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PARTNERSHIP_WHEN ONE NOT LIABLE AS present, on either occasion, when his name was subPARTNER

scribed to the articles.

The testimony introduced by the plaintiff also SUPREME COURT OF THE UNITED STATES.

tended to show that before the bank commeuced busiMAY 5, 1884.

ness Whiteside caused to be printed blank checks, cer

tificates of deposit, and advertising circulars, bearing THOMPSON V. FIRST NATIONAL BANK OF TOLEDO,

the uames of the partners, and of Thompson as one of

them, which were used in the business of the bank; OHIO.

that from that time until 1876 advertisements were A person suod as a partner, and whose name is shown to have published by Whiteside's direction in a newspaper of

been signed by another person to the articles of partner-Logansport, stating that the partnership was engaged ship, may prove that before the articles were signed or

in the business of banking, the names of the partuers, the partnership began business, he instructed that per- and of Thompson as one of them, and that all the person that he would not be a partner.

sons so named were individually liable for the debts A person who is not actually a partner, and who has no inter

of the partnership; that the fact that Thompson was est in the partnership, cannot by reason of having held

80 ad vertised as a partner was brought to his knowlhimself out to the world as a partner be held liable as

edge, and he admitted the truth of the published statesuch on a contract made by the partnership with one who

ment; that he at different times during this period, in had no knowledge of the holding out.

conversation with the partners and with third persons, N error to the Circuit Court of the United States admitted that he was a partner, and that he bad re

for the Northern District of Ohio. The opinionceived dividends upon his shares in the partnership; states the case.

and on two or three occasions, when in the banking GRAY, J. This action was brought by the First Na- house, was introduced as a director and stockholder tional Bank of Toledo, Ohio, & National banking as- in the partnership, and did not deny the fact; that the sociation established at Toledo, against William H. partnership carried on the banking business at LogansStandley, William H. Whiteside, Josephus Atkinson, port under the same name from its original formation Edward R, Thompson and Joseph Uhl, as partners in until August 25, 1877, when it failed in business, and the business of private bankers at Logansport, Ind., its assets passed into the hands of a receiver, and that under the name of the Peoples' Bapk, upon a draft for all its menibers except Uhl and Thompson were insol. $5,000, drawn and accepted by the partnership on vent; and that the plaintiff began to do busiuess with August 25, 1877, payable in ninety days after date to the partnership in October, 1873, and continued to do the order of the plaintiff's cashier, and taken by the 80 until its failure. plaintiff in renewal of a like draft discounted by it for The bill of exceptions, after stating the evidence iuthe partyership on May 5, 1877.

troduced by the plaintiff, added : Thompsou filed a separate answer, denying that he “But no testimony was given, showing that the was a member of the partnership, or liable to the plaintiff or any of its officers had knowledge during plaintiff on the draft sued on. He died pending the said period as to the persons who constituted said suit, and it was revived against his administra- partnership, or of said advertisements published in tors.

the papers of Logansport as aforesaid, or of the fact Upon a trial by jury, the plaintiff introduced evi- that the name of Thompson appeared upon said checks dence tending to show that about April 10, 1871, a and certificates of deposit, or in said circulars as aforepartuership known as the Peoples' Bank was formed said, as one of said partners; or that the plaintiff or at Logansport, for the purpose of carrying on a private any of its officers, servants, or agents, had knowledge banking business there for one year, and the articles of said conversations with Thompson concerning his of partnership were reduced to writing and signed by said alleged connection with said firm, or of any of Standley, Whiteside, Atkinson, Uhl, and others in said alleged statements by bim relative to said matters; their own name, and in Thompson's name by White- or that said Thompsou had ever held himself out to side, who was his son-in-law and cashier of the part- the plaintiff as a member of said firm." nership; that none of the partners other than Thomp- The defendants introduced evidence tending to consou and Whiteside were acquainted with the business tradict the evidence introduced by the plaintiff, and of banking; tbat late in the previous winter, or early to show that although Thompson, before the partnerin the spring, Thompson, who resided at Delaware, ship was formed, had a conversation with those who Ohio, was at Logansport, engaged in promoting the afterward became partners, on the subject of forming scheme of forming the partnership, and urged Uhl to a partnership for banking, he never authorized Whitetake stock in it to the amount of $2,000, and for the side to sigu his name to the partnership articles, or to purpose of inducing Uhl to do so, agreed himself to act for him in the organization of the bank, and never take an equal amount of stock, and represented that agreed to take stock in, or paid any money iuto the he had had experience in such a banking partnership, partnership, or participated in its proceedings, or reand that it was a money-making institution, that beceived any dividends, or knew that his name was used was worth about $75,000, and would make Uhl safe if in the checks, certificates of deposit, circulars or adverhe would join them in forming the partnership, and tisements of the partnership; that his name nowhere that he wished to establish it, and Whiteside was to be appeared ou the books of the partnership, except on its cashier; that Uhl, who was a mau of means, then the stock book; that after the checks and certificates agreed to take the same amount of stock as Thomp- of deposit first privted had been used up, new opes son; that thereupon Thompson, in the presence of were printed on which his name did not appear, and Uhl, Standley, and others, authorized Whiteside to others on which none of the names of the partners apsigu his name to the partnership, and to act for him in peared; that just before the partnership commenced the organization of the bank; tbat the partnership en- business Thompsou received a letter from Whiteside, tered upon the business of banking at Logansport with inclosing a form of assignment from him to Whiteside Whiteside as its cashier; and that about April 1, 1872, of the stock in the partnership for which Whiteside some of the partners sold out their interests to other had subscribed in Thompson's name, and that Thompmembers of the firm, and new articles of partnership son, after adding the words, “which you took for were executed, to which Thompson's name was sub. me," signed the assignment, and inclosed it in a letter scribed by Whiteside; but that Thompson was not to Whiteside, which Whiteside received, and shortly

afterward posted in the stock book at the place where third parties such as the plaintiff, he is estopped from Thompson's name appeared; and that Whiteside, denying his liability as a partuer." when he signed Thompson's name to the articles, The jury returned a general verdict for the plaintiff, expected that Thompson would take the stock so sub- upon which judgment was rendered. The defendants, scribed for, and upon his failure to do so, procured the having duly excepted to the refusal to instruct as reassignment aforesaid, and himself paid in the capital quested, and to each of the instructions above quoted, which he had agreed that Thompson should pay in,and sued out this writ of error. himself received the dividends which would have gone The errors assigned were, 18t, the exclusion of the to Thompson).

evidence of Whiteside and wife; 2d, the exclusion of The defendant offered to prove, by the testimony of the evidence of the contents of Thompson's letter to Whiteside and his wife, that Thompson, after the time Whiteside; 3d, the refusal to instruct the jury as rewhen the evidence for the plaintiff tended to show quested; 4th, the instructions given and excepted that he authorized Whiteside to sign his name and to to. take stock for bim as a partner, aud before any part- The plaintiff at the trial sought to charge Thompson nership articles were sigued, or the partnership com- with liability as a partner upon two grounds: First, menced business, instructed Whiteside that he would that he was actually a partner. Second, that if not pot become a partner therein. The defendants also actually a partner he had held himself out to the world introduced evidence that Thompson's letter, inclosing as such. And the case was submitted to the jury upon tbe assignment aferesaid, had been lost after being re- both grounds. ceived by Whiteside, and offered to prove its contents. The first and second assignments of error relate to But the court declined to permit the defendants to the exclusion of evidence offered by the defendants prove either of these matters, and excluded the testi. bearing upon the first ground of action. The third mopy so offered, and the defendants excepted to each and fourth assignments of error relate to the instrucof the rulings.

tions given and refused as to the second ground of acAfter the testimony had been closed, the defendants tion. requested the court to instruct the jury that “if they The oral testimony offered by the defendants to found from the testimony that Thompson was not in prove that Thompson, before the partnership articles fact a member of said partnership, the plaintiff could were signed, and before the partnership began busipot recover, unless it furtber appeared from the testi- ness, instructed Whiteside that he would not become mong that Thompson had knowingly permitted him- a partner therein, directly tended to coutradict the self to be held out as a partner, and that the plaintiff testimony introduced and relied on by the plaintiff to had knowledge thereof during its transactions with prove that Thompson was actually a partner; and was said partnership."

erroneously excluded. The first assignment of error ie The court refused to instruct the jury as requested; therefore sustained. and iustruoted them that the first question for them From the connection in which the offer of evidence to determine was whether Thompson was a partner in of the contents of the letter from Thompson to Whitethe firm on August 25, 1877, and if they found he was, side appears in the bill of exceptions, it is quite possithey ueed not go further, but might upon that finding ble that this evidence was equally admissible for the return a verdict for the plaintiff; and that if they same purpose. But the bill of exceptions is defectivefound he was not a partner, it was for them to deter- in pot stating what the contents of the letter were, mine whether he had held himself out, and permitted and not showing that they were material, or that the the officers of the bank to hold him out to the world exclusion of the proof of them was prejudicial to the as a partner in the business; aud upon this branch of defendants. The second assignment of error therethe case instructed them, among other things, as fol- fore is not sustained. Packet Co. v. Clough, 20 Wall. lows:

528; Railroad Co. v. Smith, 21 id. 255. "The defendants' counsel insist that no recovery The remaining and the principal question in the can be had on this ground, unless the plaintiff shows case is, whether the liability of Thompson, by reason by the evidence upon the trial of the cause that he of having held himself out as a partner, was submitted gave credit to the bank, looking to the defendant as a to the jury under proper instructions. part of it; in other words, that the credit was ex- The court was requested to instruct the jury that if tended in part to the defendant Thompson. We en- Thompson was not in fact a member of the partnertertain a different opinion. It is not necessary for the sbip, the plaintiff could not recover against him, unless plaintiff to show here that at the time it discounted it appeared from the testimony that he had knowingly the acceptance sued on it especially relied upon the permitted himself to be held out as a partner, and that defendant Thompson for its payment. If Thompson the plaintiff had knowledge thereof during its transachad held himself out to the world in this public man- tions with the partnership. The court declined to ner, through these advertisements and the other give this instruction; and instead tbereof instructed means brought to your attention, as an interested the jury, in substance, that if Thompson permitted party, as liable for the obligations of the bank, the himself to be held out to the world as a partner, by adplaintiff is entitled to the benefit of that fact, without vertisements and otherwise, as shown by the evidence, showing that it knew that Thompson was a partner in and to be introduced to other persons as a partner, the the bank, or without showing that it specially gave plaintiff was entitled to the benefit of the fact that he credit to this particular defendant. This publication was so held out, and he was estopped to deny bis liais of such a character as to entitle the plaintiff to rely bility as a partner, although the plaintiff did not know upon it, without such proof as the defendants' counsel that he was so held out, and did not rely on him for insist ought to be made here; that is, that the plaintiff the payment of the plaintiff's debt, or give credit to knew of these advertisements, etc., and relied upon him, in whole or in part. Thompson for the payment of this debt.”

This court is of opinion that the Circuit Court erred "If he was not at any time a partner, but still per- in the instructions to the jury, and in the refusal to mitted the officers of said bank to hold him out by ad. give the instruction requested. vertisements and otherwise, as shown in the evidence, A person who is not in fact a partner, who has no iuand permitted himself to be introduced as a director terest in the business of the partversbip and does not and stockholder, as is shown by the evidence, if he share in its profits, and is sought to be charged for its permitted that to be done, then as between him and debts because of having held himself out, or permitted himself to be held out, as a partner, cannot be of what was said by Lord Mansfield upon that quesmade liable upon contracts of the partnership, except tion; still less tbat he intended to lay down a general with those who have contradicted with the partnership rule, including cases in which one, who in fact bad upon the faith of such holding out. In such a case, the never taken any part in or received any profits from only ground of charging him as a partner is, that by the business, held himself out as a partner. his conduct in holding himself out as a partner he has In delivering the judgment of the Common Bench induced persons dealing with the partnership to be- in Waugh v. Carver, Chief Justice Eyre said: “Now lieve him to be a partner, and by reason of such belief, a case may be stated, in which it is the clear sense of to give credit to the partnership.

the parties to the contract that they shall not be partAs his liability rests solely upon the ground ners; that A. is to contribute neither labor nor money, that he cannot be permitted to deny a partici- and to go still fnrther, not to receive any profits. But pation, which though not existing in fact, he has as- if he will lend his name as a partner, he becomes, as serted, or permitted to appear to exist, there is no rea- against all the rest of the world, a partner, not upon son why a creditor of the partnership, who has neither the ground of the real transaction between them, but known of nor acted upon the assertion or permission, upon principles of general policy, to prevent the frauds should hold as a partner one who never was in fact, to which creditors would be liable, if they were to and whom he never understood or supposed to be, a suppose that they lent their money upon the apparent partner, at the time of dealing with and giving credit credit of three or four persons, when in fact they lent to the partnership.

it only to two of them, to whom, without the others, There may be cases in wbich the holding out has they would have lent nothing." 2 H. Bl. 246. been so public and so long continued that the jury This statement clearly shows that the reason and obmay infer that oue dealing with the partnersbip knew ject of the rule by which one, who having no interest it and relied upon it, without direct testimony to that in the partnership, holds himself out as a partner, is effect. But the question whether the plaintiff was in- held liable as such, are to prevent frauds upon those duced to change his position by acts done by the de- who lend their money upon the apparent credit of all fendant or by his authority, is as in other cases of es- who are held out as partners; and the later English autoppel in pais, a question of fact for the jury, and not thorities uniformly restrict accordingly the effect of of law for the court. The nature and amount of evi- such holding out. dence requisite to satisfy the jury may vary according In Mclver v. Humble, in the King's Bench in 1812, to circumstances. But the rule of law is always the Lord Ellenborough said: “A person may make himsame, that one who had no knowledge or belief that self liable as a partner with others in two ways, either the defendant was held out as a partner, and did noth- by a participation in the loss or profits; or in respect ing on the faith of such a knowledge or belief, cannot of his holding himself out to the world as such, so as charge him with liability as a partner if he was not a

to induce others to give a credit on that assurance." partner in fact.

And Mr. Justice Bayley said: “To make Humble The whole foundation of the theory that a person,

liable, he must either have been a partner in fact in who not being in fact a partner, has held himself out the loss and profit of the ship, or he must have held as a partner, may be held liable as such to a creditor himself out to be such. Now here he was not in fact of the partnership who had no knowledge of the hold- a partuer, and the goods were not furnished upon his ing out, and who nerer gave credit to him or to the credit, but upon the credit of Holland and Williams." partnership by reason of supposing him to be a mem- 16 East, 169, 174, 176. ber of it, is a statement attributed to Lord Mansfield Iv Dickinson v. Valpy, in the same court in 1829, Mr. in a note of a trial before him at nisi prius, in 1784, as Justice Parke (afterward Baron Parke and Lord cited by counsel in a case in which it was sought to Wensleydale) said: “If it could have been prored charge as a partner one who had shared in the profits

that the defendant had held himself out to be a partof a partnership. By so much of that vote as was thus ner, not ‘to the world,' for that is a loose expression, cited, which is the only report of the case that has but to the plaintiff himself,or under such circumstances come down to us, it would appear that in an action by of publicity as to satisfy a jury that the plaintiff knew Young, a coal merchant, against Mrs. Axtell and of it and believed him to be a partner, he would be liabla another person, to recover for coals sold and delivered, to the plaintiff in all transactions in which he engaged the plaintiff introduced evidence that Mrs. Axtell had and gave credit to the defendant, upon the faith of his lately carried on the coal trade, and that the other de- being such partner. The defendant would be bound fendant did the same under an agreement between by an indirect representation to the plaintiff, arising them, by which she was to bring what customers she

froin his conduct, as much as if he had stated to him could into the business, and the other defendant was directly and in express terms that he was a partner, to pay her an annuity, and also two shillings for every and the plaintiff had acted upon that statement.” 10 chaldron that should be sold to those persons who had

B. & C. 128, 140. See also Carter v. Whalley, 1 B. & been her customers or were of her recommending; and

Ad. 11. that bills were made out in their joint names for goods

In Ford v. Whitmarsh, in the Court of Exchequer in sold to her customers; and that the jury found a ver- 1840, a direction giveu by Baron Parke to the jury in dict against Mrs. Axtell, after being instructed by substantially the same terms was held by Lord AbinLord Mansfield that "he should have rather thought, ger, Baron Parke, Baron Gurney and Baron Rolle on the agreement only, that Mrs. Axtell would be (afterward Lord Cranworth) to be a sound and proper liable, not on account of the annuity, but the other direction; and Baron Parke, in explaining his ruling payment, as that would be increased in proportion as at the trial, said: “I told the jury that the defendant she increased the business. However as she suffered would be liable if the debt was contracted whilst he her name to be used in the business, and held herself was actually a partuer, or upon a representation of out as a partner, she was certainly liable, though the himself as a partner to the plaintiff, or upon such plaintiff did not, at the time of dealing, know that she a public representation of himself in that character was a partner, or that her name was used." Young v. as to lead the jury to conclude that the plaintiff, Axtell, at Guildhall Sittings after Hilary Term, 24 Geo. | knowing of that representation, and believing III, cited in Waugh v. Carver, 2 H. BI. 235, 242. But the defendant to be a partner, gave him credit as the case was not there cited upon the question of

nuder that belief." Hurlstoue & Walmsley, 53, 55. liability by being held out as a partner, it is by no

In Pott v. Eyton, in the Common Bench in 1846, means certain that we have a full and accurate report which was an action by bankers to recover a balauce


ACTION for injury to the person.

of account against Eyton and Jones, on the ground | MASTER AND SERVANT-COURSE OF EMPLOYthat either they were actual partners in the business MENT-CAR PORTER DISCHARGING PISTOL, carried on by Jones, or Eyton had by his own permission been held out as a partner, Chief Justice Tindal,

U.S. DISTRICT COURT, OREGON. delivering the judgment of the court, said: “There was no evidence to show that credit was in fact given

HEEN RICH V. PULLMAN PALACE CAR Co.* to Eston, or that the bankers knew that his name was

A master is liable for the act of his servant when done within over the door of the shop at Mostyn Quay, or that they supposed him to be a partner. One person who had

the scope or general course of his employment, although beeu manager and another, who had been

done contrary to the master's orders.

An answer to a complaint by a passenger against a common clerk in the bank, were in court; and if they

carrier for injuries caused by the negligent discharge of a could have given such evidence, they would no doubt

pistol by the car porter, which alleges merely that the have been called as witnesses. We must assume there

porter received the pistol from another passenger, in viofore that credit was given to Jones alone: and if Eyton is to be made liable, that must be on the ground of an

lation of the company's rules and directions to receive no actual partnership between himself and Jones." 3 C.

package, baggage, or article of luggage from passengers,

is demurrable. B. 32, 39.

In Martyn v. Gray, in the same court in 1863, Chief Justice Erle and Mr. Justice Willes expressed similar opinions. 14 C. B. (N. S.) 824, 839, 843. The decision

Julius Moreland, for plaintiff. of the Court of Exchequer in Edmanson v. Thompson, in 1861, is to the like effect. 31 L. J. (N. S.) Ex. 207; Charles B. Bellinger, for defendant. S.C., 8 Jurist (N. S.), 235. Mr. Justice Lindley, in his Treatise on the Law of

DEADY, J. This action is brought by the plaintiff, Partuership, sums up the law on this point as follows:

a citizen of Minnesota, against the defendant, a cor“ The doctrine that a person holding himself out as a

poration formed under the laws of Illinois, to recover partner, and thereby inducing others to act on the

$25,000 damages for an injury to her person, received faith of his representations, is liable to them as if he

while travelling as a passenger on a Pullman palace were in fact a partner, is nothing more than an illus

car attached to a train on the Northern Pacific Railtration of the general principle of estoppel by con

way, running from St. Paul to Portland, and caused, duct.”

as alleged, by the negligent handling of a pistol by the “The expression in Waugh v. Carver, ‘if he will lend pocter in charge of said car while “in the discharge of his name as a partner he becomes as against all the

his duty as such porter,” and “while attending to the rest of the world a partner,' requires qualification; for

defendant's business," whereby the same fell on the the real ground on which liability is incurred by hold

car floor and was discharged, the ball entering the ing oneself out as a partner is that credit has been

thigh of the plaintiff, and inflicting a dangerous wound thereby obtained. This was put with great clearness

therein. The answer of the defendant controverts the by Mr. Justice Parke in Dickinson v. Vulpy.

allegation of the plaintiff that the porter “was in the "No person cau be fixed with liability on the ground discharge of his duty" when he let the pistol fall; and that he has been held out as a partner, luuless two

also contains a plea in bar of the action--that the pisthiogs coucur, viz., first, the alleged act of holding out

tol mentioned in the complaint was the property of a must have been done either by him or by his conseut,

passenger on said train; that said porter received it and secondly, it must have been kuown to the person

from the owner, and was carrying it through the car seeking to avail himself of it. In the absence of the

at the request of said owner, and not otherwise, at the first of these requisites, whatever may have been done

time of the discharge and wounding in the complaint cannot be imputed to the person sought to be made

mentioned; and that it is one of the defendant's rules liable; and in the absence of the second, the personi

and directions to all its car porters that they are not seeking to make him liable has not in any way been permitted to receive any package, baggage, or article misled.” Lindley on Partn. (1st ed.), 45--47; (4th ed.)

of luggage from passengers, or to become custodians 48-50.

thereof; which rule and order was, at the time of the The current of authority in this country is in the taking and carrying of said pistol by said porter, well same direction. Benedict v. Davis, 2 McLean, 347; known to him; and that said porter, in so receiving Hicks v. Cram, 17 Vt. 419; Fitch v. Harrington, 13 Gray,

and carrying said pistol, was acting in violation of 469; Wood v. Pennell, 51 Me. 52; Sherrod v. Langdon,

the defendant's orders. To this new matter the plaint. 21 lowa, 518; Kirk v. Hartman, 63 Penn. St. 97; Hefuer

iff demurs, for that it does not constitute a defense to v. Palmer, 67 II. 161; Cook v. Penhryn Slate Co., 36

the action. Ohio St. 135; Uhl v. Harvey, 78 Iud. 26. The only

A corporation is liable to the same extent as a natAmerican case, cited at the bar, which tends to

ural person for an injury caused by its servant support the ruling below, is the decision of the Com

in the course of his employment. Moore v. Fitchmission of Appeals in Poillon v. Secor, 61 N. Y. 456. burg Railway Corp., 4 Gray, 465; Thayer v. Boston, 19

Pick. 511. And the judgment of the Court of Appeals in the later case of Central City Savings Bank v. Walker, 66 N. Y.

Iu Story Agency, $ 452, it is laid down that a principal 44, clearly implies that in the opinion of that court a

is liable to third persons in a civil suit for the frauds, persou not in fact a partner cannot be made liable to

deceits, concealmeuts, misrepresentations, torts, neglithird persons on the ground of having been held out as

gences and other malfeasances or misfeasances and a partuer, except upon the principle of equitable estop

omnissions of his agent, although the principal did not pel, that he authorized himself to be so held out, and

authorize or justify or participate in, or indeed know of that the plaintiffs gave credit to him.

such misconduct, or even if he forbade the acts or disThe result is, that both upon principle and upon au

approved of them. In all such cases the rule applies thority, the third and fourtb assignments of error, as

respondeat superior; and it is founded on public policy well as the first, must be sustained, the judgment of

and convenience; for in no other way could there be any the Circuit Court reversed, and the case remanded to

safety to third persons in their dealings, either direcily that court with directions to order a

with the principal, or indirectly with him through the New trial.

*S. C., 20 Federal Reporter, 100, and note.


instrumentality of agents. In every such case the principal holds out his agent as competent and fit to be trusted, and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency.

In Ramsden v. Boston & A. R. Co., 104 Mass. 117, it was held that the corporation was liable to an action for an assault and battery, for the act of its conductor in wrongfully and unlawfully attempting to seize the parasol of a passenger for her fare. In delivering the opinion of the court, Mr. Justice Gray said:

"If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is willful or merely negligent, or even if it is contrary to an express order of the master."

In Philadelphia & R. R. Co.v.Derby, 14 How. 468, a servant of the corporation ran an engine on its track coutrary to its express order, and thereby caused a collision, in which the defendant was injured, and it was held that the corporation was liable for the injury. In delivering the opinion of the court, Mr. Justice Grier said:

“ The rule of respondeat superior, or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize or even know of the servant's act or neglect; or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant's employment.

The authorities to this point might be multiplied indefinitely, but these are sufficient. Tried by them, this defense is clearly bad. It is not alleged that the corporation commanded the porter to do the act which caused the injury to the plaintiff, and therefore if it was not done in the course of his employment it is not liable therefor. But if the act was done in the course of his employment, the corporation is liable to the plaintiff for the injury caused thereby, notwithstanding the order to the porter. The case, so far as appears, must turn on the issue made by the denial of the allegation that the porter was in the discharge of his duty, or the course of his employment, at the time he let the pistol fall. And whether he was acting contrary to his employers' orders or uot is altogether immaterial.

out the fire unless the wind was in the west, and tbe master was responsible.

The cases cited by counsel are not in conflict with this conclusion. They are Whart. Neg., $ 108; Tulle v. Voght, 13 Ill. 285; 0.xford v. Peter, 28 id, 435; Foster v. Essex Bank, 17 Mass. 508; and Vali v. Lord, 39 N Y. 381. They are only to the effect, as is said in Oxford v. Peter, that the master is not liable for the willful or malicious acts of his servant, uuless it is in furtber ance of the business of the master." The contention in these cases was not as to the rule of law, but the application of it, whether the act complained of was done in the furtherance of the business of the master, or rather in the course of the servant's employment. Sometimes this is a very nice question, and difficult to determine, but the rule of law is, I think, undisputed that where the servant is acting in the course of or within the scope of his employment, the master is liable for his acts of commission or omission, as if tbes were his own; and this, notwithstanding the servant may have acted coutrary to his master's orders. Whether the act complained of in this case was within the scope of the porter's employment, on that occasion, will be ascertained from the evidence on the trial of the issue elsewhere made in the case.

The demurrer is sustained.




DOGGETT V. DILL, Every partnership debt, in equity, being joint and several,

the holder of the same may, in case of the death of a partner, resort, in the first instance, to the surviving partners or to the assets of the deceased partner, as he may elect: and a fallure to proceed against the surving partners until their insolvency is no bar to its collection from tbe

estate of the deceased partner. Where there are individual and partnership creditors having

demands against an estate, the individual creditors will have priority as to the individual assets, and partnership creditors a prior claim against firm assets; and the individual creditors will have the right to insist that po part of the separate assets shall be taken and applied in pay. ment of firm debts until all separate debts are paid in full.

In Whart. Neg., $ 157, in discussing this subject, the APPEAL. from the Appellate Court for the First

says: “That he who puts in operation an agency which he controls, while he receives its emoluments, is responsible for the injuries it incidentally inflicts. Servants are, in this sense, machinery, and for the defects of his servants, within the scope of their employment, the master is as much liable as for the defects of his machines."

And Cooley Torts, 539, says:

“It is immaterial to the master's responsibility that the servant, at the time, was neglecting some rule of caution which the master had prescribed, or was exceeding his master's instructions, or was disregarding them in some particular, and that the injury which actually resulted is attributable to the servant's failure to observe the directions given him. In other words, it is not sufficient for the master to give proper directions; he must also see that they are obeyed.”

On page 510 the learned author gives an apt illustration of the rule. A farm servant burned over the fallow when the wind was from the west and thereby destroyed the adjoining premises on the east, although he had been directed, on that very account, not to set

District; heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.

Stiles and Lewis, and R. W. Pike, for appellant.

Dexter, Herrick and Allen, for appellee.

CRAIG, J. William E. Doggett died April 3, 1876, testate, and Kate E. Doggett, appellant, who was named as executrix, qualified as such in the Probate Court of Cook county. Doggett, at the time of his death, and for many years before, was a member of the firm of Doggett, Barrett & Hills.

In 1871, T. C. H. and Lucy W. Smith executed their two promissory notes for certain sums of money, pay. able to Charles H. Dill. The two notes, on the date of their execution, were guarantied by Doggett, Barrett & Hills, the firm name to the guaranty being exe cuted by Doggett. No effort was made by Dill to collect the amount due on the notes from the firm assets, or from the surving members of the firm of Doggett, Barrett & Hills, but after the death of Doggett he pre

*To appear in 108 Illinois Reports.

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