liabilty. holding themselves out as partners in any individual Creation of transaction. Under the latter are included,-the general case of dormant or secret partners in a firm (who are decided to be liable when discovered), and the particular case of parties becoming liable as partners in an individual transaction, on the ground of a participation in the profits and losses of the adventure (ƒ). 1. Partners in Name. A nominal partner, or one who allows his name Nominal to be used, is liable, although he may not partici- partner in a pate in the profits (g). Thus a clerk whose name has been used in the firm with his own consent, is allows his name to appear in a firm, exposed to the (ƒ) A partner in name is held liable on the ground, that, by holding out as partners persons not in fact interested, a false appearance of credit and responsibility might be assumed while the liability of partners in interest is founded on this, that they lessen that fund on which the creditor relies for payment. (g) Ex parte Watson, 19 Ves. Jun. 459. Yet, upon a plea of abatement for nonjoinder, evidence may be given to show that the nominal partner was not really interested. See the distinction, Kell v. Nainby, 10 B. & C. 21; Davenport v. Rackstrow, 1 C. & P. 89. (h) Guidon v. Robertson, 2 Campb. 302. name. Partners in his name is used, and his assent thereto, is the very ground upon which he is estopped from disputing his liability as a partner" (i). It is not necessary that the vendor at the time of the sale should be aware of the partnership, to enable him to sue the nominal partner (k). But if he had notice of the stipulation that the nominal partner should not be liable for losses, he is concluded from recovering against him(). Holding out namie as On the same principle, where the defendant has a partner in allowed his name to be held out to the plaintiff, as transactions. a partner in a particular transaction, he will be particular 66 equally liable in respect of such transaction, as if he had universally represented himself to be a partner. Lord Kenyon, C. J. thus lays down the law;—" Although in point of fact parties may not be partners in trade, yet if one so represents himself, and by that means gets credit for goods for the other, both shall be liable" (m). And Parke, J. says, "If it can be proved that the defendant has held himself out to be a partner, not to the world, for that is a loose expression, but to the plaintiff himself, or under such circumstances of publicity as to satisfy a jury that the plaintiff knew of it (i) Fox v. Clifton, 6 Bingh. 794, per Tindal, C. J. See per Bayley, J., Vere v. Ashby, 10 B. & C. 296. (k) Young v. Axtell, 2 H. Bl. 242. name. and believed him to be a partner, he would be Partners in liable in all transactions in which he engaged and gave credit to the defendant upon the faith of his being such partner" (n). 2. Partners in Interest. partner in Participation in profits creates a partnership Dormant liability. A dormant or secret partner is decided firm. to be liable jointly with the ostensible partner as soon as the partnership is discovered (o). The liability however of a dormant partner ceases, without further public notice, by his act of quitting the firm, at least in respect of those subsequently dealing with the firm, and who never were aware that he was a partner (p). The same rule holds in particular transactions Participaas in general trading partnerships, whether the profits in (n) Dickenson v. Valpy, 10 B. & C. 140, 141. (0) Robinson v. Wilkinson, 3 Price, 538; Hubert v. Nelson, Davies B. L. p. 8; Chuck ex parte, 8 Bingh. 469; S. C. 1 M. & Sc. 615; Ruppell v. Roberts, 4 Nev. & Man. 31. Yet a plea in abatement for nonjoinder of such partner as defendant could not be supported, Mullett v. Hook, M. & Malk. 88, Stansfield v. Levey, 3 Stark. N. P. C. 8. (Dubois v. Ludert, 5 Taunt. 609, being overruled, De Mantort v. Saunders, 1 B. & Ad. 398.) Nor is he obliged to join as co-plaintiff, Lloyd v. Archbowle, 2 Taunt. 324, Mawman v. Gillett, 2 Taunt. 325, n.; but he may join or not at his option, Cothay v. Fennell, 10 B. & C. 671, S. C. Lloyd & Welsby, Merc. Ca. 297. (p) Carter v. Whalley, 1 B. & Ad. 11; Heath v. Sansom, 4 B. & Ad. 172; S. C. 1 Nev. & M. 104; Evans v. Drummond, 4 Esp. 89. tion in particular transac tions. BB interest. Partners in party receives the profits to his own use (q), or as trustee for another (r). And although the agreement among the parties themselves may be that such person shall not be liable to risk or loss, this is immaterial, because a participation in the profits will by presumption of law make him liable for the losses (s). Thus, an agreement between two merchants to divide equally the commissions on the sale of all goods recommended by one to the other, makes them liable as partners (t). Nor is it material whether the purchase was joint or separate, provided the adventure was joint (u). Therefore it may happen that each party may not (as between themselves) possess any interest in the goods purchased on the account of the other, and yet both be liable for the price to the seller (x). Thus, an agreement between J. S. and another, (q) Browne v. Gibbins, 5 Brown P. C. 491; Goode v. Harrison, 5 B. & A. 147; Tench v. Roberts, 6 Madd. 145, n. See London Gas Company v. Nicholls, 2 C. & P. 365. (r) Wightman v. Townroe, 1 M. & S. 412. (s) Ex parte Langdale, 18 Ves. Jun. 300; Waugh v. Carver, 2 H. Bl. 235, 247. (t) Cheap v. Cramond, 4 B. & A. 663. See Green v. Beesley, 2 Bingh. N. S. 108. (u) Gouthwaite v. Duckworth, 12 East, 421. The difference between this case and that of Saville v. Robertson, 4 T. R. 720, was, that in the latter neither the purchase nor the adventure were to be joint, until the cargo should be delivered on board, and all the separate parcels of goods mixed. See 12 East, 426; 4 T. R. 725. And see Young v. Hunter, 4 Taunt. 582. (x) Hesketh v. Blanchard, 4 East, 144; Gouthwaite v. Duckworth, 12 East, 421. interest. where ven among Exception, adven- dor charged the parties that J. S. shall purchase goods, and receive, instead Partners in of brokerage, a share in the profits, and bear a certain proportion of the losses, makes J. S. a partner in respect of third parties (y). But although a private understanding parties participating in the profits of an ture, that each shall be liable for his own losses separately. only, cannot affect the vendor, yet, if the vendor himself has notice of such understanding, and assents to it expressly or tacitly, he cannot afterwards fix upon each purchaser a liability for the whole. Thus, where, from the correspondence between the plaintiff and defendants, and from all the circumstances of the case, the reasonable inference to be drawn was, that the vendor had considered the transaction as divisible, and had charged each party for a separate moiety, although all had joined in giving the order, it was held that each was to be deemed liable for his own share only; and the plaintiff having sued them jointly on the contract, was nonsuited (3). Where, in point of fact, there was no participation of profits, the parties will not be liable as (y) Smith v. Watson, 2 B. & C. 401. The question in this case was between the parties themselves, whether J. S. had any interest in the subject-matter of the adventure; and although this was decided in the negative, the Court agreed that he would have been liable to third persons as a partner. (z) Gibson v. Lupton, 9 Bingh. 297; S. C. 2 M. & Sc. 371. See Batty v. M Cundie, 3 C. & P. 202. |