AND AGENT. by receiving the remainder of the goods and paying the PRINCIPAL stipulated price for them. And it may be observed that this case is really distinguishable from Bickerton v. Burrell (c), on the very ground on which that case was decided; for here, at all events, before action brought and trial had, the defendants knew that the plaintiff was the principal in the transaction" (d). In spite of some expressions used by the judges in deciding the two foregoing cases, there is, it is submitted, no case showing that a person who has entered into a contract for a named principal can afterwards sue on that contract in his own name, on showing himself to be the principal. To allow him to sue would be to violate the "rule of law, that if a person intends to contract with A., B. cannot give himself any right under [the contract]" (e). (c) 5 M. & S. 383. (d) Rayner v. Grote, 15 M. & W. 365, 366, per Curiam. CHAPTER VI. RULE 20. A firm must sue in names of members. Legal view of a firm. PARTNERS AND UNINCORPORATED COMPANIES. RULE 20.-A firm or an unincorporated company cannot sue in its name as a firm or as a company, but must sue in the names of the individual members of the firm or of the company. A firm is apt to be considered by the public as a corporation, i. e., as a body distinct from the members composing it, and possessing rights and incurring liabilities distinct from those of its members (a). But a firm is not, in the courts of common law, recognised as in any way distinct from the persons who compose it. Hence, the firm of M. & Co., being nothing more than the individuals A., B., and C., of whom it consists, any change amongst its members destroys its identity, and the socalled property, debts, and liabilities of the firm are, in truth, merely the property, debts, and liabilities of A., B., and C., who compose the firm (b). From this legal view of a partnership or firm, it follows that the rules which apply to actions by or against members of a firm, that is, persons who in ordinary language are called partners, equally apply to the proceedings of persons who are partners in one particular transaction. only (c), and who, therefore, might not generally be considered as forming a partnership. (a) See Chapter VII. (b) 1 Lindley, Partnership, 2nd ed., 208, 209. Richardson v. Bank of England, 4 Myl. & Cr. 171, 172; De Tastet v. Shaw, 1 B. & Ald. 664. The member of a partnership is, at law as in commerce, the agent of the firm for transacting its business, and, therefore, every partner fills the character both of a principal and of an agent (d). PARTNERS. company merely a partner An "unincorporated company" is fundamentally a An uninlarge partnership (e), from which it differs mainly in the corporated following particulars, viz., that it is not bound by the acts of the individual partners, but only by those of its directors or managers (ƒ); that shares in it are transferable (g); and that it is not dissolved by the retirement, death, bankruptcy, &c. of its individual members (h). It follows, from the characteristics of a firm, that an action by a partnership, whether trading under the name of M. & Co., or, e. g., of the Royal Mining Company, must be brought in the names of A., B., C., &c., who compose the partnership (i). And this holds good even though the company consists of a hundred persons. The difficulty which this rule places in the way of actions on contract (k) by unincorporated companies, has led to many futile attempts to evade it; e. g., by bringing actions in the name of the chairman or of the directors pro. tem. (1), or of some servant, e. g., the purser (m) of the company. The shareholders in a cost-book mining company agreed "that calls in arrear should be considered to be debts due from the defaulting shareholder to the purser;" but an action brought against the defaulter by the purser was held not to be maintainable, as being "nothing more nor less than the case of a person who is (d) Story, Partnership, 2nd ed., s. 1. Cox v. Hickman, 8 H. L. 268; 30 L. J. 125, C. P.; Kilshaw v. Jukes, 34 L. J. 217, Q. B. ; 3 B. & S. 847; Bullen v. Sharp, L. R. 1 C. P. 86; 35 L. J. 105, C. P. (e) 1 Lindley, Partnership, 2nd ed., 495. (ƒ) Ibid., 249. Burnes v. Pennell, 2 H. L. 497. (g) 1 Lindley, Partnership, 2nd ed., 237, 221. (h) Ibid., 238, 497. (i) Woolf v. City Steam Boat Co., 7 C. B. 103; 18 L. J. 125, C. P. (k) Rule 13, and Chapter XXXIV. (1) Phelps v. Lyle, 10 A. & E. 113. (m) Hybart v. Parker, 4 C. B., N. S., 209; 27 L. J. 120, C. P. ship. PARTNERS. Exceptions. Company empowered to sue by officer. Company being wound up. a mere servant of the company suing a member of the company between whom and himself there [was] no privity of contract and no consideration" (n). Exception 1.-Where an unincorporated company is empowered by statute to sue, &c., in the name of its public officer. Some unincorporated companies (o) are enabled to sue (and liable to be sued) in the name of their public officer, e. g., secretary, manager, &c.; and proceedings taken by or against him may be continued by or against his suc cessors. Exception 2.-Where an unincorporated company is being wound up. In the case of an unregistered (p) company, the Court of Chancery (q) may, on the company's being wound up, make an order vesting its property in the official liquidator; and, if such an order is made, he may sue (and be sued) in his official name, or in such other name as the Court may direct, as the representative of the company (r). (n) Hybart v. Parker, 27 L. J. 122, C. P., judgment of Williams, J., pp. 81-86, ante. (o) a. Banking companies under 7 Geo. 4, c. 46 (extended by 27 & 28 Vict. c. 32). b. Companies under Letters Patent Act (7 Will. 4 & 1 Vict. c. 73). c. Companies formed under private Acts. (p) See Companies Act, 1862 (25 & 26 Vict. c. 89), s. 199, by which an unregistered company is defined as "any partnership, association, or company, except railway companies incorporated by Act of Parliament, consisting of more than seven members, and not registered under this Act." A company registered under the previous Acts seems, for the purpose of winding-up, to be considered a registered company. In re Torquay Bath Co., 32 Beav. 582. Compare 2 Lindley, Partnership, 2nd ed., 1491 and 1214. It should also be remarked that a company may be registered under the Act of 1862 for the purpose of being wound up. (q) In the case of a mining company subject to the jurisdiction of the Stannaries, the Court of the Vice-Warden of the Stannaries; and in the case of a company registered in Ireland, the Irish Court of Chancery; and of a company registered in Scotland, the Court of Session. Companies Act, 1862, s. 81. (r) See Companies Act, 1862 (25 & 26 Vict. c. 89), s. 203. Compare 1 Lindley, Partnership, 2nd ed., 1274, 1275. The fact that a company has stopped payment, does not prevent it from suing and being sued by its public officer. Davidson v. Cooper, 11 M. & W. 778. 1 Lindley, Partnership, 2nd ed., 501. RULE 21.-All persons who are partners in a firm, or members of an unincorporated company, at the time when a contract is made with the firm or the company, should join in an action for the breach of it. A firm being merely the persons who compose it, this rule is simply an application of the general principle that all the persons with whom a contract is made, must join in an action for the breach of it (s). The rule is modified by the existence of dormant and nominal partners. PARTNERS. RULE 21. All partwhom con ners with tract made must join in suing upon it. partner. A dormant partner is a person who does not appear to A dormant be a partner, but is so, and occupies the position of an undisclosed principal (t), and therefore always may, and never need (u) join in an action on a contract made with the firm. The firm of M. & Co. consists of A., B., and C., of whom A. and B. are known partners, and C. a dormant partner. If a contract is made either with the firm of M. & Co., or with A. on behalf of the firm of M. & Co., an action for the breach thereof may be brought either by A. and B., or by A., B., and C. A nominal partner is a person who appears to be a A nominal He sometimes must, and some- partner. partner, but is not so. times need not, join in an action on a contract made with the firm. 1st. If a contract is made expressly with a real and with a nominal partner, they must join in suing on it (x). (s) See Rule 13. Bullen, Pleadings, 3rd ed., n. (a), 227. See Phelps v. Lyle, 10 A. & E. 113; Garrett v. Handley, 3 B. & C. 462; Teed v. Elworthy, 14 East, 210. 1 Lindley, Partnership, 2nd ed., 477. (t) See Rule 17. Exception 5. Cothay v. Fennell, 10 B. & C. 671. (u) 1 Lindley, Partnership, 2nd ed., 476, 477. Phelps v. Lyle, 10 A. & E. 113; Leveck v. Shafto, 2 Esp. 468. (x) Guidon v. Robson, 2 Camp. 302. East, 210. Compare Teed v. Elworthy, 14 |