the firm of the plaintiffs, receiving the full amount of his capital, and became insolvent and bankrupt. The plaintiffs were subsequently compelled to pay his acceptances in the name of the firm, to a very large amount. The plaintiffs having brought their action for damages sustained by them from the supposed collusion between Hurst and Downes, Lord Tenterden held, that the action was clearly maintainable on the principles above stated; but the jury, thinking that there was not sufficient evidence to fix Downes with collusion, found a verdict for the defendants.

In some cases, however, the firm of the colluding partner may have a good defence at law, on the ground that the plaintiffs' defrauded firm are, from technical reasons, incapable of suing in a Court of law. In this case, the parties defrauded must apply to a Court of equity (a).

VII. In all cases, however, where the firm is bound by the fraud of one partner, the acts of the fraudulent partner must have been committed in his capacity of partner (b). Where fraud is committed by a partner en auter droit, and the copartners have no notice of the transaction, it seems clear, that the firm will not be liable, although it may have derived benefit from such fraud. A. and his two sons were partners. The sons were trustees named in a will, for the sale of real estates. They sold the estates, and instead of applying the monies to the purposes of the trust, appropriated them to partnership purposes. A commission of bankrupt issued against A. and his two sons. Upon a petition by the cestui que trusts to prove against the joint estate, there being no separate estate, Sir John Leach directed an inquiry whether the monies were employed for the use of the partnership trade, with the knowledge of the father that they were trust funds; observing, that if that were the case, the cestui que trusts might proceed either against the sons as actual trustees, or against the firm as implied trustees; but he considered that notice of the trust was necessary, in order to make the whole firm implied trustees (c). In this case, to be sure,

(a) See post, Chap. 5, sect. 1.
(b) Jaques v. Marquand, 6 Cowen,

497.

(c) Ex parte Heaton, Buck, 386; Ex parte Apsy, 3 Bro. 265. How

ever, if the partners of an executor permit him to place his account as executor in the general books, whether they are aware of the specific contents of those entries or not, it

the whole firm had become bankrupts; but the assignees stood in no better situation than A. himself would have done. But of course, where some of the members of a firm apply the monies which they hold in trust to partnership purposes, with the knowledge of the firm, the firm are responsible for the transaction, and hold the monies as debtors to the cestui que trust (a). In cases of this nature, the cestui que trust has a right to have the subject of the breach of trust restored to him in the manner most beneficial to himself, and consequently, to consider it either as a debt from the time the breach of trust took place, or to be made good in specie. In Clayton's case (b), exchequer bills were deposited with bankers, without any authority to the firm to sell them, except, as it was understood, that when the exchequer bills were paid off, the bankers were to buy with the produce, or take in exchange other exchequer bills, to be held by them in the same manner. Contrary to this agreement, the bankers sold the exchequer bills without the knowledge of the creditor, for a considerable sum, which they applied to their own use. Sir William Grant, on the ground that the creditor elected to take the money due to him as a debt, directed interest at £5 per cent. to be computed upon the amount produced by the sale, from the period at which the money came into the hands of the partnership (c).

seems that they may be compelled to grant the cestui que trust a free inspection of the books. Freeman v. Fairlie, 3 Mer. 44.

(a) Ex parte Watson, 2 Ves. & B. 414; Smith v. Jameson, 5 T. R. 601.

(b) 1 Mer. 572.

(c) If a trustee lend trust money to a firm in which he is engaged, or to any other firm, for the sake of making a profit, he may be made to account for and pay all the profits. Heathcote v. Hulme, 1 Jac. & W. 122; Docker v. Somes, 2 Myl. & K. 655; Palmer v. Mitchell, 2 Myl. & K. 672, n. In a case before Lord Thurlow, where the assignees of a bankrupt had kept the bankrupt's

fund in their hands for eight years without dividing, and one of them admitted that he had lent his share to a partnership in which he was engaged, jointly with his own money, and without making any distinct charge of interest, he was decreed to pay such interest as should appear to have been made, and where none, £4 per cent. Hankey v. Garrett, 1 Ves. 236. However, the Court has, in some cases, given interest on profits; but the general rule is, that where a trust property is employed in a trade without authority, the cestuis que trust shall elect to take either the profits for the whole period, or interest for the whole period. Docker v. Somes, supra.

SECTION VI.

Of Liabilities for Torts committed by a Copartner.

A LEARNED Writer observes, that though partners are in general bound by the contracts, they are not answerable for the wrongs of each other. If they all join in one trespass or tort, of course they may all be sued, and compelled to make compensation for the injury they have committed; but this action arises from their personal misconduct, and not from the relation of partnership which subsists between them. With regard to matters quite unconnected with the partnership trade or business, there can be no question; and in general, acts or omissions in the course of the partnership trade or business, in violation of law, will only implicate those who are guilty of them. If one of two bankers in partnership should commit usury in discounting bills; if one of two attornies in partnership should practise without a certificate; if one of two surgeons in partnership should wantonly ill treat a patient-the innocent copartners certainly could not be liable to an action for penalties. or damages. However, the rule admits of exceptions. Partners, like individuals, are responsible for the negligence of their servants, upon the maxim of qui facit per alium facit per se; and if one of the partners acts, he is considered, in this instance, as the servant of the rest. In these cases, the tort is looked upon as the joint and several tort of all the partners; so that they may either be proceeded against in a body, or one may be sued alone for the whole of the damage done (a).

The doctrine contained in the preceding paragraph is warranted by several cases, to some of which it may be proper to advert.

I. First, then, where the tort is joint, the action may be brought against all the partners. In Moreton v. Hardern (b), an action on the case was brought against three defendants, proprie

(a) Wats. Partn. 235. (b) 4 Barn. & Cres. 223; 6 Dowl. & Ryl. 275.

X

tors of a stage coach. The declaration stated, that the defendants so carelessly managed their coach and horses, that the coach ran against the plaintiff, and broke his leg. It appeared in evidence, that one of the defendants was driving at the time when the accident happened; and the jury found that it happened through his negligent driving; it was held, that the plaintiff might maintain case against all the proprietors, although he might perhaps have been entitled to bring trespass against the one that drove the coach.

Upon the same principle, it has been laid down, that partners may be sued in an action of trover, although there was no joint conversion in point of fact. That a joint conversion may be raised in point of law, by the assent of the partner to the acts of his copartner (a). So, it has been held, that a bookseller or newspaper proprietor is answerable for the acts of his agent or copartner, not only civilly but criminally (b).

The same principles apply to breaches of the revenue laws, which are in the nature of tort. Thus, in The Attorney-General v. Stannyforth (c), Nicholas Skinner, for himself and Company, had imported a quantity of wine, and by a wrong entry in the custom-house books the Crown was defrauded in its duties £535. The discovery being made some years after, this information was brought, which prayed that the defendants might make good the deficiency; and the Court decreed accordingly, that though the importation and entry were only by Skinner, yet all the partners who were so at the time of the importation were liable in the whole to the Crown.

II. Secondly-Although the tort be joint, the action may be brought against any one of the partners. Thus, where A. and B. were in partnership as attornies, and their joint names were inserted in their papers, in causes in their office, but by agreement A. was to have the profits of all the business which arose from his own connexions; it was ruled, that an action for penalties for practising without a certificate might be maintained against B., although the suit in respect of which the

(a) Nicoll v. Glennie, 1 M. & S.

588.

(b) Rex v. Almon, 5 Burr. 2686;

Rex v. Pearce, 1 Peake, 75; Rex v.
Topham, 4 T. R. 126.

(c) Bunb. 97.

action for the penalties was brought was conducted by A., for his own benefit only, B. deriving from it no advantage whatever (a).

Again, as to breaches of the laws of the customs. In The Attorney-General v. Burges (b), upon an information by way of devenerunt, for the treble value, on the statute 8 Anne, for goods that came to the hands of the defendant, knowing they had not paid the duties, it was determined by Lord Chief Baron Pengelly, that, if one of several partners is concerned in smuggling, on account of the copartnership trade, the Crown may come against any one of the partners for the whole penalty, it being in the nature of a tort, and not of a contract; just as, in cases of tort, a subject might come upon any one concerned in the tort.

So, in The King v. Manning (c), upon an information by way of devenerunt, to recover treble the value of one hundred weight of tea come to the hands of the defendant, it was held, that the information was maintainable against the defendant separately, though another was concerned jointly with him in the smuggling; and that, inasmuch as the whole of the goods were left in his custody, while the other went out to look for a purchaser, he was liable for treble the value of the whole. But in this case it is laid down by Lord Chief Baron Comyns, that if the partners had divided the goods after their purchase, the defendant could be liable only to the treble value of his share, and no more, for no more came to his hand or possession; for, though joint tenants are seised or possessed per my et per tout, (that is, so far possessed of the whole, that none can say till partition made that this or that part is not in his possession), yet they in right and reality are possessed of no more than the proper share or purparty. As, therefore, they give or dispose of no more, so neither can they forfeit any more.

And clearly, those partners alone are liable in respect of a tort who are privy to the tort. Thus, if two persons join stock together, and buy goods on their joint account, and one alone is conusant that the goods are run and uncustomed, he alone is liable (d).

14.

(a) Edmonson v. Davis, 4 Esp. Attorney-General v. Weekes, Ibid. (c) Com. Rep. 616.