III. Of Actions by and against Partners.

Ir three partners (two of whom reside abroad and one in England) be sued for a partnership debt, and the partuer resident in England appear to the action, but refuse to appear for the partners resident abroad, the sheriff, under a distringas against the two partners, may take partnership effects, though paid for by the partner resident in England alone, to whom the partnership was legally indebted; and the court will not relieve him against such distress.

In an action by partners for the non-performance of a contract entered into with the partnership, it is essentially necessary that the action should be brought in the joint names of all the persons of whom the partnership consisted at the ' time the contract was made (1), otherwise the parties suing will be liable to be non-suited for the omission of their copartners (2). The same rule formerly held with respect to

q Morley v. Strombom & al., 3 Bos. & Pul. 254.

(1) Subsequently admitted partners, though under an agree ment to share in profit and loss, from a time antecedent to the contract, ought not to be joined. Wilsford v. Wood, 1 Esp. N. P. C. 180. Ld. Kenyon C. J.

(2) In one case, where an action was brought in the names of two persons, with whom the defendants had dealt as partners, and it appeared that at the time of the contract there was in fact another partner, who had, however, withdrawn his name from the firm, but still continued to receive part of the profits; although it was objected that the dormant partner ought to have been joined, Ld. Kenyon C. J. is reported to have refused to nonsuit the plaiutiffs. Leveck v. Pollard and another, 2 Esp. N. P. C. 468.

So where in an action* brought by A. for goods sold and delivered, it appeared that B., who proved the delivery and value of the goods, was the principal manager of A.'s trade: and that he received for his services a certain salary, and besides that, a certain proportion per cent. on the profits of the plaintiff's whole trade, and inclusively on the profits of the demand in question; it was holden, that A. might sue alone, and that it was not necessary that B. should be joined with the plaintiff. So where an action was brought by Mawinant, a bookseller, against the prister, . for not insuring the Travels of Anacharsis; and it appeared that several other booksellers, and amongst them Evans, a witness,

Lloyd v. Archbowle, 2 Tauut. 324.

+ Mawman v. Gillett, cited by Sir J. Mansfield, C.J. 2 Taunt. 325.

actions brought against partners, and plaintiffs were frequently non-suited for not naming all the partners as defendants. This rule was considered as oppressive, inasmuch as it was not possible for the plaintiffs in many cases, without the assistance of a bill of discovery, to ascertain the names of all the persons constituting the firm with which they had had dealings. On this ground the rule. was departed from in the time of Lord Mansfield, and it was then laid down that defendants should be permitted to take advantage of this objection by a plea in abatement only. The rule laid down by Lord Mansfield has been acted upon ever since, though the Court of Common Pleas have lately manifested a strong disposition to revert back to the ancient rule. The liability of the parties depends upon their being partners at the time when the contract is made', and a dormant partner cannot set up the plaintiff's ignorance of his being a partner, to obviate such liability. But in a case where there was a stipulation between three persons who appeared to the world as partners, that one

r See Ld. Kenyou's opinion in Saville s Alderson v. Pope, 1 Camp. N. P.C. v. Robertson, 4 T. R. 725.

404. n.

had a share in the work; but inasmuch as Evans had never contracted with Gillett, but Mawman was the only ostensible man, the court held that he was the only proper plaintiff, and with good reason, for the only acting partner might owe much money to the defendant, which the defendant might set off; but if the plaintiff and the dormant partner had sued, that debt of the acting partner could not be set off. "There is a material distinction between the case where partners are defendants, and where partners are plaintiffs: if you can find out a dormant partner defendant, you may make him pay, because he has had the benefit of your work; but a person with whom you have no privity of communication in your contract, shall not sue you." But where a merchant, carrying on trade on his own separate account, introduced into his firm the name of a clerk, who did not partake in the profits of the business, but continued to receive a fixed salary, Lord Ellenborough held*, that in an action on a bill of exchange, payable to the order of this firm, the clerk ought to have been joined as a plaintiff, for he was to be considered in all respects as a partner as between himself and the rest of the world; that where the name of a real person is introduced with his own consent, it is immaterial what agreement there may be between him and those who share the profit and loss-they are equally responsible, and the contract of one is the contract of all.

* Guidon v. Robson, 2 Camp. N. P. C. 302.

of them should not participate in the profit and loss, and should not be liable as a partner, it was holden, that he was not liable as such to persons who had notice of this stipulation.

IV. Evidence.

ACTS subsequent to the time of delivering goods on a contract, may be admitted as evidence to shew that the goods 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 partnership", 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 dissolution*.

Assumpsit for goods sold and delivered'. The 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. Ld. Kenyon C. J." He is not a witness to prove this, for he comes to defeat the action of the plaintiff, against a man

t Saville v. Robertson, 4 T. R. 720.
u Graham v. Hope, Peake's N. P. C.
See also Gorham v. Thomp-
son, Peake's N. P. C. 42.

154.

x Godfrey v. Turnbull and another, 1 Esp. N. P. C. 371.

y Goodacre v. Breame, Peake's N.P.C. 174.

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 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 an 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 firm2, 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.

When a partnership is dissolved, it is not dissolved with regard to things past, but only with regard to things future.

(3) See Alderson v. Pope, 1 Camp. N. P. C. 404. n. where it was holden by Ld. Ellenborough C. J. that notice to one member of a firm, was notice to the whole partnership.

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.

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.

e Murray v. Somerville, 2 Camp. N. P. C. 99 n.