But, although the general rule regarding the joinder of covenantees as plaintiffs is as above stated, yet persons entering into partnership may by agreement limit the number of plaintiffs in actions to be brought inter se in the course of the partnership transactions. Therefore, where by the terms of the partnership agreement, a penalty was inflicted for default in performance of any of the rules, and it was agreed, that one only of the partners should sue the defaulter for such penalty, it was held, that the party so appointed might sue alone, and that the others need not join in the action. "Such an agreement," said Best, C. J., "is in effect an undertaking on the part of the defendant, not to object on account of all who ought otherwise to have been joined in the action not being joined (a)."

It is obvious, that this power of limiting the number of plaintiffs only applies to actions between the partners themselves.

If any of the covenantees have not sealed the deed, they may nevertheless join in the action (b). If they have refused to seal the deed, it seems doubtful whether a declaration by those who have sealed, with an averment that the others have refused to seal, would be sufficient; but such a declaration, with a mere averment that the others have not sealed, is insufficient (c): for, as Holroyd, J., observed, "if a covenant be made with three persons, although two of them do not seal the deed, yet it is not in law converted into a covenant with one."

When one of several partners, covenantees, dies, his right of action survives to his co-covenantees, although the covenant may have been made with each of the covenantees respectively, and their respective executors, administrators, and assigns (d).

If there be other covenantees, obligees, or parties to the contract, who ought to be, but are not joined as plaintiffs in the action, advantage may be taken of this defect on demurrer, motion in arrest of judgment, or writ of error, and it will be fatal to the suit (e).

(a) Radenhurst v. Bates, 3 Bing. 463; 11 Moore, 421. See Davies v. Hawkins, 3 M. & S. 488.

(b) Clement v. Henley, 2 Roll. Abr. Fait (F), pl. 2.

(c) Petrie v. Bury, 3 Barn. & Cres. 353; 4 Dowl. & Ryl. 152.

(d) Eccleston v. Clipsham,1 Saund.

153.

(e) Anderson v. Martindale, 1 East, 497; Scott v. Godwin, 1 B. & P.67; Eccleston v. Clipsham, 1 Saund. 153; Slingsby's case, 5 Rep. 18 b. And see 1 Chit. Plead. 7; Saund. jun. Plead. 389.

If the defect of plaintiffs do not appear upon the face of the pleadings, which may be the case where the deed is not set out in hæc verba, or if there be any omission or variance in the deed as stated in the declaration, the defendant may crave oyer, and set out the deed, and demur (a) or plead specially in bar of the action. Hence, if an action be brought on a legal covenant, contained in a deed creating an illegal partnership, the defendant having craved oyer of the whole deed, may plead the illegality of the contract in bar of the action (b).

The plea of non est factum, operates, since the Rules of Hil. Term, 1834, only as a denial of the execution of the deed in point of fact. All other defences, including those which make the deed absolutely void, as well as those which make it voidable, must be specially pleaded. But it has been said, that under this plea, the defendant may shew an alteration in the deed in a material respect (c).

Where covenants between partners are several as well as joint, the circumstance of the seal of one of them being erased, will not prevent an action being maintained between the others (d).

SECTION II.

Of the Enforcement of Simple Contracts between Partners.

WHERE money has been lent by one partner to another, for the purpose of launching the partnership, the sum so lent is recoverable by action, if it be not introduced into the partnership accounts, and it does not depend on the taking the accounts whether the sum be due or not (e). But where money is due from one partner to another by simple contract, on the partnership account, payment, except in a few special cases, can

(a) Com. Dig. Pleader (2 V.) 3. 4. (b) Morse v. Wilson, 4 T. R. 353; Lees v. Smith, 7 T. R. 338.

(c) Per Gurney, B., 2 C., M., & R. 291. Per Parke, B., 1 Archb. Pr. 192.

(d) Matthewson v. Lydiate, Cro. Eliz. 408; Collins v. Prosser, 1 Barn. & Cres. 682.

(e) Ex parte Notley, 1 Mon. & Ayr. 46; Elgie v. Webster, 5 Mee. & W. 518.

only be enforced by application to a Court of equity, upon a bill filed for an account and a dissolution of the partnership. Courts of law will not entertain suits of this nature, because it would be useless for one partner to recover what, upon taking a general account amongst all the partners, he might be liable to refund frustrà peteret quod mox restiturus esset. It has been accordingly laid down by a high authority as a perfectly clear maxim, "that one partner cannot maintain an action against his copartner for work and labour performed, or money expended on account of the partnership (a).”

Attempts, however, have been made, by means of nice distinctions, to break in upon this broad general rule. Thus, in Holmes v. Higgins (b), it was contended, that the cause of action between the parties accrued before the commencement of the partnership, and therefore, that, under the circumstances of that case, an action would lie by one partner against his copartner. It appeared, that a joint stock company was in contemplation. The plaintiff was a shareholder, and was likewise agent for and assistant to the solicitor of the company. The defendant was also a shareholder, and chairman of the meetings. Meetings were held, subscriptions raised, and other steps were taken to obtain a bill in furtherance of the designs of the company; but the bill was ultimately withdrawn, and the scheme failed. An action was then brought by the plaintiff against the defendant, to recover a sum of money for business done and money paid by the plaintiff, as agent to the company; and it was contended for the plaintiff, that the parties were not partners until a bill was obtained; that the action was not brought for work done in the course of the partnership, but previously to its commencement; and, there

(a) Per Lord Tenterden, 1 B. & C. 76. And see Harvey v. Crickett, 5 M. & S. 336. "Partners cannot sue each other by the law. If two men have a wood jointly, and the one selleth the wood and keepeth all the money wholly to himself, in this case his fellow shall have no remedy against him by the common law; for as they, when they took the wood jointly, put each other in trust, and were contented to occupy

and deal together, so the law suffereth them to order the profits thereof."-Malyne, Lex Mercat. p. 310.

(b) 1 Barn. & Cres. 74; 2 Dowl. & Ryl. 196. In this case, the plaintiff and defendant were active shareholders; otherwise it may be doubted, whether this decision could now be supported, on the ground of their being partners. See Fox v. Clifton, 6 Bing. 776; Howell v. Brodie, 6 Bing. N. C. 44.

But the Court of King's Bench

fore, that it was maintainable. held, that the members of this association were partners, and that the action could not be supported, either against the defendant as chairman, or against the body of subscribers at large.

Again, in Milburn v. Codd (a), it was contended, that the cause of action accrued after the determination of the partnership, and therefore, that, under the circumstances of that case, the action was maintainable. The plaintiff and defendants had been members of a company which was dissolved. After the dissolution, the defendants were sued by several of the creditors of the company, and they employed the plaintiff, who was an attorney, to defend the actions. The plaintiff then brought his action against the defendants, to recover the amount of his bill of costs. But it was held that such an action could not be supported; for, that the plaintiff, as a partner with the defendants, was bound to contribute to the expenses of the actions against them; and, in the event of his succeeding in this action, he would have to refund a part of the damages, for the purposes of such contribution.

Another case (6) may be mentioned, which, it was contended, was not within the general rule, because there was no necessity for an account, and one item only in the whole transaction was disputed by any of the parties. An action was brought by the assignees of certain bankrupts, against Hammond, to recover the sum of £30, under the following circumstances:-The bankrupts, before their bankruptcy, and Hammond, undertook to procure a full cargo for a vessel, for certain commission to be paid to them, of which the bankrupts were to receive one moiety, and the defendant the other. The owners of the vessel acceded to the proposal, and the cargo was procured. The defendant made all disbursements, and received all the monies that were paid, for the use of the owners. The vessel sailed in May, 1820, and the defendant afterwards rendered an account to the owners, containing a statement of his disbursements, and a claim of £65 for commission. The owners admitted that the account of disbursements was correct, but refused to settle the account, because

(a) 7 Barn. & Cres. 419; 1 Mann. & Ryl. 238.

(b) Bovill v. Hammond, 6 Barn. & Cres. 149.

they said the defendant had claimed £5 too much for commission. The defendant had received and retained in his hands sufficient to pay all the disbursements made by him, and the £65 claimed for commission. It was contended for the plaintiffs, that this did not fall within the general rule as to partnership transactions, and that they were entitled to recover a moiety of the undisputed part of the commission, namely £30. But the contrary was held by two Judges of the Court of King's Bench against Bayley, J. "It is a general rule," said Abbott, C. J., "that, between partners, whether they are so in general or for a particular transaction only, no account can be taken at law. These parties have never settled any account between themselves; and the only ground on which this case is distinguishable from former decisions is, that all monies have been received and paid by one partner. That certainly makes an account between them less necessary; but if we, therefore, held this action to be maintainable, I think we should be breaking down a general rule, and introducing nice distinctions, which it is much better to avoid." And Littledale, J., observed, that neither the bankrupts nor the assignees ever assented to the account rendered by the defendant to the owners of the ship, nor was it finally settled even by them. It appeared to him, therefore, that the case fell within the general rule.

The two positions, first, that a partner cannot, in an action against his copartner, recover a sum of money due to him on the partnership account; and, secondly, that he can recover a sum due to him on his own account, but carried wrongfully to that of the partnership, are well illustrated by the case of Smith v. Barrow (a). The plaintiff, and Robert Smith, his father, had been in partnership together; during which time, one Keate became indebted to them in £531. Robert Smith died, leaving the plaintiff his sole executor. After the death of his father, the plaintiff took the defendant into partnership, and Keate became indebted to these two in the further sum of £30. Keate afterwards becoming much involved, his effects were transferred to certain trustees, for the benefit of his creditors; and two payments were made in the course of distribution, at different times. The first which was made to these parties, (the plaintiff and defendant), was divided (a) 2 T. R. 476.

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