a co-partnership is libelled, and the libel contains 
 something particularly affecting one of the firm, a joint 
 action may be maintained, ibid. 
 
 SMUGGLING. 
 
 Contribution cannot be enforced where the claim arises 
 out of a smuggling transaction, 82. 
 
 partners cannot maintain an action for the price of smug- 
 gled goods, although sold by one partner only, 117. 
 
 partners engaged in smuggling are jointly and separately 
 liable for the penalties, 161. 
 
 where one partner engages in smuggling transactions, with 
 the privity of the others, they are jointly and severally 
 liable for the penalties, 214. 
 
 aliter if he so engage without their privity, 215. 
 
 of the liability of partners to penalties where a division of 
 the smuggled goods is made, ibid. 
 
 where a division is 
 not made, ibid. 
 
 STOCK. 
 
 Bond for securing money paid for stock-jobbing differ- 
 ences held good, 83. sed qusere.
 
 INDEX. 
 
 495 
 
 STOCK. — continued. 
 
 money lent to settle stock-jobbing differences cannot be 
 recovered back, 85. 
 
 SURETY. 
 
 Partners are sureties for each other within the meaning of 
 the 49 Geo. 3. c. 121. s. 8., 32G. 
 
 SURPLUS. 
 
 A partner is only entitled to his sbare of the surplus after 
 
 payment of the partnership debts, 235, 236. 
 under a commission of bankruptcy against partners, nei- 
 ther the joint creditors shall come upon the separate 
 estate, nor the separate upon the joint, but only upon 
 the surplus of each that shall remain after satisfying its 
 own creditors respectively, 281. 
 if there is a surplus of the estate rejected by a joint and 
 separate creditor, he is entitled to his proportion of it, 
 286. 
 but whatever number of securities he may have taken, he 
 can only share in it pari passu with the other credit- 
 . ors, 289. 
 
 where, under a commission against a dormant and an os- 
 tensible partner the joint creditors resort to the sepa- 
 rate estate of the latter, his separate creditors have a 
 lien upon any surplus of the joint estate to the extent 
 which their funds have been diminished, 292. 
 when interest is payable on debts in case of a surplus, 
 
 294. 
 where a man is a partner in several firms, how the surplus 
 
 of his separate estate is applied, ibid. 
 where distinct accounts have been ordered to be kept 
 under a separate commission, the representative of the 
 solvent partner may, by petition, apply for an account 
 of the surplus, notwithstanding it has been paid over 
 to the bankrupt, 311. 
 when a partner, a creditor of the partnership, is entitled 
 to the surplus of the joint estate in preference to the 
 separate creditors, 322. 
 where real estates of one partner are sold in his lifetime 
 to pay partnership debts, and there is a surplus, his 
 heir at law after his death has no claim to it, 355. 
 alitcr as to a surplus arising from estates sold after the 
 ^ death of the partner, 356. 
 joint creditors are in equity only entitled to the surplus 
 of the separate estate of a deceased partner after paying 
 separate creditors, 360
 
 496 INDEX. 
 
 SURVIVING PARTNER. 
 
 A court of equity will not restrain the surviving partners 
 from using the name of the deceased in their trade, 109. 
 221. 356. 
 
 the surviving partner of one firm may sue the surviving 
 partner of another firm in respect of transactions which 
 have taken place since the decease of a common part- 
 ner, 120. 
 
 of actions by surviving partners against strangers, 131. 
 358. 
 
 who must join, 131. 
 
 how they must declare, ibid. 
 
 of set-ofi" in an action by a surviving partner, 139. 
 
 of actions against surviving partners, 172. 358. 
 who must be joined, 172. 
 how to declare against them, ibid. 
 
 of set-off in an action against a surviving partner, 190. 
 
 a surviving partner claiming a benefit under the will of 
 his deceased partner cannot refuse to admit a legatee, 
 221. 350. 
 
 of the accounts between a surving and the executors of a 
 deceased partner, 353. 
 
 a surviving partner will be allowed a compensation for 
 carrying on the business, where he is under no obli- 
 gation to do so, 355. 
 
 aliter, if he is bound to carry it on, ibid. 
 
 when he will be allowed a moiety of expenses incurred, 
 ibid. n. 
 
 of the liability of a surviving partner, 358. 
 SURVIVORSHIP. 
 
 There is no right of survivorship amongst partners, 31, 
 376. 
 
 nor amongst joint legatees, who continue to trade with 
 the property bequeathed, 32. 
 
 sembh that the right of survivorship does not exist as to 
 real property among partners, 33 — 35. 
 
 choses in action survive at law, 131. 348. 
 
 it is doubtful whether the good-will of a commercial part- 
 nership survives, 349. 
 
 aliter of a partnership between professional persons, as 
 surgeons, 350. 
 TENANTS IN COMMON. 
 
 Partners are tenants in common in equity of real estate, 33. 
 
 trover will not lie by one tenant in common against ano- 
 ther for partnership effects wrongfully taken away, 90. 
 
 but if one tenant in common destroy the thing in common, 
 trover will lie, 91.
 
 INDEX. 497 
 
 TENANTS IN COMMON— co;2/mMe^. 
 
 whether a sale of the whole by one tenant in common is a 
 
 conversion, qusere, 92. 
 the assignees of a bankrupt partner are tenants in common 
 
 with the solvent partner, 29S. 
 the representatives of a deceased partner are tenants in 
 
 common with the survivor, 351. 
 
 TENDER. 
 
 To a plea of tender by partners, the plaintiff may reply a 
 subsequent demand and refusal, and the replication will 
 be supported by evidence of a refusal by one partner, 
 189. 
 
 a tender to one partner is a good tender to all, ibid. n. 
 TORT. See tit. Wrongs. 
 TRADE. 
 
 A partner not acting or interfering in the trade is not lia- 
 ble to the penalties of the statute of apprenticeship, 158. 
 TREASON. 
 
 The attainder of one partner for treason vests all the part- 
 nership effects in the crown, 216. 
 TROVER. 
 
 Doubted whether an action of trover can be maintained by 
 one partner against another, 90. 
 
 trover will not lie by one tenant in common, against ano- 
 ther for partnership effects wrongfully taken away, e^/^. 
 
 nor for goods delivered by one partner to a person who 
 afterwards becomes his executor, after an act of bank- 
 ruptcy committed by the other, 90. 345. 
 
 nor for goods delivered to a creditor of the partnership 
 under the same circumstances, 91. 332. 374. 
 
 but if one tenant in common destroy the thing in com- 
 mon, trover will lie, 91. 
 
 whether a sale of the whole by one tenant in common is 
 a conversion, qiixre, 92. 
 
 the sale of the whole of a ship by one part-owner is not 
 equivalent to a destruction, so that the co-tenant may 
 maintain trover, ibid. n. 
 
 when one of two assignees sues in trover, the non-joinder 
 of the other need not be pleaded in abatement, 137. n. 
 
 when partners are liable in an action of trover, 160. 
 
 when the solvent partner may maintain trover against the 
 sheriff for seizing and selling the joint effects under a 
 writ of execution against the other, 211. 
 
 trover may be maintained against a creditor of the firm 
 for goods delivered by a partner who had committed an 
 act of bankruptcy, 305.
 
 498 INDEX. 
 
 TRUSTEE. 
 
 A partner taking a security for both in his own name, is 
 
 a trustee for the other, 130, n. 
 firm when liable for the produce of stock sold under a 
 
 power forged by one of the partners, who was a trus- 
 tee, 148. 
 where one partner, who is an executor or trustee, with 
 
 the privity of his co-partners, applies trust-money to 
 
 the uses of the partnership, the firm is liable for it, 156. 
 
 285. 
 and the amount may be proved as a debt against the joint 
 
 estate in bankrupt(7y, 285. 
 or against the separate estate of the trustee, ibid. 
 but the firm are not responsible if the money be brought 
 
 into the trade without their knowledge that it was trust- 
 money, 286. 
 USURY. 
 
 A partnership contract tainted by usury is invalid, 25. 
 an advance for the purchase of goods, on condition that 
 
 the lender shall have half the profits on a resale, Avhen 
 
 usurious, ibid. 
 bond to secure money with interest at five per cent, and 
 
 a portion of the profits of a business carried on by the 
 
 borrower, is usurious, ibid. 
 where a bona fide partnership is entered into, an advance 
 
 of money on any terms, is not a loan, and therefore is 
 
 not usurious, 26. 
 a contract by which the lender of money entails upon 
 
 himself the responsibility of a partner to the world, 
 
 cannot be impeached for usury, ibid. n. 
 so a loan at more than five per cent, is not usurious, if the 
 
 lender agree to share in the losses of the business in 
 
 which the money is embarked, 27. 
 where one of two partners commits usury, the other is not 
 
 liable to the penalties, 161. 
 when a parol usurious agreement will not affect the right 
 
 of one partner to claim a bona fide debt from the 
 
 other, 325. 
 WITNESS. 
 
 When a nominal partner is a competent witness to prove 
 
 a joint contract, 141. 
 a dormant partner, not a party to the contract, may prove 
 
 it, ibid. 
 a party who has purchased an interest in the contract is 
 
 competent, ibid. 
 in an action by one partner for a debt, the other may 
 
 prove payment to him of it, ibid.
 
 INDEX. 
 
 499 
 
 WITNESS.— co7?/mwe(/. 
 
 a partner, though a plaintiff in the suit, may be admitted 
 a witness with the consent of the defendant, 141. 
 
 a party to the record is not a witness for himself or a joint 
 suitor, 198. 
 
 aliter if he is a party in a corporate capacity only, ibid. 
 
 a partner, who pleads his bankruptcy, is rendered compe- 
 tent if the plaintiff enters a nolle prosequi, 199. 
 
 but not if issue be taken on the plea, ibid. 
 
 and in such a case he is not, on proof of his certificate, 
 entitled to a verdict during the progress of the cause, 
 ibid. 
 
 a partner who has suffered judgment by default is hot a 
 witness for his co-defendant, ibid. 
 
 nor for the plaintiff, ibid. 
 
 and a release from the plaintiff would not render him com- 
 petent without the consent of the defendant, ibid. 
 
 a copartner with the defendant in the subject of the action 
 is generally incompetent, 200. 
 
 although he charge himself with the whole debt, ibid. 
 
 or although the defendant offer to release him, ibid. 
 
 on proof of a sale to the defendant and J. S. as partners, 
 J, S. cannot prove that the defendant bought as his ser- 
 vant, ibid. 
 
 in an action against A. for the price of goods sold, B. is 
 not competent to prove that the goods were sold to A. 
 and B., and that they were paid for by remitting a debt 
 due to A. and B., ibid. 
 
 to raise the subject of incompetency, it must be shown 
 not suggested, that the witness is a partner, ibid. 
 where the interest of a partner inclines him to each of 
 the parties, he is a competent witness, ibid. 
 
 the joint maker of a note is competent to prove the de- 
 fendant's signature, ibid. 
 
 and one partner may prove his copartner's liability, 201. 
 
 or that he was a partner in a trading company, ibid. 
 
 one partner is competent to prove want of authority in 
 another to draw a bill on the partnership, ibid. 
 
 may disprove the authority of another to make 
 a contract of sale of goods for his separate use, 
 ibid. 
 
 on a plea in abatement by one partner, a copartner is com- 
 petent to prove a several liability, 201. 
 negative it, 202. 
 
 when and to what extent a partner, calling a supposed co- 
 partner to establish a partnership, may disprove his 
 statement; ibid. 
 
 77
 
 500 
 
 INDEX. 
 
 WirNK^^—con/imied. 
 
 after a dissolution, one partner is a competent witness for 
 the other, when, 202. 
 
 a partner who has obtained his certificate under a joint 
 commission is not competent to support the commis- 
 sion, ibid. 
 WRONGS. 
 
 Contribution cannot be claimed amongst wrong-doers, 86. 
 185. 
 
 unless where personal default is not attributable, 86. 
 
 of the liability of partners for wrongs, 160 — 162. 
 
 in an action for a tort, a plea in abatement for nonjoinder 
 will not hold, 184, 185. 
 
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