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an agent *permitted to contract generally for his principal in this or that business should be safe in dealing with him, on the assumption that he has authority. But if he knows that he has no authority, in that case to hold the principal bound by a contract made contrary to the agent's real instructions, would be to give effect to a fraud; and accordingly, wherever the person who contracts with an agent knows that that agent's authority is limited, and nevertheless contracts with him beyond those limits, he does so at his peril, for the principal is not bound.' See Trueman v. Loder, 11 A. & E. 591, 39 E. C. L. R. And on this account it is wise and usual for persons who have been in the habit of employing a general agent, and are desirous of discontinuing him, to give notice to the world of their intention in the Gazette, and to those persons with whom they are in the habit of dealing by circulars. (a)

knowingly exceeds it. It is to be regretted that so important a rule cannot be laid down otherwise than hypothetically. [See supra, the note on page 137 et seq.]

(a) The recent cases involving a consideration of the law of agency have chiefly arisen upon partnership contracts; for it has been well said by a learned judge that "all questions between partners are no more than illustrations of the same questions as between principal and agent." (Per Parke, B., in Beckam v. Drake, 9 M. & W. 98.) Partnership exists wherever two or more persons enter into a joint concern or undertaking, of which they are to share the profits and losses.

Now, wherever one or more partners contract for and on behalf of

1 And therefore it has been held, that where the authority purports to have been derived from a written instrument, or the agent expressly signs the contract, "by procuration," the party dealing with him is put upon inquiry, and is bound to examine the instrument; Attwood v. Muninngs, 7 Bar. & Cress. 278; Witheringham v. Herring, 5 Bingh. 442; Schimmelpennich v. Bayard, 1 Peters, 264; North River Bank v. Aymar, 3 Hill, 262.

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*The consideration of the 4th point must be deferred.

the firm, they act for and bind every member of it: and every member of it is individually liable upon it, whether he be a known or a dormant partner (Fox v. Clifton, 6 Bing. 795, 19 E. C. L. R.), provided the contract be one in the ordinary course of the partnership business, but not otherwise.' (Adams v. Bankarts, 1 Cr. M. & Ros. 681; Hasleham v. Young, 5 Q. B. 833, 48 E. C. L. R.)

There is nothing, however, to prevent the parties from confining the credit to an individual partner; and it is a question for the jury whether this has or has not been done. Where there has been nothing to discharge a partner from his liability, or to rebut the presumption of authority to pledge his credit arising from the mere fact of his being a partner, he is clearly liable; but where there are facts to show that it was the intent of the contracting parties to restrict the credit to one of several partners, the liability is limited by such intent. Cases of this description occur where the partner represents himself as the only person composing the firm. (See De Mantort v. Saunders, 1 B. & Adol. 398, 20 E. C. L. R.; Blomfield v. Wilson, 12 M. & W. 405.) [Alexander v. M'Grun, 3 Watts, 320; Jaques v. Marquand, 6 Cowen, 497.] Or where one person has authority to contract on his own account only, and not on behalf of the other partners. (Wilson v. Whitehead, 10 M. & W. 503.) The result is that the liability arising from the naked fact of partnership is prima facie; and may be rebutted by direct evidence that credit was not given to the partnership, but to an individual

'Thus a partner cannot bind the firm by a submission to arbitration or by a confession of judgment; Adams v. Bankarts, supra; Karthaus v. Ferrer, 1 Peters, 222; Barlow v. Reno, 1 Blackford, 252; Grazebrook v. M'Creedie, 9 Wendell, 437; Harper v. Fox, 7 Watts & Serg. 142; "because it would bind the persons and separate estates of the members, and thus transcend the limits of partnership authority;" nor can one partner give a separate creditor an order on a debtor of the firm; M'Kinney v. Bright, 4 Harris, 399; or otherwise apply partnership effects to the payment of his own debts; Yale v. Yale, 13 Connect. 185; Rogers v. Batchelor, 12 Peters, 230; Livingston v. Hastie, 2 Caines, 249; Moddewell v. Keever, 8 W. & S. 63; Dob v. Halsey, 16 Johns. 34; Langan v. Hewett, 13 Sm. & Marsh. 122. As to the right of a partner to bind the firm by specialty, see infra, note 2 to page 255.

member of it. (See Smith v. Watson, 2 B. & Cr. 401, 9 E. C. L. R., and Peacock v. Peacock, 2 Camp. 45.) This doctrine is very strongly corroborated by one of the latest cases on the point. (Holcroft v. Hoggins and others, 15 L. J., C. P., 129.) The plaintiff had been engaged to write articles in the "Newcastle Advertiser," by a person who at the time of the contract had become in fact the sole proprietor of the newspaper, and the two defendants were sought to be made liable in consequence of their having suffered their names to remain as registered *proprietors of the newspaper in the [*255] declaration required to be filed by 6 & 7 Will. 4, c. 76, they having previously been proprietors of the newspaper, but having ceased to be so before the contract in question was entered into. It was adjudged not only that the defendants were not liable, but that the fact of their being co-proprietors was wholly immaterial, though they held themselves out as such, if it was shown that another partner contracted with the plaintiff in such a manner that credit was given to him, and not to them.'

It must also be shown that the debt for which an action is brought accrued during the time the party sued was actually in partnership. He will be liable neither for contracts made before nor after he be

This, therefore, is put upon the ground of there being a special contract with the single partner, credit having been given to him and not to the other, Ensign v. Wands, 1 Johns. Cases, 171; but it would seem that the mere fact of the plaintiff's notice that the one sought to be charged was, as between himself and the co-defendant, no longer a partner (though for want of compliance with a statutory enactment, he might still be so to the world at large), will not defeat the plaintiff's right to recover against both. Thus, in Andrews v. Schott, 10 Barr, 35, the plaintiffs sued A. & B. on a note signed by A. & Co., and B. filed an affidavit of defence, setting forth that he was a limited partner merely, under the local act regulating limited partnerships, and liable therefore only to the extent prescribed by that act, and that the plaintiff knew this fact, and trusted to the credit of the firm and the general partners, and not to himself; but the Court gave judgment for the plaintiffs, on the ground that the act referred to, expressly prohibited the use of the words "and Company" in the firm name, under the general penalty of making the special partner liable as a general partner, and that the averment that the plaintiffs trusted to the credit of the firm, was not intended as an averment of a special contract, but an inference drawn from the mere fact that the plaintiffs knew that the party was a special partner only.

came a partner, provided he gives proper notice of his retirement. (Beech v. Eyre, 5 M. & G. 424, 44 E. C. L. R., per Tindal, C. J. See also Ridgway v. Philip, 1 Cr. M. & Ros. 415, and Vere v. Ashby, 10 B. & Cr. 288, 21 E. C. L. R.)

It has been long held that dormant partners are equally liable with ostensible partners upon all contracts made for the firm during their partnership; on the equitable principle that the dormant partner being entitled to all the profits of the contract made by the firm to which he belongs, ought also to share in the liability; he having a right moreover to sue others on it, he ought not to be protected from being sued on it by them: for "Qui sentit commodum sentire debet et onus." It is therefore decided that as an undisclosed principal may be made liable as soon as he is discovered, subject to all the equities between the parties; so may an undisclosed partner. Neither is there any distinction between express or written contracts, and those which are implied or verbal. This was decided in the case of Beckham v. Brake, 9 M. & W. 79, expressly overruling a contrary decision in Beckham v. Knight, 4 Bing. N. C. 243, 33 E. C. L. R. But a contract under seal can bind none but those who execute it (per Lord Abinger in Beckham v. Drake), unless express authority be given to them for that purpose.1

'As a general rule, nothing is better settled, than that the general power of a partner does not extend so far as to enable him to bind the firm by a specialty; Van Deusen v. Blum, 18 Pick. 229; Clement v. Brush, 3 Johns. Cas. 180; Cummings v. Cassily, 5 B. Monroe, 74; Posey v. Bullitt, 1 Blackford, 99; though if the instrument were executed in the presence of and by the direction of his copartner, it would be the deed of both; Ball v. Dunsterville, 4 Term, 313; Overton v. Tozer, 7 Watts, 159; Ludlow v. Simond, 2 Caines's Cases, 1, 42, 55; Mackay v. Bloodgood, 9 Johnson, 285; Henderson v. Barbee, 6 Blackford, 26, 28. But in Gram v. Seton, 1 Hall, 262, and Cady v. Sheppard, 11 Pick. 400, it was determined, after much consideration of all the authorities, that a partner may bind his copartner by a contract under seal, in the name and for the use of the firm, in the course of the partnership business, provided the other partner assents to the contract previously to its execution, or afterwards ratifies and adopts it, and this assent or adoption may be by parol, and such a conclusion is perhaps now sustained by the weight of authority; Pike v. Bacon, 21 Maine, 280; Swan v. Steadman, 4 Metcalf, 548; Bond v. Aitkin, 6 Watts & Serg. 165; Lucas v. Sanders, 1 M'Mullan, 311; Fleming v. Dunbar, 2 Hill, (S. C.) 532;

Nominal partners are as liable as dormant ones, not because they are principals for whom others are agents, but on the ground that credit may have been given to them, and it is just to the [256] creditor that they should be responsible for the result of holding themselves out to the world; Waugh v. Carver, 2 H. Bl. 242; [Hesketh v. Blanchard, 4 East, 146, ex parte Hamper, 17 Ves. 412.]

A general notice is sufficient to discharge partners who retire from firms quoad the world at large, but an express notice is requisite to discharge them, as regards previous customers. [3 Kent's Com. 67; Farrar v. Deflinne, infra.] This being done, the retiring partner is effectually discharged from all debts subsequently accruing, nor can he be made liable by any unauthorized use of his name by his previous partners (Abel v. Sutton, 3 Esp. 108), though his liability, as well as his power to make admissions, or to release or sue for debts contracted during his partnership, of course remains. (Whitehead v. Hughes, 2 C. & Mee. 310; Porter v. Bristow, 6 M. & Sel. 156; Wood v. Braddick, 1 Taunt. 104; Biggs v. Fellows, 8 B. & Cr. 402, 15 E. C. L. R.) Where notice is given to a firm by a retiring partner of some other firm, in all cases of ordinary co-partnership notice to one member is notice to all. (Portheuse v. Parker, 1 Camp. 82; Jacand v. French, 12 East, 317). So notice to the Bank of England is held to be notice to all its branch banks (Wallis v. The Bank of England, 5 Ad. & Ell. 21, 4 E. C. L. R.), for notice to the principal is notice to the, agent. (Mayhew v. Eames, 3 B. & Cr. 601, 10 E. C. L. R.) This rule, however, does not apply to joint stock companies suing in the name of a public officer, unless the member of it who has notice is also a member of the managing body, such companies not being ordinary co-partnerships. (Powles v. Page, 3 C. B. 16, 54 E. C. L. R. In such cases the notice must be given to the managing body. Such are the general rules which govern the M'Cart v. Lewis, 2 B. Monroe, 267; Davis v. Burton, 3 Scammon, 41; Hatch v. Crawford, 2 Porter, 54.

It has moreover been determined, that if the act of one partner be a good and valid act in itself, it will not be rendered the less so if done by a specialty, provided the seal do not vary the liability; Deckard v. Case, 5 Watts, 22; Henessy v. Western Bank, 6 Watts & Serg. 301; Tapley v. Butterfield, 1 Metcalf, 515, which cases, and many others upon the subject of the power of a partner to bind the firm, the student will find classified in the note to Livingston v. Rosevelt, 1 Am. Lead. Cases. 460.