The partner executing is bound. SEC. 486. In all that precedes, the question has been, whether the partner not executing the instrument is bound. But, where a partner executes a deed for himself and his copartner, it has frequently been decided that he himself is bound, though his copartner is not. In the case of Elliott v. Davis,' one Davis, intending to execute a joint and several bond for himself and his copartner Marsh, executed one in this form "Know all men by these presents, that I, T. Davis, and G. Marsh," and signed it "Davis and Marsh." He also sealed and delivered it as his deed. Marsh was ignorant of the transaction. It was held that, as he had no authority to bind Marsh, the bond became his several bond, and not the joint and several bond of himself and Marsh. Again, where G had, in behalf of himself and partner, entered into a submission to an award, it was held that G was bound by the submission, though his copartner was not, and that he was liable in an action for non-performance of the award.' Where an award of partnership matters in general is offered in evidence against a partner, it must be proved that the deed of submission was executed by all the partners, for the submission of the others is the consideration to each partner to submit to the arbitration. A and others, partners, entered into a deed of covenant that the copartnership accounts, and all matters in difference between the parties, or any two of them, should be referred to arbitrators. The arbitrators made their award, by which they found a balance due to A on the partnership account, and a balance due to A from H, another of the partners. H became bankrupt, and A was his petitioning creditor and assignee. In an action of trover by A, the assignee, against the other partners, the plaintiff's counsel put in the deed of covenant, but was only able to prove the execution of it by A and H, although it appeared on the face of it to have been executed by all the partners. The question then was, whether the award which was founded on the deed of covenant could be received in evidence; and the court held that it could not. Lord Ellenborough said that if this covenant were to bind H, he might lose the benefit of the submission of all the others, which might have been his inducement to submit the matters in difference between him and A. And he added that the principle 12 Bos. & Pull. 338. 2 Strangford v. Green, 2 Mod. 228. was strong, and wanted no authority to support it, that there should be the accession of all the parties to the common agreement of all, which was the consideration to each for entering into the agreement,' 1 Antram v. Chase, 15 East, 209. That the execution by deed, if void as to the partnership, binds those executing it, see Jackson v. Stanford, 19 Ga. 14; Doe v. Tupper, 12 Miss. 261; Layton v. Hastings, 2 Harr. (Del.) 147; Potter v. CHAPTER XX. WHERE THE CONTRACT IS SEVERAL IN LAW. SEC. 487. SEC. 488. Where contract is executed in the name of the partners only. SEC. 491 SEC. 492. When loan to one partner becomes debt against the firm. SEC. 497. SEC. 498. Contract with one partner. May bind firm as to matters arising out of its usual transactions. SEC. 499. Contracts as affected by the custom of trade. Where executed in the name of the partner only. SEC. 487. It is possible for third persons to enter into contracts with an individual partner, under an impression that such contracts are made with the firm; the law, on the contrary, adjudging them to have been made with the individual partner only. Instances of this kind are few, but they may occur under certain circumstances. Thus: 1. If a person advance money to the firm, and take the separate bill of one partner, he cannot sue the firm` on that security, although he may possibly succeed in an action against the firm for money advanced. On the bill the contract is several, and the individual partner alone can be sued upon it. 2. A person may contract with an individual partner in a matter unconnected with the partnership business, in which case, though he may have intended otherwise, his contract will only be several, and the firm will not be liable.' 3. A person may, upon receiving a consideration, assent to such private arrangements of the firm as shall deprive him of the benefit of his joint contract. 4. Cases may arise where, by the custom of a particular trade, a contract 'D. Bayley, B., 1 Cromp. & Jerv. 509 --"A party is not liable as a partner, except he give to his partner express or implied authority to pledge his credit in the transaction out of which the claim arises." made with one partner is not binding on the firm. Other situations and circumstances, attended with the same legal result, will probably occur to the mind of the learned reader. The various matters which we have above adverted to will deserve our consideration in the present section. Advancing money and taking security of a partner. SEC. 488. If a person advance money even for the purposes of a firm, but take the separate security of one partner, the partnership not being carried on in that partner's individual name, the contract as evidenced by such security is several, and a several action only can be brought upon it. In the case of Siffkin v. Walker,' an action was brought on the following promissory note: "Two months after date, I promise to pay J. Siffkin or order £300 for value received.— T. Walker." The declaration stated that the defendants made their certain promissory note, which was signed by Walker for himself and Rowlestone, whereby they promised to pay, etc. The counsel for the plaintiff, in opening the case, undertook to show that the defendants. were jointly indebted to the plaintiff on a charter-party of affreightment to the amount of £300, and that the note declared upon was given by Walker in satisfaction of this debt. Lord Ellenborough "I think your remedy was either jointly against both defendants on the charter-party, or separately against Walker on the promissory How can I say that a note made and signed by one in his own name, is the note of him and another person neither mentioned nor referred to? The import and legal effect of a written instrument must be gathered from the terms in which it is expressed, and I must treat this note as a separate security for a joint debt." note. The principles of the foregoing decision were acknowledged and confirmed in the case of Emly v. Lye. There it appeared that George Lye and E. L. Lye, being carriers and partners, employed Horne as their book-keeper, and Horne was in the habit of receiving bills from his employers, some drawn in the name of the firm, some by G. Lye only, and others by E. L. Lye. Horne carried. these bills to Burrough, who was not acquainted with the defendants, but had received strong recommendations of them, and they were discounted by Burrough at various times, he making no distinction between the bills, but conceiving that they were all drawn. on the partnership account. The proceeds of the bills were remitted and paid by Horne to the partnership account, and the discount thereof allowed to him in his account with the partnership. Burrough having become bankrupt his assignees brought their action against both partners on the separate bills of E. L. Lye, and obtained a verdict for the amount. The defendants then obtained a rule nisi to set aside the verdict and enter a nonsuit; and it appears from the report of the case that the counsel for the plaintiffs, in arguing against the rule, relied only on the money counts, giving up the counts on the bill, on the authority of the case of Siffkin v. Walker. And per Lord Ellenborough, "The first counts of this declaration have been properly enough abandoned, for unquestionably on a bill of exchange drawn by one only, it cannot be allowed to supply by intendment the names of others in order to charge them. If the plaintiffs, therefore, would rest their claim upon the bills, they must confine to E. L. Lye." Grounds on which liability rests. SEC. 489. Upon these two cases it is to be observed that in the former the plaintiff had the joint security of the charter-party, on which he might have sued the firm, but in the latter case, the plaintiffs had no joint security, and having failed on the money counts, they were without any remedy against the partners jointly. The grounds on which they so failed are well worthy of attention. It appears that Burrough had strong recommendations of the defendants, and conceived that the bills were all drawn on the partnership account. This, however, was held not to raise any contract, by way of loan, between him and the partnership, the judges treating the transaction as a mere matter of discount. Lord Ellenborough-" It is contended that as the proceeds went to the use of the partnership, the partners are therefore liable upon the other counts. I am at a loss to discover what difference that circumstance can make, if it were originally a mere matter of discount, and I do not find any evidence to show that it was any thing else. It was supposed, indeed, by Burrough (the bankrupt), that the money would be applied to the partnership use; and to such use it was in fact applied; but nothing passed from the defendants to induce him to believe that it was a partnership concern, and to lend his money on that account. It does not appear that any contract of that sort took place, nor any thing more than the mere discount of the bills; and it would be highly dangerous to follow the proceeds into the hands of every party to whose use they may be applied. In the absence, therefore, of any express contract between |