account.(k) So, where A. and B. entered into partnership to work a mine, and the mine being worked out they agreed to divide the partne stock of materials and utensils, each party taking one half according valuation to be made, and after such valuation had been made, B. agre take the whole pursuant to that estimate, and accordingly entered into session; it was held that A. had an immediate right of action for a m of the value of the partnership stock.() 76. In the case just referred to,(m) we find the following remarks by court, in connexion with the present subject. "Upon the general ru law there is no difficulty; one partner cannot maintain an action balance on the partnership account, until the accounts have been se and adjusted, and until it is ascertained what is the balance due from partner against whom the claim is made. But there may be special gains, by which particular transactions are *insulated and sepa [ *59] from the winding up of the concern, and are taken out of the g ral law of partnership.(n) In a recent case, however, it was observed Fromont v. Coupland,(o) and other similar cases seem to limit the rig action on an account between partners to a settlement of accounts on a close of all partnership transactions; but that, at all events, the settle. must be one which is binding and conclusive upon the partners. (p) 77. Where A. promised to repay his co-partner B., out of the amou goods then sold, provided the latter would accept and pay certain bill the firm, it was held that, on payment of such bills by B., the fund in hands, being specific and ascertained, became separated from the par ship account.(g) Where there were two partners in a certain voyage. of whom agreed to pay the broker's commission on receiving a larger of the profits, and after the partnership accounts were settled and adju he neglected so to do; an action to recover the amount of commission, by the other partner, was held to be maintainable. (r) So, also, if a su money be awarded to be paid by two partners jointly in equal moieties third party, one partner paying the whole amount may recover against *copartner;(s) and an action may be maintained by a shareho [ *60] against the company of which he is a member, on a contract ent into prior to his becoming so.(u) 78. It has been held that, although partners cannot, by a private arra ment amongst themselves, relieve any. one member of their body liability quoad the public, yet several partners in an undertaking (m) Id. (k) Brierley v. Cripps, 7 C. & P. 709." (1) Jackson v. Stopherd, 2 Cr. & M. 361. (n) See Sharp v. Warren, 6 Price, 132; Chadwick v. Clarke, 1 C. B. 700; Rawlins Clarke, 15 L. J., N. S., Exch. 171. (0) Supra (i). See Garbett v. Veale, 5 Q. B. 409. (p) Carr v. Smith, 5 Q. B. 138. See Sharpe v. Cummings, 14 L. J., N. S., Q. I See 8 & 9 Vict. c. 95, ss. 65. 68; under this Act a partner may sue his copartner. (9) Coffee v. Brian, 3 Bing. 54: Robson v. Curtis, 1 Stark. 78, (r) Wilson v. Cutting, 10 Bing. 436.z (s) Burnell v. Minot, 4 Moore, 340; Sharpe v. Cummings, 14 L. J., N. S., Q. B Hutton v. Eyre, 6 Taunt. 289; Wright v. Hunter, 1 East, 20; Osborne v. Harp East, 225. (u) Lucas v. Beach, 1 Scott, N. R. 350. "Eng. Com. Law Reps. 32. Id. 11. Id. 2. ×Id. 25. *Id. 1. NS. hip to work a ca have been see accounts on a f nts, the settleme rtners.(p) t of the amount? ay certain bilk the fund in from the part ertain voyage, ving a larger sh ettled and adjo f commission, p , also, if a sum equal moieties a ecover against by a sharehol a contract entere a private arm their body f undertaking 3. 700; Rawlins . J., N. S., Q. B is copartner. J., N. S., Q.B. Id. 1. agree with a copartner that he shall cease to hold that character, and shall assume another, and may by such an agreement, as evidenced by their own acts and conduct, estop themselves from subsequently setting up the partnership as existing inter esse.(x) 79. It follows from the general rule above laid down, that one firm cannot maintain an action against another firm if the same person is a partner in both houses, provided the right of action accrued during the period of his being such partner; nor does the death of the last-mentioned party remove this objection, though, after his decease, the surviving partners of one firm may sue those of the other on transactions subsequent thereto.(y) *80. Secondly, as between partners and strangers to the firm. In suing strangers to the firm on a partnership transaction all the [*61] partners must join, for they are jointly interested;(z) but subsequently admitted partners should not be joined, even though under an agreement to share in profit and loss from a period antecedent to the contract.(a) The proper test for determining whether any particular transaction was on behalf of the partnership, is, whether the amount to be recovered would go, in the first instance, to the partnership fund.(b) 81. So, that where a guarantee was given and addressed to one member of a firm, but it was proved that the advance was made out of the partnership fund, it was held that the firm and not the individual member ought to sue ; (c) though, on a covenant in a deed signed by one partner in the name of the firm and sealed with his seal, the partner executing alone can sue:(d) but if an application for a loan be made generally to a partner in a bank, the borrower thereby entitles the party so applied to, on making the advance, to hold him answerable to such party in either of his capacities of a partner or of a *private individual, according to that in which he makes the advance.(e) Where, however, the loan is made by one [*62] member of a firm and nominally in his individual capacity, the surviving partners, after his decease, cannot sue for the amount of such loan, unless they distinctly prove that it was in reality intended to be made on the partnership account; (g) nor can surviving partners sue the agent of a deceased partner for money really belonging to the partnership, but entered (x) Day v. Sharp, Law Times, vol. vii. p. 62. See Radenhurst v. Bates, 3 Bing. 463. 470; Davies v. Hawkins, 3 M. & S. 488. 491. (y) Bosanquet v. Wray, 6 Taunt. 597; Mainwaring v. Newman, 2 B. & P. 120; Rose v. Poulton, 2 B. & Ad. 822. See Bosanquet v. Woodford, 5 Q. B. 310. Reference may also be made to Jacaud v. French, 12 East, 317; Sparrow v. Chisman, 9 B. & C. 241 ;e Jones v. Yates, 9 B. & C. 532.e (z) Ante, s. 20. For the rule in equity, see Story's Eq. Pl. ss. 167, 168. As to what constitutes a partnership with reference to strangers, see the cases Chitt. Contr. 3d ed. 240 et seq. (a) Wilsford v. Wood, 1 Esp. 183. (b) Bond v. Pittard, 3 M. & W. 357; Pearson v. Skelton, 1 M. & W. 504; Thacker v. Shepherd, 2 Chitt. R. 652. (c) Garrett v. Handley, 3 B. & C. 462;f and 4 B. & C. 664 ;f Walton v. Dodson, 3 C. & P. 162; and see Moller v. Lambert, 2 Camp. 548. (d) Metcalfe v. Rycroft, 6 M. & S. 75; ante, s. 55. (e) Per Bayley, B., Alexander v. Barker, 2 Cr. & J. 138. (g) Per Denman, C. J., Sims v. Bond, 5 B. & Ad. 393. Eng. Com. Law Reps. 13. cId. 1. Id. 22. Id. 17. fId. 10. Id. 14. Id. 27. by such agent in his separate account with the deceased partner, for t is no privity between the parties. (h) Where a partner contracts appare on his own account, but really on account of the firm, either he may alone or the firm may sue on the contract made by him as their agen unless such partner was clearly dealt with in his individual capacity,( unless he expressly declared the subject-matter of the contract to be sole property;() and generally, whether, under given circumstances advance of money was made by the individual or by the partnership, question for the jury to decide.(m) 82. Again, cases may occur in which an action is maintainable by individual partner, though arising out of partnership concerns, on ground that he alone is interested therein: thus, where accountants *employed to make out partnership accounts, and likewise the s [*63] rate balance of each partner, it was held, that one partner who tained loss by the inaccuracy of his separate account and balance, m sue alone for compensation, for there was a contract between the defend and each of the partners, as well as a contract between the defendants all.(n) 83. The directors of a company established by deed of settlement, de the power of contracting for the company and of suing on contract entered into, from the express provisions of the deed; and where power is vested in all the directors, they must sue jointly, unless the pany be empowered to sue in the name of any one director, by statute and this holds notwithstanding the bankruptcy of one director, unless s office was thereby determined; though, whether the contract was made themselves as directors, or with the company, will be determined by particular circumstances under which it was concluded.(p) Therefor bond given to the trustees of an insurance company, conditioned for faithful services of a clerk to the company, may be put in suit by them and such trustees are the proper plaintiffs in an action for the recover money paid under a policy of insurance *executed by them, [*64] void on account of fraud, such payment having been made ou moneys deposited at the bankers of the company in the names of the t tees.(r) 84. Where a partner is only nominally such, he need not be joined suing on a contract to which he was a stranger; (s) but it is necessar show distinctly that he had no interest either in the partnership or in (h) Sims v. Brittain, 4 B. & Ad. 375.j (i) Ante, s. 57; Arden v. Tucker, 4 B. & Ad. 815; Skinner v. Stocks, 4 B. & 437;k Bawden v. Howell, 4 Scott, N. R. 331. (k) Brandon v. Hubbard, 2 B. & B. 11.1 (1) Lucas v. De La Cour, 1 M. & S. 249. (m) Boswell v. Smith, 6 C. & P. 60 (n) Story v. Richardson, 6 Bing. N. C. 123. The declaration was framed in case the plaintiff might have sued alone in assumpsit, per Bosanquet, J., Id. 130. (0) See Skinner v. Lambert, 11 Law Journ., N. S., C. P. 237. (p) Phelps v. Lisle, 10 Ad. & E. 113.o (q) Metcalf v. Bruin, 12 East, 400; see Megginson v. Harper, 2 Cr. & M. 322. (r) Lefevre v. Boyle, 3 B. & Ad. 877.P (s) Kell v. Nainby, 10 B. & C. 20;9 Glossop v. Colman, 1 Stark. 25. ¡Eng. Com. Law Reps. 24. Id. 6. 'Id. 6. "Id. 25. oId. 37. oId. 37. PId. 2 Id. 2. settlement, der on contracts and where th , unless the c tor, by statute: ector, unless suc ct was made w etermined by th P) Therefore nditioned for suit by them or the recovery Led by them, Deen made out ames of the tre particular transaction,(t) and he must join in suing on a bill of exchange drawn in the name of the firm including his own.(u) 85. A dormant partner may be joined or not at the election of the ostensible partner;(x) but any defence, as a set-off available against the party actually contracting, would appear to be so against both the partners if they join, the defendant having been ignorant of the partnership;(y) and a personal contract which the defendant was induced to enter into with the ostensible partner, by reason of the confidence reposed in him, cannot it *should seem, be transferred on his retirement to the dormant partner, or enforced subsequently thereto.(z) [*65] 86. If there be any change in the firm, those should be made plaintiffs who composed the firm when the cause of action accrued,(a) though, in the case of a guarantee, the surety is discharged by the retirement of one of the partners, (b) or by the principal taking a partner; (c) but if a note be given to a firm "or order" as a security, it will be a security for advances made after a change in the firm.(d) When one member of a partnership firm becomes bankrupt, the solvent partners have a right to use the names of the bankrupt's assignees on giving them an indemnity against costs;(e) and, on the death of one partner, the survivors must sue expressly as such, without joining the personal representatives of the deceased, for the remedy by action survives to the copartners.(g) 87. Lastly, it must be observed, that counts on individual claims cannot be joined with others in respect of partnership transactions; nor can money had and received by A. prior to the partnership, and acknowledged by him during it, be set off in an action by A. and B. as .[ *66 ] partners;(h) but a partner suing as survivor may insert in the declaration a count for a debt due to himself in his separate capacity.(i) 88. On contracts entered into by a corporate body with one of its own members, either party may sue the other, for, with reference to these, (4) Teed v. Elworthy, 14 East, 210; Page v. Hiscox, Parsons v. Crosby, cited Id. 213. (v) Guidon v. Robson, 2 Camp. 302. (x) Leveck v. Shaftoe, 2 Esp. 468; Stacey v. Decy, Id. 469, n. (a); Cothay v. Fennell, 10 B. & C. 671; Lloyd v. Archbowle, 2 Taunt. 324; Skinner v. Stocks, 4 B. & Ald. 437;s Mawman v. Gillet, 2 Taunt. 325, n. (a); Bawden v. Howell, 4 Scott, N. R. 331. (y) Robson v. Drummond, 2 B. & Ad. 303. 308;t Mawman v. Gillett, 2 Taunt. 325, n. (a); Chitt. Contr. 3d ed. 848, 849; but see the remarks on Mawman v. Gillett, 2 Selw. N. P. 10th ed. 1135. (*) Robson v. Drummond, 2 B. & Ad. 303. 307, 308." (a) Wilsford v. Wood, 2 Esp. 183. (b) Dry v. Davy, 10 A. & E. 30 ;* Myers v. Edge, 7 T. R. 254. See further as to this, Chitt. Contr. 3rd ed. 524, 525. (c) Bellairs v. Ebsworth, 3 Camp. 53. (d) Pease v. Hirst, 10 B. & C. 122; Per Lord Denman, C. J., 10 A. & E. 31, 32.x (e) Whitehead v. Hughes, 2 Cr. & M. 318. (g) Per Lord Tenterden, C. J., Jones v. Yates, 9 B. & C. 538; Jell v. Douglas, 4 B. & Ald. 374; Israel v. Simmons, 2 Stark. N. P. C. 356 ;c Martin v. Crump, 2 Salk. 444; S. C. 1 Lord Raymond, 340; Rex v. Collector of Customs, 2 M. & S. 225; Com. Dig. Merchant, (D.); Webber v. Tivill, 2 Wms. Saund. 121 b., and n. (1). (h) France v. White, 6 Bing. N. C. 33. The effect of a receipt by one partner in the name of the firm, may be destroyed by proving that it was a fraud on the copartners. Farrar v. Hutchinson, 9 A. & E. 641. Eng. Com. Law Reps. 21. Id. 6. (i) Chitt. jun. Plead. 152, n. (c). Id. 22. "Id. 22. *Id. 37. Id. 21. Id. 17. dId. 37. Id. 36. the member contracting is as distinct from the corporation as any person, and must be deemed a stranger.(k) 89. The power of making bye-laws for the recovery of penalties individual members, by particular officers belonging to the body, is incl in the very act of incorporation,(7) and the right of suing, being four on agreement between the members, must be exercised pursuant ther and actions for penalties can only be maintained in the names of officers appointed to recover them,(m) and during the period of their of existence so that where a penalty was imposed on the party refusin discharge the duties of a certain office on election thereto, and such per was made payable to the master and wardens for the time be [*67] *for the use of the corporation, it was held that an action would lie at suit of those officers, after ceasing to be such.(n) 90. Actions against strangers must be brought in the corporate na and not in that of the officer contracting on behalf of the corporation, of the individuals composing it;(o) a foreign corporation may, more sue as such on proof of its being incorporated.(p) It may be observed that acts of Parliament frequently enable corporate bodies to sue, and o parties to sue them in the names of their clerks, treasurers, &c., for time being. 91. As to the mode in which a corporation may contract, the ger rule is, that this can only be done under its corporate seal; and the ex tions to this rule result from the necessity or exigency of particular circ stances; as, where the subject-matter of the contract is of cons requirement and small amount, in which case a corporate body may su a parol contract, whether executed or executory, express or implied ( *as, in assumpsit for use and occupation, where the tenant has [ *68] premises under them, and paid rent.(r) 91 a. Where a contract does not fall within the exceptions to (k) Per Parke, J., Dunston v. The Imperial Gas Light and Coke Company, 3 Ad. 132;f Per Denman, C. J., Hill v. The Manchester and Salford Waterworks Comp 5 B. & Ad. 875; see Carden v. The General Cemetry Company, 5 Bing. N. C. 257 (1) 2 Selw. N. P. 10th ed. 1158. (m) Per Best, C. J., Radenhurst v. Bates, 3 Bing. 470; Feltmakers' Company v. D 1 B. & P. 98, and cases there cited. (n) Graves v. Colby, 9 A. & E. 356. See The Thames Haven Dock and Rail Company v. Rose, 5 Scott, N. R. 524; Piper v. Chappell, 14 M. & W. 624.* (0) 1 Bla. Com. 474, 475; Bowen v. Morris, 2 Taunt. 374; Cooch v. Goodman, B. 380. See Warde v. Clarke, 12 M. & W. 747.* (p) The National Bank of St. Charles v. De Bernales, 1 C. & P. 569. (9) Per Tindal, C. J., delivering judgment, Gibson v. The East India Compar Bing. N. 270, 271;m Beverley v. The Lincoln Gas Light and Coke Company, 6 A. 829, 845; Church v. The Imperial Gas Light and Coke Company, 6 A. & E. 8 Judgment, Arnold v. The Mayor of Poole, 5 Scott, N. R. 775; Reg. v. Mayor of S ford, 6 Q. B. 433; The City of London Gas Light and Coke Company v. Nicholls, & P. 365; The Mayor of Ludlow v. Charlton, 6 M. & W. 815,* cited and recognised Scott, N. R. 775, where the general rule was applied, and it was held that the appoint of an attorney by a municipal corporation (except in the case of the City of London,) be under the corporate seal. Post, s. 216. (r) The Mayor of Stafford v. Till, 4 Bing. 75 ;P The Mayor, &c. of Carmarthe Lewis, 6 C. & P. 608;9 The Dean aud Chapter of Rochester v. Pierce, 1 Camp. The Mayor of London v. Hunt, 3 Lev. 37. fEng. Com. Law Reps, 23. "Id. 33. Id. 12. Id. 27. Id. 35. Id. 11. Id. 36. 1Id. 42. mId. |