with the goods purchased in April, 1818. That be sailed on the 30th April, 1818, and returned on the 5th September, 1818. That after the 5th September, 1818, Goode and Bennion communicated as private friends, but not in the way of business, and that he, Riley, never knew Bennion's name to be used in the purchase of goods after April, 1818. That whilst Riley was absent, he addressed and sent a letter to the said Goode and Bennion at Liverpool, relative to the said goods, so shipped in the name of Goode and Bennion. That Riley sometimes saw Bennion at the countinghouse, but had no communication with him on business before he went, or after he returned. And the said counsel, for the said Thomas Bennion, did then and there insist before the said justice, on behalf of the said Thomas Bennion, that the said several matters so produced and given in evidence on the part of the said Thomas Bennion as aforesaid, were sufficient, and ought to be admitted and allowed as decisive evidence, to entitle the said Thomas Bennion to a verdict, and to bar the said James Harrison of his action against the said Thomas Bennion. And the said counsel, for the said Thomas Bennion, did then and there pray the said justice, to admit and allow the said matters so produced and given in evidence for the said Thomas Bennion, to be conclusive evidence in favour of the said Thomas Bennion, to entitle him to a verdict, and to bar the said James Harrison of his said action, against the said Thomas Bennion, and to direct the jury accordingly. But to this, the said counsel learned in the law of the said James Harrison, did then and there insist before. the said justice, that the same were not sufficient, nor ought to be admitted or allowed to entitle the said Thomas L 4 1821. GOODE against HARRISON. Thomas Bennion to a verdict, and to bar the said James Harrison of his said action against the said Thomas Bennion, and thereupon, the said justice stated his opinion to the jury to be, that a fraud had been committed by the said John Goode, and that where one of two innocent parties was to suffer, he ought to do so whose negligence occasioned the loss. That an infant may, in point of fact, be a partner, and sue as a partner on a contract, though he is not liable to the partnership creditors. That in April, 1818, the said Thomas Bennion held himself out as a partner with the said John Goode, and to the said James Harrison in particular, and that after he came of age, in May, 1818, he should have given notice of his dissent to the said partnership, or that he would be no longer liable as a partner, which he might easily have done. That he knew, he would be supposed by the said James Harrison still to continue a partner, and that he was negligent in not putting a stop to that delusion. That if an infant, shortly before he becomes of age, represents himself as a partner, he ought to take care to notify, that he is not so when he comes of age, as he facilitates the commission of a fraud. That though the payment, after the infant came of age, was not sufficient to confirm the partnership, yet as there was in this case an actual partnership between the said John Goode and the said Thomas Bennion, and inasmuch as the said Thomas Bennion might have prevented the said James Harrison from being deceived, if he had given notice of his dissent to the partnership, or that he would be no longer liable as a partner, he ought to be liable to the said James Harrison, and that in effect, by his omission to do so, he suffered the said John Goode to pledge his, the said Thomas Bennion's age credit to the said James Harrison after he came of age, and, with that direction, left the same to the said jury, and the said jury then and there gave their verdict for the said James Harrison for, and assessed the aforesaid damages at 1887. 18s. damages. Whereupon the counsel for the said Thomas Bennion excepted to the aforesaid opinion of the said justice, and did insist on the several matters and things aforesaid, as a bar to the said action, and that an infant cannot be a legal partner, and that, when the said Thomas Bennion came to the of 21 years, there was no necessity for him, nor was he bound by the law to give notice of his dissent to the partnership, or that he would be no longer liable as a partner, in order to avoid the liability of a partner. And that, as the said Thomas Bennion, in April, 1818, was an infant, he was not a legal partner, and therefore, no notice was necessary to be given by him of his dissent to the partnership, or that he would be no longer liable as a partner, and inasmuch as the said several matters, so produced and given in evidence on the part of the said Thomas Bennion, and objected and insisted on as a bar to the said action, do not appear by the record of the verdict aforesaid, the said counsel for the said Thomas Bennion did then and there propose their aforesaid exceptions to the opinion of the said justice, and requested him to put his seal to this bill of exceptions, containing the said several matters so produced and given in evidence on the part of the said Thomas Bennion as aforesaid, according to the form of the statute in such case made and provided, and thereupon the said justice, &c. 1821. GOODE against HARRISON. Little 1821. GOODE against HARRISON. Littledale, for the plaintiff in error. In this case Bennion was not liable: he can only be liable as a partner, not having himself personally interfered in ordering the goods. Now, admitting that what passed with Fair at Manchester was sufficient to make him liable as a partner, in case he had then been of age, it is clear here that no act has been done by him since his coming of age to affirm the partnership; and the case ought not to have been left to the jury, as if it was the duty of the infant, upon coming of age, to disaffirm the partnership, In Holmes v. Blogg (a), it was a question arising out of a lease. Now, a lease may be for an infant's benefit, and an interest passes by it; and, therefore, it is for him to disaffirm it after he comes of age, or otherwise it will bind him. But a partnership is, in contemplation of law, not for his benefit; and, therefore, if nothing be done after he comes of age to affirm it, it is at an end. An infant cannot be a bankrupt. His trading is not a thing recognized by the law; and it cannot, therefore, be necessary for him to give a regular notice to the creditors that such a trading has been put an end to; nor will the law presume that he commits a fraud in not doing so. In Jennings v. Rundall (b), the infant was held not to be liable; because, although the action was framed in tort, it was in reality founded on a contract. An infant is indeed liable to an action for slander, assault, or any thing connected with crime; but not for any thing founded on a contract. Now, in order to make out the partnership, certain contracts are proved : for each of these acts, separately, the infant is not (a) 1 B. Moore, 466. (b) 8 T. R. 335. respons responsible. How, then, can the partnership, which is the aggregate of these acts, be binding upon him? Parke, contrà. The case does not go on the ground of any supposed continuance of the contract of partnership between Goode and Bennion, after the latter came of age, but is founded on grounds altogether distinct. Here, Bennion permitted himself to be held out to the world as a partner, and so induced persons to believe that Goode had authority to bind him; and there are many cases depending upon the principle, that where an individual chooses so to act, he makes himself responsible. In Monk v. Clayton (a), the act of a servant, though out of place, was held to bind the master, by reason of the former credit given him by his master's service; and the same principle applies to the present case. Here, the infant was introduced as a partner; and the conversation with Fair, and his own letter, dated 20th April, 1819, are abundantly sufficient to shew, that up to a very short period before his coming of age, he represented himself as a partner. He must, therefore, be held responsible, upon the principle, that where one of two innocent parties is to suffer by the fraud of a third, he ought to suffer who has been the cause why the credit has been given. Littledale, in reply. The case of master and servant is distinguishable. There, the master had originally power to authorize the servant to contract; but the infant never could give such authority to his partner. In Viner's Abridgment, tit. Enfant, H. 2. pl. 16., it is (a) Cited in 10 Mod. 110, 1821. GOODE against HARRISON. /18 thus |