been explained, and not left, as they are now, by the case, in total uncertainty. Each partner had a power to draw checks, in the partnership name, for the partnership moneys in the bank, because it is incident to every partnership, that each partner should have a power to possess and dispose of the partnership moneys and stock. Each partner, in limited, as well as in general partnerships, can draw checks and give notes, but it does not follow from thence that paper given by a partner, on his private account, would bind the firm, because here the authority of the partner fails; there must, then, be something in the nature of the debt, or in the nature or conduct of the copartnership, to make the other partner responsible. There are cases which go the length of this general proposition, that one partner cannot pledge the partnership funds, nor make a valid partnership engagement for his individual debt.(1) Whether this doctrine can be supported, in cases where the person dealing with the partnership is not chargeable with knoweldge of the fact, I am not prepared to say. I believe the English law is now understood to be otherwise, and, perhaps, there is no distinction in principle, upon this point, between special and general partnerships, and that the question, in all cases, is a question of notice, express or constructive. All partnerships are more or less limited. There is no one that embraces, at the same time, every branch of business; and when a person deals with one of the partners, in a matter not within the scope of the partnership, the intendment of law will be, that he deals with him on his private account, nothwithstanding the partner may give the partnership name, unless there be some circumstances in the case to destroy that presumption. "If," says Lord Eldon,(2)" under the circumstances, the persons taking the paper can be considered as being advertised, that it was not intended to be a partnership proceeding, the partnership is not bound." Public notice of the object of a copartnership, the declared and habitual business carried on, the store, the counting house, the sign, &c., are the usual and regular indicia, by which the nature and extent of a partnership is to be ascertained. *When the business of a partnership is thus defined and publicly declared, and the company do not depart from *427] (1) Pinkney v. Hall, 1 Salkeld, 126; S. C., 1 Lord Raymond, 175. The cases of Gregson v. Hutton, and Marsh v. Vansemmer, cited in 1 East, 49. The opinion of Le Blanc, J., in Shirreff v. Wilks et al., 1 East, 55; and of Lord Eldon, in Peele ex parte, 6 Vesey, Jr., 604. (2) Ex parte Bonbonus, 8 Vesey, Jr., 544. that particular business, nor appear to the world in any other light than the one thus exhibited, one of the partners cannot make a valid partnership engagement on any other than a partnership account. There must be some authority, beyond the mere circumstance of partnership, to make such a contract binding. Were it otherwise, it would be idle, and worse than idle, to talk of limited partnerships, in any matter or concern whatever, and the law would be recognizing an association, only to render it a most dangerous illusion to those whom 'it embraced. Lord Kenyon must have understood the capacity of one partner to bind the rest with this restriction, when he observed in the case of De Berkom v. Smith and Lewis, (1) that persons might be partners in a particular concern, and if they did not appear to the world as partners, it should not be sufficient to make them liable in cases not connected with the particular business. The law will presume, in all such cases, that the creditor is advertised, that he is not dealing on a partnership account, and for him to take a partnership engagement, without the consent of the firm, is in judgment of law, a fraud upon the firm. Suppose, in the case of a general commercial partnership, a debt was to be contracted by one partner upon the purchase of new lands; or suppose, in the case of a partnership between two attorneys, in law business, a partnership note was to be given by one of them upon the purchase of groceries or furniture for his family, it could not be supposed by any one that the company would be holden. These would be plain cases of a fraud, practised upon the firm, of which the creditor would be chargeable with notice. When the public have the usual means of knowledge given them, and no means have been suffered by the partnership to mislead them, every man is to be presumed to know the extent of the partnership with whose members he deals. There are, however, qualifications as to the extent of this doctrine, and some instances occur to me which explain and define its application, and which it may not be amiss to mention. If negotiable paper of a firm be given by one partner, on his private account, and that paper should pass into the hands of an innocent and bona fide holder, as in the case of a paper negotiated or discounted at the banks; or if one partner should purchase on his private account, an article in which the firm dealt, or which had an immediate and direct connection with the business of the (1) 1 Espinasse, 29. VOL. I.-34 firm, in these cases I should think that a different rule ought to be adopted, and one requiring the actual *knowledge *428] of its being a private, and not a partnership dealing to be brought home to the claimant. The circumstances of these cases would take away the intendment of knowledge in the creditor. The endorsee, for instance, of such a note, takes it upon the credit of the partnership, and he has no means of knowing, from the paper itself, on what account it was created, and he has a right to presume it was a fair partnership agreement. This is the English rule (1) in those particular cases. But the present case cannot be taken out of the operation of the general rule. The plaintiff had no just ground to infer, that, when he was selling brandy to C. I. Roosevelt, he was dealing with the sugar refining company; considering the circumstances under which the partnership was announced and conducted, he was chargeable with notice, that he was not dealing on a partnership account. I am accordingly of opinion, that the verdict is against law and evidence, and that it ought to be set aside and a new trial awarded, with costs to abide the event. New trial granted. *429] *ANDERSON AND WILKINS v. TOMPKINS ET AL. In the Circuit Court of the United States for the District of Virginia and North Carolina. MAY TERM, 1820. Before the Hon. JOHN MARSHALL, Chief Justice of the United States. [REPORTED 1 BROCKENBROUGH, 456–465.] One partner has a right to convey the partnership effects (other than real estate) to the creditors of the firm, in payment of their debts, either to the creditors directly, or through the intervention of trustees, and if the transaction be bonâ fide, the deed will not be set aside, although the consent of the other partner was not obtained. Where all the partners of a mercantile firm are present, they have a right to be consulted, in giving a preference to particular creditors, (1) Arden v. Sharpe et al., 2 Esp. Rep. 524; Wells v. Masterman et al., Id. 731. but this necessity is dispensed with, if one of the partners is absent in a foreign country. The doctrine that a partner cannot bind his copartner by a deed, does not apply in a case in which the property purported to be conveyed by the deed, is of such a description, that a title to it passes by the mere act of delivery. The mere circumstance of annexing a seal to the instrument of conveyance, in such a case, does not annul a transfer 80 consummated. If real property is conveyed to a firm, or to partners in trust for a firm, the members of the firm are tenants in common, and neither party can convey more than his undivided interest in the subject. THE Complainants, merchants and partners, subjects of the King of Great Britain, filed their bill in this court, alleging that they. were creditors of John Tompkins and Adam Murray, late partners in tade, residing in Richmond, Virginia, under the firm of Tompkins & Murray, to the amount of £715 138. sterling; that on or about the 28th day of April, 1819, Murray, one of the partners, embarked for Europe; and on the 8th day of May following, Tompkins, the other partner, without (as was alleged) the knowl edge or consent of Murray, executed a deed of that date, to Nicholas Anderson & Tompkins, citizens of Virginia, purporting to convey to them, not only all the partnership effects, real and personal, of Tompkins* & Murray, but also the separate [*430 property of Murray, upon trust; 1st, for the benefit of Sutherland, Colquhoun & Co., and Samuel Christian, all of them citizens of Virginia; and, 2dly, for the benefit of such of the creditors of Tompkins & Murray, resident within the United States, as should within sixty days, and such of them, resident elsewhere, as should within six months from the date of the publication of the trust, by the trustees, exhibit their claims; that prior to the execution of this deed, Tompkins & Murray purchased several lots of ground in the city of Richmond, and certain tracts of land in the state of Virginia; that Murray was proprietor, also, of another lot of ground in the city of Richmond, in his own right, of a share of a tract of land in the state of Kentucky, of a tract of land in Illinois, and of sundry other articles of household furniture, and other personal estate in Virginia; that subsequent to the execution of the said deed of trust, the partnership was dissolved, and after the dissolution, Murray, who has never returned to Virginia, executed several deeds, bearing date the 10th of November, 1819, conveying all his moiety of the partnership effects, both real and personal, of Tompkins & Murray, and the whole of his own individual property, in Virginia, to James Dunlop, of London, in trust for the benefit, 1st, of James and John Dunlop, to secure a debt due from the firm of Tompkins & Murray; 2dly, in satisfaction of a debt due from the same firm to Leslie & McIndoe; and 3dly, to secure the debt due to the complainants, Anderson & Wilkins. This suit was instituted for the twofold purpose of establishing the deed of the 10th of November, 1819, executed in England, by Murray, and to set aside the deed of the 8th of May, 1819, executed by Tompkins. The validity of the last mentioned deed was contested, as well as to the complainants, and the other creditors of Tompkins & Murray, who failed to exhibit their claims within the time prescribed therein, as to Murray, on several grounds; 1st, it was contended, that during the existence of the firm, Tompkins could not, without authority from Murray, dispose of the partnership effects, or any part thereof, by deed: 2dly, that the deed was void, because it gave a preference to Colquhoun & Co., and Christian, to all other creditors, without consulting with Murray: 3dly that it was void, because it purported to conseparate property of Murray, over which Tompkins had vey On the 12th of June, 1820, the following opinion was delivered by MARSHALL, C. J. This suit is brought to establish a deed, *431] made by *Adam Murray, a partner of the house of Tompkins & Murray, in November, 1819, while in England, conveying his moiety of the property of that house, to certain creditors of the firm. On the 29th of April, 1819, Murray had embarked for England, leaving all the effects of the company in the hands of John Tompkins, the partner remaining in this country, who continued, for a short time, to conduct the business of the concern. The pressure of their affairs was such, that in May, the house stopped payment, and Tompkins, for himself and his partner, conveyed all the effects of the company, and also the separate property of himself and partner, to trustees, for the payment, first, of certain creditors named in the deed, and then of those who should bring in their claims, the American creditors within sixty days, the |