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with the executors, for several years, but under the same firm of A. & Co. Bills were drawn and accepted, and large quantities of barley bought in the course of the trade, which were manufactured into malt for sale, and every other act was done, which was necessary to carry on the trade of maltsters. In making up the accounts, the executors divided the profit and loss of the business with the other partners, but carried on the business solely for the benefit of the infant, charging her, in their account as executors, with the loss, giving her credit for the profits of the trade, and taking no part of the profits to their own use. The business was managed by B.; and it did not appear that the executors ever interfered, except in settling the accounts. It was held that the executors were liable, upon a bill drawn upon A. & Co. for the accommodation of the partnership, and paid in discharge of a partnership debt(a).
Of the Extinction of Liabilities.
Having seen in what manner the estates of a retiring and of a deceased partner may be relieved from their respective liabilities, let us shortly consider how the estate of the whole firm may be discharged by the act of one or more of the partners. This, it is apprehended, can only be done by release or satisfaction; but, in either case, the act of release or satisfaction, as between the creditor and one partner, will enure to the benefit of the firm.
Thus, where A. and B. are bound jointly and severally to C., a release to one is a release of the debt to both (6). Now, a
(a) Wightman v. Townroe, 1 Mau. & Sel. 412; Ex parte Marks, 1 D. & C. 499.
(6) Hammon v. Roll, March, 202; Nedham's case, 8 Rep. 136; Bower v. Swadlin, 1 Atk. 294 ; Co. Litt. 232. a.; Collins v. Prosser, 1 B. & C.
682. To a plea of a release by one of two joint obligors the plaintiff cannot reply, that the release was given upon the undertaking on the part of the other obligor (defendant) not to be released. Cocks v. Nash, 9 Bing. 341.
learned writer observes, that doubtless a release will have operation upon a debt due from a partnership by simple contract as well as by specialty: and that, where a creditor receives only part of his demand from one partner upon a bill of exchange, or for goods sold, he may come upon the others for the residue; but if he seals a release to one, whatever sum may still be due to him, he is barred as against each and all of them (a).
Upon this principle it has been decided, that if, upon the dissolution of a partnership, the joint creditors execute a composition deed to that partner who winds up the affairs of the partnership, such deed is in the nature of a release, and will discharge the other partner from his liability for the joint debts (6).
But a release given to one of two partners may, by means of recitals and provisoes, be limited in its operation to that one partner only; and may even leave that partner open to actions on account of his copartner. Thus, in Solly v. Forbes (c), an action was brought against the defendants Forbes and Ellerman for money paid &c. Forbes pleaded the general issue. Ellerman pleaded the general issue, a release, and set-off. The release was expressed to be made between the plaintiffs of the one part, and the defendants Forbes and Ellerman of the other; and recited, amongst other things, that there were various transactions of business between Forbes and Ellerman and the plaintiffs; and that upon the balance of accounts between the two houses, Forbes and Ellerman stood indebted to the plaintiffs, as copartners in trade, in a considerable sum of money, the whole of which was then due and owing; and that Ellerman had offered to the plaintiffs to pay them the sum of £3000, upon having such a release from the plaintiffs as thereinafter contained: the release then witnessed that for valuable con
(a) Wats. Part. 227. So if a creditor receive payment of part of his debt from a surety, such payment alone will not operate as a discharge to the co-surety; for if the latter be compelled to pay more than his share, he will still have his right of contribution : but if the creditor, on receiving such part payment, discharge the surety from his whole liability, that is a discharge to the
co-surety. Nicholson v. Revill, 4 Ad.
(6) Ex parte Slater, 6 Ves. 146.
siderations, (money and promissory notes to the amount of £3000), the plaintiffs remised, released, and for ever discharged Ellerman, his executors, administrators, and assigns, from all actions, suits, debts, sum and sums of money, claims, demands, &c., in law and in equity, which the plaintiffs then had or might have against Ellerman, his executors, administrators, or assigns, by reason of any matter, cause, or thing whatsoever, relating to the premises, from the beginning of the world to the day of the date of those presents, except and subject nevertheless to the provisoes, declarations, or agreements thereinafter contained. Provided always, &c., that those presents or anything therein contained, should not release, or be construed to release, or in any manner to prejudice and affect any claims or demands which the plaintiffs, or either of them, ever had or might have upon or against Forbes, either separately or as a partner with Ellerman, or upon or against the joint estate or effects of Forbes & Ellerman, in respect of the debt so due from Forbes & Ellerman to the plaintiffs, or any part of such joint estate or effects, whether the same should be in the hands of or recoverable from Forbes & Ellerman, or either of them, or any other person or persons whomsoever.
Provided also, nevertheless, &c., that it should be lawful for the plaintiffs, from time to time, when and as they should be thereto advised, to commence and prosecute any actions, suits, or other proceedings, either at law or in equity, against Ellerman jointly with Forbes, or against Ellerman, his executors, administrators, and assigns, separately, for the purpose of recovering or compelling, or of enabling the plaintiffs to recover or compel, payment or satisfaction of the debt so due and owing from Forbes and Ellerman to the plaintiffs as aforesaid, either by or out of any the joint estate or effects of Forbes & Ellerman, or by or from Forbes, his executors, administrators, or assigns, or his separate estate and effects.
The plaintiffs by their replication averring that the action was brought to compel payment of the monies due to them from Forbes & Ellerman, either out of the joint estate of Forbes & Ellerman, or from Forbes or his separate estate, the defendant Ellerman, demurred to the replication, and in support of the demurrer it was contended, amongst other things, that the provisoes in this release were void, as being repugnant to the nature of the instrument. But, the Court of
Common Pleas, after taking time to consider the case, overruled the demurrer, being of opinion that the release, as set forth, was no bar to the action. Dallas, C. J., said, that no doubt could be entertained that it was meant to release Ellerman as to person and effects, but not Forbes; and, therefore, to retain against Ellerman every right and remedy necessary to enforce payment from Forbes; that it was expressly provided and declared that it should be lawful for the plaintiffs to commence and prosecute any action against Ellerman jointly with Forbes for the recovery of the joint debt: that this was a joint action for the recovery of such debt, and, therefore, an action expressly and in direct terms authorized by the deed of release itself.
Although a release to one partner is generally a release to all, yet a covenant not to sue one of several partners, will not operate as a release to the others, because the use of such an instrument evidences an intention on the part of the covenantor to avoid the legal effects of a release as to copartners. In Hutton v. Eyre (a), the plaintiff and defendant had been part
In August, 1809, they entered into a deed to dissolve the partnership as from the 1st January then next, in which deed it was covenanted that neither of them should, after the signing of the deed and before the 1st of January, purchase any goods in the name of the firm of Hutton & Eyre. The notice of dissolution did not appear in the Gazette till the 24th of January, 1810. On the 27th October, 1810, the defendant executed an assignment of all his property to trustees for the benefit of his creditors ; in consideration of which the creditors covenanted with the defendant not to sue him on account of any debt due to them from him; and that in case they did sue him, the deed of assignment should be a sufficient release and discharge for him. Between the time of executing the deed of dissolution, and the 1st of January, 1810, the defendant contracted different debts in the name of Hutton & Eyre. The assignees having paid only a small dividend, the plaintiff was obliged to pay the deficiency, to recover which he brought his action and obtained a verdict against the defendant. A question was then raised for the defendant as to whether the action was maintainable, it being contended that the deed of composition operated as a release, not only to the defendant, but also to the plaintiff, as the defendant's partner; and therefore that the plaintiff was under no obligation to pay the remainder of the debts, and had consequently paid them in his own wrong
(a) 1 Marsh. 603.
The Court of Common Pleas held that the action was maintainable. Gibbs, C. J.--"In a case like the present, it is impossible to contend that, by a covenant not to sue the defendant, it was the intention of the covenantors to release the plaintiff, who was able to pay what his partner might be deficient in. It would have been an easier and a shorter method to have given a release, than to make this covenant. The only reason, therefore, for their adopting this course was, that they did not choose to execute a release to the defendant, because that would also have operated as a release to the plaintiff; whereas, they considered that a bare covenant not to sue the defendant would not extend to his partner. As, therefore, the terms of the covenant do not require such a construction, and as such a construction would be manifestly against the intention of the parties, we are decidedly of opinion that it ought not to be suffered so to operate.”
Payment by one of several partners on their joint account is payment by all (a). And where two houses are partners in a particular transaction, payment by one house on account of that transaction is payment by both (6). Payment by one of the obligors in a joint and several bond is payment by all (c).
(a) Innes v. Stephenson, 2 Mood. & Malk. 145. Where two partners are defendants, and both are arrested on a joint ca. sa. for the amount of the damages, and one is discharged on giving a promissory note to the plaintiff, payable by instalments, this operates as a discharge to the other. Ballam v. Price, 2 Moore, 235. And see Foster v. Jackson, Hob. 59. And if the plaintiff con
sent to discharge one of several defendants taken on a joint ca. sa., he cannot afterwards retake him, or any of the others. Clerk v. Clement, 6 T. R. 525. See Basset v. Salter, 2 Mod. 136 ; Blackburn v. Stupart, 2 East, 243; Tanner v. Hague, 7 T. R. 420.
(6) Cheap v. Cramond, 4 B. & A. 663.
(c) Bac. Abr. Obligation, D. 4.