trade had been dissolved, and one of them carried on business afterwards solely on his own account, but in the names of himself and former partner, it was held, that he might maintain assumpsit alone for goods sold and delivered to the defendant during the existence of the partnership. But in this case, Lord Tenterden observed, that if the defendant had had a set-off or counter-demand originating in transactions between himself and the partnership, then it would have been necessary to include the other partner as a plaintiff in the action (a). So, in some cases where the partnership is dissolved by bankruptcy, the solvent partner may sue alone, without joining the assignees of the bankrupt (b).

A partner must sue severally, by reason of an office or appointment enjoyed by him, but which, being of a personal nature, is not shared by his copartner. Thus, for the more speedy delivery of cattle taken by way of distress, the statute 1 Philip & Mary, c. 12, provides, that the sheriff shall make at least four deputies in each county, dwelling not above twelve miles from each other, for the sole purpose of making replevins. By the terms of this statute, it seems clear, that the office so constituted is of a personal nature. Therefore it has been held, that a replevin clerk, who is a partner in an attorney's firm, must sue alone for the expenses of preparing a replevin bond, although it be prepared at the office of the firm (c).

Where attornies, who are in partnership, are admitted of different Courts, it seems to be unsettled whether they can maintain a joint action for business done in one Court, though under a joint retainer. Yet it seems clear, except, perhaps, where the business has been transacted in Chancery, that such an action may be maintained (d). And, at all events, any objection to such an action, arising from the stat. 2 Geo. 2, c. 23, must be the subject of a special plea, and cannot be made available under non assumpsit (e).

IV. It is not necessary that a dormant partner should join

(a) Atkinson v. Laing, 1 Dowl. & Ryl. N. P. C. 16.

(b) Vide post, p. 471.

(c) Brandon v. Hubbard, 4 Moore, 367; 2 Brod. & Bing. 11.

(d) Hill v. Sydney, 7 Ad. & Ell. 956; Arden v. Tucker, 4 B. & Ad. 817; Vincent v. Holt, 4 Taunt. 582. (e) Hill v. Sydney, ubi supra.

with the ostensible partners of a firm, in an action against a person who dealt only with the ostensible partners (a). And in one case, where an action was brought by M., a bookseller, against a printer, for not insuring a book of travels, and it appeared that several other booksellers had shares in the work, it was held that, as they had not contracted with the defendant, and M. was the only ostensible man, he was the only proper plaintiff (b). On the other hand, where one of several partowners of a vessel contracted for the sale of some whale oil, it was held that all the part-owners might sue the purchaser, although, at the time of the contract, the purchaser did not know that other persons had any interest in the transaction. And it being objected, that, under these circumstances, the defendant might be deprived of his right of set-off, the Court said, that the statutes of set-off did not prevent the action from being maintainable in the names of all the parties interested; though, if the defendant were injured by the loss of his right of set-off, he might perhaps apply to the Court for relief (c). And where money has been lent by a partner, under circumstances from which it may be inferred that it was lent by the firm, which inference, it is conceived, will arise if all the partners but the lender are dormant, all the partners may sue (d).

Upon the whole, where there are ostensible and dormant partners engaged in general trade, it seems to be optional whether the dormant partners shall or shall not join (e). In one case, Lord Tenterden treated the point as doubtful. A contract had been entered into for five years by A., who had a dormant partner B. After A.'s retirement, B. became the ostensible trader, and carried on the business by himself. He then brought an action for a breach of the contract which had been entered into with A. during the partnership. The Court of King's Bench held, that he had no right to do so after the dissolution of the partnership; but Lord Tenterden said, that it was unnecessary to decide whether, if A. had continued in the partnership till the expiration of the five years during which the contract made by him was to continue in force, the action,

(a) Leveck v. Shaftoe, 1 Esp. 468; Lloyd v. Archbowle, 2 Taunt. 324.

(b) Mawman v. Gillett, cited in Lloyd v. Archbowle, 2 Taunt. 324.

(c) Skinner v. Stocks, 4 B. & A.

437; and see Rodwell v. Redge, 1 Car.
& Payne, 220; Cothay v. Fennell,
10 Barn. & Cres. 671.

(d) See ante, p. 448.
(e) But see ante, p. 465, note (c).

in the joint names of him and his partner might not have been maintained (a).

Generally, a nominal partner need not join as a co-plaintiff in an action on a contract made by the firm. On the contrary, he may be called as a witness for the plaintiffs (b); though, in such case, the plaintiffs must shew clearly at the trial, that the nominal partner had no interest whatever in the concern (c). In a case, where an attorney carried on business under the firm of " A. & Son," and the son was not in fact a partner, but acted as a clerk to his father, with a salary, it was held clearly that A. might maintain an action in his own name alone, for business done as an attorney. And Parke, J., observed, that a party with whom the contract was actually made might sue, without joining others with whom it was apparently made (d).

Where, however, an action is brought by the firm on a bill of exchange, drawn in the names of the real and nominal partners, as representing the style of the firm, in such case the nominal partners should join as plaintiffs. In a case where an action on such a bill was brought by the real partner only, the nominal partner being in fact a clerk, having no share in the profits, but only a fixed salary, Lord Ellenborough nonsuited the plaintiff. And it is to be remarked, that his Lordship's observations on this occasion seem applicable to all cases of nominal partnership. "There being such a person as Hughes, (the clerk), I am clearly of opinion that he ought to have been joined as a partner. He is to be considered in all respects a partner, as between himself and the rest of the world. Persons in trade had better be very cautious how they add a fictitious name to their firm, for the purpose of gaining credit. But where the name of a real person is inserted, with his own consent, it matters not what agreement there may be between him and those who share the profit and loss. They are equally responsible, and the contract of one is the contract of all. In this case, the declaration states that the defendant promised to pay the money specified in the bill to the plaintiff jointly with another person. The variance is fatal (e).”

An infant partner must, it seems, join in an action by the

(a) Robson v. Drummond, 2 Barn. & Adolph. 303.

(b) Parsons v. Crosby, 5 Esp. 199; Davenport v. Rackstraw, 1 C. & P.

89; Glossop v. Colman, 1 Stark. 23.

(c) Teed v. Elworthy, 14 East, 210. (d) Kell v. Nainby, 10 B. & C. 20. (e) Guidon v. Robson, 2 Camp. 302.

firm for recovery of a debt due to the firm, for this mode of suing gives the defendants an opportunity of setting off, against a debt contracted with the firm, any demand upon it contracted with the infant in the name of the partnership (a).

Generally, when one partner becomes bankrupt, the solvent partner must sue jointly with the assignees of the bankrupt partner, on contracts made with the partnership (b); and if the assignees refuse to join in the action, the solvent partner may use their names (c). It follows, that if, after the bankruptcy of one partner, all the partners sue, the bankruptcy may be pleaded in bar of the action (d). It has been held, however, that money paid to the defendant's use by a solvent partner, out of his separate property, after the bankruptcy of his copartner, in pursuance of a contract made before the bankruptcy, may be sued for in the name of the solvent partner only, without joining the assignees of the bankrupt partner (e).

When one or more of several obligees, covenantees, partners, or others, having a joint legal interest in the contract, dies, the action must be brought in the name of the survivor; and the

(a) Teed v. Elworthy, 14 East, 210. D. Bayley, J., Goode v. Harrison, 5 B. & A. 157. Perhaps, it should be said, that the infant ought to join for the sake of conformity. The reason given in the text, which is warranted by the authorities referred to, seems inconsistent with the notion, that the contract of an infant for purposes of trade is void, which is the doctrine laid down in Thornton v. Illingworth, 2 B. & C. 826. Bayley, J., there says " In the case of an infant, a contract made for goods for the purposes of trade is absolutely void, not voidable only. The law considers it against good policy that he should be allowed to bind himself by such contracts. If he makes a promise after he comes of age, that binds him, on the ground of his taking

upon himself a new liability, upon a moral consideration existing before; it does not make it a legal debt from the time of making the bargain." There is, however, considerable difference of opinion on the nature and effect of an infant's on

tract in these cases. See the judgment of Best, J., in Goode v. Harrison, 5 B. & A. 157.

(b) Thomason v. Frere, 10 East, 418; post, Book 4, chap. 3, sect. 4.

(c) Whitehead v. Hughes, 2 Cromp. & Mees. 318; 4 Tyrwh. 92. But the assignees may stay the proceedings till he gives security for costs. Ibid.

(d) Eckhardt v. Wilson, 8 T. R.

140.

(e) Thacker v. Shepherd, 2 Chit. 652.

executor or administrator of the deceased cannot be joined (a) : and when the last survivor dies, his executors or administrators alone can sue, and the personal representatives of the partner who first died cannot be joined (b). If a plaintiff die pending the action, the writ or action shall not be thereby abated, but such death being suggested on the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs (c).

V. In all cases of contract, if it appears on the face of the pleadings that there are other obligees, covenantees, or parties to the contract, who ought to be, but are not joined in the action, it is fatal on demurrer, or on motion in arrest of judgment, or on error. If the objection does not appear on the face of the pleadings, the defendant may avail himself of it, by plea in abatement, or as a ground of nonsuit at the trial, upon plea of the general issue (d). It has been sometimes held, that if a defendant in an action, brought against him by one partner only, on a partnership contract, pays money into Court, although only upon a general indebitatus count, this is an admission that he is content to treat the contract as made with the plaintiff only, and that the plaintiff in such case is not to be nonsuited (e). But this doctrine seems now to be overruled (f).

In case of misjoinder or the joinder of more persons than those who are interested in the suit, the plaintiffs will be nonsuited (g). But the misnomer of one of several plaintiffs cannot be taken advantage of by the defendant by plea in abatement, though he has a right to amend the declaration at the costs of the plaintiffs ().

(a) Chit. Pl. p. 11; Hall v. Huffam, 2 Lev. 188; Kemp v. Andrews, Carth. 170; Webber v. Tyvell, 2 Saund. 122; Martin v. Crompe, 1 Lord Raym. 340; Com. Dig. Tit. Merchant, (D.)

(b) Chit. Pl. p. 11.

(c) 8 & 9 Will. 3, c. 71, s. 7. (d) Where the action is brought on a bill of exchange, the general issue cannot be pleaded. Reg. Gen.

H. T. 1834.

(e) Walker v. Rawson, Moody & Rob. 250; and see 1 B. & Ad. 673. (ƒ) Kingham v. Robins, 5 Mee. & W. 94.

(g) Wilsford v. Wood, 1 Esp. 182. See Brandon v. Hubbard, 4 Moore, 367; 2 Brod. & Bing. 11.

(h) 3 & 4 Will. 4, c. 42, s. 11; Jowett v. Charnock, 6 M. & S. 45. See Clerk of Taunton Market v. Keinberley, 2 W. Bl. 1120.