1819.

ADJOURNED SITTINGS IN LONDON.

Monday,
June 7.

A pledge by one partner of partnership property will bind his copartners, although the

without their

privity and consent, provided the pledgee had

no notice that the property

was joint property, and there be no fraud in the transaction.

RABA and ROBLES v. RYLAND and Another.

ROVER to recover thirty-three bags of clover

Tseed.

The plaintiffs are merchants at Bourdeaux, and pledge is made the defendants corn and seed factors in the city of London. The case was tried upon admissions which stated that the plaintiffs, in December, 1818, having purchased for the joint account of themselves and Prosper Caumont, in equal thirds, the thirty-three bags of clover-seed in question, shipped the same from Bourdeaux, by the ship Mercy, to the consignment of the said Prosper Caumont, and transmitted a bill of lading and invoice to him : that the said Prosper Caumont, upon receipt of the bill of lading, lodged the same with the defendants for the landing and sale of the seed; and afterwards procured from the defendants an advance of money upon the seed, the defendants not having any notice of any joint interest in the seed: that the said Prosper Caumont was declared bankrupt on the 4th day of February, 1819, at which time the defendants were considerably his creditors, over and above the value of the thirty-three bags of cloverseed in question: that on the 19th of February,

1819.

RABA

v.

1819, the thirty-three bags of seed were in solido, and a demand was made thereof of the defendants, accompanied by an offer on the part of the plaintiffs to pay them freight, warehouse rent, and all RYLAND. other charges thereon, and that the defendants refused to deliver the same.

Lens, Serjt., for the plaintiffs. Caumont being merely a factor or consignee, as to the two-thirds of the seed which were the shares of the plaintiffs, he had no right to pledge those shares. As far as his own interest extended, he certainly could pledge so as to bind it; but the title of the defendants can only be commensurate with the interest of Caumont ; and, as he was possessed in severalty of an undivided third part only, he clearly could convey no title to the defendants over a greater proportion of the seed than that one-third. If under an execution against Caumont this property had been seised, Caumont's interest alone could have been sold. Had this been an ordinary partnership, that is, had the plaintiffs and Caumont been partners in general, a pledge by Caumont of partnership property would have undoubtedly bound the co-partnership. But here Caumont and the plaintiffs are partners only in this particular transaction or adventure ; and, therefore, the one cannot by a pledge of the common property bind the other without his privity

or consent.

Copley, Serjt., contrà. Caumont cannot be considered in the light of a factor or consignee, as to two-thirds of the seed. He was the partner of the plaintiffs; and, therefore, he had an interest jointly

1819.

RABA

v.

with them in the whole of it. Where partnership property is pledged by one partner, and the pledgee acts bona fide, and has no notice of its being partRYLAND. nership property, his title to the whole property is complete by the pledge, even against those partners who were ignorant of the pledge having been made.

.

DALLAS, C. J.-The situation in which Caumont stood, with respect to this property, cannot be assimilated to that of a naked factor or consignee. Being jointly interested in the seed with the plaintiffs, as a partner, he was in that character possessed of the entirety. The pledge by him, therefore, does not resemble a pledge by a factor, to whom goods are consigned for sale merely. As a partner, he had a clear right to sell: indeed, the seed was consigned to him for that purpose; and possessing that right, he borrows money of the defendants on the security of this seed, and until a sale of it can be effected. So far from its being pretended that the defendants had notice that the seed was partnership property, the contrary is admitted. Under these circumstances, therefore, I am of opinion that the defendants are entitled to a verdict.

The defendants had the verdict, but liberty was reserved to the plaintiffs to move to have the verdict entered for them.

Lens, Vaughan, Serjts., and Barnewall, for the plaintiffs.

Copley, Serjt. and Ryland, for the defendants.

This case was discussed in Court in the ensuing term, upon a motion that the verdict should be entered for the plaintiffs; but after granting a rule nisi, the Court, when the case came on to be argued unanimously, discharged the rule, thereby upholdingthe opinion expressed by the Chief Justice at Nisi Prius. The Court, on granting the rule nisi, observed that the cases in which it had been determined that the interests of partners ignorant of a pledge of property by their co-partner were not bound, were either infected with fraud, or else the pledgee knew, or had the means of knowing, that the property was partnership property.

An objection was raised on the part of the defendants, that if the interests of Caumont and the plaintiff's were several there was a misjoinder, as they must either have sued jointly or separately, and that two could not join; but this objection the Court deemed it unnecessary to consider.

The principal question was decided, in a case of Tupper and Others against Haythorne and Others, which was heard at the Rolls on the 21st of June, 1815.

*The facts of that case were

as follow:-Tupper, one of
the plaintiffs, carried on busi-
ness at Valencia, in Spain,
under the firm of Peter Carey
Tupper, and Co.; and Horatio
Smith, Henry Chesmer and
John Down, were merchants in
London. In the month of
April, 1810, Chesmer, who
was then at Valencia, proposed
to Tupper, on the behalf of
himself and his partners, to
purchase a quantity of Spanish
wool, and that the same shonld
be consigned to Smith and Co.
for sale, on the joint account
of Tupper and Smith and Co.,
Tupper to be interested in one
moiety, and Smith and Co. in
the other moiety. Tupper, ac-
cordingly, in September, 1810,
purchased considerable quan-
tities of wool, amounting in
value to upwards of 30,000l.,
and consigned the same to
Smith and Co., to be delivered
in London to them or their
assigns. Bills of lading were
also transmitted to Smith and
Co., and they expressed that
the wools were shipped by
Peter Carey Tupper, and Co.,
to be delivered at the port of
London to Smith and Co., or
their assigns. Tupper paid the
whole of the costs and charges
of the wools; and at the time
of filing his bill had not been
reimbursed by Smith and Co.
the whole of their proportion

* In the absence of collusion and fraud,one partner maypledge joint property
so as to bind his co-partner, although the latter is ignorant of the pledge.

1819.

RABA

v.

RYLAND.