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If one of several persons who have been in partnership accept a bill in the partnership-name
partners upon this acceptance. Bishop and Robson were outlawed; and Wilks pleaded the general issue. A verdict was found for the plaintiff, subject to the opinion of the court. Lord Kenyon said he did not know how the case came to be reserved, as he had repeatedly decided the same question at the sittings; the propriety of which decisions had not been canvassed. He said, the consideration of the bill was goods sold to Bishop and Wilks only, when Robson was not a partner. " Then the plaintiffs, knowing this, draw the bill on the three partners, and knowingly take an acceptance from one of them, to bind the other two, one of whom, Robson, had no concern with the matter, and was no debtor of theirs; no assent or knowledge on his part being found. The transaction is fraudulent on the face of it." The other judges concurred. Postea to the defendant.
Hope v. Cust, B. R. M. 1774, cit. per Lawrence J. in Shirreff v. Wilks, 1 East's Rep. 53. Fordyce traded on his separate account, as well as in partnership with others, and being indebted to Hope on his separate account, gave him a general guarantie in the partnership-name for his own debt. Mansfield left it to the jury, whether the taking of the guarantie were, in respect of the partners, a fair transaction; or covinous, with sufficient notice to the plaintiff of the injustice and breach of trust Fordyce was guilty of in giving it. The jury found for the defendant.
See also Pinkney v. Hall, 1 Salk. 126. S. C. Ld. Raym. 175., and Wells v. Masterman and another, 2 Esp. N. P. C. 731. Green v. Deakin, 2 Stark. 348. Hickman owed Green money, and gave him a draft for the amount in the name of himself and his two partners Deakin and Bickley: neither Deakin or Bickley knew of the giving this draft, nor had this been done with their concurrence; Green was not apprized that the other partners were ignorant of the transaction, and it was urged that Deakin should have given notice of his intention to dispute the consideration; sed per Lord Ellenborough, the transaction is intrinsically notice: one partner has no right to bind another without his knowledge by drawing in the partnership-name for his private debt. Nonsuit.
after a dissolution of the partnership, the partnership will not be liable even to a bonâ holder for valuable consideration, if the dissolution took place after the date of the bill and before it became due, and proper means were taken to make the dissolution notorious. (24)
And if a dissolution is agreed upon, a person who knows of it cannot charge the partnership with a subsequent acceptance by one of the partners in the partnership name, unless he can prove that the intention to dissolve was abandoned, or that the acceptance was for a partnership transaction, and free from fraud. (25)
(24) Wrightson v. Pullan, 1 Stark. 375. Defendants, Pullan and Hopcroft, had been partners; but on 13th February 1815 their partnership was dissolved, and on 14th February notice thereof was published in the Gazette. After this date Taylor and Son drew upon Pullan and Hopcroft, and antedated the bill to 1st February, 1815. Hopcroft accepted this bill in the partnership name; after which Taylor and Son paid it to plaintiffs for value. It was urged for plaintiffs, that as the bill was dated before the dissolution, and plaintiffs had taken it bona fide and for a valuable consideration, plaintiffs were entitled to recover upon it; but Lord Ellenborough held, that as the partnership had been dissolved before the bill was drawn, Pullan could not be charged by the subsequent act of Hopcroft and the court afterwards agreed with him, and refused a motion for a new trial.
(25) Paterson v. Zachariah, 1 Stark. 71. In an action against A. & B. upon an acceptance by A. in the joint names they having been in partnership, the defence was, that the acceptance was in fraud of B. after a dissolution to which plaintiff was privy; and it was proved, that before the date of the bill plaintiff had, as attorney, prepared a deed of dissolution, and had sent it for
But a dissolution will not protect the retiring partners, if they suffer their names to continue on the partnership premises, and the holder of the bill or note took it bonâ fide, and for value, and without knowledge of the dissolution. (26)
No banking partnership in England, if there be more than six partners, can properly draw, accept, or indorse, any bill or note payable at less than six months after the date; for, by the acts for protecting the Bank of England, such partnerships are not at liberty to borrow, owe, or take up any money on their bills or notes payable at demand, or at less than six months from the borrowing thereof. (27)
approbation to B.'s attorney; but it did not appear the deed had been executed. Sed, per Lord Ellenborough:- You need not labour this; where an intention to dissolve is made known, and the dissolution is in the course of execution, the burthen is on the other side to shew that the intention has been abandoned. Nonsuit.
(26) Williams v. Keats and Archer, 2 Stark. 290. In an action against defendants as acceptors of a bill, it appeared that they dissolved partnership 18th January, 1817, and that notice thereof was in the preceding night's Gazette; but that the business, (a hatter's,) was carried on as usual by Keats, and that the name, "Keats, Archer, and Co." continued over the door till April; that the bill in question, though dated in December, was not drawn till February; that it was then accepted, in the old partnership name, by Keats; and that plaintiffs took it bonâ fide and for full value in March. Lord Ellenborough thought Archer's permitting his name to remain over the door was notice of a continuance of the partnership; and as there was no proof that plaintiffs knew of its dissolution when they took the bill, they had a right to recover: and they had a verdict accordingly. (27) 6 Ann. c. 22. § 9. Whereas by an act of parliament
But it has been held that this prohibition
made in the eighth year of the reign of his late Majesty King William, intituled, &c., it is amongst other things enacted, That during the continuance of the corporation of the governor and company of the Bank of England, no other bank, or any other corporation, society, fellowship, company, or constitution in the nature of a bank, shall be erected or established, permitted, suffered, countenanced, or allowed by act of parliament within the kingdom, as in and by the said act more at large may appear; nevertheless, since the passing of the said act some corporations, by colour of the charters to them granted, and other great numbers of persons, by pretence of deeds or covenants united together, have presumed to borrow great sums of money, and therewith, contrary to the intent of the said act, to deal as a bank, to the apparent danger of the established credit of the kingdom: now, for preventing of such practice in time to come, and the mischief thence to arise, be it enacted, That during the continuance of the governor and company of the Bank of England, it shall not be lawful for any body politic or corporate whatsoever, erected, or to be erected, other than the said governor and company of the Bank of England, or for other persons whatsoever, united or to be united in covenants or partnership, exceeding the number of six persons, in that part of Great Britain called England, to borrow, owe, or take up, any sum or sums of money on their bills or notes payable at demand, or at less time than six months from the borrowing thereof. And by 15 Geo. 2. c. 13. § 5. to prevent any doubts that may arise concerning the privilege or power given by former acts of parliament to the said governor and company of exclusive banking, and also in regard to the erecting any other bank or banks by parliament, or restraining other persons from banking, during the continuance of the privilege granted to the governor and company of the Bank of England, it is enacted and declared, That it is the true intent and meaning of this act, that no other bank shall be erected, established, or allowed by parliament; and that it shall not be lawful for any body politic or corporate whatsoever, erected, or to be erected, or for any other persons whatsoever, united or to be united in
does not extend to any but banking partnerships. (28)
At least a common partnership cannot make this a defence against an innocent holder, who was ignorant of what number the firm consisted. (29)
Sect. 6.-Corporations are mentioned in the statute of Anne, as persons who may make or indorse notes, and to whom notes may be payable; and as
covenants or partnership, exceeding the number of six persons, in that part of Great Britain called England, to borrow, owe or take up, any sum or sums of money on their bills or notes payable at demand, or at any less time than six months from the borrowing thereof, during the continuance of such said privileges to the said governor and company; who are hereby declared to be and remain a corporation, with the privilege of exclusive banking, as before recited, subject to redemption, on the terms and conditions therein mentioned.
(28) Wigan v. Fowler, 1 Stark. 459. In an action against seven partners, as makers of a promissory note for 1000l. payable three months after date, the defence was, that the bank acts made this note void: the number of partners did not appear upon the face of the note, nor was there any evidence that plaintiff knew it. Lord Ellenborough thought at the trial, that the bank acts applied to banking partnerships only, and it was with reluctance he saved the point. On motion to enter a nonsuit, he adhered to his original opinion; and it was noticed that plaintiff did not appear to have known how many partners there were when he took the bill, and the rule was refused.
(29) In Broughton v. Manchester Water Works Company, post, 53, this point was relied upon as forming a distinction between the two cases.