with was not aware of such holding out at the time of contracting,(s) or where he had notice of the real circumstances of the case.(t)

213. If a firm contain dormant partners, the plaintiff contracting with the ostensible partners may sue the latter only on any implied contract; though, if he subsequently discover the dormant partners, he may join them or not at his election: and if he do not join them, it will be for the ostensible partners to shew, that the plaintiff trusted the entire firm.(u) Where, however, goods were supplied to defendant, who carried on business under the firm of B. & Co., and the invoice of the goods in question [ *172 a] was made out to B. & Co.: it was held, the defendant having pleaded in abatement and having proved that he was really in partnership with C., that the action would not lie against him alone, in the absence of proof either that he was solely liable, or that he had represented himself to be so.(x) The above rule, moreover, as to the joinder of a dormant partner, applies to written as well as to verbal contracts; and, therefore, a dormant partner may be joined as a co-defendant, on a written agreement entered into and signed by his copartners, but to which he was himself no party ;(y) and it will be for such dormant partner to shew, that the contract declared on was with the partners who signed it, and with them alone, whereas it will be for the plaintiff to shew, that the ostensible partners meant to pursue the implied authority of the dormant partner, and meant to contract on behalf of him, and of themselves, in order to render the partnership liable.(z) A dormant partner, on ceasing to be connected with the firm, ceases to be liable, except to *such as knew him to be a partner at the time of [ *172 6] contracting; and though notice of his retirement must be given to these parties, no others are entitled to it.(a)

214. The liability of a partner commences from the time of his admission into the firm; but he is not bound by a bill of exchange subsequently accepted, without his assent, for a debt due prior to such admission ;(b) and an agreement that the incoming partner should be considered as partner from a period previous to the date of the agreement, is a bargain between the immediate parties thereto, but does not operate as a pledge of the credit

(s) Per Parke, J., Dickinson v. Valpy, 10 B. & C. 140;e Shott v. Strealfield, 1 Moo. & Rob. 9; but see Young v. Axtell, cited 2 H. Bla. 242.

(t) Alderson v. Pope, 1 Camp. 404, n. (a); Fox v. Clifton, 6 Bing. 776,f and 9 Bing. 118; Minnit v. Whiteny, 5 Bro. P. C. 489.

(u) Per Parke, J., De Mautort v. Saunders, 1 B. & Ad. 401 ;h Wintle v. Crowther, 1 Cr. & J. 316; Ex parte Hamper, 17 Ves. 403; Per Tindal, C. J., delivering the judgment in Ex parte Chuck, 8 Bing. 471; Saville v. Robertson, 4 T. R. 725; Lloyd v. Ashby, 2 B. & Ad. 23;k Stansfeld v. Levy, 3 Stark. R. 8.1

(x) Bonfield v. Smith, 12 M. & W. 405,* recognizing De Mautort v. Saunders, 1 B. & Ad. 401.m

(y) Drake v. Beckham, (in error,) 11 M. & W. 315, affirming S. C., 9 M. & W. 79 ;* and virtually overruling Beckham v. Knight, 4 B. N. C. 243," affirmed on a point of pleading, 1 Scott, N. R., 675. See also Latch v. Wedlake, 11 A. & E. 959.o

(2) 9 M. & W. 93. 97.*

(a) Per Patteron, J., Heath v. Sansom, 4 B. & Ad. 177;P Evans v. Drummond, 4 Esp. 89; Carter v. Whalley, 1 B. & Ad. 11;9 Farrar v. Deflinne, 1 Car. & K. 580.r

(b) Shirreff v. Wilks, 1 East, 48; 2 Selw. N. P. 10th ed. 1129; Wilson v. Lewis, 2 Scott, N. R. 115.

Eng. Com. Law Reps. 21. fId. 19. Id. 23. Id. 20. Id. 21.

mId. 20. "Id. 33.

°Id. 39. PId. 24. qId. 20. *Reprinted at $250 per vol.

*Id. 22. 1Id. 14. 'Id. 47.

of the new partner, in dealings with strangers before he actually became such; (c) but if the partnership has, in fact, commenced, the mere circumstance of the partnership deed not being executed till a subsequent day, is immaterial.(d)

215. The liability of a retiring partner ceases on the dissolution of the firm, accompanied by due notice thereof, or by proof of the creditor's knowledge of the fact ;(e) but he still remains responsible on previous *engagements, unless the creditor has ever expressly or impliedly [*172 c ] agreed to the substitution of the credit of a new firm, for that of the old; and the onus of proving such an agreement, or shewing that it must necessarily be inferred from the knowledge and conduct of the creditor, lies on the parties originally liable. (f) There are, however, cases, in which a retiring partner will remain liable; as, if he give authority by parol to the continuing partner, to indorse bills in the partnership name ;(g) or if a bill of exchange, drawn in blank by a deceased partner in the name of the firm, be filled up and circulated by a clerk of the surviving partners, under a date prior to the drawer's death. (h) When a partnership is dissolved by the death of one of its members, the legal liability survives exclusively against the remaining partners :(i) consequently, a debt due to the defendant as surviving partner, may be set off against a debt due from him in his own separate character; (k) *and it is never necessary to declare

against a surviving partner as such-he may be sued as having [*172 d] solely contracted. Where one partner is discharged from liability by his · bankruptcy and certificate, or under an insolvent act, such bankruptcy and certificate, or discharge under the insolvent act, may now be replied to a plea in abatement of the non-joinder.(m)

216. A corporation must be sued on a contract in its corporate name, the remedy being against the property belonging to the corporation only, and not against that of the individual members. (n) The general rule, moreover, being that a corporation aggregate can only contract under its common seal, the exception to that rule is where the subject-matter of the contract is

(c) Per Bayley, J., Vere v. Ashby, 10 B. & C. 296, 297. (d) Battley v. Bailey, 1 Scott, N. R. 143.

(e) Hart v. Alexander, 2 M. & W. 484; Newsome v. Coles, 2 Camp. 617; Parkins v. Carruthers, 3 Esp. 248; Graham v. Hope, Peake, R. 154.

(f) Hart v. Alexander, 2 M. & W. 484; Dobbin v. Foster, 1 Car. & K. 323 ;t Kirwan v. Kirwan, 2 Cr. & Mee. 617; Thompson v. Percival, 5 B. & Ad. 925;" Thomas v. Shillibeer, 1 M. & W. 124; Bedford v. Deakin, 2 B. & Ald. 210; and see Blew v. Wyatt, 5 C. & P. 397; and the observations of Denman, C. J., 5 B. & Ad. 933," on Lodge v. Dicas, 3 B. & Ald. 611,ꞌ and David v. Ellice, 5 B. & C. 196.a

(g) Smith v. Winter, 4 M. & W. 454.

(h) Usher v. Dauncey, 4 Camp. 97. See Abel v. Sutton, 3 Esp. 108; Lewis v. Reilly, 1 Q. B. 349.b

(i) Calder v. Rutherford, 3 B. & B. 302; Richards v. Heather, 1 B. & Ald. 29. 522; Osborne v. Crosbern, Sid. 238.

(k) Slipper v. Stidstone, 5 T. R. 493.

(4) Chitt., junr., Pleading, 152, n. (d); Richards v. Heather, 1 B. & Ald. 29.

(m) 3 & 4 Will. 4, c. 42, s. 9.

(n) Edmunds v. Brown, 1 Lev. 237; Per Lord Tenterden, C. J. Jefferys v. Gurr, 2 B. & Ad. 841 ;d Bac. Ab. Corporations, (E. 2). See Pontent v. The Basingstoke Canal Company, 3 Bing. N. C. 443; Beverley v. The Lincoln Gas Light and Coke Company, 6 A. & E. 829.f

Eng. Com. Law Reps. 21. Id. 47. "Id. 27. Id. 24. Id. 5. Id. 11. Id. 41.

Id. 5. dId. 22. Id. 32. 'Id. 33.

of trivial importance and frequent occurrence, or immediate urgency and essential to carrying on the business of the corporation; in any such matter, necessity, or convenience amounting almost to necessity, requires that the corporate body should be able to bind itself by simple contract, either express or implied.(0) Where, therefore, *the guardians of a union ver[*172 e] bally directed their officer to have gates made for the union workhouse, and the plaintiff, in pursuance of orders from the officer, furnished the gates, which were erected; the jury having found that the work done was for things necessary for the purposes for which the defendants were incorporated, and the contract having been adopted by them, the Court refused to disturb the verdict.(p) Where, however, the board of guardians of the Strand Union, contracted under seal with the plaintiff to make a survey and map of the parish of C., as ordered by the Poor Law Commissioners, under the provisions of the 6 & 7 W. 4, c. 96, s. 3, and they were made accordingly, and subsequently an order not under seal was given by the defendants to the plaintiff to execute a reduced plan as a key to the larger plan it was held, that the plaintiff could not recover against the defendants in respect of this reduced plan, the making of the plan not being in any way incident to the purposes for which the defendants were incorporated, so as to dispense with the necessity of contracting for it under seal.(g)

*216 a. The principle on which is founded the exception to [*172ƒ] the general rule respecting the mode in which a corporation may contract "appears," as observed by Lord Denman, C. J., in a recent case,(r) "to be convenience amounting almost to necessity. Wherever, to hold the rule applicable would occasion very great inconvenience, or tend to defeat the very object for which the corporation was created, the exception has prevailed; hence the retainer by parol of an inferior servant, the doing of acts very frequently recurring or too insignificant to be worth the trouble of affixing the common seal, are established exceptions. On the same prin ciple stands the power of accepting bills of exchange, and issuing promissory notes, by companies incorporated for the purposes of trade, with the rights and liabilities consequent thereon." With reference to the liability of a corporate body upon a bill of exchange, we may observe, that wherever a body so constituted can become a party to such an instrument, or wherever an Act of Parliament expressly or impliedly authorises a corporation to draw and accept bills, the holder thereof has the same remedy against the body corporate as he would have in such a case against a private indi

(0) Hall v. The Mayor, &c., of Swansea, 5 Q. B. 526. 546; Hartnell v. The Thames Haven Dock and Railway Company, cited 5 Scott, N. R. 764; Judgment, Arnold v. The Mayor of Poole, 5 Scott, N. R. 775, cited arg. Reg. v. The Town Council of Lichfield, 4 Q. B. 904; Tilson v. The Warwick Gas Light Company, 4 B. & C. 962 ;i_De Grave v. The Mayor and Corporation of Monmouth, 4 C. & P. 111; Dunston v. The Imperial Gas Light and Coke Company, 3 B. & Ad. 125; Carden v. The General Cemetery Company, 5 B. N. C. 253;m Reg. v. The Hull and Selby Railway Company, 6 Q. B. 70.

(p) Sanders v. The Guardians of the St. Neots Union, 15 L. J., N. S., M. C., 104. (9) Paine v. The Guardians of the Poor of the Strand Union, 15 L. J., N. S., M. C., 89. (r) Church v. The Imperial Gas Light and Coke Company, 6 A. & E. 846," recognis ed in The Mayor of Ludlow v. Charlton, 6 M. & W. 822,*

Eng. Com. Law Reps. 48.

Id. 45. Id. 10. Id. 19. 1Id. 23. Id. 35. Id. 33. *Reprinted at $2.50 per vol.

vidual.(s) Where, however, a cemetery company, by their act of *incorporation were empowered to "make contracts and bar- [*172 g] gains touching the undertaking," and to "do and transact all other matters and things which shall be requisite to be done and transacted for the direction and management of the officers of the said company and the said directors," and the Act provided that on such contracts the directors should not be personally liable: it was held, that it was quite foreign to the purposes and unnecessary to the constitution of such a company to give bills of exchange, and that the directors were therefore personally liable on a bill accepted by them on account of a debt due from the company.(t) Churchwardens and overseers of the poor, though by statute they may be for some purposes a corporation, have no common seal whereby to bind themselves: and if they covenant" for themselves and for their successors, churchwardens and overseers," they will be personally bound.(u)

217. By stat. 1 Vict. c. 73, the crown is empowered to grant letterspatent to any trading or other company established under the provisions of that act, directing that such company shall be sued in the name of one of the officers for the time being appointed to sue and be sued on its behalf; and likewise to declare and provide, that the members of such company shall be individually liable to such extent only per share as shall be declared and limited by such letters-patent.(x) And by the stat. 8 & 9 Vict. c. 16, s. 97, a joint-stock company may be sued upon any contract entered into under the provisions of that act.(y)

[*172 h]

*CHAPTER III.

HUSBAND AND WIFE-INFANT, &c.

[*173]

When the Husband must be sued alone, ss. 218-220. When the Wife may be sued alone-General Rule and Exceptions, ss. 221-223. When the Husband may be sued alone or jointly with his Wife, s. 224. When the Husband and Wife must be sued jointly, ss. 225, 226. Infant, Non Compos Mentis, &c. ss. 227, 228.

218. THE legal effect of marriage is to render the wife incompetent to contract except as the agent of her husband and by his authority, either express or implied ;(a) and on this principle she has been held not liable for necessaries supplied after the death of the husband, who was abroad, but

(8) Murray v. The East India Company, 5 B. & Ald. 204. 210;° Broughton v. Manchester and Salford Waterworks Company, 3 B. & Ald. 1 ;P Stark v. Highgate Archway Company, 5 Taunt. 792,9

(t) Steele v. Harmer, 15 L. J., N. S., Exch., 217.

(u) Furnivall v. Coombes, 6 Scott, N. R. 522.

(x) Sects, 3, 4.

(y) See the Appendix. As to Actions against a banking copartnership, see 7 & 8 Vict. c. 113, s. 8; ante, s. 93; and the Appendix.

(a) Co. Litt. 112 a; Com. Dig. Bar. & Feme (D. 1); Per Blackstone, J., Stevenson v. Hardie, 2 W. Bla. 873.

"Eng. Com. Law Reps. 7. PId. 5. Id. 1.

ordered in ignorance of that event. (b) The husband must, then, as a general rule, be sued alone on any cause of action ex contractu accruing during coverture through the act of the wife. (c) Hence, a declaration against the husband for money lent to the wife must allege the request by the former, and not by the latter. (d). So, a declaration in assumpsit, *laying [174] the promise by a feme covert, is bad, for quoad the wife the promise is void; (e) but where, in such a case, the promise is alleged to have been made by the defendants, of whom one was a married woman sued jointly with her husband, but was not stated to have been made before her coverture, and the defence was a plea in abatement of the non-joinder of other parties the court refused to arrest the judgment, the ambiguity in the declaration being aided by the plea.(f) Even if the cause of action accrued against the wife, dum sola, in which case she would be rightly joined, the promise cannot be laid by her during coverture.(g)

219. Where the husband, for some new and valid consideration, charges himself in writing(h) with debts due from the wife, dum sola, or with the performance of contracts then entered into by her, he must be sued alone on such undertaking; though, on the original debt or contract, the remedy would have been against both; (i) but the precedent moral obligation will not alone suffice to raise an implied promise by the husband so as to render him liable ;(k) there must be some further consideration, as forbearance after marriage.(1)

1

*220. If the husband survives, he is not liable to be sued other[*175] wise than as administrator to his wife, on any contract made with her, or for any debt incurred by her anterior to the marriage ;(n) but on those entered into subsequently, as for rent accruing during coverture under a lease to the wife dum sola,(0) or to husband and wife, (p) or on a judgment recovered against both, (q) the husband will remain liable; and the general rule, in this case, seems to be, that where an action would lie against the husband alone, during the wife's lifetime, such action will well lie against the husband surviving, and his personal representatives.(r)

(b) Smout v. Ilbery, 10 M. & W. 1. As to the husband's liability for necessaries, see Lane v. Ironmonger, 13 M. & W. 368;* Freestone v. Butcher, 9 C. & P. 643 ; Edwards v. Towels, 6 Scott, N. R. 641; Manby v. Scott, l' Lev. 4, S. C. 1 Sid. 109. (c) Viner Ab. Bar. and Feme (U.), (X), pl. 21. :

(d) Stone v. Macnair, in error, 7 Tauut. 432;s Stevenson v. Hardie, 2 Bla. R. 872; Ross v. Noel, Bull. N. P. 136. See Nurse v. Wills, 4 B. & Ad. 739, affirmed in error; 1 A. & E. 65 ; Risley v. Stafford, Palm. 312.

(e) Pittam v. Foster, 1 B. & C. 250. 252.x (f) France v. White, 1 Scott, N. R. 604. (g) Morris v. Norfolk, in error, 1 Taunt. 212; post, s. 225. (h) 29 Car. 2, c. 3, s. 4. (i) Drue v. Thorn, Aleyn, 72. See arg., Mitchinson v. Hewson, 7 T. R. 348; post, s. 225.

(k) Beaument v. Reeve, 15 L. J., N. S., Q. B., 141, which is confirmatory of Eastwood v. Kenyon, 11 A. & E. 438.5

(1) Per Lord Denman, C. J., Eastwood v. Kenyon, 11 A. & E. 438. 451; Fabian v. Plant, 1 Show. 183; Heard v. Stanford, Cas. Temp. Talbot, 173.

(n) Arg. Mitchinson v. Hewson, 7 T. R. 350; Com. Dig. Bar, and Feme, (2 C.); Smith v. Johns, Cro. Jac. 257; Woodman v. Chapman, 1 Camp. 189, n.

(0) Payne v. Minshal, T. Raym. 6, S. C. 1 Lev. 25; Roll. Ab. 351, (G.); Woodfall, L. & T. 4th ed. 579. (p) Com. Dig. Bar. and Feme, (2 B.)

(q) Mounson v. Bourn, Cro. Car. 518; Woodyer v. Gresham, 1 Salk. 116; Com. Dig. Bar. and Feme, (2 B.) (r) See ss. 224, 225.

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*Reprinted