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Oldfield (b), the

are not the same (a). Thus, in Mitchell v. plaintiff recovered a judgment against the defendant, but the defendant, having also recovered in another action against the plaintiff and another, obtained a rule to shew cause why the debt and costs in the latter should not be set off against the judgment in the former action; and although it was objected that these joint and separate debts could not be set off under the statute, the Court nevertheless made the rule absolute, on the defendant undertaking that the bill of the plaintiff's attorney (c) should be satisfied, and on his entering a remittitur in the cause in which he was plaintiff. Lord Kenyon said, that this did not depend on the statutes of set-off, but on the general jurisdiction of the Court over the suitors in it; that it was an equitable part of their jurisdiction, and had been frequently exercised. So, in another case, where an action was brought against three defendants, one of whom had recovered a judg ment in a former action against the plaintiff, it was held that the judgment in the former action might be set off against the judgment in the latter (d). It is to be observed, that in the former of these two cases it appeared that the plaintiff against whom the set-off was allowed had absconded; and in the latter an affidavit was made by the defendant, that the plaintiff appeared to be insolvent, that his goods were all distrained for rent, and that he was not to be met with. But where a judgment had been recovered by A. against B. and C., and afterwards a judgment was recovered against A. by the assignees of of B., under an insolvent debtors' act, the Court refused, upon the application of A., to set off the former judgment against the latter, on the ground that, in this case, the interests of third persons intervened. And Lord Ellenborough expressed a strong disinclination to extend the power of setting off debts on general grounds of equity, beyond the line which the Legislature had thought proper to mark out (e).

V. If one of the partners is an infant, we have seen that he may plead his infancy (f). To an action brought against two

(a) Mont. Partn. 87.

(b) 4 T. R. 123.

(c) See Reg. Gen. 93, Hil. T. 1832.

(d) Denniev. Elliot, 2 H. Bl. 587.

(e) Doe v. Darnton, 3 East, 149; and see Hewitt v. Pigott, 8 Bing. 61.

(f) Ante, p. 502.

persons on their joint and several covenant, one of the covenantors cannot plead the infancy of the other (a).

VI. If one of the partners is a bankrupt, he cannot give this in evidence under the general issue (b); but if the act of bankruptcy took place before the suit commenced, he may plead his bankruptcy generally, under the 126th section of the statute. The plaintiff may then enter a nolle prosequi as to him, and proceed against the others (c). If, however, the bankruptcy took place after the suit commenced, he must plead his bankruptcy and certificate specially (d). And if the certificate were not obtained until after plea pleaded, he must plead his bankruptcy and certificate specially puis darrein continuance (e). In such cases the plaintiff may enter a nolle prosequi as to the bankrupt, and proceed against the rest; but he cannot, at Nisi Prius, upon a plea of bankruptcy puis darrein continuance, by one of two defendants, confess the plea to be true, and go on with the case as to the other defendant (ƒ).

VII. We have seen, that, if a joint tort be committed, the plaintiff may, at his election, sue all or any of the tort-feazors (g). But if divers commit a trespass, though this be joint or several at the election of him to whom the wrong is done, yet, if he releases to one of them, all shall be discharged, because his own deed shall be taken most strongly against himself (h). Hence, if trespass be brought against three, and judgment given against one, and the plaintiff enter a nolle prosequi against the other two, if the nolle prosequi be before judgment, it will discharge the whole action. So, if judgment had been against all three, and the plaintiff had entered a nolle prosequi against the two: for nonsuit, or release, or other discharge of

(a) Gillow v. Lillie, 1 Bing. N. C. 695.

(e) Todd v. Maxfield, 6 Barn. & Cres. 105; Steph. Pl. 89. But see (b) Gowland v. Warren, 1 Camp. Humphreys v. Knight, 4 Moore & 363. Payne, 375; 6 Bing. 572.

(c) Noke v. Ingham, 1 Wils. 89. But bankruptcy is no bar to an action of trover. Parker v. Norton, 6 T. R. 695.

(d) Arch. B. L. 271.

(f) Pascall v. Payne, 372.

Horsley, 3 Car. &

(g) Ante, p. 505.

(h) Co. Litt. 232; Bac. Abr. Release, (G.).

one, discharges the rest (a). So where, in trover against two, one pleaded not guilty, and a verdict was found against him, and the other pleaded a release, and a verdict was found for him; on a motion for judgment against him who was found guilty, it was denied, because the trover being joint, a release of all actions discharged both (b).

In general, when the defence is in its nature joint, several defendants may join in the same plea, or they may sever; and one defendant may plead in abatement, another in bar, and the other may demur (c); and in tort one may plead not guilty, and the other a justification (d). If the defendants plead severally, the plaintiff may demur to one plea, and join issue on the other (e).

SECTION VIII.

Of the Evidence.

Ir is essential, in an action ex contractu against partners, that there should be sufficient evidence to affect all the defendants; for, if the plaintiff fail to fix any one of them, he will be nonsuited (f). We have already investigated the circumstances which constitute the legal evidence of the existence of a partnership; we have likewise examined the various liabilities which attend the connexion between partners; it now remains to consider in what manner and by what witnesses evidence of the partnership may be established.

In order to charge persons as partners, the utmost strictness of proof of the partnership is not required. It is sufficient to shew that they have acted as partners, and that by their habit and course of dealing, conduct and declarations, they have in

(a) Parker v. Lawrence, Hob. 70. (b) Kiffin v. Willis, 4 Mod. 379. (c) 1 Chit. Pl. 480; Com. Dig. Pleader, (2 A. 3).

(d) 1 Chit. Pl. 482; Com. Dig. Pleader, (2 A. 3).

(e) Com. Dig. Pleader, (E. 35).

(f) Young v. Hunter, 4 Taunt. 582; Noke v. Ingham, 1 Wils. 89; Cooper v. Whitehouse, G C. & P.

595.

duced those with whom they have dealt to consider them as partners (a). Hence, if it appear that two persons have in many instances traded jointly, that will be prima facie evidence of a general partnership, particularly if the instances of joint dealing greatly outweigh the instances of separate dealing. In a case where A. and B. had dealt as partners in two transactions only, it was urged that this would raise such a strong presumption of a general partnership, as to dispense with proof that the particular debt sought to be recovered was contracted on the joint account. Lord Ellenborough appears to have held otherwise; but he said, that had the instances of joint-dealing preponderated, he thought the onus would have been upon the defendants to have shewn that there was not a general partnership (b).

Where a plaintiff is provided with ample evidence of the acts or dealings of the defendants as partners, it will be unnecessary for him to prove the execution of a deed of partnership by the defendants. Therefore, where an action for goods sold and delivered was brought against a person as being a member of the company to whom they were supplied, it was held sufficient for the plaintiff, although the company was established by deed, to prove by oral testimony, that a company existed under a certain denomination, and that the defendant had attended several meetings of the society, and had acted as chairman (c). And even if a deed be produced to prove that the defendants are in partnership, third persons may object to its being read, if the reading be prejudicial to their interests. Thus, in an action of assumpsit against the acceptors of a bill of exchange, in order to prove the liability of some of the defendants as partners, in a firm called the "Fox-hill Stone Pipe Company," the plaintiff's counsel called a witness to produce a deed of composition, executed between the defendants and the "Middlesex WaterWorks Company," for the purpose of shewing that the defendants were all executing parties to the deed, as members of the firm on whose behalf the bill of exchange was accepted. The witness, who was attorney to the Middlesex Water-Works Company, produced the deed, but objected, on behalf of his

(a) See 3 Stark. Ev. 1070.

(c) Alderson v. Clay, 1 Stark.

(b) Newnham v. Tetherington, 405. Ross, V. & P. 134, ed. Harrison.

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clients, that it ought not to be read, inasmuch as it contained matters which might be prejudicial to their interests: that there had been disputes between the two companies; and the deed, if read, might be prejudicial to the Middlesex WaterWorks Company, in their proceedings against the other parties in Chancery. And the Court allowed the objection. "I cannot," said Lord Tenterden, "order the witness to produce the deed, if he informs me that the disclosure of its contents may prejudice his clients; and I can draw no distinction between this and the ordinary case, where a third party is called upon to produce the title deeds of his estate, and who may object to the disclosure of his title (a)." Where assumpsit was brought against partners on a written agreement to underlet premises, which agreement was signed in their name and style of H. C. & Co., parol proof that the defendants were in partnership under the firm of H. C. & Co., and that they had been frequently seen on the premises, was held to be sufficient, without shewing in whose handwriting the agreement was signed, the attesting witness being absent (b).

A partnership between A. and B. may be proved by parol evidence, that bills drawn upon A. were accepted by B. under certain circumstances, provided there have been one invariable course of dealing between the parties to these bills, according to which they were drawn and accepted. To use the words of Lord Ellenborough " Parol evidence may be received of one invariable mode of dealing between parties by means of bills of exchange. If the mode of dealing varies, the bills must be produced, otherwise we should be receiving parol evidence of an individual written instrument, which is not admitted. But where bills are sworn to be always drawn and accepted in the same firm, I think the course of dealing so established may be proved by the parol examination of a witness, for the purpose of shewing in what relation the parties stood to each other (c).

In proving a partnership from the acts of the parties in the conduct of their business, a witness may be asked, whether one defendant has interfered in the business of the other; and the question cannot be objected to as a leading question (d).

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