came to the hands of the defendant, knowing they had not paid the duties, it was determined by Lord Chief Baron Pengelly that if one of several partners is concerned in smuggling, on account of the copartnership trade, the Crown may come against any one of the partners for the whole penalty, it being in the nature of a forí, and not of a contract; just as, in cases of torf, a subject might come upon asy one concerned in the fort. Rule in King v. Manning. SEC. 476. So, in The King v. Manning,' upon an information by way of devenerunt, to recover treble the value of one hundred weight of tea come to the hands of the defendant, it was held that the information was maintainable against the defendant separately, though another was concerned jointly with him in the smuggling; and that, inasmuch as the whole of the goods were left in his custody while the other went out to look for a purchaser, he was liable for treble the value of the whole. But in this case it is laid down by Lord Chief Baron Comyns that if the partners had divided the goods after their purchase, the defendant could be liable only to the treble value of his share, and no more, for no more came to his hand or possession; for, though joint tenants are seized or possessed per my et per fouf (that is, so far possessed of the whole that none can say till partition made that this or that part is not in his possession), yet they in right and reality are possessed of no more than the proper share or parparty. As, therefore, they give or dispose of no more, so neither can they forfeit any more. When only one is liable. SEC. 471. And clearly, those partners alone are liable in respect of a tort who are privy to the fort. Thus, if two persons join stock together and buy goods on their joint account, and one alone is conusant that the goods are run and uncnstomed, he alone is liable. SEC. 478. The law, from the necessity of encouraging commerce, recognizes the universal custom of merchants which allows one partner to bind his copartner by bills of exchange. But there is no need to extend that custom to instruments which are not negotiable, and which are. attended with such solemnities that they who rely on them as securities must know under what circumstances, and on whose credit, they are executed. One partner, therefore, has no implied authority to bind his copartner by deed. In the case of Harrison v. Jackson,' an action of 17 T. R. 207. Generally, one partner the general powers of a partner. Doncannot bind his copartner by a sealed aldson v. Kendall, 2 Ga. Dec. 227. An instrument, as by a deed. Gram v. Se- instrument under seal, including a deed, ton, 1 Hall (N. Y. S. C.), 262: Green executed by one partner, is valid if exev. Beals, 2 Cai. 254; Gates v. Graham, cuted in pursuance of prior special 12 Wend. (N. Y.) 53; Skinner v. authority or if it is subsequently verDayton, 19 Johns. (N. Y.) 513; Little v. bally ratified by the firm. Grady v. Hazard, 5 Harr. (Del.) 291; Fitchburgh Robinson, 28 Ala. 289; Herbert v. Hanv. Boyer, 5 Watts (Penn.) 159; Fleming rick, 16 id. 581; Drumwright v. Phil. v. Dunbar, 2 Hill (S. C.), 532; Napier v. pot, 16 Ga. 424; Haynes v. Seachrest, Catrou, 2 Humph. (Tenn.), 534; Massey 13 Iowa, 455; Ely v. Hair, 16 B. Monr. v. Pike, 20 Ark. 92. But this rule does (Ky.) 230; Pike v. Bacon, 20 Me. 280; not apply, where the deed would be Cady v. Sheperd, 11 Pick. (Mass.) 400; equally operative if it was not sealed or Clement v. Brush, 3 Johns. (N. Y.) Cas. acknowledged. Purviance v. Suther- 180; Swan v. Stedman, 4 Metc. (Mass.) land, 2 Ohio St. 478; Tapley v. But- 548; Fox v. Norton, 9 Mich. 207; Gwinn terfield, 1 Metc. (Ky.) 515. The reason v. Rooker, 24 Mo. 290; Smith v. Kerr, 3 alleged, why one partner cannot bind N. Y. 144; Gram v. Seaton, 1 Hall his copartner by deed, is, that the act (N. Y.) 262; Bond v. Aitkin, 6 Watts is one requiring special authority. & S. (Pena.) 165; Johns v. Rattin, That is, that it is not embraced under 30 Penn. St. 84; Lowery v. Drew, 18 covenant was brought upon an agreement of three parts, stated in the declaration to have been made between the defendants Jackson, Sykes, and Rushworth, merchants and partners, of the first part; W. and J. Harrison of the second part, and the plaintiff, of the third part; of one part of which said agreement, as being sealed with the seal of the said W. Sykes, for himself and the other two defendants, the plaintiff made a profert in court. The defendants pleaded non est factum. At the trial it appeared that the defendants were partners. The agreement stated in the declaration was produced, and the subscribing witness proved that it was executed in his presence by the defendant Sykes, in the following form: "For Jackson, Self, and Rushworth.-W. Sykes;" but neither Jackson nor Rushworth was present at the execution. The question reserved for the opinion of the Court of King's Bench was, whether such execution of the agreement by the defendant Sykes was binding on the other defendants, Jackson and Rushworth. The court held that it was not. Lord Kenyon "The law of merchants is part of the law of the land; and in mercantile transactions, in drawing and accepting bills of exchange, it never was doubted but that one partner might bind the Tex. 786; Wilson v. Hunter, 14 Wis. 683. And such ratification or assent of the other partner or partners may be implied from circumstances. Person v. Carter, 3 Murph. (N. C.) 321; Layton v. Hastings 2 Harr. (Del.) 147; Doe v. Tupper, 12 Miss. 261; Morse v. Bellows, 7 N. H. 549; Lucas v. Sanders, 1 McMull. (S. C.) 311; Lee v. Onstott, 1 Ark. 206; Montgomery v. Boon, 2 B. Monr. (Ky.) 244; M'Cart v. Lewis, id. 267; Cummings v. Carsily, 5 id. 47; Bentrin v. Zierlien, 4 Mo. 417; Turbeville v. Ryan, 1 Humph.(Tenn.) 113. Where a partner executes a bond in the name of the firm, and upon being informed that it did not bind the partners, with the consent of the obligor removes the seal, and redelivers it, with the intent to bind the company, it is effectual as their promissory note. Hor. ton v. Child, 4 Dev. (N. C.) L. 460. A deed executed by one partner is good and binding upon his copartner if executed in his presence, and by his consent. United States v. Astley, 3 Wash. 508; Fleming v. Dunbar, 2 Hill (S.C.), 532; Modisett v. Lindley, 2Black f. (Ind.) 119; Posey v. Bullitt, 1 id. 99; Fitchburgh v. Boyer, 5 Watts (Penn.), 159; Mackay v. Bloodgood, 9 Johns. (N. Y.) 285; Little v. Hazard, 5 Harr. (Del.) 291. An action brought by a partner ship upon a sealed instrument, executed by one of the partners in the partnership name, is an adoption of the instrument, and the defendant cannot object that it is not the deed of the partnership. Dodge v. M'Kay, 4 Ala. 346. An obligation, signed with the partnership name, but in the body of which it is recited that it was the act of one of the partners, and given as a security for his individual debt, is not, on its face, a partnership act. Scott v. Dansby, 12 Ala. 714. One partner cannot execute a bond under seal, in the partnership name, so as to bind the other partner unless he subsequently ratifies the act. Gerard v. Basse, Dall. (Penn.) 119; Hart v. Withers, 2 N. J. L. 285; Button v. Hampson, Wright (Ohio), 93; McDonald v. Eggleston, 26 Vt. 154; Pierson v. Hooker, 3 Johns. (N. Y.) 68. But such a bond is obligatory upon the partner executing it. Williams v. Hodgson, 2 H. & J. (Md.) 474; Jones v. Neals, 2 P. & H. (Va.) 339; Jackson v. Stanford, 19 Ga. 14. And upon the others if they expressly or impliedly assented thereto. Pettes v. Bloomer, 21 How. Pr. (N. Y.) 317; Price v. Alexander, 2 Greene (Iowa), 427; Day v. Lafferty, 4 Ark. 450; Henderson v. Barber, 6 Black f. (Ind.) 26. rest. But the power of binding each other by deed is now for the first time insisted on, except in the Nisi Prius case cited,' the facts of which are not sufficiently disclosed to enable me to judge of its propriety. This would be a most alarming doctrine to hold out to the mercantile world. If one partner could bind the others by such a deed as the present, it would extend to the case of mortgages, and would enable a partner to give to a favorite creditor a real lien on the estates of the other partners." Neither does a general partnership agreement, though under seal, authorize the partners to execute deeds for each other, unless a particular power be given for that purpose.' Generally, therefore, if a deed be expressed to be executed by A "for himself and partner," it must be shown that A had authority by deed from his partner to execute. The partner's subsequent acknowledgment of A's authority will not be sufficient. But a partner may bind his copartner by deed, if he have a special power under seal for that purpose. No implied authority to bind by deed. SEC. 479. However, although one partner has no implied authority generally to bind his copartner by deed, yet if one partner execute a deed on behalf of the firm, in the presence and with the consent of his copartners, that will bind the firm; in such case the sealing and delivery by one is deemed to be the act of all. In the case of Ball v. Dunsterville,' an action was brought on a bill of sale; the declaration stated the bill of sale to have been made by the defendants, and sealed with the seal of one of them for and on behalf of himself and the other, and by the authority of the other, etc. It was proved at the trial that one of the defendants, in the presence of the other and by his authority, executed the instrument for them both, they being partners in this transaction; but there was but one seal, and it did 1 Mears v. Serocold, cited by Dampier, arguendo, thus: "In Mears v. Serocold, the defendant pleaded non est factum to an action brought on a joint and several boud; at the trial it appeared that Jackson was in partnership with Sero cold when the bond was given, and that the consideration of the bond was a partnership debt due from Jackson and Serocold to the plaintiff, and that Jack son first executed the bond for Serocold, and then for himself, Lord Mansfield ruled, that for a partnership debt one partner had authority to execute a bond for another, and thereupon directed a verdict for the plaintiff." 2 Per Lord Kenyon, Harrison v. Jackson, supra. 3 Steiglitz v. Egginton, Holt (N. P. C.), 141; Brutton v. Burton, 1 Chit. 707. A surviving partner cannot alone convey real estate of the firm by deed. Galbraith) v. Gedge, 16 B. Monr. (Ky.) 631. 4 Ibid. And see Horsely v. Rush, 7 T. R. 209, cited; Appleton v. Binks, 5 East, 148; Berkely v. Hardy, 8 Dowl, & Ryl. 102. See, also, Gerard v. Basse, 1 Dall. (Penn.) 119; Hart v. Withers, 2 N. J. L. 285; McDonald v. Eggleston, 26 Vt. 154; Pierson v. Hooker, 3 Johns. (N. Y.) 68. 54 T. R. 313. not appear that he had put the seal twice upon the wax. It was objected on the part of the defendants, that the instrument was not properly executed, for that they (not being a corporation) could not have a common seal; that the execution by one could not operate as an execution by both, even though they both consented; and that the authority given by one to the other to execute a deed, should itself have been conferred by deed. But the Court of King's Bench were clearly of opinion that there was no ground for the objection; that no particular mode of delivery was necessary, for that it was sufficient if the party executing a deed treated it as his own. And they relied principally on this deed having been executed by one defendant for himself and the other in the presence of that other.' Bond made by one partner binding on firm, when. 2 SEC. 480. In the same manner, it has been held in a court of equity that a bond is binding on the firm, though not executed by all the partners, if executed in the name of the firm and in the presence of all the partners. In the case of Burn v. Burn, a bond commenced thus: "Know all men by these presents, that we, Mayne & Co., of etc., are held and firmly bound," etc. The condition ran thus: "The condition of this bond is such, that if the above-bounden Mayne & Co., their heirs, executors, or administrators, shall and do well and truly pay," etc.; and the instrument concluded thus: "Mayne & Co. Signed, sealed, delivered, etc., in the presence of A. B." The bond was executed by Thomas Mayne only, because his name stood first in the firm, but he executed it with the privity of the two other partners, who were both present at the execution. It was held to be valid and binding on the other members of the firm. In a recent case where a deed giving time to the debtor of a banking firm was executed by one of the partners of the bank, at the banking-house, in the following manner: "For Self and partners, S. G. Smith," but there was no evidence of any express assent to or dissent from this mode of signature by the other partners, the Court of Exchequer declined to give any opinion as to whether the deed was binding on the other partners in the banking-house.3 If one of the officers of the Forest put one seal to the rolls by assent of all the verderers and other officers, it is as good as if every one had put his several seal; as in case divers men enter into an obligation, and they all consent, and set but one seal to it, it is a good obligation of them all. Lord Lovelace's case, Sir W. Jones, 268, cited arguendo in the principal case. See Sheph. Touch. 55; Fitzh. tit. Feoffment, pl. 105; Com⋅ 3 Ves. 573; 1 Hov. Supp. 410. See Orr v. Chase, 1 Mer. 720. Smith v. Winter, 4 M. & W. 454. |