488

ADMISSIONS BY NOMINAL PLAINTIFFS.

§ 522. Whether, if the admission of the nominal plaintiff be merely verbal, or be contained in some writing not under seal, as a receipt, for instance, courts of law will, on motion, prevent the defendant from availing himself of it to defeat the claims of the real plaintiff, is a question still undecided, though on principle it is difficult to see what valid distinction can be drawn between these admissions, and those which are expressed in solemn form (e). Be this as it may, it seems perfectly clear that, notwithstanding a receipt in full has been given by the nominal plaintiff to the defendant, the parties really interested may show to the jury that the money has in fact never been paid; for, as such a receipt is at best but an inconclusive declaration of payment, it must be open to explanation and controlling proof, and would be equally so though the party who gave it was not only the nominal but the real plaintiff (ƒ).

§ 523. It is worthy of remark, that in the American courts the practice is somewhat different, as the judges presiding at Nisi Prius exercise the same equitable jurisdiction as if they were sitting in banc; and consequently, if a release from a nominal plaintiff be pleaded in bar, a prior assignment of the cause of action, with notice thereof to the defendant, and an averment that the suit is prosecuted by the assignee for his own benefit, is a good replication (g). Nor is the nominal plaintiff permitted, by the entry of a retraxit, or in any other manner, injuriously to affect the rights of his assignee, in a suit at law (h).

(e) Alner v. George, 1 Camp. 393, per Lord Ellenborough; recognised in Gibson v. Winter, 5 B. & Ad. 104, per Lord Denman.

(f) See Wallace v. Kelsall, 7 M. & W. 273, 274, per Parke, B., explaining the decisions in Skaife v. Jackson, 3 B. & C. 421, and Farrar v. Hutchinson, 9 A. & E. 641; 1 P. & D. 437, S. C. See also Henderson v. Wild, 2 Camp. 561, per Lord Ellenborough.

(g) Mandeville v. Welch, 5 Wheat. 277, 283; Andrews v. Beecker, 1 Johns. Cas. 411; Raymond v. Squire, 11 Johns. 47; Littlefield v. Story, 3 Johns. 425; Dawson v. Coles, 16 Johns. 51; Kimball v. Huntington, 10 Wend. 675; Owings v. Low, 5 Gill & Johns. 134. In Craib v. D'Aeth, 7 T. R. 670, n., a similar replication was adopted; "but no objection appears to have been taken on this ground, and the general practice is undoubtedly to apply specially to the court." See per Lord Denman, in Gibson v. Winter, 5 B. & Ad. 103.

(h) Welch v. Mandeville, 1 Wheat. 233. "By the common law, choses in action were not assignable, except to the Crown. The civil law considers them as, strictly speaking, not assignable; but, by the invention of a fiction, the

ADMISSIONS BY PROCHEIN AMY OR GUARDIAN.

489

§ 524. In holding that the admissions of mere nominal parties are receivable in evidence, the law does not include the declarations of a prochein amy or guardian, because these persons, though their names appear on the record, are not in fact parties to the suit, but are considered as officers of the court specially appointed by the judges to look after the interests of the infant (i). A solemn admission, however, made by a guardian or prochein amy in good faith in a pending suit, for the purpose of that trial only, is governed by other considerations, and will be equally admissible with like admissions made by the attorney in the cause (j).

§ 525. When several persons are jointly interested in the subjectmatter of the suit, the general rule is, that the admissions of any one of these persons are receivable against himself and fellows, whether they be all jointly suing or sued, or whether an action be brought in favour of or against one or more of them separately; provided the admission relate to the subject-matter in dispute, and be made by the declarant in his character of a person jointly interested

Roman jurisconsults contrived to attain this object. The creditor, who wished to transfer his right of action to another person, constituted him his attorney, or procurator in rem suam, as it was called; and it was stipulated that the action should be brought in the name of the assignor, but for the benefit and at the expense of the assignee. Pothier de Vente, No. 550. After notice to the debtor, this assignment operated a complete cession of the debt, and invalidated a payment to any other person than the assignee, or a release from any other person than him. Ib. 110, 554; Code Napoleon, liv. 3, tit. 6; De la Vente, c. 8, § 1690. The Court of Chancery, imitating, in its usual spirit, the civil law in this particular, disregarded the rigid strictness of the common law, and protected the rights of the assignee of choses in action. This liberality was at last adopted by the courts of common law, who now consider an assignment of a chose in action as substantially valid, only preserving, in certain cases, the form of an action commenced in the name of the assignor, the beneficial interest and control of the suit being, however, considered as completely vested in the assignee as procurator in rem suam. See Master v. Miller, 4 T. R. 340; Andrews v. Beecker, 1 Johns. Cas. 411; Bates v. New York Insurance Company, 3 Johns. Cas. 242; Wardell . Eden, 1 Johns. 532, in notis; Carver v. Tracy, 3 Johns. 426; Raymond v. Squire, 11 Johns. 47; Van Vechten v. Greves, 4 Johns. 406; Weston v. Barker, 12 Johns. 276." See the Reporter's note to 1 Wheat. 237.

(i) Eccleston v. Speke, alias Petty, 3 Mod. 258; Cowling v. Ely, 2 Stark. R. 366, per Abbott, J.; Webb v. Smith, Ry. & M. 106, per Littledale, J.; Morgan

v. Thorne, 7 M. & W. 408, per Parke, B.; Sinclair v. Sinclair, 13 M. & W. 640, 646. These cases overrule James v. Hatfield, 1 Str. 548.

(j) See post, § 547.

490

ADMISSION BY A PARTNER OR CO-OBLIGOR.

with the party against whom the evidence is tendered (j). Thus, the representation or misrepresentation of any fact, made by one partner with respect to some partnership transaction, will bind the firm (); and if partners bring an action as on a joint contract, an admission by one of them that the subject-matter of the contract was his separate property, will render the plaintiffs liable to a nonsuit (1). So, where it appeared on the record, that an agreement sued on was made by the plaintiff on behalf of himself and the other proprietors of a theatre, statements made by one of such proprietors were admitted on the part of the defendant (m). And where the obligee of a bond filed a bill against two joint and several obligors, alleging that the bond had been delivered up to one of them by mistake, and praying that he might recover the amount due on it, an admission by the party to whom the bond was given up, that it had been delivered to her by mistake, was held to be evidence against the co-obligor, though the joint answer of the defendants had traversed the allegation as to mistake, and, simply admitting the delivery of the bond, had stated that the party to whom it was given up had destroyed it (n).

§ 526. This doctrine is forcibly illustrated by those cases, where joint debts, barred by the Statute of Limitations, have been revived in consequence of a part payment having been made by one of the debtors; the law regarding such payment in the light of an acknowledgment by all the debtors of their joint liability. Thus, if two or more persons make a joint and several promissory note, and one of them, within six years from the commencement of the suit, pays interest upon it, or makes a partial payment of the principal, this act is deemed such an acknowledgment of a subsisting debt as to take the case out of the Statute of Limitations against all the makers (o); and this too, though the payment were

(j) Whitcomb v. Whiting, 2 Doug. 652; Wood v. Braddick, 1 Taunt. 104. (k) Rapp v. Latham, 2 B. & A. 795; Thwaites v. Richardson, Pea. R. 16; Nicholls. Dowding, 1 Stark. R. 81, per Lord Ellenborough.

(7) Lucas v. De la Cour, 1 M. & Sel. 249.

(m) Kemble v. Farren, 3 C. & P. 623, per Tindal, C. J.

(n) Crosse v. Bedingfield, 12 Sim. 35.

(0) Burleigh v. Stott, 8 B. & C. 36; 2 M. & Ry. 32, S. C.; Pease v. Hirst, 10 B. & C. 122; Wyatt v. Hodson, 8 Bing. 309; 1 M. & Sc. 442, S. C.; Chippen

PART PAYMENT AFTER DISSOLUTION OF PARTNERSHIP.

491

made more than six years after the note became due, and when consequently the statute had run (p);-though the action were brought against one of the makers only as on his separate note, and he were wholly ignorant of the fact of any payment having been made by any of the joint makers (q);-and though the person by whom the part payment was made had died before the action, and, consequently, at the time when it was brought, the joint contract had been determined (r). So, a part payment of the debt of a firm by one partner will not only extinguish pro tanto the partnership debt, but will also operate as an admission of the existence of the residue of the debt binding on the firm (s). In England, this doctrine has even been held to apply to cases, where part payment has been made after the dissolution of the partnership, and more than six years from the date of the accruing of the debt (f); because, although a dissolution of partnership prevents one partner from binding his fellows by his acts or admissions with respect to all future transactions, yet it cannot vary or neutralise any rights or liabilities created pending the partnership; or, in other words, it is not allowed to operate with a retrospective effect (u).

§ 527. The rule thus laid down by the English judges, which enables partnership debts, though barred by the Statute of Limitations, to be revived as against the firm by a part-payment made after a dissolution by one of the late partners, has not been generally approved of in America (x); and Mr. Justice Story on one

dale v. Thurston, 4 C. & P. 98, per Parke, J.; M. & M. 411, S. C.; Dowling v. Ford, 11 M. & W. 329.

(p) Channell v. Ditchburn,

M. & W. 494; Manderston v. Robertson, 4 M.

& Ry. 440, cited by Parke, B., 5 M. & W. 497, 498.

(q) See Rew v. Pettet, 1 A. & E. 196; 3 N. & M. 456, S. C.; and Beaumont v. Greathead, 2 Com. B. 494.

(r) Burleigh v. Stott, 8 B. & C. 36, cited by Parke, J., in Slater v. Lawson, (s) Story on Partnership, § 107.

1 B. & Ad. 397.

(t) Goddard v. Ingram, 3 Q. B. 839 ante, § 408, post, § 530. (u) Wood v. Braddick, 1 Taunt. 104; Prichard v. Draper, 1 Russ. & Myl. 191, 199, 200, per Lord Brougham.

(x) Those who wish to examine the American authorities on this interesting subject, are referred to the following cases :-M'Intire v. Oliver, 2 Hawks, 209; Beitz v. Fuller, 1 McCord, 541; Cady v. Shepherd, 11 Pick. 400; Van Reimsdyk v. Kane, 1 Gall. 635, 636; Parker . Merrill, 6 Greenl. 41; Martin v. Root,

492 PART PAYMENT AFTER DISSOLUTION-AMERICAN RULE.

occasion (y), while pronouncing the judgment of the Supreme Court, has not hesitated to repudiate the doctrine, as inconsistent alike with principle and analogy. After observing that, "by the general law of partnership, the act of each partner, during the continuance of the partnership, and within the scope of its objects, binds all the others; it being considered the act of each and of all, resulting from a general and mutual delegation of authority;" this very learned judge proceeds thus: "A dissolution puts an end to the authority. By the force of its terms it operates as a revocation of all power to create new contracts; and the right of partners, as such, can extend no further than to settle the partnership concerns already existing, and to distribute the remaining funds. Even this right may be qualified, and restrained, by the express delegation of the whole authority to one of the partners. The question is not, however, as to the authority of a partner after the dissolution to adjust an admitted and subsisting debt; we mean admitted by the whole partnership, or unbarred by the statute; but whether he can, by his sole act, after the action is barred by lapse of time, revive it against all the partners, without any new authority communicated to him for this purpose. We think the proper resolution of this point depends upon another, and that is, whether the acknowledgment or promise is to be deemed a mere continuation of the original promise, or a new contract springing out of, and supported by, the original consideration. We think it is the latter, both upon principle and authority; and if so, as after the dissolution no one partner can create a new contract binding upon the others, his acknowledgment is inoperative and void as to them. There is some confusion in the language of the books,

17 Mass. 223, 227; Vinal v. Burrill, 16 Pick. 401; Lefavour v. Yandes, 2 Blackf. 240; Bridge v. Gray, 14 Pick. 55; Walden v. Sherburne, 15 Johns. 409; Hopkins v. Banks, 7 Cowen, 650; Clark v. Gleason, 9 Cowen, 57; Baker v. Stackpoole, id. 420; Levy v. Cadet, 17 Serg. & Raw. 127; Searight v. Craighead, 1 Penns. 135; Patterson v. Choate, 7 Wend. 441; Austin v. Bostwick, 9 Conn. 496; Greenleaf v. Quincy, 3 Fairf. 11; Ward v. Howell, 5 Har. & Johns. 60; Fisher v. Tucker, 1 McCord, Ch. R. 175.

(y) Bell v. Morrison, 1 Peters, 367, et seq. The judgment in this case, which well deserves a careful perusal, is given at length in a note to Story on Partnership, § 323. See also the observations of Lord Ellenborough in Brandram v. Wharton, 1 B. & A. 467, 468, as to the mischiefs that may result from the English doctrine.