lawed, B. pleaded the general issue: it was holden, that the plaintiffs could not recover, Le Blanc, J. observing, that this case must be determined in the same manner as if C. had pleaded to the action. It seemed admitted that if one of several partners pledge the partnership fund for his individual debt, that would not bind the rest. And he saw no difference between the case of one, and the case of two, of several partners pledging the joint fund for their individual debt, which was the case before the court. The point above alluded to by Le Blanc, J., viz. that one partner cannot pledge the security of another for his own private debt, appears to have been expressly decided in two cases referred to by Mr. East, in a note to the foregoing decision, viz. in Gregson and others v. Hutton and another, B. R. E. 22 Geo. 3. and in Marsh v. Vansommer and another, London Sittings after Mich. T. 1786. cor. Buller, J. See also Swan v. Steel, ante, p. 305, and Green v. Deakin, 2 Stark. N. P. C. 347. One of several partners cannot bind the others by a submission to arbitration, even of matters arising out of the business of the firm, and in this respect there is not any distinction between a general partnership, and a partnership in a particular transaction d One partner may, by procuration, indorse bills for the firme. Where one of several partners commits an act of bankruptcy, which is afterwards followed up by a commission and assignment, he has no longer any property in the partnership effects; but the property is from the time of such act of bankruptcy, in his assignees by relation, and in the solvent partners. It may be observed, that the general authority of one partner to draw bills or promissory notes to charge another, is only an implied authority; and consequently that implication may be rebutted: for it is not essential to a partnership, that one partner should have power to draw bills and notes in the partnership firm to charge the others; they may stipulate between themselves that it shall not be done; and if a third person, having notice of this, will take such a security from one of the partners, he shall not sue the others upon it, in breach of such stipulation, nor in defiance of a notice previously given to him by one of them, that he will not be liable for any bill or note signed by c Steed v. Salt, 3 Bingh. 101. d Adams v. Bankart, 1 Cr. M. & R. 681. 5 Tyr. 425. e Williamson v. Johnson, 1 B. and C. f Bayley, J. 10 East, 426. g Gallway v. Matthew and another, 10 East, 264. See Duncan v. Lowndes, 3 Campb. 478. the others. If one of two partners commit a secret act of bankruptcyh, the other partner may, for a valuable consideration, and without fraud, dispose of the partnership effects; and though he himself afterwards become bankrupt, the assignees, under a joint commission, cannot maintain trover against the bona fide vendee of such partnership effects; and the same rule holds, although the solvent partner knew of the bankruptcy. Hence, 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 banker, 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 bankruptcy, procured a debtor to the firm to give his bill in part satisfaction of his debt, and indorsed and delivered the same to defendants in payment of the residue of the notes in their hands, and afterwards became bankrupt, it was holden', that the assignees, under a joint commission, could not recover from the defendants the monies so paid to them by the London bankers, nor the proceeds of the said bill. If one partner becomes a bankrupt, his assignees cannot obtaink any share of the partnership effects, until they first satisfy all that is due from him to the partnership. A solvent partner! may sue out a writ in the name of his partner, or of his assignees if he is bankrupt, as well as his own, in order to recover a debt due to the partnership; but the partner who objects has a right to be indemnified against the costs. Where one partner commits an act of bankruptcy, which is afterwards followed up by a commission and assignment, he has no longer any power over the partnership property. And any disposition of it by him is void as against the other partners, it being vested in them and his assignees by relation to his act of bankruptcym. Where one of two partners", with the intention of cheating the other, goes to a shop and purchases articles such as might be used in the partnership business, which he instantly converts to his own separate use, if there was no collusion between him and the seller, this is to be considered as a partnership transaction, and the inno h Fox v. Hanbury, Cowp. 449. i Harvey v. Crickett, 5 M. and S. 336. See Woodbridge v. Swan, 4 B. and Ad. 636. k Ser Tenterden, C. J. Holderness v. Shackels, 8 B. and C. 618. 1 Whitehead v. Hughes, 4 Tyr. 92. 2 Cr. and M. 318. m Per Bayley, B., in Burt v. Moult, 3 Tyr. 569, recognizing Thomason v. Frere, 10 East, 418. n Bond v. Gibson and another, 1 Campb. 185. cent partner is liable for the price of the goods, without proof of any previous dealings between the parties. Where goods are ordered by one member of a club for the benefit of all, every member, who either concurs in the order or subsequently assents to it, is liable, although the member who ordered the goods is made the debtor in the plaintiff's books, and the bill is sent to him, unless it clearly appear that the plaintiff meant to give credit to that member only. But in a later case, where a club was formed subject to the following among other rules, viz. that the entrance fee should be ten guineas, and the annual subscription five guineas; that if the subscription were not paid within a certain limited period, the defaulter should cease to be a member; that there should be a committee to manage the affairs of the club, to be chosen at a general meeting; and that all members should discharge their club bills daily; the steward being authorized, in default of payment on request, to refuse to continue to supply them: it was holdenP, that a member of the club, merely as such, was not liable for debts incurred by the committee for work done or goods supplied for the use of the club; for that the committee had no authority to pledge the personal credit of the members. A judgment taken by one of two joint creditors, does not extinguish the debt, unless it be taken with the concurrence of both. Per Holroyd, J. in Biggs v. Fellows, 8 B. & C. 405. One of two partners drew bills of exchange in his own name, which he procured to be discounted with a banker, through the medium of the same agent who had discounted other bills drawn in the partnership firm with the same banker; it was holden that the banker had not any remedy against the partnership upon the bill so drawn by the single partner; because they did not appear to have been drawn for and on account of the partnership. And although the proceeds of these bills had been applied to the use of the partnership, yet the court held, that the partners were not liable as for money lent, inasmuch as the transaction was originally mere matter of discount, and not an advance of money to the partnership, taking the bills as a collateral security. But where one of several partners, with the privity of the others, draws bills of exchange in his own name upon the part o Delauney v. Strickland, 2 Stark. N. P. C. 416. Abbott, C. J. p Flemyng v. Hector, 2 M. and W.172. q Emly v. Lye, 15 East, 7. nership firm, in favour of persons who advanced him the amount, which he applies to the use of the partnership, although the partners are not jointly liable on the bills, they may be jointly sued by the payees for money lent. Where 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 the one partner for the amount, strictly reserving his right against all three, and retained possession of the original bills: it was holdens, that the separate notes having proved unproductive, he might still resort to his remedy against the other partners, and that the taking under these circumstances the separate notes, and even afterwards renewing them several times successively, did not amount to satisfaction of the joint debt. Payment to one of two partners of a partnership debt, after they had appointed a third person to collect the debts, and with notice of such appointment, is, notwithstanding the notice, goodt. Where one of two parties makes a contract, as to the terms on which any business is to be transacted by the firm, although such business is not in their usual course of dealing, and even contrary to their arrangement with each other, and the business is afterwards transacted by or with the knowledge of the other partner, it was holden that he is bound by the contract made by his partner". So a pledge by one partner of partnership property will bind his partners, although the pledge is made without their privity and consent; provided there be not any fraud, and provided also the pledgee did not know, nor had means of knowing that the property was partnership property. Mere knowledge by a creditory of the dissolution of partnership, will not release the old partners from their liability to him, though he continue his account with the new firm, unless he appears expressly or by some act to have accepted the substituted credit of the new partnership, instead of the retiring partners'. By stat. 3 & 4 W. 4. c. 98. s. 3, any body corporate, or society, or company, or partnership, although consisting of more than six persons, may carry on the trade or business of banking in London or within 65 miles thereof, provided that such body corporate, &c. do not borrow, use, or take up, in r Denton v. Rodie, 3 Campb. 493. s Bedford v. Deakin, 2 B. and A. 210. x Raba v. Ryland, per Dallas, C. J. confirmed by court, Gow. N. P. C. 132. y Kirwan v. Kirwan, 4 Tyr. 491. 2 Cr. and M. 617. See Blew v. Wyatt, 5 C. & P. 397. England, any sum of money on their bills or notes payable on demand at any less time than six months from the borrowing thereof. Under this enactment it is not permissibled to a London joint stock banking company consisting of more than six persons to accept a customer's bill at less than six months' date; for such an acceptance not only falls within the prohibition contained in the foregoing statute, but also within the mischief, which the statute 6 Anne, e. 22, and all the subsequent acts relating to the Bank of England intended to provide against; viz., the permitting any other body corporate or any partnership consisting of a large number of persons to enter into a competition with the Bank of England, by the issue of notes or bills either payable on demand or at short periods from their issue. III. Of Actions by and against Partners. WHENEVER an express contract is made, an action is maintainable upon it, either in the name of the person with whom it was actually made, or in the name of the person with whom in point of law it was made. Hence where three parties agreed to be jointly interested in goods, but that they should be bought by one of them in his own name only, and he made a contract for the purchase accordingly; it was holdene, that all might join in suing the vendor for a breach of that contract. A contract was made by one of several partners in his individual capacity, he declaring at the time that the subject matter was his property alone; it was holden, that his declaration was evidence of the fact against all the partners, and therefore that they could not sue jointly upon such a contract. The defendant agreed with Sharpe, a coachmaker, for the hire of a carriage for five years. The defendant did not know that Sharpe had a partner, but in fact Robson was partner with Sharpe at the time of the contract. At the end of three years there was a dissolution of partnership between Sharpe and Robson, and notice of that dissolution and of Sharpe having assigned all his interest in the contract to Robson was given to the defendant, who said he d Bank of England v. Anderson, 3 f Lucas v. De la Cour, 1 M. and S. Bingh. N. C. 589. See ante, p. 301. e Cothay v. Fennell, 10 B. and C. 249. |