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In Helsby v. Mears (a), the plaintiff brought his action of assumpsit against the defendants, upon an undertaking to carry a box containing watch-cases from Chester to Liverpool ; which undertaking was not fulfilled, the box having been lost. At the trial it appeared in evidence, that the plaintiff was a watch-case maker at Liverpool, and the defendants proprietors of the mail. coach from Chester to Liverpool. On the 15th of September, 1824, the box in question was sent by the plaintiff from Liverpool to one Walker, the assay master at Chester, with gold and silver watch-cases, of the value of £185, to be assayed. On the 16th the box, with the same cases, was sent by Walker to the mail-coach office at Chester, which was kept by the defendant, Mrs. Tomlinson, directed to the plaintiffs at Liverpool. The box was lost. The defendants had put up a notice in the office, that they would not be accountable for any parcel or package whatever above the value of £5, unless the same were entered and paid for accordingly, at the time of delivery of such parcel to them or their agents. Walker did not enter and pay for the box in question as being of more than £5 value, but he proved that he was in the habit of receiving boxes of the same description from various places, which were conveyed by coaches of which the defendant, Mrs. Tomlinson, was a proprietor: and that, three years before, Mrs. T. had agreed to convey these boxes for him at the ordinary rate of carriage, and that an annual account had been constantly settled between them on the basis of that agreement. This agreement had been entered into in consequence of a similar loss, not from the Chester and Liverpool mail, but from the Coventry and Liverpool mail, of which Mrs. T. was a proprietor, but not all the present defendants. The Court of King's Bench held, that notwithstanding the notice put up at the office, this contract with Walker was binding on all coach proprietors with whom Mrs. T. was a partner, in whatever coaches they might be concerned.
But of course the law will be otherwise, if the special contract entered into by one of several coach owners for the carriage of goods, be a mere collusive contract between the parties, in fraud of the other partners. Thus, where A., one of several coach owners, agreed for a private and valuable consideration
(a) 5 B. & C. 504; 8 D. & R. 289. But see 11 Geo. 4 & 1 Will. 4, c. 68.
moving to him from B., to take B.'s parcels free of expense; upon the loss of a parcel above the value of £5, it was held, that the agreement for free carriage under such circumstances did not oust the proprietors of the benefit of their £5 notice, and consequently, that B. could not maintain an action against the firm for the loss (a).
One partner has an implied authority to effect insurances for the firm. In the case of Hooper v. Lusby (b), which was an action by insurance brokers against the insured, who were merchants and partners, to recover the premiums and commission upon the effecting of several policies of insurance for the defendants, it was proved that the policies in question were effected in consequence of a letter written by one of the defendants in the name of the firm, ordering insurance to be done “ on account of the company” on two ships, called the Commerce and the Christiana. Lord Ellenborough held clearly, that the copartners were bound by this order; and he observed, that although one part owner, even if he were ship's husband, had no implied authority to insure for the others, yet it was different in the case of partners. The plaintiffs accordingly had a verdict.
One partner camot bind his copartner by a submission to arbitration (c).
There is no implied authority in partners, arising merely from the connexion in that character, to bind each other by loans made to them individually, although the money be carried to the partnership account (d); and, à fortiori, there can be no such implied authority between partners to bind each other by equitable mortgage. But an authority to bind the firm by equitable mortgage may be implied from the frame of the deed, the application of the money, and other attendant circumstances. In Ex parte Lloyd (e), W., being the owner of certain freehold premises, entered into partnership with O., and
(a) Bignold v. Waterhouse, 1 M. & S. 255. The Court thought, that even if the contract had been bonâ fide, the proprietors should have had notice of the value of the parcel ; for that, under an agreement for free carriage, it was not to be supposed
that the proprietors dispensed with
(6) 4 Camp. 66.
the partners thenceforth occupied the premises as cotton spinners, and erected machinery thereon, for the purposes of their trade. The firm being afterwards indebted to their bankers, 0., in June 1822, deposited with them the leases of certain lcaschold premises, accompanied with a memorandum, which, after setting out a list of the deeds deposited, concluded with a statement, that those papers were placed in the hands of Messrs. Jones, Loyd, & Co., their bankers, as a security for what they might think fit to advance to 0. & W. And, in August 18:22, W. deposited with the bankers a lease of a freehold piece of land, on which was situated a mill, and other buildings, together with a memorandum in these words :
These deeds are placed in the hands of Messrs. Loyd & Co., as scourity for what they may think proper to advance to 0. & W. by W.; the buildings alone are insured for upwards of £2000; machinery, &c., £2000 more.” 0. & W. afterwards became bankrupts, and upon a petition of the bankers to be declared equitable mortgagees of the premises and machinery, the question was adverted to, whether there would be any difficulty in finding that the one partner had authority from the other to pledge the property (a), in order to obtain an advance of money for partnership purposes. The Judges were of opinion that, considering the terms of the memorandum, and that the money was borrowed by the partners, and applied to partnership purposes, such an authority in each partner might be presumed to exist; and that as to W., he might fairly be taken as mortgaging for himself his own freehold interest in the land and buildings, and, as agent for the firm, mortgaging the leasehold interest and the property of the firm in the machinery.
V. The general rule of law by which partners become liable under the contracts of their copartners, has given rise to a general rule in the course of legal proceedings, by which the act or admission of one partner, as likewise notice to one partner, is held to be binding on the firm. Thus, as will be more particularly noticed in another place (6), one partner may release a supposed right of action, even after proceedings to enforce it have been instituted by the firm. And not only may
(a) See ante, p. 265.
(b) Post, Chap. 4, sect. 2.
he release an action, but it seems that he has the power
of suspending proceedings in it. Therefore, where three partners sued as plaintiffs, and two out of the three agreed with the defendant to accept common bail, and to stay proceedings for six weeks, it was held, that the agreement was binding on the third partner (a). In an action commenced against partners, one may enter an appearance for the rest (6). In equity, service of a subpæna upon one partner may, upon notice, be made good service upon his copartner abroad (c). But service upon one of two solicitors, partners, of an order to deliver a bill of costs, is not sufficient, although a copy of the order be likewise left at the house of business (d).
Generally, the signature of one partner in matters of simple contract relating to the partnership binds the firm; for every partner may be considered as an agent for the rest of the partnership (e). Hence, it seems clear, that notice by one partner in legal proceedings in general will bind the firm (f). If one of several persons, jointly interested in a cargo, effect an insurance for the benefit of all, he may give notice of abandonment for all (9). If one partner for himself and partner sign a note for the weekly payment under the Lords' act, such note will be binding on the firm (h). If one of several joint lessors, partners in trade, sign a notice to quit in the names of all, this will be valid for all (i), though it will be otherwise if they are not partners in trade (k).
One joint tenant may, without the assent of his fellows, appoint a bailiff to distrain for rent due to all the joint tenants (I).
Where several are concerned together in partnership, notice
(a) Harwood v. Edwards, Gow, Part. 65 ; where see the case stated in tlie note.
(6) D. Dampier, arg. Harrison v. Jackson, 7 T. R. 207.
(c) Carrington v. Cantillon, Bunb. 107; Coles v. Gurney, 1 Madd. 187.
(d) Young v. Goodson, 2 Russ. 255.
(e) D. arg. Carrick v. Vicary, Doug. 653, n. But see, as to a power of attorney, Edmiston v. Wright, 1 Camp. 88.
(f) Mayhew v. Eames, i Car. & Payne, 550.
(9) Hunt v. Royal Ex. Ass. Co. 5 Mau. & Sel. 47.
(h) Meux v. Humphrey, 8 T. R. 25; Burton v. Isset, 5 Barn. & Ald. 267.
(i) Doe v. Hulme, 2 Man. & Ryl. 433.
(k) Goodtitle v. Woodward, 3 Barn. & Ald. 689.
(1) Robinson v. Hofman, 4 Bing. 562; 1 Moore & Payne, 474.
to one is equivalent to notice to all, provided the transaction is bona fide (a). Hence, in an action on a joint promissory note, if the defendants suffer judgment by default, service of the rule nisi to compute principal and interest on one of the defendants, is service on all, for quoad hoc, they are partners (6). If a bill be accepted by a firm, and dishonoured by one of the partners, it is not necessary to give notice of dishonour to the other partners (c). If one of several defendants resides forty miles from London, it is not necessary to give the ten days' notice of trial required by the statute (d).
Partners are more notably bound by the acts of each other in proceedings under the bankrupt laws. Thus, to sustain a fiat, or commission of bankrupt, the practice is for one partner to make the affidavit of debt, and execute the bond to the Lord Chancellor on behalf of the firm (e). One partner, likewise, on behalf of all, may prove a debt, vote in the choice of assignees, and sign the certificate (f). One partner may likewise execute a power of attorney to some third person, authorizing him, on behalf of the firm, to vote in the choice of assignees and sign the certificate (g), and in some cases, even when such power is informal, the choice will not be set aside (h).
It is however to be remarked, that in the petition for a fiat, all the partners must join (i). On the other hand, in petitions presented for hearing, the signature of one of the partners is to be deemed sufficient (k). But the signature must not be in
(a) 1 Mau. & Sel. 259; Alderson parte Shaw, 1 Glyn & Jam, 129; Ex v. Pope, 1 Camp. 404, n.; Ex parte parte Bank, 2 Glyn & Jam. 363; Er JVaithman, 1 Mont. & A. 364. parte Hall, 1 Rose, 2; Ex parte
(b) Figgins v. Ward, 2 C. & M. Bignold, 2 M. & A. 655. But one 424; Carter v. Southall, 3 Mees. & trustee cannot sign the certificate for W.128.
himself and co-trustee. (c) Porthouse v. Parker, 1 Camp. Rigby, 2 Rose, 224. 82.
(9) Ex parte Mitchell, 14 Ves. 597. (d) Perry v. Jackson, 4 T. R.516. (1) Ex parte Shau, 1 Glyn &
(e) Ex parte Hodgkinson, 19 Ves. Jam. 129. 291; 2 Rose, 174; Ex parte Peele, (i) Archb. B. L. Vol. 2, p. 5; Buck, 457. But one of two joint Buckland v. Neusome, 1 Taunt. 477; obligees cannot sue out a commis- Ex parte Peele, Buck, 457. sion against the obligor. Brickland (k) Ord. Eld. 12 Aug. 1809, which v. Newsome, 1 Camp. 474.
requires that all petitions presented (1) Per Lord Eldon, 19 Ves. 293 ; for hearing, except in cases of partEr parte Mitchell, 14 Ves, 597; Ex nership or absence from the king