were delivered on a partnership account, if it were doubtful at the time of the contract; but if it clearly appear that no partnership existed at the time of the contract, no subsequent act by any person, who may afterwards become a partner (not even an acknowledgment that he is liable, or his accepting a bill of exchange drawn on them as partners for the very goods,) will make him liable in an action for goods sold and delivered, though he will be liable in an action on the bill of exchange. It is incumbent on persons dissolving a partnership1, to send notice of such dissolution to all the persons with whom they have had dealings in partnership. The Gazette of itself is not sufficient notice of such dissolution. It seems, however, that in respect of persons who had not any previous dealings with the partnership, an advertisement in the Gazette would be sufficient notice of the dissolution, so as to prevent such persons from recovering against the parties who constituted the firm originally, upon a security given by one of the parties in the name of the firm, after such notice of dissolutionm. Bankers ought, regularly, to give notice of a change in the firm, by a circular letter; but such change may also be notified by an alteration of the name in the printed cheque; and persons who have used the new cheques cannot take advantage of the want of a more express notice". Assumpsit for goods sold and delivered. plaintiff's witness swore, that the defendant and I. S. were partners in trade, and that these goods were sold to them in partnership. The defendant called I. S. to prove that the goods were sold to him, and that the defendant had no concern in the purchase of them, otherwise than as his servant. Lord Kenyon, C. J. "He is not a witness to prove this, for he comes to defeat the action of the plaintiff, against a man who is proved to be his partner; and by discharging the present defendant he benefits himself, as he will be liable to pay a share of the costs to be recovered by the plaintiff in this cause." In an action against one partner, if the plaintiff gives in a particular of his demand, and the defendant pleads partnership in abatement, if the defendant proves any of the items to have been furnished on the partnership account, he will be entitled to a verdict, although the plaintiff should be prepared to prove that some of the items were furnished on the credit of the defendant only. In an action against the 1 Graham v. Hope, Peake's N. P. C. 154. See also Gorham v. Thompson, Peake's N. P. C. 42. m Godfrey v. Turnbull and another, 1 Esp. N. P. C. 371. The n Barfoot v. Goodall, 3 Campb. 147. o Goodacre v. Breame, Peake's N. P. C. 174. p Colson & al. v. Selby, 1 Esp. N. P. C. 452. : drawers of a bill of exchange, purporting to be drawn by a firm upon one of the partners constituting the firm, if it be proved that the bill was accepted by such drawee, this will be sufficient evidence of the bill having been regularly drawn and further, it is not necessary, in such case, to prove that the drawers received express notice of the dishonour of the bill, because this must necessarily have been known to one of them, and the knowledge of one is the knowledge of all (3). To establish a partnership between two defendants, a verdict on the issue directed out of a court of equity, to try whether the defendants were partners, and for what time, on a bill filed by one of them against the other, is admissible evidence to establish a partnership, the verdict having found them to be so. A person who suffers his name to be used in a firms, although he thereby makes himself a partner to the world, yet if in fact he is not so, nor has any share in the profits, may be a witness in an action brought by the other parties in the firm, for goods sold and delivered. A father who holds out to the world that his son is his partner, and who sends bills and signs receipts in their joint names, in an action brought in his own name, is not precluded from shewing that his son is not a partnert. When a partnership is dissolved", it is not dissolved with regard to things past, but only with regard to things future. Hence an admission made by one of two partners after the dissolution of the partnership, concerning joint contracts, that took place during the partnership, is competent evidence to charge the other partner. A. being indebted to B. and C., partners, and being informed of the intended dissolution of partnership, gave a warrant of attorney to B. alone, who managed the concerns. A. afterwards committed an act of bankruptcy, and after that, and after a dissolution of partnership, paid the money to B. B. died. The assignees of A. sued C. for the money, and it was holden, that they were entitled to recover; for the money being paid in respect of a debt due to the partnership, q Porthouse v. Parker, 1 Campb. 82. r Whateley v. Menheim & anr. 2 Esp. N. P. C. 608. s Parsons v. Crosley, 5 Esp. N. P. C. 199. Lord Ellenborough, C. J. t Glossop v. Colman, 1 Stark. N. P. C. 25. u Wood v. Braddick, 1 Taunt. 104. x Biggs v. Fellows, 8 B. & C. 402. (3) See Alderson v. Pope, 1 Campb. 404, n. where it was holden, by Lord Ellenborough, C. J. that notice to one member of a firm, was notice to the whole partnership. both parties were liable to refund, unless some stipulation could be shewn to exonerate C. from his liability. If one of several partners promise individually to pay a debt, without making any mention of his partners, such promise is conclusive evidence that the debt was due from him individually, and not from the partnership, and he will not be permitted to shew that it was due jointly from himself and his partners. In an action on a joint contract against several partners, one of the defendants having suffered judgment to go by default, is not admissible as a witness to prove the partnership of himself and the other defendants, without their consent, although the proposed witness is released as to all other actions, save that on which he is called to give evidence; for it is a general rule, that a party to the record cannot be called as a witness, but by consent, and all the parties to the record must consent. But in an action brought to charge A. as a partner in a trading company, it was holden", that a witness, who by other evidence than his own, appeared to be a shareholder in the company, was competent to prove that A. was a partner. y Murray v. Somerville, 2 Campb. 99. n. z Mant v. Mainwaring, 8 Taunt. 139. a Hall v. Curzon, 9 B. and C. 646. recognizing Blackett v. Weir, 5 B. and C. 385. and Lockart v. Graham, 1 Str. 35. CHAP. XXXII. QUO WARRANTO. I. Of the Origin and Nature of Quo Warranto Infor- II. In what Cases the Court will grant an Information in III. Of the Limitation of Time for granting an Infor mation. IV. Of the Construction of Charters, and of the Operation and Effect of a new Charter. V. Bye-Laws. VI. Of the Inspection of the Records of the Corporation. VII. Of the Pleadings. VIII. Evidence. IX. Judgment. I. Of the Origin and Nature of Quo Warranto Informations, and Statutes relating thereto, viz. Stat. 4 and 5 W. & M. c. 18. and 9 Ann. c. 20.-Proceedings against the City of London in the Time of Charles the Second. THE ancient writ of quo warranto (1), whence the information of the present day derives its origin, was in the nature of (1) See the form in Rastal's Entr. 540. b. ed. 1670, where the writ appears to have been prosecuted by the king's attorney-general a writ of right for the king, against persons who claimed or usurped any office, franchise, liberty, or privilege belonging to the crown, to inquire by what authority they maintained their claim, in order to have the right determined. The judgment on this writ was, that the franchise capiatur in manum domini regis (2). This writ having fallen into disuse, on account of the delay with which it was attended, a more expeditious mode of proceeding has been adopted, viz. an information filed by the king's attorney-general, in nature of a quo warranto, in which the person usurping is considered as an offender, and consequently punishable by fine. The court, however, will not extend this remedy beyond the limits prescribed to the old writ; and, as that could only be prosecuted for an usurpation on the rights or prerogatives of the crown, so an information in nature of quo warranto can only be granted in such cases; and upon this principle the court refused to grant an information to try the validity of an election to the office of churchwarden. By stat. 4 and 5 W. & M. c. 18, it is enacted "that the clerk of the crown-office shall not, without express order of the court, receive or file any information for trespass, or other misdemeanor, or issue any process thereon, before he shall have taken, &c. a recognisance from the prosecutor to the defendant, in the penalty of £20 to prosecute with effect: and in case the defendant shall appear and plead to issue, and the prosecutor shall not, at his own costs, within one year after issue joined, procure the same to be tried, or in case the defendant shall have a verdict, or a noli prosequi be entered by the informer, the court may award the defendant costs, &c. unless the judge shall, at the trial, certify that there was a reasonable cause for exhibiting the information, and if the informer does not pay the costs taxed within three months after demand, the defendant shall have the benefit of the recognizance to compel him." Although the words of this statute relate only to informations for trespasses, batteries, and other misdemeanors, yet it has been holden to extend to informations in nature of quo warranto, to try the a R. v. Shepherd, 4 T. R. 381. R. v. b R. v. Howell, Ca. Temp. H. 247. Dawbeny, Str. 1196. S. P. before the justices in Eyre, who are empowered by stat. 18 Ed. 1. stat. 2. s. 2. (A. D. 1290.) to determine pleas of quo warranto. See 2 Inst. 497. (2) See Rast. 540. b. |