seems that he cannot, on attaining twenty-one, maintain an action for the recovey of money paid by himself personally, as the consideration for the contract (a).

SECTION III.

Of the Liabilities of a retiring Partner.

WHEN an ostensible partner retires from the firm, he must give notice of his retirement; otherwise, he will be liable to the creditors of the continuing firm for contracts entered into by them subsequently to his retirement (b).

The effect of a proper legal notice of a partner's retirement is, to exonerate him from liability for the future, though not for the past (c). It is clear, therefore, that after a retirement properly notified, no new contract by the continuing firm can bind the partner who retires; and hence, after the retirement of one or more partners, the remaining partner cannot put the partnership name to negotiable securities so as to bind the old firm (d).

To those who have had no dealings with the original firm, notice of the dissolution of a partnership inserted in the Gazette, is equivalent to actual notice. Therefore, where the plaintiff Godfrey (e), who had not previously dealt with the firm, took a partnership bill, which had been made in the partnership name after the retirement of a partner so notified -Lord Kenyon said to the jury-" If the dissolution be notified in the ordinary and usual way, as it is the only mode by which the fact of the dissolution can be promulgated to the world, at least to those who have had no previous dealing with

(a) Holmes v. Blogg, 8 Taunt.

508.

(b) Parkin v. Carruthers, 3 Esp. 248; Stables v. Eley, 1 Car. & Payne, 614; Graham v. Hope, 1 Peake, 154.

(c) Wood v. Braddick, 1 Taunt.

104; Ault v. Goodrich, 4 Russ. 430. (d) See more on this subject, post, p. 372, et seq.

(e) Godfrey v. Turnbull, 1 Esp. 371. See Wrightson v. Pullan, 1 Stark. 375; 2 Chit. 121.

the partners, it seems sufficient at least to be left to the jury from thence to infer notice. In the present instance, there is no proof of any actual notice to Godfrey the plaintiff, but the publication in the Gazette is proved, antecedent to his taking the note. The jury are to judge from the practice in the usual course and ordinary mode of business. Notices are to be found in every Gazette of the dissolution of partnerships, which seems to point out that as the mode adopted by the world for notifications of this sort, and therefore every prudent man in business ought to consult them."

As to the original creditors of the firm, express notice of a partner's retirement must be conveyed to them (a); though it is not material in what manner it is given. Where, on the trial of an action against three persons who had been in partnership together at Liverpool, but one of whom (Humble) had retired, it was proved that, upon his retirement, the new name of the firm was painted upon the counting-house, and the winding up of the affairs of the old partnership was removed to another place in Liverpool, and circular letters announcing the change of partners were sent to the correspondents of the old firm, but there was no public advertisement of the change, nor any notice of it proved which could expressly affect the plaintiffs; the Court of King's Bench held, that these circumstances were a sufficient notification to all the world, of the change in the firm, and that the action was not maintainable against Humble (b). In like manner it has been ruled, that a change of the form of checks in a banking-house is, without any advertisement in the Gazette, or circular letter to the customers, sufficient notice of an alteration of the firm, to a creditor who uses such checks (c).

However, in all cases, the proper mode of giving notice of dissolution is, to insert such notice in the Gazette, and also to send it round to the correspondents of the house. This has been ruled to be ample notice (d).

(a) See Ex parte Burton, 1 G. & J. 207; Ex parte Leaf, 1 Deac. 176. (b) M'Iver v. Humble, 16 East, 169. See Hart v. Alexander, 2 Mees. & W. 484.

(c) Barfoot v. Goodall, 3 Camp. 147.

B B

(d) Newsome v. Coles, 2 Camp. 617; Jenkins v. Blizzard, 1 Stark. 418. Creditors may be expected to look into the Gazette for notices of the dissolution of partnership. Munn v. Baker, 2 Stark. 255. But in matters unconnected with partner

But it matters not what notice is given of a partner's retirement, if he still retain his name in the firm. Until his name be removed, he will be liable for partnership contracts. Thus, where a retiring partner permitted his name to remain over the shop-door after notice of dissolution in the Gazette, and, while his name so remained, a bill was accepted in the name of the firm, the retiring partner was held liable on this acceptance (a). Again, A., B., and C. were partners. B. retired from the firm, but it was agreed that his name should continue until a future day. A. afterwards drew a note in the name of the old firm payable to D. Before this note was drawn, B. informed D. that he had ceased to be a partner, but that his name was to continue for a certain time. It was held, that B. was liable on this note notwithstanding such communication made to D.; for that D. knowing that B.'s name was to be continued, knew that he was therefore responsible, and of course he relied on that responsibility (b).

A dormant partner is only chargeable to third persons, in respect of contracts entered into by the firm during the time he is actually a partner, and is receiving the emoluments and profits of the business; for third persons have never trusted to his credit (c). Therefore, upon a dissolution between an ostensible and a dormant partner, it is not necessary for the protection of the latter from transactions subsequent to the dissolution, that notice of such dissolution should be given to the creditors of the firm (d). Even where a person has retired from a firm,

who, though intentionally a dormant partner, was known to many as a member of the firm, he will not, by failing to give notice of his retirement, become liable to the creditors of the remaining partners, if such creditors, at the time of their respective contracts, were ignorant that he was ever a partner (a).

But a dormant partner will be liable to the whole amount of a debt due during his copartnership, whether his connexion with the firm be or be not known to the creditor, at the time of the contract. Wilkinson had been a dormant partner in a ship with one Cay, but had retired. Robinson, the plaintiff, supplied the ship and the captain with stores and cash on account of the ship, to the amount of £1000 and upwards. The amount of the debt, at the time of Wilkinson's retirement, was 4017. 16s. 1d. Cay having become insolvent, the Court of Exchequer held clearly, that Robinson was entitled to recover against Wilkinson the total sum of 4017. 16s. 1d., (with a trifling deduction on a particular account), although, when the goods were supplied, Robinson had no knowledge that Wilkinson was a partner. "A party," said Graham, B., “has always a right against a concealed partner of whom he has previously had no knowledge, as soon as he discovers him, unless that ignorance were his own fault; as, if he had not used due diligence in finding him (b).”

Where the partnership of a dormant partner is known to one particular creditor, he will be liable to that creditor, until he has notice of the partner's retirement. Due notice ought, therefore, to be given to such creditor (c).

II. Having disposed of the preliminary subject of notice of dissolution, we will endeavour to investigate a variety of questions relative to the retiring partner's liability.

It may be premised that contracts by specialty will of course be binding on the partners who have executed them, notwith

Patteson, J., Heath v. Sansom, 4 B. & Ad. 177.

(a) Carter v. Whalley, 1 Barn. & Adolph. 11. See Jones v. Shears, 4 Ad. & Ell. 832.

(b) Robinson v. Wilkinson, 3 Price, 538; and see as to ignorance by the creditor of the dormant part

nership, Wintle v. Crowther, 1 Cromp. & Jerv. 316; Vere v. Ashby, 10 B. & C. 288; Ex parte Gellar, 1 Rose, 297; Gardiner v. Childs, 8 C. & P. 345.

(c) Evans v. Drummond, 4 Esp. 89. See ante, p. 74, note (d).

standing their retirement. And where a lease has been taken in the partnership name, a retiring partner, if he means to absolve himself from liability for future rent, should see that the lease is properly surrendered. Where a lease was taken by A. and B., partners, for seven years from 1827, and A. retired in 1829, and afterwards B. entered into partnership with C., it was held, that as no surrender of the lease was executed on A's retirement, he was still liable for rent, although the landlord had notice of his retirement, and received rent both from B. singly, and from B. & C. as partners, and wrote a letter to his attornies, (which however was not sent), directing them to make out a lease to B. & C. (a).

III. 1. Generally, when a bona fide dissolution has taken place, the retiring partner will not be bound by any new contract entered into by the remaining partners. This doctrine was carried to so great a length in Pinder v. Wilks (b), as to make that case extremely doubtful, though decided by a Judge of great authority. There, three partners, A., B., and C., ordered goods from abroad by means of an agent, in whose name the bill of lading was made out. They afterwards dissolved partnership, and made over their property to trustees, for their creditors, leaving A. and B. to settle the affairs of the firm. The goods arrived, and were delivered to A. and B. In an action against A., B., and C., for the freight, Gibbs, C. J., held, that inasmuch as an implied assumpsit for the freight did not arise until delivery of the goods, and C. had left the partnership before the delivery, C. was not liable for the freight. And this decision was confirmed by the Court of Common Pleas.

Upon consideration of this case, it seems difficult not to think that C., by joining in the contract, incurred an inchoate responsibility, which was made complete by the subsequen delivery of the goods; and therefore, that he ought to have borne all the consequences of his contract.

III. 2. Where a bona fide dissolution has taken place, the retiring partners are not to be bound by instruments negotiated in the name of the original firm after such dissolution. In Abel

(a) Graham v. Whichelo, 1 C. & M. 188.

(b) 1 Marsh. 248; 5 Taunt. 612.