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to the pawnee a greater interest than he himself has in the concern. (c) And if one partner acts fraudulently with strangers in a matter within the scope of the partnership authority, the firm is, nevertheless, bound by the contract. The connection itself is a declaration to the world of the good faith and integrity of the members of the association, and an implied undertaking to be responsible for the acts of each within the compass of the partnership concerns. (d) 1

(5) How far by Guaranty. It was formerly understood that one partner might bind his copartners by a guaranty, or letter of credit, in the name of the firm; (e) and Lord Eldon, in the case Ex parte Gardom, (f) considered the point too clear for argument. But a different principle seems to have been adopted; and it is now held, both in England and in this country, that one partner is not authorized to bind the partnership by a guar

(c) Barton v. Williams, 5 B. & Ald. 395.

(d) Willet v. Chambers, Cowp. 814; Rapp v. Latham, 2 B. & Ald. 795; Longman v. Pole, Danson & Lloyd, 126; Bond v. Gibson, 1 Camp. 185. Hume v. Bolland, 1 Ryan & Moody, 371; 6 B. & C. 561; M. & M. Bank v. Gore, 15 Mass. 75; Hadfield v. Jameson, 2 Munf. 53. But a tort, or even a fraud, committed by one of the partners, will not bind the partnership, if it be not in the matter of contract, and there be no participation in it. Parsons, C. J., Pierce ». Jackson, 6 Mass. 245; Sherwood v. Marwick, 5 Greenl. 295. There are exceptions, however, to this rule. Partners are responsible for the tortious acts of a copartner in the prosecution of the copartnership business, as well as for the tortious acts and negligences of their servants, and a partner himself may sometimes act in that capacity. Moreton v. Hardern, 4 B. & C. 223; Attorney General v. Stanny forth, Bunb. 97; Collyer on Partn. 252–254, 296, 297, 305, 806, 307; Story on Partn. 257-260. But the servant must be employed by one of them in the prosecution of the business of the partnership. Waland v. Elkins, 1 Starkie, 272; Bostwick v. Champion, 11 Wend. 571. (e) Hope v. Cust, cited in 1 East, 53.

1 Blair r. Bromley, 5 Hare,542, affirmed, 2 Ph. 354; Sadler v. Lee, 6 Beav. 324; De Ribeyre v. Barclay, 23 Beav. 107; Eager v. Barnes, 31 Beav. 579; Alliance Bank v. Tucker, 15 W. R. 992; Earl of Dundonald v. Masterman, L. R. 7 Eq. 504; St. Aubyn r. Smart, L. R. 3 Ch. 646; L. R. 5 Eq. 183; Griswold v. Haven, 25 N. Y. 595; French v. Rowe, 15 Iowa, 563; Pierce v. Wood, 3 Fost. (23 N. H.) 519: But the act must be within the scope of the partnership business. Harman v. Johnson, 2 El. & Bl. 61; Sims v. Brutton, 5 Exch. 802; Bishop v. Countess of Jersey,

(f) 15 Ves. 286.

2 Drew. 143; Bourdillon v. Roche, 27 L. J. N. s. Ch. 681; Hutchins v. Turner, 8 Humph. 415; Alliance Bank v. Kearsley, L. R. 6 C. P. 433. See also Coomer v. Bromley, 5 De G. & Sm. 532; 12 Eng. L. & Eq. 307. Instances in which the mem bers have been held liable for a tort committed by one of their number without their participation are Lloyd v. Bellis, 27 L. T. 203; 37 Eng. L. & Eq. 545; Linton v. Hurley, 14 Gray, 191. See Castle v. Bullard, 23 How. 172; McKnight v. Rat cliff, 44 Penn. St. 156.

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*47 anty of the debt of a third person, without a special authority for that purpose, or one to be implied from the common course of the business, or the previous course of dealing between the parties, unless the guaranty be afterwards adopted and acted upon by the firm. The guaranty must have reference to the regular course of business transacted by the partnership, and be confined to advances made or credit given to the partnership as then constituted, and not extended to new advances or credits, after a change of any of the original partners by death or retirement, and then it will be obligatory upon the company; and this is the principle on which the distinction rests. (a) The same general rule applies when one partner gives the copartnership as a mere and avowed surety for another, without the authority or consent of the firm, for this would be pledging the partnership responsibility in a matter entirely unconnected with the partnership business. (b)

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(6) How far by Deed.-Nor can one partner charge the firm by deed, with a debt, even in commercial dealings. It would be inconsistent with technical rules, and contrary to the general policy of the law; for the execution of a deed requires a special authority; and such a power has been deemed by the English courts to be of dangerous tendency, as it would enable ore partner to give to a favorite creditor a mortgage or a lien on the real estates of the other partners. (c) But one partner, by the spe

(a) Duncan v. Lowndes, 3 Camp. 478; Sandilands v. Marsh, 2 B. & Ald. 673; Crawford v. Stirling, 4 Esp. 207; Sutton v. Irwine, 12 Serg. & R. 13; Ex part: Nolte, 2 Glyn & J. 295; Hamill v. Purvis 2 Penn. 177; Story on Partn. [§§ 127, 240, 251;] Cremer v. Higginson, 1 Mason, 323; Myers v. Edge, 7 T. R. 254; Strange v. Lee, 3 East, 490; Weston v. Barton, 4 Taunt. 673, 682; Pemberton v. Oakes, 4 Russ. 154; Dry v. Davy, 10 Ad. & El. 30.

(b) Foot v. Sabin, 19 Johns. 154; New York Firemen Insurance Company v. Bennett, 5 Conn. 574; Laverty v. Burr, 1 Wendell, 531. See, also, the same point, 7 Wend. 158; 14 id. 146; 15 id. 364; Andrews v. Planters' Bank, 7 Smedes & Marsh. 192.

(c) Collyer on Partn. 308-312; McNaughten v. Partridge, 11 Ohio, 223. A customhouse bond for duties given by one partner will not bind the firm. Metcalfe ». Rycroft, 6 Maule & Selw. 75; Elliot v. Davis, 2 Bos. & P. 338. The act of Congress of 1st March, 1823, c. 149, sec. 25, has, however, rendered such bonds, given in

1 Brettel v. Williams, 4 Exch. 623; Hasleham v. Young, 5 Q. B. 833. See Alliance Bank v. Tucker, 15 W. R. 992; Sweetser v. French, 2 Cush. 309; Selden Bank of Commerce, 3 Minn. 166.

2 Rollins v. Stevens, 31 Me. 454, Langan v. Hewett, 13 Sm. & Marsh. 122; McQuewans v. Hamlin, 35 Penn. St. 517.

cial authority of his copartners under seal, and, if in their presence, by parol authority, may execute a deed for them in a transaction in which they were all interested. It amounts, in judgment of law, to an execution of the deed by all the partners, though sealed by one of them only; and this is the case, if the other partners, by assent or acts, subsequently ratify the deed. (d) The general doctrine of the English law on this point has been clearly recognized and settled by numerous decisions in our * American courts. (a) The more recent cases have very considerably relaxed the former strictness on this subject; and while they profess to retain the rule itself, they qualify it exceedingly, in order to make it suit the exigencies of commer

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this country, binding upon the firm. Harrison v. Jackson, 7 T. R. 207; Montgomery v. Boone, 2 B. Mon. 244; Turbeville v. Ryan, 1 Humph. (Tenn.) 113; Story on Partn. [§ 117.]

(d) Ball v. Dunsterville, 4 T. R. 313; Williams v. Walsby, 4 Esp. 220; Steiglitz v. Egginton, 1 Holt N. P. 141; Brutton v. Burton, 1 Chitty, 707; Swan v. Stedman, 4 Met. 548.

(a) Gerard v. Basse, 1 Dall. 119; Green v. Beals, 2 Caines, 254; Clement v. Brush, 3 Johns. Cas. 180; Mackay v. Bloodgood, 9 Johns. 285; Anon. 2 Hayw. (N. C.) 99; Mills v. Barber, 4 Day, 428; Garland v. Davidson, 3 Munf. 189; Hart v. Withers, 1 Penn. 285; Posey v. Bullitt, 1 Blackf. (Ind) 99: Skinner v. Dayton, 19 Johns. 513; 1 Wendell, 326; 9 id. 439; Nunnely v. Doherty, 1 Yerg. (Tenn.) 26; Swan v. Stedman, 4 Met. 548.

1 Instruments under Seal. Schmertz v. Shreeve, 62 Penn. St. 457. It is admitted in Schmertz v. Shreeve, that if one partner is expressly authorized to make a certain executory contract, and makes it by an instrument under seal, the seal is surplusage, and that the other will be liable as on a simple contract; (citing Baum v. Dubois, 43 Penn. St. 260; Jones v. Horner, 60 Penn. St. 214.) And the same doctrine has been applied by other courts to contracts not specially authorized, which, but for the seal, would bind the firm. Purviance v. Sutherland, 2 Ohio St. 478; Human v. Cuniffe, 32 Mo. 316. See Ex parte Bosanquet, De Gex, 432, 439; Daniel v. Toney, 2 Metcalfe, (Ky.) 523. And when there is an executed transaction which is within the power of the partner, such as the sale and delivery of merchandise, it will not matter if a bill of sale under seal is added,

because that is only evidence of the act, and does not change its nature. Schmertz v. Shreeve, sup., and cases cited; Dubois's Appeal, 38 Penn. St. 231; Sweetzer v. Mead, 5 Mich. 107; Ex parte Bosanquet, De Gex, 632.

Other cases confirming the text as to the sufficiency of a parol ratification or authority are Johns v. Battin, 30 Penn. St. 84; Smith v. Kerr, 3 Comst. 144; Gwinn v. Rooker, 24 Mo. 291; Ely v. Hair, 16 B. Mon. 230. Gram v. Seton, inf. n. (b), seems to be sustained by McDonald v. Eggleston, 26 Vt. 154; Drumright v. Philpot, 16 Ga. 424; Worrall v. Munn, 1 Seld. 229, 240. Contra, Little v. Hazzard, 5 Harringt. 291. So in case of instruments affecting real estate. Wilson v. Hunter, 14 Wis. 683; Haynes v. Seachrest, 13 Iowa, 455; Lowery v. Drew, 18 Tex. 786; Herbert v. Hanrick, 16 Ala 581.

cial associations. An absent partner may be bound by a deed executed on behalf of the firm by his copartner, provided there be either a previous parol authority or a subsequent parol adoption of the act. (b)

One partner may, by deed, execute the ordinary release of a debt belonging to the copartnership, and thereby bar the firm of a right which it possessed jointly. This is within the general control of the partnership funds, and within the right which each partner possesses, to collect debts and receive payment, and to give a discharge. The rule of law and equity is the same; and it must be a case of collusion for fraudulent purposes, between

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the partner and the debtor, that will destroy the effect of *49 the release. (c) A release by one partner, to a partnership debtor, after the dissolution of the partnership, has been held to be a bar of any action at law against the debtor. (a) So also in bankruptcy, one partner may execute a deed, and do any other act requisite in proceedings in bankruptcy, and thereby bind the partnership. This is another exception to the general rule, that one partner cannot bind the company by deed. (b) Nor can one partner bind the firm by a submission to arbitration, even

(b) Skinner v. Dayton, 19 Johns. 513; Anderson v. Tompkins, 1 Brock. 462; Story on Partn. [§§ 119-122;] Cady v. Shepherd, 11 Pick. 405, 406; Bond v. Aitkin, 6 Watts & S. 165. In Jackson v. Porter, 20 Martin (La.), 200, it was admitted that where a deed was executed by one partner in the name of the firm, parol evidence was receivable to show the written assent of the other partner. The case of Gram v. Seton & Bunker, in the city of New York, 1 Hall (N. Y.), 262, goes a great deal further, and holds that one partner may execute, in the name of the firm, an instrument under seal, necessary in the usual course of business, which will be binding upon the firm, provided the partner had previous authority for that purpose; and such authority need not be under seal, nor in writing, nor specially communicated for the specific purpose, but it may be inferred from the partnership itself, and from the subsequent conduct of

the copartner implying an assent to the act. In Tennessee, the doctrine that a subsequent ratification or a parol authority will render valid the act of one partner to bind the other by deed is rejected, as being contrary to their established decisions. Turbeville v. Ryan, 1 Humph. 113. This was adhering to the stern doctrine of the common law, that it required a prior authority, under seal, or a subsequent ratification, under seal, to make a sealed instrument, executed by one partner only, binding on the firm, and which doctrine has become essentially relaxed in the commercial states.

(c) Tooker's Case, 2 Co. 68; Ruddock's Case, 6 Co. 25; Lord Kenyon, in Perry v. Jackson, 4 T. R. 519; Stead v. Salt, 3 Bing. 101; Hawkshaw v. Parkins, 2 Swanst. 539; Pierson v. Hooker, 3 Johns. 68; Bruen v. Marquand, 17 Johns. 58; Salmon v. Davis, 4 Binney, 375; Halsey v. Whitney, 4 Mason, 206, 232; Smith v. Stone, 4 Gill & Johns. 310.

(a) Salmon v. Davis, 4 Binney, 375.
(b) Ex parte Hodgkinson, 19 Ves. 291.

of matters arising out of the business of the firm. The principle is, that there is no implied authority, except so far as it is necessary to carry on the business of the firm. (c) It would also go to deprive the other parties of their legal rights and remedies in the ordinary course of justice. (d)

(7) How far by Admission of a Debt. The acknowledgment of an antecedent debt by a single partner, during the continuance of the partnership, will bind the firm equally with the creation of the debt in the first instance; and it will take the case out of the statute of limitations, if it be a clear and unqualified acknowledgment of the debt. (e) Whether any such acknowledgment, or promise to pay, if made by one partner after the dissolution of the partnership, will bind a firm, or take a case out of the statute as to the other partners, has been for some time an unsettled and quite a vexed question, in the books. In Whitcomb v. Whiting, (f) it was held, that the admission of one joint maker of a note took the case out of the statute as to the other maker, and that decision has been followed in this country.(g) The doctrine of that case has even been extended to acknowledgment by a partner after this dissolution of the partnership, in relation to antecedent transactions, on the ground that, *50 as to them, the partnership still continued. (a) But there

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(c) Stead v. Salt, 3 Bing. 101; Karthaus v. Ferrer, 1 Peters, 222; Buchanan v. Curry, 19 Johns. 137; Lumsden v. Gordon, cited in 1 Stair's Institutions of the Law of Scotland, 141, edit. by More, 1832. Contra, Taylor v. Coryell, 12 Serg. & R. 243; Southard v. Steele, 3 Monroe, 443.

(d) Story on Partn. [§ 114.] By the civil and the French law, one partner cannot compromise a suit, or submit a controversy to arbitration, without the consent of his associates. Dig. 3. 3. 60; Pothier, de Société, n. 68. Nor can one partner retain an attorney, with power to appear and act for the firm in an action against it, for this would be beyond the ordinary duties of the relationship, and would expose the innocent partner to judgment and execution without his knowledge or consent. Hambidge v. De la Crouée, 3 C. B. 742.

(e) Pittam v. Foster, 1 B. & C. 248; Burleigh v. Stott, 8 id. 36; Collyer on Partn. 286-290. The same principle applies as to the admission or misrepresentation of facts by one partner relative to a partnership transaction. Collyer on Partn. 290; Story on Partn. § 107.]

(f) Doug. 652.

(g) Bound v. Lathrop, 4 Conn. 336; Hunt v. Bridgham, 2 Pick. 581; Ward v. Howell, 5 Harr. & J. 60; Walton v. Robinson, 5 Ired. (N. C.) 341. By Mass. R. S. c. 120, sec. 14, one joint promisor is not affected by the admission of the other.

(a) Wood v. Braddick, 1 Taunt. 104; Lacy v. M'Neile, 4 Dowl. & Ryl. 7; Cady v. Shepherd, 11 Pick. 408; Austin v. Bostwick, 9 Conn. 496; Hendricks v. Campbell,

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