were in partnership as attorneys, and one of them gave an undertaking, that, in consideration that the plaintiff in an action would discharge the defendant in that action, who was in custody under an execution therein, they, the attorneys, would pay the plaintiffs the debt and costs on a certain day, and he signed it with the partnership name : but the Court considered it a very clear case that the guaranty was not given in the usual course of business, and no authority being shown, that the firm was not liable. 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. Thus, in De Mautort v. Saunders (o), Saunders (not the defendant) and Wiehe drew a bill at the Mauritius on Saunders Brothers (the defendants) in London, payable to Bougier, who indorsed it to the plaintiff, and the

() 1 B. & Ad. 398.

defendants accepted the bill. On being sued upon it they set up as a defence that they were in partnership with Wiehe & Saunders, and were liable jointly with them. The Court held, that the verdict, which was for the plaintiff, was proper, and observed, that it was for the jury to say whether the plaintiff, when he took the bill, had any reason to know that Wiehe & Saunders were partners in the house in London on which the bill was drawn. It was incumbent on the defendants to show that the plaintiff had trusted the other two; for, if a person contract with two other persons, knowing them alone in the transactions, he may sue them only. If, indeed, after the contract be made, he discover that they had a secret partner who had an interest in the contract, he is at liberty to sue that secret partner jointly with them, but he is not bound so to do. On the other hand, where an action was brought for the price of coals delivered to the defendant under the name of Bush & Co., it appeared that for some time before the coals were ordered the partnership consisted of Bush and the defendant, R. Smith; that, on Bush's death, before the coals were supplied, W. Smith became a partner with defendant, and so continued, but they carried on their trade under the old name of Bush & Co.; and that W. Smith had not ordered the coals: it was contended, that W. Smith should have been sued conjointly with the defendant. The Court decided that, the partnership having been fully

proved, the defendant would not be liable singly unless he led the plaintiff to believe that he alone constituted the firm of Bush & Co. (p). If a person contracting with another for goods, said Lord Abinger, C. B., delivers an invoice made out to a firm, and nothing is said as to the persons composing it, he takes his chance who are the partners in that firm. If, indeed, the party represents himself as the only person composing the firm, an action may be brought against him alone; or if, on being asked who his partners are, he refused to give any information, that might be evidence for the jury to say whether he did not hold himself out as solely liable.

There is another case, so well worth attending to, that it will not be multiplying examples too much to adduce it here. Nesham agreed to sell the stock, machinery, &c., of a newspaper printing-office to Lowthin for £1500., to be paid, with interest, by yearly instalments in seven years, and guaranteed to him the clear yearly profit of £150. over and above the payment of principal and interest before mentioned; and Lowthin agreed to pay all the surplus profits to Nesham, until they should amount to £500., if they should amount to so much during the seven years, in which event he should also pay, over and above the purchase-money, interest, and £500., the existing liabilities, which

(p) Bonfield v. Smith, 12 M. & W. 405.

were fixed between them at £250. Lowthin carried on the newspaper in his own name, and purchased, in his own name, from the plaintiff, paper for the use of the concern, and used it therein, but the plaintiff never actually gave any credit to Nesham. Yet, the Court held that Nesham was liable because he shared the profits (q): and indeed it seems difficult to treat the case otherwise than as that of an unknown principal sued upon being discovered to be such. Another case is where one partner has authority from the others to make the contract in question on his own account only, and not on theirs. Thus, the plaintiff supplied paper to one Whitehead, a printer, and it was proved that there was an agreement between Whitehead, Ackerman, and Carleton, to bring out a periodical publication called the Sporting Review, in which Ackerman was to be publisher, Carleton editor, and Whitehead printer, and the latter was to supply the paper, and charge it to the account of the three who, after payment of all expenses, were to share the profits equally. No profits were made. The plaintiffs sued the three, and were nonsuited, and the Court considered that the question was, did Ackerman and Carleton authorise Whitehead to purchase the paper on their account or his own.

(1) Barry v. Nesham, 3 C. & B. 641; Hickman v. Cox, 25 L. J. (C. P.) 277; 18 C.

B. 617; 27 L. J. (C. P.) 129; 3 C. B. (N. S.) 523, in Ex. Ch.

He might, they said, have applied the paper to any other purpose than the Sporting Review (r). The result is, that the liability arising from the naked fact of partnership is prima facie the liability of all the partners, and may be rebutted by direct evidence that credit was not given to the partnership, but to an individual member of it (s). This doctrine is very strongly corroborated by one of the latest cases on the point, Holcroft v. Hoggins (t). 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 declaration required to be filed by 6 & 7 Will. IV., c. 76, they having previously been proprietors of the newspaper, but having ceased to be so before the contract was entered into. It was adjudged that not only were the defendants not liable, but that the fact of their being co-proprietors was immaterial, though they had held themselves out as such, if it were shown that another partner contracted with the plaintiff in such a manner that

(r) Wilson v. Whitehead, 10 M. & W. 50.

(s) Peacock v. Peacock, 2 Camp. 45; Beckham v. Knight, 4 N. C. 243; 1 M. & Gr. 738,

Exch. Ch.; Brett v. Beckwith, 26 L. J. (Ch.) 130.

(t) 2 C. B. 488; 15 L. J. (C. P.) 129, S. C.