stances. It seems, that a publication in the gazette, of the nature of the copartnership, at the time of its commencement, is constructive notice to all those who may, afterwards, take the copartnership security.

THIS was an action of assumpsit. The plaintiff. declared on a promissory note, dated April 26th, 1805, drawn by the defendant, C. I. Roosevelt, payable to C. C. Roosevelt & Co., and endorsed by the said C. I. R. in the name of C. C. Roosevelt & Co. to the plaintiff, who resides in the city of New York.

When the note became payable, it was regularly protested for non-payment, and notice given to C. C. R.

A judgment by default was entered against C. I. R. The other defendant, C. C. R., pleaded non-assumpsit. The cause was tried at the New York sitting, in December, 1807, before Mr. Justice Spencer.

The defendants, in February, 1803, entered into copartnership in the city of New York, and published, for two weeks successively, in the Evening Post and American Citizen, an advertisement, that they had entered into partnership in the sugar refining business, under the firm of C. C. Roosevelt & Co., and that their sugar house was in *Thames street. Both these newspapers *408] were taken by the plaintiff during the time of the adver tisement. The copartnership continued until June, 1805, when it was dissolved, and notice of the dissolution was given in the same newspapers. The note in question was given for 20 pipes of brandy, purchased of a certain Bogert, agent for the plaintiff, and which were in the hands of Bogert, as administrator of one Caroll, deceased, and were sold in part satisfaction of a debt due from that estate to the plaintiff. The bill of parcels of the brandy, with the contents, the number and mark of each pipe, was made out by a clerk, in the name of C. I. Roosevelt only. The brandy was entered at the custom house, in the name of C. I. Roosevelt ; and to obtain the usual debenture, the plaintiff made oath at the custom house, that the sale was to C. I. Roosevelt. This affidavit. was made the 24th April, 1805, subsequent to the sale, and before the note was given. The clerk at the custom house, who attended with the affidavit, testified, that when an article was sold for exportation, as he believed, to a copartnership, it was not uncommon in the affidavit made, in order to obtain the debenture, to state that they were sold to one of the firm, without mentioning the

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other partners; but whether, in such cases, the sale was in reality made to the firm, or to the individual partner to whom it was stated in the affidavit to be made, he did not know. The brandy was actually exported in a vessel belonging to C. I. Roosevelt, and which had been purchased with his own note, without an endorser.

One Lockwood, a witness for the defendant, testified, that, in the spring of 1805, he was employed by C. I. Roosevelt, as supercargo, on board the schooner Elizabeth, on a voyage to the West Indies; this was the vessel purchased by C. I. R., as above mentioned. The cargo consisted of cloves, 20 pipes of brandy, purchased of the plaintiff, and a variety of other articles. C. C. Roosevelt had no interest or concern in the vessel or cargo.

One Cebra testified, that he was a clerk of the defendants from 1804 until the dissolution of their partnership, On the building where the copartnership business was conducted, was painted, in large letters, "Sugar House." He knew of no copartnership beyond the limits of the sugar refining business. The note in question was given at the dwelling house of C. I. Roosevelt. No entry of the purchase of the brandies was made in the copartnership books, and he understood that it was a private speculation of C. I. Roosevelt.

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One Cross testified, that he was directed to deliver the brandy by Bogert, the agent of the plaintiff', but he received no directions from the plaintiff to make out the bill of parcels, nor did he recollect* receiving any from Bogert. Neither of them, as far as he knew, ever saw the bill. The bill was made out as C. I. Roosevelt directed. Bogert directed the witness to call for the note, but gave no directions relative to the form in which it was to be made. He called on C. I. Roosevelt, at his dwelling house, and received the note, and when he handed it to Bogert, no objection was made by him or the plaintiff relative to the form of it.

It appeared that at two of the banks, in the city of New York, the defendants, from the commencement of their copartnership, had been in the habit of keeping partnership accounts, and had been there considered as general partners. That the entry of the partnership name of C. C. R. & Co., in the bank book of signatures, was in the hand of C. I. Roosevelt, and that the checks and other partnership papers which passed at the banks were generally signed by C. I. Roosevelt, in the name of the firm; that credit

was given at these banks principally to C. C. Roosevelt, and that nothing was known, at either of them, of any limitation of the partnership.

The plaintiff proved by several merchants and others, that although they knew of the partnership, they never heard, until after its dissolution, of any limitation, though several of them took the newspapers in which the advertisements were published.

Bogert testified, that he was the agent of the plaintiff; that the bargain for the brandies was made with C. I. Roosevelt, but he understood they were sold to and for the partnership, although nothing was said on whose account the purchase was made. The partnership engagement was to be given, and the sale was not completed until he had satisfied himself, by inquiries, that the defendants were partners. He never heard of any limitation to the partnership until after its dissolution, and he gave no directions to Cross to make out a bill of parcels. He believed, when the sale was made, that the partnership was a general one.

The judge told the jury, that he was decidedly of opinion, upon the facts above stated, that the plaintiff was entitled to recover, and the jury accordingly found a verdict for the plaintiff.

The defendants moved for a new trial, on the ground of the misdirection of the judge, and because the verdict was against law and evidence. Two points were made:

1. A partnership security was taken for what was known to be the individual debt of one partner.

2. That if the individuality of the debt was not known to the plaintiff *or his agent, still, in limited partnerships, one *410] partner has no authority to bind the firm in a transaction out of the scope of the partnership.

Griffin, for the defendant. 1. The partnership of C. C. Roosevelt & Co. was special, being expressly limited to the sugar refining business. The note in question was given for brandy, and the purchase made exclusively for the interest of C. I. Roosevelt, and without the knowledge of C. C. Roosevelt. The plaintiff took a partnership security for an individual debt of one of the partners, knowing it to be so. The knowledge of the plaintiff, or his agent, that the security was for the individual debt of C. I. Roosevelt, is material, and is fully proved by the written documents in the case. The bill of parcels made to C. I. R. is a contemporaneous exposition of the understanding of the

parties; for it is to be presumed, that if the sale had been actually made to the partnership, the bill would have been made out in the name of C. C. Roosevelt & Co. This is the natural and usual course of business. The entry at the custom house for exportation, and the affidavit of the plaintiff himself, that the sale was made to C. I. Roosevelt, is strong evidence of the fact. Again, the form of the note is almost conclusive evidence, that the brandy was sold to C. I. Roosevelt alone. It is drawn by him alone, and he endorsed the name of the firm. If it was a copartnership debt, this mode of making and endorsing the note could give no additional security. If the name of the firm had been subscribed, as makers, each of the defendants would have been equally liable to the plaintiff.

It was decided in Livingston v. Hastie and Patrick, 2 Caines, 246, that a note given by one partner in the name of the firm, for his individual debt, was void, as against the firm, and even against a friendly endorser, not knowing on what account it was drawn, where the endorsee himself did not know for what the note was given. The same doctrine was recognized in Lansing v. Gaine and Ten Eyck, 2 Johnson, 300.

2. But admitting that the plaintiff or his agent did not actually know whether the brandy was purchased for the individual account of C. I. Roosevelt, or not, still, in the case of a limited partnership, one partner has no power to bind his copartner, for anything out of the course of their copartnership dealings. The principle on which one partner is made liable for the acts of his copartner, is the implied assent arising from the copartnership; but no assent can be presumed to any contract out of the scope of the copartnership business. Suppose a copartnership between two silversmiths, or shoemakers, could one partner bind his *copartner, by giving notes, in the name of the firm, for [*411 ships or merchandise? or suppose a partnership between two attorneys, could one bind the other, by purchasing ships or goods, in the name of the partnership? In the present case the copartnership was expressly limited to a particular manufacture or business. The distinction between general and limited partnership has been long known and settled. In a general partnership, one partner has an unlimited power to bind his copartner, except by a bond or sealed instrument, or where there is a collusion with a third person to cheat the firm. In a special partnership, if one party uses the name of the firm, in matters out of the scope

of the partnership, it not only is an abuse, but a transgression of his power. So a general agent may abuse his authority, and yet the principal be liable; but if a special agent exceeds his authority, his principal is not liable.(1) It is only to act in the course of their particular trade or line of business, that an authority is delegated by partners to each other; and it is only in such transactions that strangers have a right to go on the credit of the partnership funds.(2)

There are two exceptions to the general rule on this subject: 1st. Where the partner who denies his liability, had an interest in or derived a benefit from the contract; 2d. Where due diligence or caution has not been used in informing the world of the nature of the partnership; for the presumption must be, that the partnership is general, unless the contrary has been made known. C. C. Roosevelt cannot be brought within either of these exceptions; he knew nothing of the purchase of the brandy, which was made solely and exclusively for the benefit of C. I. Roosevelt. The defendants did all in their power to make known to the public the limited nature of their partnership. Advertisement in the gazette is the most usual, and certainly the most effectual, way of making such a fact known. It has been decided, that an advertisement in the gazette is sufficient notice of the dissolution of a copartnership,(3) for the same, or a stronger reason, it ought to be considered as sufficient notice of the nature of the partnership.

T. A. Emmet, contra. If there is evidence sufficient to justify the jury in finding their verdict, the court will not disturb it. Mere knowledge of the nature of the partnership, and of its being an individual transaction is not sufficient; there must be *412] collusion or fraud, and knowledge is only evidence of such fraud. This knowledge ought to be strong and full, not slight or presumptive.

Sugar refiners must purchase raw sugar; it is not, therefore, improbable, but a fair inference, that the brandy was purchased as an adventure to the West Indies on the partnership account,

(1) Feun v. Harrison et al., 3 Term, 757, 760.

(2) Watson, 180; 16 Vin. Abr. 242; Pinkney v. Hall, 1 Salkeld, 126; Willet v. Chambers, Cowper, 814; Peele, ex parte, 6 Vesey, jun. 604; De Berkom v. Smith et al., 1 Espinasse, 29.

(3) Lansing v. Gaines et al., 2 Johnson, 300.