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defendants and divided them ; returning to the defendants, as a security for the renewed bills, the warrants of the plaintiffs, Barton & Co., and retaining the warrants of Moon. Throughout the transaction no notice was given to the defendants of the interest which the plaintiffs had in the cottons. The Court held clearly, that the plaintiffs might maintain their action of trover for the value of the warrants so pledged. There were two grounds on which to rest their decision, and they chose that upon which it was the most difficult to raise a question ; namely, that, upon the partition being made between the plaintiffs and Moon, the tenancy in common was determined; that the second pledge, therefore, was not of an undivided moiety, but a specific chattel, of which the property was at that time vested in the plaintiffs, and made by a person having no authority to pledge. But they likewise held, without hesitation, that at the time of the original pledge, Moon & Co. and the plaintiffs were not partners with reference to the goods, but part-owners ; each of them being entitled to an undivided moiety. That Moon & Co. taking upon themselves to pledge the whole, the legal operation of such pledge would be to give the pawnee no better title than Moon & Co, had, which would be an undivided moiety. Therefore, that even if there had been no partition, the sale was a conversion of the undivided interest, and consequently that trover would be maintainable.

SECTION II.

Of Liabilities under Bills of Exchange and Promissory Notes

negotiated in the Name of the Firm.

Ir a partner in trade draw, accept, or indorse a bill of exchange in the name of the firm, or if he give a promissory note in the name of the firm, such a bill or note will be binding on the firm jointly in the hands of a bona fide holder (a).

(a) Pinkney v. Hall, Salk. 126 ; S. C. Lord Raymond, 176 ; Anon., Styles, 370; Smith v. Trivas, 2

Lord Raymond, 1484; Harrison v. Jackson, 7 T. R. 207; Smith v. Bailey, 11 Mod. 401 ; Swan v.

The power of one partner, in this as in other contracts, is implied by law, no express authority from his copartner being necessary for that purpose ; and in the case of bills of exchange, it exists by the custom of England. Thus, P., a partner in the house of Lewis & Potter in London, and also in the house of Gregory & Potter in America, in order to accommodate the former house, directed the clerk of that house to draw a bill in the name of Gregory & Potter. The bill, though drawn in London, was dated at Boston. It was accepted by another clerk of the London house the moment it was drawn. In an action by the indorsees against the drawers, the American partner was held liable (a).

The power of binding by bill of exchange is not confined to general partners; it has been laid down that one of several adventurers will be bound by the indorsement and acceptance of the other (6). This, however, is to be received with some limitation, for in adventures conducted by a joint stock company, the power of the adventurers to bind each other by bills of exchange is not co-extensive with the power of ordinary partners (c). Neither does the right of one partner to bind the firm by bill exist in certain partnerships of a particular nature. Thus, it has been laid down by a learned Judge, that one of several persons jointly interested in a farm has no power to bind the others by drawing or accepting bills; because such a practice is not necessary for carrying on the farming business (d). And the same observation will apply to partnerships in mines, and to other partnerships, where bills of exchange are neither usual nor necessary for conducting the partnership business; but the mere circumstance that the business consists in making profits out of real estate, as in working a stone quarry, will not take the case out of the operation of the general rule (e).

Steele, 7 East, 200; B. N. P. 279. As to the effect of a bankrupt partner's acceptance in the name of the firm, see post, Book 4, chapter 1.

(a) Sutton v. Gregory, 2 Peake, 150.

(6) Davidson v. Robertson, 3 Dow, 229.

(c) Post, Book 5, chap. 1, sect. 3.

(d) D. Littledale, J., 10 Barn, & Cres. 138. See D. Parke, J., S.C.; D. Holroyd, J., 7 Barn. & Cres. 639; and D. Bolland, B., 2 C. & J. 435.

(e) Thicknesse v. Bromilow, 2 C, & J. 425.

II. 1. A partner may be liable in an action on a bill of exchange negotiated in the name of the firm although his own name individually is not used in the firm, and therefore does not appear on the instrument. This may happen either when a partnership, consisting of several members, or of minor partnerships, is conducted in the general name and style of A. & Co., or A. & B.; or else, when it is conducted in the particular name of A. only.

First, Suppose the firm to be that of A. & Co., or A. & B., and a bill is drawn, indorsed, or accepted in the name of the firm. In this case, it is evident from the instrument itself that a partnership name is pledged. Now, it has been clearly decided on various occasions, and emphatically laid down in a modern case, that where a partnership name is pledged, the partnership, of whomsoever it may consist, and whether the partners are named or not, and whether they are known or secret partners, will be bound, unless the title of the person who seeks to charge them can be impeached (a). In the case of Baker v. Charlton (b), an action of assumpsit was brought on a bill of exchange, by the indorsees against one of the drawers, the others having become bankrupt. The bill was drawn in the firm of “ James King & Co.;" under which firm the de. fendant and his partners had traded. It also appeared, that there were other partnerships carried on, under the firm of " James King & Co.;” in which the other drawers were concerned, but in which the defendant had no share. The defendant offered to shew that this bill was not drawn on account of the partnership in which he was concerned, but on account of one of the others, and that he knew nothing of it. But Lord Kenyon was of opinion that the defendant was nevertheless liable; he had traded with the other partners under that firm, and persons taking bills under it, though without

(a) Per Bayley, B., 1 Cromp. & Jerv. 318. But in Jones v. Hunter, Danson & Lloyd, 214, where A., B., and C., partners, were sued as acceptors by an indorsee, Lord Tenterden seemed inclined to admit evidence to shew that C. was not engaged in the India business, on

which account the bill was drawn. The evidence was rejected for reasons unconnected with this point. Qu. Whether the indorsee had not notice of the circumstances under which the bill was drawn?

(b) 1 Peake, 111.

his knowledge, had a right to look to him for payment. The plaintiffs obtained a verdict.

In the case of M‘Nair v. Fleming (a), this doctrine was carried still farther; for there, the several partnerships did not trade generally under one name, but they conducted a particular business apart from their general trade, in respect of which they negotiated bills under one name, which name was that of one of the firms, and not of all the firms collectively. The facts were shortly these :-A partnership, under the firm of Hugh Mathie & Co., carried on trade at Greenock. Another branch of trade was undertaken by Mathie & Fleming to Nassau in New Providence, Fleming having no share in the partnership of H. Mathie & Co. The Nassau trade was carried on at Greenock by Hugh Mathie & Co., without any distinction; in Nassau, by one Home; and at London, by A. Fleming & Co. Mathie kept separate accounts for the concern, distinguished by the letters N. C., for Nassau concern; and those accounts were clear. Certain bills had been discounted at the branch of the Bank of Scotland in Greenock, having the firm of H. Mathie & Co, subscribed to them; and no explanation was required or given at the time they were so discounted. H. Mathie & Co. failed, and M Nair, as agent for the Bank, on the ground of his having relied on Fleming's credit as included in the firm, made his demand against him. A proof was taken; and the Court of Session was satisfied that Fleming was not a general partner with H. Mathie & Co., but that bills having formerly been discounted under that firm, for the use of the Nassau concern, and sanctioned by Fleming, a credit was raised, entitling bill-holders to rely on his credit; and on that ground the Court held Fleming liable. Upon appeal to the House of Lords, the general principle of this decision was confirmed; but they considered it to be still a question whether M Nair, by proving his debt, and receiving a dividend under the sequestration against Mathie & Co., had not barred himself of all further remedy; and according to an opinion given by Sir Samuel Romilly, they expressly reserved to the defendant the benefit of that defence. The same learned person adds—"The House of Lords was, (as I understood that de

(a) 2 Bell, Comm. 672; Mont. Partn. 37. See D. Lord Eldon, 3 Dow,

cision), of opinion, that where several partnerships, consisting of different individuals, carry on business under the same firm, and enter into negotiable securities under the same signature, the holder of such securities has a right to select which of those partnerships he chooses for his debtors; but it never, as I conceive, entered into the minds of any of the Lords, that he could take all the partnership as his debtors.”

The case of M‘Nair v. Fleming is, in many of its circumstances, similar to that of Baker v Charlton, and it has therefore been thought right to state the two cases consecutively, But perhaps the decision of most practical importance upon this subject is that of Swan v. Steele (a). Wood and Payne carried on business as wholesale grocers, under the firm of Wood & Payne; and Wood, Payne, and Steele carried on business as cotton merchants, under the same firm of Wood & Payne. Steele was never interested in the grocery business, and was unknown as a partner in the cotton trade. The plaintiffsold to Wood & Payne, as grocers, a quantity of sugar, for which they gave their acceptance. Being unable to provide for this acceptance when due, Wood & Payne, without the knowledge of Steele, indorsed to the plaintiffs, in the name of Wood & Payne, a bill drawn by one Maitland, and which they had received in payment for some cotton. The question was, whether, in the absence of any fraud on the part of the plaintiffs, Steele was liable in an action on the bill ? and the Court of King's Bench held that he was, and that the case was too clear for argument. Lord Ellenborough—" It would be a strange and novel doctrine, to hold it necessary for a person receiving a bill of exchange, indorsed by one of several partners, to apply to each of the other partners, to know whether he assented to such indorsement, or otherwise that it should be void. There is no doubt, that in the absence of all fraud on the part of the indorsee, such indorsement would bind all the partners. There may be partnerships where none of the existing partners have their names in the firm. Third persons may not know who they are ; and yet they are all bound by the acts of any of the partners in the name or firm of the partnership. Now, here the three persons were trading under the firm of Wood & Payne, and in the course of their dealings as

(a) 7 East, 210; 3 Smith, 199.

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