« SebelumnyaLanjutkan »
insanity is actual and those whose insanity is feigned. were used. Whether the alleged contract exists, thereHe who belongs to the first class cannot obtain free- fore, or not, depends on the authority of the Legisladom without endangering the safety of society. He ture to bind the State and the people of the State in must submit to a hard necessity. A member of the second class only receives righteous punishment and All agree that the Legislature cannot bargain away should not be permitted to better his condition by the police power of a State. “Irrevocable grants of proving his own fraud. In both cases justice demands property and franchises may be made if they do not imprisonment for life.
impair the supreme authority to make laws for the
J. H. HOPKINS. ROCHESTER, June 12, 1880.
right government of the State: but no Legislature can curtail the power of its successors to make such laws
as they may deem proper in matters of police.” Jet. LOTTERY GRANTS NOT CONTRACTS PRO
Bd. of Excise v. Barrie, 34 N. Y. 668; Boyd v. Alabama, TECTED BY FEDERAL CONSTITUTION.
94 U. S. 650. Many attempts have been made in this court and elsewhere to define the police power, but
never with entire success. SUPREME COURT OF THE UNITED STATES-OCTOBER
It is always easier to deter
mine whether a particular case comes within the geneTERM, 1879.
ral scope of the power than to give an abstract defini
tion of the power itself which will be in all respects STONE ET AL., Plaintiffs in error, v. STATE OF MISSIS
accurate. No one denies, however, that it extends to SIPPI EX REL. HARRIS.
all matters affecting the public health or the public A charter granted by a State Legislature authorizing a lot
morals. Patterson v. Kentucky, 97 U. S. 504; Beer Co. tery for a special time, in consideration of certain pay
v. Massachusetts, supra. Neither can it be denied that ments into the State treasury, is not a contract protected
lotteries are proper subjects for the exercise of this by the provision of the Federal Constitution forbidding power. We are aware that formerly, when the sources State legislation impairing the obligation of a contract. of public revenue were fewer than now, they were
used in some or all of the States, and even in the DisN error to the Supreme Court of the State of Missis
trict of Columbia, to raise money for the erection of sippi. Suflicient facts appear in the opinion.
public buildings, making public improvements, and WAITE, C. J. It is now too late to contend that any not unfrequently for educational and religious purcontract which a State actually enters into when grant- poses, but this court said, more than thirty years ago, ing a charter to a private corporation is not within the speaking through Mr. Justice Grier, in Phalen v. Virprotection of the clause in the Constitution of the ginia, 8 How. 168, that “experience has shown that the United States at prohibits States from passing laws common forms of gambling are comparatively innocuimpairing the obligation of contracts. Art. I, § 10. ous when placed in contrast with the wide-spread pezThe doctrines of the Dartmouth College case, 4 Wheat. tilence of lotteries. The former are confined to a few 518, announced by this court more than sixty years persons and places, but the latter infests the whole ago, have become so imbedded in the jurisprudence of community; it enters every dwelling; it reaches erery the United States as to make them to all intents and class; it preys upon the hard earnings of the poor, and purposes a part of the Constitution itself. In this it plunders tho ignorant and simple.” Happily, under connection, however, it is to be kept in mind that it is the influence of restrictive legislation, the evils are not not the charter which is protected, but only any con- so apparent now, but we very much fear that with the tract the charter may contain. If there is no contract same opportunities of indulgence the same results there is nothing in the grant on which the Constitution would be manifested. can act. Consequently the first inquiry in this class of If lotteries aro to be tolerated at all, it is no doubt cases always is, whether a contract has in fact been better that they should be regulated by law, so that entered into, and if so, what its obligations are.
the people may be protected as far as possible against In the present case the question is whether the State the inherent vices of the system; but that they aro of Mississippi, in its sovereign capacity, did by the demoralizing in their effects, no matter how carefully charter now under consideration bind itself irrevocably regulated, cannot admit of a doubt. When the govby a contract to permit “the Mississippi Agricultural, ernment is untrammelled by any claim of vested rights Educational and Manufacturing Aid Society," for or chartered privileges, no one has ever supposed that twenty-five years, “to receive subscriitions and sell lotteries could not lawfully be suppressed, and those and dispose of certificates of subscription which shall who managed them punished severely as violators of entitle the holders thereof to" "any lands, books, the rules of social morality. From 1822 to 1867, withpaintings, statues, antiques, scientific instruments or out any constitutional requirement, they were proapparatus, or any other property or thing that may hibited by law in Mississippi, and those who conducted be ornamental, valuable or useful," "awarded to them them punished as a kind of gamblers. During the “by the casting of lots, or by lot, chance, or other- provisional government of that State, in 1867, at the wise." There can be no dispute but that under this close of the late civil war, the present act of incorporaform of words the Legislature of the State chartered tion, with more of like character, was passed. The a lottery company, baving all the powers incident to next year, 1868, the people, in adopting a new Constisuch a corporation for twenty-five years, and that in tution with a view to the resumption of their political consideration thereof the company paid into the State rights as one of the United States, provided that "the treasury five thousand dollars for the use of a univer- | Legislature shall never authorize auy lottery, nor shall sity, and agreed to pay, and until the commencement the sale of lottery tickets be allowed, nor shall any of this suit did pay, an annual tax of one thousand lottery heretofore authorized be permitted to be drawn, dollars and “one-half of one per cent on the amount or tickets therein to be sold.” Art. XII, $ 15. There of receipts derived from the sale of certificates or is now scarcely a State in the Union where lotteries tickets.” If the Legislature that granted this charter are tolerated, and Congress has enacted a special stathad the power to bind the people of the State and all ute, the object of which is to close the mails against succeeding legislatures to allow the corporation to them. R. S., $ 3894; 19 Stat. 90, $ 2. continue its corporate business during the whole term The question is, therefore, directly presented whether, of its authorized existence, there is no doubt about the in view of these facts, the Legislature of a State can, sufficiency of the language employed to effect that by the charter of a lottery company, defeat the will of object, although there was an evident purpose to con- the people, authoritatively expressed, in relation to the ceal the vice of the transaction by the phrases that further continuance of such business in their midst. We think it cannot. No Legislature can bargain away lators and gamblers, living on the expectation of what the public health or the public morals. The people “by the casting of lots, or by lot, chauco or otherwise,” themselves cannot do it, much less their servants. The might be “awarded” to them from the accumulations supervision of both these subjects of governmental of others. Certainly the right to stop them is governpower is continuing in its nature, and they are to be mental, and to be exercised at all times by those in dealt with as the special exigencies of the moment power at their discretion. Any one, therefore, who may require. Government is organized with a view accepts a lottery charter does so with the implied unto their preservation, and cannot divest itself of the
derstanding that the people, in their sovereign capacity power to provide for them. For this purpose the larg- and through their properly constituted agencies, may est legislative discretion is allowed, and the discretion take it back at any time the public good shall require, cannot be parted with any more than the power itself. and this whether it be paid for or not. All one can get Beer Co. v. Massachusetts, supra.
by such a charter is a suspension of certain governIn the Dartmouth College case it was argued that tho mental rights in his favor, subject to withdrawal at contract clause of the Constitution, if given the effect will. He has in legal effect nothing more than a contended for in respect to corporate franchises, license to continue on the terms named for the speci. "would be an unprofitable and vexatious interference fied time, unless sooner abrogated by the sovereign with the internal concerns of a State, would unneces- power of the State. It is a permit, good as against sarily and unwisely embarrass its legislation, and ren- existing laws, but subject to future legislative and der immutable those civil institutions, which are constitutional control or withdrawal. established for the purpose of internal government, On the whole, we find no error in the record, and and which, to subserve those purposes, ought to vary the judgment is consequently affirmed. with varying circumstances" (p. 628); but Chief Justice Marshall, when he announced the opinion of the court, was careful to say (p. 629) “that tho framers of PARTNERSHIP IN NAME OF SINGLE the Constitution did not intend to restrain States in
MEMBER. the regulation of their civil institutions, adopted for internal government, and that the instrument they ENGLISH COURT OF APPEAL, MARCH, 11, 1880. have given us is not to be so construed.” The present case, we think, comes within this limitation. We have
YORKSHIRE BANKING COMPANY V. BEATSON AND held, not, however, without strong opposition at times,
MYCOCK (42 L. T. Rep., N. S. 455). that this clause protected a corporation in its charter exemptions from taxation. While taxation is in gene
Where a bill of exchange is drawn, accepted, or indorsed ral necessary for the support of government, it is not
by an individual for his privato purpose, his name being part of the government itself. Government was not
the same as that of a irm of which he is a member, the
holder cannot recover against the firm. But where the organized for the purposes of taxation, but taxation
name of the individual and of the firm is the same, and may be necessary for the purposes of government.
the individual carries on no business apart from the As such, taxation becomes an incident to the exercise firm, the presumption, in the absence of evidence to of the legitimate functions of government, but nothing the contrary, is that a bill bearing such a name is the
No government dependent on taxation for sup- bill of the firm. There is no difference in this respect port can bargain away its whole power of taxation, for between a dormant and an ostensible partner. that would be substantially abdication. All tbat has
M. and B. owned a business, which was carried on in B.'s been determined thus far is that for a consideration it
name, M. being a dormant partner. B., without the may, in the exerciso of a reasonable discretion, and
authority, and in fraud of M., signed accommodation
bills in his own name, one of which was addressed to for the publio good, surrender a part of its powers in
him at the placo of business of the firm. The proceeds this particular.
were paid into the same banking account with B.'s own But tho power of governing is a trust committed by money and that of the firm ; but the effect of these the people to the government, no part of which can be transactions (which were not entered in the partnership granted away. The people, in their sovereign capacity, books) was to diminish tho capital of tho firm. Held, have established their agencies for the preservation of
in an action by a bona fide holder without notice, that the public health and the public morals and the pro
these facts rebutted the presumption that the bills were
the bills of tho firm, and that a finding by the jury to tection of public and private rights. These several
that effect ought to be set aside as against evidence. agencies can govern according to their discretion, if within the scope of their general authority, whilo in PPEAL by the plaintiffs from the judgment of power, but they cannot give away nor sell the discre- Denman and Lopes, JJ. (reported 40 L. T. Rep. tion of those that are to come after them, in respect to (N. S.] 654; 4 C. P. Div. 204), directing the verdict and matters the government of which, from the very nature judgment, which had been given for the plaintiffs of things, must "vary with varying circumstances. against tho defendant Mycock, to be set aside, and They may create corporations and give them, so to judgment to be entered for the defendant Mycock. speak, a limited citizenship, but as citizens, limited in The facts of the case, the findings of the jury, and their privileges, or otherwise, these creatures of the the points raised in argument before the Court of Apgovernment creation are subject to such rules and peal, are fully stated in the judgment. regulations as may from time to time be ordained The appeal was argued by Bompas, Q. C., and Forbes and established for the preservation of health and (11. Tindal Alkinson with them), for the plaintiffs, and morality.
by Waddy, Q. C., and Gainsford Bruce, for the defendThe contracts which the Constitution protects are ant Mycock. those that relate to property rights, not governmental. In addition to the authorities noticed in the judgIt is not always easy to tell on which side of the line ment, the following were referred to:
Winship v. which separates governmental from property rights a United States Bank, 5 Peters, 561; Ex parte Bushell, 3 particular case is to be put, but in respect to lotteries M. D. & De G. 615; Sutton v. Gregory, 2 Peake, 150; there can be no difficulty. They are not, in the legal Baird's case, 23 L. T. Rep. (N. S.) 424; L. Rep., 5 Ch. acceptation of the term, mala in se, but as we have just 725, 733; Ex parte Buckley, 14 M. & W. 469; Smith v. seen, may properly be made mala prohibita. They are Craven, 1 C. & J. 500; Hall v. West, cited in Lindley a species of gambling, and wroug in their influences. on Partnership (4th ed.), p. 343; Lloyd v. Ashby, 2 C. They disturb the checks and balances of a well-ordered & P. 138; 2 B. & Ad. 23; Mercantile Bank v. Cox, 38 community. Society built on such a foundation would Me. 500; National Bank of Chemung v. Ingraham, 68 almost of necessity bring forth a population of specu- Barb. 290; Ex parte Law, 3 Deacon, 541.
THESIGER, L. J., read the judgment of the court. object with which Mycock entered into this partnerThis is an action brought upon two bills of exchange ship was that of ultimately putting his son, who was of which the plaintiffs are the holders. The first is a then under age, into it, and as a matter of fact, bill for 2761. 158., dated 6th March, 1878, drawn by R. Mycock never interfered in any way with the manageK. Kelly & Co. upon and accepted by Messrs. J. & R. ment of the business, or occupied any other position Wilson, payable to the order of the drawers four in connection with it than that of a dormant partner. months after date, and bearing the indorsements “R. Beatson concealed from him any information relating K. Kelly & Co.," Wm. Beatson," and "Josiah Carr to his accommodation transactions, and for his fraud & Sons." The second is a bill for 4841. 138., dated 13th upon him in this and other matters connected with the March, 1878, drawn by Josiah Carr & Son, addressed inception of the partnership was ultimately prosecuted " Mr. Wm. Beatson, chemical works, Rotherham,” and convicted. The plaintiffs never knew of the partand accepted in the name “William Beatson,” payable nership until after July, 1878, at which date Beatson to the order of the drawers four months after date, was a bankrupt. For some time prior to the formaand iudorsed by them; both bills were discounted by tion of the partnership Beatson had kept an account the plaintiffs upon the 14th March, 1878. Tho defend- at tho Sheffield and Rotherham Bank, headed “Wilants to the action are Wm. Beatson and John Henry liam Beatson," and after the formation of the partMycock. The signature “Wm. Beatson” upon each nership that account was continued without any of the bills was the signature of the defendant Wil- change in its heading, and into this account Beatson liam Beatson. He has allowed judgment to go by paid all moneys, whether moneys belonging to the default, and the action is defended by Mycock alone, partnership or his own private moneys; and upon It who disputes his liability upon either of the bills. The he drew, whether for the purposes of the business or circumstances of the case are as follows: Beatson for his own private purposes. Beatson himself was called many years prior to Dec. 1877, carried on business as a as a witness for the plaintiffs, and in addition to prorchemical manufacturer at certain works at Rotherham. ing the facts already mentioned, gave evidence to the At the end of the year 1873, and the beginning of the effect that he kept two cash-books, of which one was, year 1874, the plaintiffs made inquiries as to Beatson's as he stated, a private book, kept by him as manager commercial position of Josiah Carr, who was bringing at the place of business, the other a partnership cashthem paper for discount with Beatson's name upon it; book; that in the foriner he did not enter cash received and the result of the inquiries being satisfactory, they on account of the partnership, but that in the latter discounted such paper. Beatson and Carr had some all business payments were entered. With reference trade transactions together, but apart from these to his bill accommodation transactions generally, he trade transactions, there was a series of accommoda- stated that none of these were brought into the ledger, tion transactions carried out by accommodation bills either before the partuership or after; that the cash between Beatson and the other parties to the bills now transactions relating to these accommodation bills sued upon, including Carr himself, and these accom- were entered in the private cash-book, to which Mycock modation bills were from time to time renewed. Down had no access, and were never put into the partnership to the end of the year 1877 Beatson had no partner; cash-book, to which Mycock himself might have had but upon the 11th Dec. in that year, a deed of partner- access. With reference to his particular transactions ship was entered into between him and the defendant with Josiah Carr, he stated that all trade transactions Mycock. By its terms the partnership was to last for between them were over before the partnership, and a period of five years, with power of continuance. The that as regards the particular bills sued on, they were value of the good will of the business, the works and bills drawn for his and Carr's accommodation, not for premises where the same was carried on, and the ma- Mycock's, although he added that they were in a dechinery, plant, and effects belonging to it, was esti- gree for the business, as one way of finding capital, mated at 25,0001., and Mycock was to purchase a one- and that without the bill transactions there was not fifth share of the business by the payment of the sum capital enough to work the business. He admitted of 5,0001. The business was to be carried on under the that Mycock found the 5,0001. which he was to pay for style of “William Beatson.” The works and premises his share in the business; that he never told Mycock were to remain vested in Beatson, who was to stand that money was wanted; that he thought he was possessed of them for the purposes of the partnership, not inaking Mycock liable for any of the accommodaand the business was to be managed by Beatson, his tion bills, whether renewals or otherwise, and that he partner not being required to attend to the business considered them private transactions, and did not enter any further than he should think fit. By the 11th them in the partnership book. He further said that clause of the deed it was provided that “neither of he considered the bank-book private, and that Mycock the partners, without the written consent of the other had left him to keep the banking account as he thought first obtained, should, on the credit of the firm, make proper; that the proceeds of accommodation bills were any payment, advance, or other application of the paid into the banking account, and that out of such moneys or effects of the said partnership, or in any proceeds the price of goods supplied to the business manner engage or use the saine, or the name or credit and wages were sometimes paid. As regards the proof the partnership firm, except on account of and for ceeds of the bills sued on, it appeared that a portion the benefit of the partnership, and in the usual man- of them found their way juto the banking account; ner of carrying on the business;” and by the 12th clause but that upon the same day as this occurred Beatson it was provided "that neither of the partners should drew out more than he paid in. On the part of Mycock lend or deliver upon credit any of the moneys or effects an accountant was called who, upon an examination of belonging to the partnership to any person whom the Beatson's books, proved that apart from the accomother partner should previously have forbidden to be modation bill transactions, the business had during trusted, nor without the previous consent in writing the period between the beginning of January and the of the other partner would become bail, surety or end of May, 1878, a cash balance to its credit; that the security with or for any person whomsoever, nor make, net result of the accommodation transactions was to givo, draw, accept or indorse any bond, bill, promissory reduce the balance; and that Beatson had drawn out note, or other instrument, or enter into any obligation for his own purposes, independent of the business, or engagement, or make any default whereby the about 4,0001. Upon these facts taken from the notes estate and effects of the partnership might be made of Lindley, J., before whom with a jury the case was liable for the payment or
satisfaction of any tried, that learned judge stated to the jury, as appears sum of money for which the partnership should not from the shorthand writer's notes, that the questions have received a full and sufficient consideration." The for them were: First, "was the name Wm. Beatson put to the bills to denote the firm or to denote Wm. ual member of it, has come under consideration, and Beatson?” Secondly, “Did tho bank tako the bills as has been discussed, not upon the footing of any right the bills of the chemical works, whoever tho proprie- of election on tho part of the holder of the bill, but tors might be, or as tho bills of Wm. Beatson only?" upon the particular circumstances of each case, and The jury retired, and upon returning into court, tho the presumptions applicable to them, cases which we foreman stated that as regards the bill for 4811. 138., it shall have to refer to in connection with the plaintiffs' having been drawn upon William Beatson at the chemi- second contention. A part, too, from authority it apcal works, Rotherham, the jury agreed that Wm. pears to us manifestly contrary to true principles of Beatson's acceptance of it must be held to denote the law that the holder of a bill, bearing upon it a name acceptance of the firm; but that as regards the other which prima facie indicates an individual, and would bill they found no evidence upon the point. Upon naturally lead to credit being given to the individual being asked by the learned judge to answer the ques- alone, should upon discovery and proof that there is a tion as regards that bill according to their judgment, firin of which the individual is a member carrying on the jury conferred again, and subsequeutly stated that, business under his name, have the right of going against froin the fact of that bill being put in connection with the firm, although at the same time that the proof is the other, they might take it as being the same thing; given it is proved also that the bill was signed by the and to the second question they answered that the individual for himself and not for his firm, and for bank took the bills as the bills of the chemical works. consideration entirely unconnected with any partnerUpon these findings a verdict and judgment was en- ship purpose. The second contention made on behalf tered for the plaintiffs against the defendant Mycock. of the plaintiffs is one of more weight, and apart from That judgment was subsequently set aside and judg- the intrinsic importance of the question involved in it, ment entered for Mycock by the Common Pleas Divis- there is an additional importance derived from the ion, upon the ground, stated shortly, that in a case fact that if the contention be correct, it at least diswhere the name of an individual is the name also of a places the ground upon which the judgment of the firm, and that name is put to a bill, the presumption is court below rests, although it will still remain to be that the signature is the signature of the individual considered whether the judgment may not be rested and not of the firm; that consequently it lay upon the upon another ground. As a matter of principle there plaiutiffs in this case to displace that presumption by is considerable force in the arguments both for and showing that the signatures to the bills sued upon were against the contention. Against it it is said that where respectively the signatures of the firm, and that Beat- a signature to a bill is of a name which in itself and son was authorized to use the firm name on the particu- prima facie indicates an individual, and would lead to lar occasions and for the particular purposes; in other redit being given to the individual, and the holder of words, that the bills were given for partnership objects the bill suing upon it is therefore compelled to give and as partnership acts, and that the plaintiffs had failed some proof that the name indicates a partnership, it is to discharge the burden cast upon them. 40 L. T. Rep. but just that he should be compelled to go the whole (N. 8.) 658; L. Rep., 4 C. P. Div. 212. Against the judg- length of proving, not only that a partnership existed ment of the Common Pleas Division the present ap- under the particular name, and that the individual peal is brought. In support of the appeal it is carried on no business separate from that carried on contended for the plaintiffs either, first, that where, as by the firm, but further, that the bill was signed by in this case, a signature is common to an individual the individual as a partnership act and for partnership and the firm of which the individual is a member, it objects. In support of the contention it is said that, is open to the bona fide holder for value without no- inasmuch as a bill of exchange is ordinarily used as a tice, whose paper it is, of a bill with such a signature trade instrument, there is a presumption that a bill upon it, to sue either the individual or the firm; or having upon it a name common to the firm and to the secondly, that if this option is not open to the holder, individual is a trade bill, and therefore the bill of the there is a presumption that the bill was given for the firm, in a case where it is proved or admitted that firm and is binding upon it, at least where the individ- there is no trading in the name except by the firm. In ual carries on no business separate from the business the absence of authority upon this question our opinof the firm of which he is a member. As regards the ion upon it would be in favor of the plaintiffs' contenfirst of these two contentious, we think that it is not tion. In point of convenience and expediency, and in a well-founded one. The only authoritative sanction the interest of trade, it has much to support it. The to it upou which the learned counsel for the plaintiffs vast majority of bills given under the circumstances rely is in a case of McNair v. Fleming, which appears supposed would be really partnership bills, and yet it to have been decided in the House of Lords in 1812, would be often difficult, if not impossible, for the but which is not reported otherwise than in Montague holders of such bills to do more than prove that the on Partnership, vol. I, p. 37, and in the opinion of Lord only trade carried on under the individual name was Eldon delivered to the House of Lords in the case of the trade of a partnership; and if they were compelled Davidson v. Robertson, 3 Dow. 229, and which, without to go further, and prove that the particular bill was a further knowledge of the facts of the case, and the ex- partnership bill, the effect might be that in many cases act bearing of the judgment upon them, it is impossi- dormant partners, and in some cases ostensible ones ble to treat as an authority. Lord Eldon does not too, might escape from just liabilities. On the other quote it in support of so wide a proposition as that hand, tho partners sought to be made responsible on under consideration, but as bearing upon the proposi- tho bills would in most instances be able to prove tion that a joint adventure was as proper a partnership whether any particular bill sued upon was or was not as any other, and one of the adventurers would be a partnership bill, and should, as it appears to us, at bound by the indorsement and acceptance of the other, least have the onus of doing eo thrown upon them, a proposition which had been negatived by ono of the when it is through their own act, in allowing the firm interlocutors of the Scotch court, finding that what- name to be the same as that of an individual in the ever might be the case iu a proper partnership, one firm, that difficulty and doubt arise. But in the court person concerned in a joint adventure is not entitled below it was cousidered that the American authorities by subscribing a firm to bind the other. While, there- clearly negatived this view, and that the weight of fore, there is really no authoritative sanction for this English authority is in favor of the American view of contention, there is abundance of authority against it the law. We propose then to consider first the English in the numerous cases in the Euglish and American authorities. In Swan v. Steele, 7 East, 209, two percourts, where the liability of partners upon a bill sons of the name of Wood & Payne were wholesale signed in a name common to the firm, and an individ- grocers in Liverpool, trading under the firm name of Wood & Payne, and also carrying on, under the same bills, so differs Lord Eldon's supposed case from the firm name, and at their counting-house, the business case we are considering of a bill signed in a name of buying and selling cotton. The defendant Steele common to a firm, and an individual member of the was a dormant partner with them in this latter busi- firm, where there is no trading separate from the ness. It was held that he was liable upon an indorse- trading of the firm, and no signature to the bill but ment in the firin name of a bill which had been paid that of the common name, that Ex parte Bolitho to Wood & Payne, for cotton sold by the firm, but appears to us rather to support the contention of the which had been delivered by then to provide for an plaintiffs' counsel than to assist the defendant Mycock. acceptance in the firm name for sugar supplied to the The case of the Bank of South Carolina v. Case, 8 B. & grocery business. It is difficult to see how the case ('. 427, was one in which three persons carried on busicould have been otherwise decided, for the bill sued ness in partnership in England under the firm name of upon was admittedly a bill in which Steele was inter- Crowder, Clough & Co. One of the partners–J. B.Clough ested as indorser and holder with his partner, and - was sent out to America to form a branch house, consequently the indorsement over of that bill, al- which he did form, under his own individual name. though improper under the circumstances, was still He was restricted under the partnership articles from manifestly an indorsement in fact by the partnership transacting any business in America except on the of which Steele was a member. The evidence showed partnership account ; and as a matter of fact, as apwhat the facts were, and the judgment of Lord Ellen- pears from the report, p. 432, he had no individual borough assumed that the indorsement was in the business, and the name of J. B. Clough was never used name of the partnership of which Steele was a mem- by him in trade, or in drawing, indorsing, or acceptber, and upon that assumption decided, that in the ing, or negotiating bills of exchange, except for the absence of all fraud on the part of the indorsee, such benefit and on account of the partnership. Under the indorsement would bind all the partners. Emly v. circumstances it was held that all the partners were Lye, 15 East, 6, which is commented on in the judg- liable as indorsers in respect of certain bills iudorsed ment of the court below as an authority in favor of by Clough in the name of J. B. Clough, and which the defendant upon the point under consideration, has were connected with partnership transactions, alreally no bearing upon it. There, in an action upon though Clough in indorsing them disregarded certain several bills of exchange, and for money had and re- specific instructions given him by his partners, and ceived, it was attempted to make the defendant liable, exceeded his authority. It is not necessary to discuss either upon the bills or in respect of the money re- whether the doubts raised by Crompton, J., in Nicholceived upon the discount of the bills, which was son v. Ricketls, 2 E. & E. 497, as to the correctness of applied to partnership purposes, where the signature this decision are or are not well founded. It is suffi. upon the bills was not in the firin name, which was cient for our present purpose to say that the decision George Lye & Son, but in the name of E. L. Lye, proceeded upon all the facts of the case, and not upon which was the individual name of the partner signing. any doctrine as to presumption or burden of proof. The counts upon the bills were upon the argument But the case of Furze v. Shurwood, 2 Q. B. 388, is a abandoned, as it was obvious, as Lord Ellenborough distinct authority upon the point under consideration. said in his judgment, that “on a bill of exchange Thero a business was carried on by trustees for creditdrawn by one only it cannot be allowed to supply by ors in the name of Samuel Maine, one of the persons intendment the names of others in order to charge who had previously carried it on in partnership. them;" and it was held that on the mere discount of Maine had also for a time a separate business of his the bill no right could arise against the defendant by Own. The plaintiff had discounted for the old partreason of the proceeds being used for partnership pur- nership, and also had been accustomed to lend Maine poses, in other words that the transaction was nothing money for the purposes of his private business. Maine more than a purchase of the bills from the signing after a time sold his separate business and ceased to partner. The case of Ex parte Bolitho, 1 Buck. 100, is carry it on, and, having subsequently iudorsed bills in claimed as an authority for the defendant. There the name of “Samuel Maine," one of which had been Peter Blackburn was a secret partner in a business discounted by the plaintiff, and was sued ou, and the carried on by Isaac Blackburn in his own name, and proceeds of which were placed to his credit at his was sought to be made liable as drawer in respect of bankers, and were drawn upon indiscriminately for bills drawn in the name of Isaac Blackburn by Isaac the purposes of the business to which he was agent, himself. Upon the affidavits it appeared that Peter and for his own private purposes, the trustees were Blackburn also carried on a separate business, and held liable, as indorsers, and Lord Denmau, C. J., in that after Isaao Blackburu had drawn and indorsed delivering the judgment of the court, said: “ Prima the bills Peter Blackburn indorsed them also with his facie, therefore, the signature Samuel Maine was their own name for the purpose of getting them discounted. signature, and they would be bound by it. But it is The Lord Chancellor stated that it was impossibly for said that Maine carried on a separate business of his him upon the allidavits to decide between the parties, own, and that the plaintiff was bound to show that the and that this case must be sent to a court of law for its indorsements in question were on account of the busideliberation, and he directed an issue whether the two ness of the trustees, and not on account of his separate Blackburns were jointly liable upon all or any of the business. Now it appears that the bills were discounted bills. In the course of his judgment, however, he with persons who were in the habit of discounting for said: “If the money is advanced to A and B, and the the former firm who assigned their effects to the delender takes a bill from one of them only, he cannot fendants as trustees, and moreover, that the bills in maintain an action upon the bill against the two. question were not discounted till after Maine had Now it A and B are partners and also separate traders, ceased to carry on his separate business. Under these and A draws a bill and indorses it in his own name, circumstances we think that the onus of showing that and B also indorses it, ard they become bankrupts, the indorsements were made on account of the separate what is there to prevent a holder of a bill from proving business, aud not on that of the trustees, which was the against the separate estate of each of them? And un- general and ostensible business, lay on the defendants. less you can show that when A drew the bill he drew Several cases were cited which it is not necessary miit not as A, but as A and B, there can be no legal con- mutely to examine; it is sufficient to say that they are tract upon the bill as against the two." In these re- not inconsistent with this view of the present case. marks of Lord Eldon, the introduction of the element We are therefore of opinion that the defendants were of separate trading by A and B, and of the further bound by the indorsement of Maine, and that the element of both A and B putting their names to the plaiutiff on this ground of objection would be entitled