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seen that the firm is not bound by bills or acceptances given in the name of the firm for the separate debt of one partner, nor generally by the fraud of any of its members, when the party dealing with such members is implicated in the fraud. But it seems clear, that the equity to which the defrauded partners are entitled in this case, cannot be supported in a Court of law, when the partners appear as plaintiffs : for, appearing as plaintiffs, they must join with them the fraudulent partner; and if, as Lord Ellenborough observed, they rely on his strength, they must also abide by his acts (a); or, in other words, suffer by his fraud. They are, therefore, placed in a dilemma, which makes their suit at law a nullity. In Jones v. Yates (6), Sykes and Bury being partners, Sykes fraudulently gave the bills of the partnership in discharge of his separate debt. He likewise applied part of the partnership funds to the same purpose. One question was, whether the partners could recover the amount of the bills and of the money in a Court of law; namely, by bringing trover for the bills, and assumpsit for the money. And the Court of King's Bench held that they could not. “We are not aware," said Lord Tenterden, "of any instance in which a person has been allowed, as plaintiff in a Court of law, to rescind his own act, on the ground that such act was a fraud on some other person ; whether the party seeking to do this has sued in his own name only, or jointly with such other person. It was well observed, on behalf of the defendants, that where one of two persons, who have a joint right of action, dies, the right then rests in their survivor ; so that, in this case (if it be held that Sykes and Bury may sue), if Bury had died before Sykes, Sykes might have sued alone, and thus, for his own benefit, have avoided his own act, by alleging his own misconduct. The defrauded partner may perhaps have a remedy in equity, by a suit in his own name, against his partner and the person with whom the fraud was committed. Such a suit is free from the inconsistency of a party suing on the ground of his own misconduct. There is a great difference between this case and that of an action brought against two or more partners, on a bill of exchange fraudulently made or accepted by one partner in the name of the others, and delivered by such
(a) 1 Stark. 204. (6) 9 Barn. & Cres. 532; and see Biggs v. Lawrence, 3 T. R. 454.
partner to a plaintiff, in discharge of his own private debt. In the latter case, the defence is not the defence of the fraudulent party, but of the defrauded and injured party. The latter may without any inconsistency, be permitted to say in a Court of law, that although the partner may for many purposes bind him, yet that he has no authority to do so by accepting a bill in the name of the firm for his own private debt. The party to a fraud, he who profits by it, shall not be allowed to create an obligation in another by his own misconduct, and make that misconduct the foundation of an action at law.”
The case of Jones v. Yates seems to overrule a preceding case before Lord Ellenborough, upon this particular point. In the case adverted to, it was held, that, after a dissolution of partnership between A. and B., and notice in the Gazette that all debts due to the partnership should be paid to B., A. having collusively given to a debtor of the firm a receipt dated anterior to the dissolution, the receipt was void, and an action might still be maintained against the debtor in the names of A. and B.(a). On the authority of Jones v. Yates, it appears that such an action is not maintainable; but possibly, under the same circumstances, it would now be held that the action might be maintained by B. alone (6).
Persons engaged in an illegal partnership cannot maintain an action on any contract arising out of their dealings as partners. The illegality of the partnership ought to be pleaded specially (c), but if it appear from the plaintiffs' own case at the trial, it will, it is apprehended, be ground of nonsuit. Where the partnership is legal, the partners cannot recover upon an illegal contract, although such contract, at the time it was made, was known only to one of the members of the firm (d).
Persons who may legally be partners in foreign countries, as, for instance, husband and wife, are not permitted to sue as partners in this country. If they have recourse to an English tribunal, they must place such a plaintiff before that tribunal, as can by the laws of this country be permitted to sue (e). So,
(a) Henderson v. Wild, 2 Camp. 561.
(6) See Erans v. Silverlock, 1 Peake, 31.
(c) Reg. Gen. H, T. 1834. Morse
v. Wilson, 4 T. R. 353.
(a) Biggs v. Lawrence, 3 T. R. 454.
(c) Cosio v. De Bernales, Ryan & Moody, 102.
conversely, partners trading abroad in such mode as to constitute a partnership here, may sue here as partners for consignments sent to this country, though they cannot sue as partners at the place of trading, by reason of the particular law of that place (a). For, in the words of Heath, J.-"In construing contracts, we must be governed by the laws of the country in which they are made; for all contracts have a reference to such laws. But when we come to remedies, it is another thing; they must be pursued by the means which the law points out where the party resides. The laws of the country where the contract was made can only have a reference to the nature of the contract, not to the mode of enforcing it (6)."
Lastly, the rights of partners to sue in respect of partnership transactions are affected by the bankruptcy of one or more of
(a) Shaw v. Harvey, 1 Mood. & same domicile, and the defendant Malk. 526. See Dutch West India asked such relief. By the law of Company v. Van Moses, 1 Str. 612. France, a foreigner may be sued in
(b) Melan v. Duc de Fitz-James, the French Courts by a Frenchman; 1 Bos. & Pull. 138. The opinion or, vice versa, a Frenchman may be of Mr. Justice Heath has been sued there by a foreigner, in respect adopted in the recent cases of the of contracts arising in a foreign British Linen Company v. Drum- country. See Code Civil, arts. 14, mond, 10 Barn. & Cres. 903, and 15. But, except in commercial or De la Vega v. Vianna, 1 Barn. & criminal matters, it should seem Adolph. 284; Ex parte Chevalier, 1 that one foreigner cannot effectually Mont. & A. 345; and Trimbey v. sue another in the French Courts, Vignier, 1 Bing. N. C. 151. In De unless by consent of the defendant. la Vega v. Vianna, it was decided, And, even then, in the words of M. that one foreigner may arrest an- Rogron,-“Si ces deux étrangers other in England, for a debt which consentent à être jugés par les tribuaccrued in the foreign country while naux Francais, ceux-ci prononcent both resided there, though the law plutôt comme arbitres que comme juges; of that country does not allow arrest car ils n'ont pas une veritable jurisfor debt. The opinions, likewise, diction sur ces étrangers.” Code of Huber and Voet, which are cited Civil, par Rogron, 14. It may be in the last-mentioned case, support remarked, that the opinion of Lord the general doctrine, that this re- Loughborough, in Talleyrand v. Boumedy should be pursued according langer, 3 Ves. 447, which seems to to the law of the country where the coincide with the law of France as debtor resides. The latter author, just stated, is completely overruled however, observes, that in some by the case of De la Vega v. Vianna, places, upon the arrest of one fo- cited above. See further on this reigner by another, it was the prac- subject, Story's Conflict of Laws, p. tice to remit them to their own 300; Ex parte Pollard, 3 Mont. & Courts, if both parties were of the A. 340.
them. For, in that case, they cannot generally maintain an action ex contractu, without joining the assignees of the bankrupt as plaintiffs (a). Likewise, if one partner in an adventure buy goods for the adventure and become a bankrupt, and his vendor, without notice of the partnership, stop the goods in transitu, the solvent partner is then tenant in common of the goods with the vendor, and cannot sue the latter for them in an action of trover (6).
Having made these general observations on the rights of partners to sue in an action, let us proceed to examine the several most material points connected with the action itself.
Of the Parties to an Action ex contractu.
In an action against a stranger to enforce a contract made with the firm where there has not been any severance of interest, all who were partners at the time of the contract must join as plaintiffs (c). The reason given is, that where the interest is joint, if several were to bring actions for one and the same cause, the Court would be in doubt for which of them to give judgment (d). Hence, when the contract is under seal, all
(a) See the next Section.
fendant drew a bill in their joint (6) Salomons v. Nissen, 2 T. R. names. The other parties to the 674.
bill were ignorant of the dissolution. (c) Mont. Partn, 59; Lambert's The holder brought an action against case, Godbolt, 244; Cabell v. Vau- the three quondam partners. Harper ghan, 1 Saund. 291 b, n. 4.
pleaded his bankruptcy, and a nolle (d) Per Lord Kenyon, Anderson prosequi was entered as to him, but v. Martindale, 1 East, 497. Where against the two plaintiffs a verdict monies are paid out of a joint fund, passed for £1156. The two plainthe joint owners of the fund should tiffs were never partners after the sue jointly for the money paid. In dissolution before mentioned, but Osborne v. Harper, 5 East, 225, the their attorney proved that he had two plaintiffs and the defendant had discharged the whole demand, £1156, been partners; and, after the disso- at the request of both plaintiffs. lution of the partnership, the de- On an affidavit being produced (by
the partners covenantees must join; and as their legal interest is joint, it matters not though the covenant be in terms joint and several (a). Hence also, when the contract is in he form of a negotiable security, all the partners payees must join ; and where, by the terms of the contract, a note given to the firm is to be a continuing security throughout all the changes of the house, if the note be not indorsed to any of the successive new firms, the original payees must join as plaintiffs, although some may have retired from the partnership (6).
I. 2. But generally, in all contracts, by parol or otherwise, they only who were partners at the time of the contract must join; and therefore, a person who enters the partnership after
direction of the Court) that the at- motion for a new trial, the Court of torney advanced the money on the Common Pleas were of the same joint credit of both the plaintiffs, opinion. However, in a
case in the Court held that it was a joint which the plaintiffs brought their fund from which the payment was
action to recover a sum of money made, and a joint action was there- paid by the plaintiffs as bail in error fore maintainable. And conversely, for the defendants, to make up a promise to pay by partners, is a which sum each of the plaintiffs had promise to pay out of a joint fund, advanced his share, Burrough, J., although they agree to pay equally ruled, that as the payment was made out of their own private cash ; and in one sum and as a joint payment, a they must be sued jointly upon such joint action was maintainable. May promise. Byers v. Dorey, 1 H. Bl. v. May, 1 Car. & Payne, 44. 236. So, where monies when reco- (a) Anderson v. Martindale, suvered will be the joint property of pra; and see Eccleston v. Clipsham, the parties who bring the action, Saund. 153; 1 Chit. Pl. 6, n. (d). they are rightly joined as plaintiffs, It is a well settled principle, that whether they are partners or not. covenants shall not be construed to Bond v. Pittard, 3 Mee. & W. 357. be joint or several from the particuBut in respect of a separate fund, a lar language in which they may be separate action must be brought. conceived, but shall be measured Thus, in Brand v. Boulcott, 3 B. & and moulded according to the interP. 235, the plaintiffs and defendant est of the covenantees; and although, had been joint assignees under a in terms, the covenant may import bankruptcy. The solicitor's bill to be joint, yet, where the interest was £208: each of the plaintiffs paid is several, so shall the covenant be him £104, and brought a joint ac- construed. Platt on Covenants, 123. tion against the defendant, the other (6) Pease v. Hirst, 10 Barn. & assignee, for his share. But, Lord Cres. 122; Twopenny v, Young, 3 Alcanley nonsuited the plaintiffs, on Barn. & Cres, 208 ; 5 Dowl. & Ryl. the ground that each should have 259. brought a separate action; and on