TITLE IV.

PARTICULARLY OF PARTIES TO ACTIONS GROWING OUT OF RELATION OF PARTNERS, PARCENERS, JOINT TENANTS OR TENANTS IN COMMON.

CHAP. 29. Whether the action is to be by all the partners in a firm in respect of a joint right, or by part of them in respect

of a separate right.

30. Who are to sue jointly as partners.

31. After the death or bankruptcy of one of a firm, in whose name is the remedy for its choses in action.

32. Whether the action is to be against all the partners in a firm in respect of a joint debt, or against part of them in respect of a separate debt.

33. Who are to be sued jointly as partners.

34. Whether one partner can sue a firm of which he is a member; or sue his copartners.

35. Of parceners, joint tenants and tenants in common; when to sue jointly, when severally; when one tenant in common may sue his cotenant.

CHAPTER XXIX.

WHETHER THE ACTION IS TO BE BY ALL THE PARTNERS IN A FIRM IN RESPECT OF A JOINT RIGHT, OR BY PART OF THEM IN RESPECT OF A SEPARATE RIGHT.

1. Where an individual is applied to for a loan, and the money is advanced by a firm.

It was at one period the impression of Lord Ellenborough that when money was lent by a partner, the action must, in all cases, be brought by the individual with whom the contract was made; but he was afterwards convinced of what is doubtless the true rule, viz: that where a contract is made

by one on behalf of others, the action may be brought in the name of the principals. 2 Cr. & Jerv. 138. In the time of his successor there was a case of a guarantee addressed to an individual to this effect: "I understand from Mr. G. that you have had the goodness to consent to advance £ 550 upon my assurance, which I hereby give, that provision shall be made for repaying you this sum, &c." In an action brought by that individual in his own name, it appearing that the advance was not made by him alone but by the firm of which he was a member, his individual action could not be maintained. Garrett v. Handley, 3 Barn. & Cress. 462, 10 Eng. Com. Law 152. Another action was then brought in the name of the firm; and there was produced the correspondence between the firm and the defendant. The court having perused this correspondence, thought it sufficiently appeared that the guarantee was intended for the benefit of the firm and not of J. G. alone; and that the action was properly brought in the name of the parties for whose benefit the contract of indemnity was entered into. Garrett &c. v. Handley, 4 Barn. & Cress. 664, 10 Eng. Com. Law 438, 2 Cr. & Jerv. 139.

If one party applies to another for the loan of money, and is so much in the dark as not to know whether the party to whom he applies is the member of a firm or not, the applicant must take his chance as to whether the advance is made by the individual or by the firm; but he may if he choose so to do, guard himself by saying expressly that he deals with him individually. Bolland, B. in Alexander &c. v. Barker, 2 Cr. & Jerv. 139, 140. "Here," said Bayley, B., "D. Alexander stood in the double capacity of an individual and a member of the firm. Barker wanted an advance of money, and to him it was quite immaterial by whom the advance was made, whether by D. Alexander alone or by the house of which he was a member. He applies to D. Alexander to make the advance; he does not qualify that application and say you may be a member of a firm, and I will deal with you only, and will not be answerable to other persons; but he makes his application without any qualification. By thus applying generally, he entitles D. Alexander, if he make the advance, to place him in the situation of being answerable to him in either of his capacities according to that in which he makes the advance." S. C. 138. "Where" says Lord Lyndhurst, "an application is made to a banker, a member of a firm, for a loan, and the advance is made by money of the firm in which the partners are jointly interested, the action may be brought by all the members of the firm." S. C. 137. VOL. III-9

2. Where there is a contract with partners in which all have a joint interest and each has a separate interest.

There may be a contract with partners in which all of them have a joint interest and each of them has also a separate interest; and on that separate interest there may arise a duty for breach of which one of them may sue separately. Thus where persons employed by three partners to make out the accounts of the partnership generally, and the balance of each partner separately, were guilty of negligence by which one of the partners suffered, he maintained a separate suit in respect of such negligence. Story v. Richardson &c., 6 Bingh. N. C. 123, 37 Eng. Com. Law 313. "It is" said Tindal, C. J. "no new proposition that where there is a joint contract, if either of the parties has a separate interest, he may sue separately in respect of such interest; note to Eccleston v. Clipsham, 1 Wms. Saund. 154." See ante, p. 91-96.

3. Where a person colludes with one partner to the injury of others.

If a person colludes with one partner in a firm to enable him to injure the other partners, those others can maintain a joint action against the person so colluding. Longman &c. v. Pole &c., 1 Mood. & Malk. 223, 22 Eng. Com. Law 297.

CHAPTER XXX.

WHO ARE TO SUE JOINTLY AS PARTNERS.

1. Only the members of the firm with which the defendant dealt; not those who before he contracted, had ceased to be partners in the firm, nor those who became such after he contracted.

Whatever may be thought of the decision made at nisi prius by Abbott, C. J. in Atkinson v. Laing, 1 Dow. & Ry. 16, 16 Eng. Com. Law 415, it is clear that an action for the price of goods sold and delivered by a firm is maintainable by those who were partners in the firm at the time of the sale and delivery. There must not be joined in the action one who became a partner after the sale and delivery. It

matters not that by the articles of partnership into which he entered he was, as to profit and loss, to be deemed a partner from a day anterior to the sale. Such agreement, however valid between the partners, could not give, as against the vendee, a right of action which did not subsist under his contract. Wilsford &c. v. Wood, 1 Esp. 182. Nor is it necessary to join in the action, one who had been a partner and withdrew before the goods were furnished. Although such a person continued to receive part of the profits, and on that ground continued liable to all demands against the partnership, yet Lord Kenyon would not allow a defendant who had dealt with the firm without that person's name appearing in it to avail himself of the objection of his not having joined in the action, (for the purpose of a nonsuit,) but suffered the firm with which the defendant had dealt to maintain the action in their own names only. Leveck &c. v. Shaftoe, 2 Esp. 468.

The broker who made a contract for a firm, called them in the bought and sold notes "Todd, Mitchell & Co." This firm had in fact been dissolved, Todd and James Mitchell leaving, and John Mitchell, G. A. and P. G. composing the new firm. They brought an action for breach of the contract. It appearing that after notice from the new firm, the defendant made no objection to contracting with them, but treated the contract as subsisting, the action was sustained. Mitchell &c. v. Lapage, 1 Holt 253, 3 Eng. Com. Law 91.

The general rule is, that in actions arising ex contractu, where the legal interest is joint, those in whom such interest is vested, must, if living, join in an action for the breach of such contract. Doe v. Halsey, 16 Johns. 40. In Pennsylvania where an action for goods sold and delivered was brought in the name of W., and it appeared that the goods were sold by a house in England trading under the name of T. W., but consisting of T. W., W. R. and G. S., it was held that the action could not be maintained. Wilson v. Wallace, 8 S. & R. 53.

2. Dormant partner need not join with ostensible partner.

It is not necessary that a dormant partner should join with the ostensible partners of a firm in an action against a person who dealt only with the ostensible partners. Clarkson v. Carter, 3 Cow. 85; Wood v. O'Kelley, 8 Cush. 406. And in Maryland, where an action was brought in the name of M., without joining his partners, A. & H., it appearing that the firm was carried on under the name of M. alone, that all the books of the firm, checks drawn, and notices of sale were

signed in his name, and that every part of the transaction on which the action was founded, (the letter of guaranty and other evidence,) was addressed to him alone without reference to his partners, the court regarded A. & H. as dormant partners, and held that it was not necessary to join them in the suit. Mitchell v. Dall, 2 Har. & Gill 172.

With respect to dormant partners there is a material distinction between the case where they are defendants and where they are plaintiffs. A plaintiff who finds out a dormant partner and makes him one of the defendants may recover from him as well as his copartners, because they have all had the benefit of that which is the consideration of the contract on which the action is brought. But a defendant is not to be sued by a person with whom he has had no privity of communication in the contract. 2 Taunt. 327.

An action was brought by Mawman, a bookseller, against Gillett, the printer, for not insuring the travels of Anacharsis; and it appeared that several other booksellers, and amongst them Evans, a witness, had a share in the work; but inasmuch as Evans had never contracted with Gillett, and Mawman was the only ostensible man, the court held that he was the only proper plaintiff. Mawman v. Gillett, 2 Taunt. 327, note. Sir James Mansfield remarks that it was so held with good reason; for the only acting partner might owe much money to the defendant, which the defendant might set off; but if the plaintiff and the dormant partner had sued, that debt of the acting partner could not be set off. Lloyd v. Archbowle, 2 Taunt. 324.

3. As to joining an apparent partner.

There need not be joined as coplaintiff one who is an apparent, but not an actual partner. 14 East 213, 14; Glossop v. Colman &c. 1 Stark. 25, 2. Eng. Com. Law 279; Davenport v. Rackstraw, 1 C. & P. 87, 11 Eng. Com. Law 325; Kell v. Nainby, 10 Barn. & Cress. 20, 21 Eng. Com. Law 17. But there may be joined an apparent partner, if he be an actual partner, so far as relates to the money recoverable in the action. Bond &c. v. Pittard, 3 M. & W. 357. Here according to the agreement between the two parties interested in the profits, one of them was to receive £ 300 a year out of the profits, that is out of the net profits, which could not be ascertained until a view was taken of the state of the accounts at the end of the year. In the meantime, said Parke, B., doubtless the money recovered in this action would be the joint property of both, and would go into the general fund for