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count should be kept in England and in America, while Perfect was resident there, in which, respectively, should be fairly entered and kept the accounts, dealings, and concerns relative to the aforesaid partnership transactions. He went accordingly, and transacted business in America for the partnership, but it was all done in his name. Perfect returned in 1819, and by an agreement, bearing date the 9th day of October, 1819, the partnership was extended two years upon the former terms, except in some particulars not affecting the present question; and the parties agreed that they would continue to carry on the said trade or business for that time, and such other branches of business as they should from time to time mutually agree upon. And it was agreed that Perfect should have a yearly allowance of 6007. for such time as he should stay in America on the partnership account; and he again proceeded to the United States, where he continued two years, transacting the partnership business in his own name. On his return in 1821, it was agreed that the term of the copartnership should be again extended two years; and that the parties should continue to carry on the said trade or business, and such other branches of business as they should from time to time mutually agree upon, for that term; and that Clough should succeed Perfect: and a supplementary agreement was entered into, bearing date the 27th of October, 1821, upon the like terms as the former articles, except as thereby altered in some matters not affecting the present question. And it was agreed that Clough should proceed to the United States, and use his best endeavors for the general benefit of the concern, and should have a yearly allowance of 500l. for such time as he should remain in America on the partnership account. Previous to Clough's departure, written instructions were given him for his conduct in the United States. They bear date the 29th day of October, 1821, and were signed by Crowder and Perfect, and they were approved of as a guide for the future conducting of business. In the instructions are the following paragraphs" No shipments to be made solely on our account, but the above price to regulate shipments in conjunction with other parties, when they require us to participate in the risk to induce them to make a consignment. It is to be hoped, however, that there will no necessity to extend this sort of business, and that it will be as much avoided as possible. Our main object is consignments, either of ships or produce, and with a view to secure such, should we be induced to risk a share of shipments, (if such can be had without, we should prefer it,) we should not wish a larger sum than 5000l. to be risked, even in the smallest degree, at any one time, in such participations; and the result of these shipments ought to be known, or safely calculated on, by advices from home, before any new arrangements are formed. It is understood that our names are not to appear on either bills or notes for the accommodation of others; and that they should appear as little as possible on paper at all, and then only as regards direct transactions with the house here." The business of Crowder, Perfect, and Clough was that of factors or commission-merchants for principals trading between Great Britain and the United States. Their business in this country consisted principally in the sale and purchase of goods, and the collection of freights for principals in the United States on commission. Their business in the United States consisted in the sale and purchase of goods, and in the collection of freights for their principals in England, on commission, and occasionally in the purchases of cotton, jointly with others, to secure a consignment; and sometimes Clough purchased cotton or

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speculation, notwithstanding the clause in the instructions above set forth, viz., "That no shipments were to be made solely on their account ;" and in the course of this business Clough occasionally sold and purchased bills of exchange. In England the business of the house was carried on in the name of Crowder, Clough, and Co.; in the United States all the partnership business was transacted in the name of J. B. Clough alone. The bankrupts in England, and Clough in the United States, procured consignments for their joint benefit on commission; the bankrupts as to consignments to the United States for sale by Clough, and Clough as to consignments to England for sale by the bankrups; Clough using his own name only in these, as well as all other, transactions in the United States. In order to obtain consignments from the United States, the bankrupts and Clough made advances, or granted drafts or bills of exchange, or indorsements thereof, to their principals in the United States, upon the security of such principals' goods consigned to the bankrupts and Clough for sale in Great Britain; and the business relating thereto was conducted as follows: first, In some cases, bills of exchange were drawn in the name of J. B. Clough upon Crowder, Clough, and Co., in favor of their principals, and were delivered to such principals; secondly, In many other cases, bills of exchange were drawn by the principals upon Crowder, Clough, and Co., and indorsed in the name of J. B. Clough, and delivered to the principals with such indorsements; thirdly, In other cases, bills of exchange were drawn by J. B. Clough, in his own name, on Crowder, Clough, and Co., and indorsed by him, and sold, and the proceeds advanced to the consignnors; fourthly, in other cases, J. B. Clough used to raise money for advances to consignors by drawing upon American houses in New York, or by the consignors drawing on them, and J. B. Clough provided for these bills by sending to the American houses bills on England to be discounted there; bills on England not being always negotiable at Charleston. Consignments of cotton were procured by J. B. Clough, by means of these transactions, to the English house for sale, on account of the consignors, to a very great amount. Clough also bought and sold bills of exchange in his own name on speculation, the profit and loss whereof was carried to the partnership account. Clough also sold and purchased goods in America in his own name, for English principals, to a large amount. The profits made by the partnership in America, in commission and exchange speculations, in the name of J. B. Clough, were very considerable, amounting in 1822 to 13777., in 1823 to 2700l., in 1824 to 5000l., but in 1825 there was a loss. Proper partnership books were kept; the bankrupts entering in their books all the dealings and transactions in this country, and Clough entering in the books kept by him in America all the dealings and transactions in the United States. At the end of each year the annual balance of profit and loss in England and in the United States was divided between the partners. Clough, during the whole time that he was in the United States, viz., from 1821to the bankruptcy, never traded or drew, indorsed, accepted, or negotiated any bills of exchange, or carried on any business on his own account. But he entered into a joint speculation, intending it to be on the partnership account, with two persons, Joshua T. Weyman and Michael Lazarus, in his own name, to the extent of 100,000l. and upwards, notwithstanding the clause in the instructions above set forth, viz., "We should not wish a larger sum than 5000l. to be risked, even in the smallest degree, at any one time in such participations." This transaction

was afterwards adopted by the bankrupts. He had no individual business whatever, and the name of J. B. Clough was never used by him in trade, or in drawing, indorsing, or accepting, or negotiating bills of exchange, except for the benefit and on account of the partnership; and all the partnership business in the United States was carried on in that name, and no other, save when the consignors of goods drew bills of exchange on England on account of their consignments; in which cases they always drew on Crowder, Clough, and Co. Clough was restricted by the partnership articles from transacting any business there in any manner whatever, except on the partnership account. Clough, who was the only witness examined on either side at the trial, swore that there was no specific agreement between him and his partners that there should be a house under the name of J. B. Clough in America; that he was sent out to form a branch of the house in America; that he had instructions not to use their name; that he had no doubt that they intended he should form a branch of the house, and that the branch was carried on in America in the name of J. B. Clough, with the sanction of all the three partners, although there was no specific agreement that it should be so carried on. Clough obtained from J. T. Weyman, of Charleston, consignments of a large quantity of cotton to the house of Crowder, Clough, and Co., for sale on J. T. Weyman's account, and it was agreed between Weyman and Clough that J. T. Weyman should draw bills upon Coffin and Weyman, of New York, merchants, payable to Clough, and that Clough should indorse them; it being understood between them that the Carolina Bank would discount them, in order to make advances to J. T. Weyman on the credit of the consignments. Four bills were accordingly drawn by Weyman on Coffin and Weyman for 40,000 dollars, payable to J. B. Clough or order, and being indorsed " J. B. Clough,” were discounted by the plaintiffs, who are a banking corporation duly constituted by the laws of the United States. It was further agreed between Clough and the consignor, J. T. Weyman, that the latter should draw other bills on Crowder, Clough, and Co., in order to provide Coffin and Co. with cash to pay the four bills on them when at maturity, which latter bills were to be paid by Crowder, Clough, and Co., out of the proceeds of the consignments in their hands. Bills were accordingly so drawn, and sold by Coffin and Co. to the amount of 5000l., which house, however, stopped payment soon afterwards, and the proceeds of the bills were misapplied; and Crowder, Clough, and Co. soon afterwards failing, the bills upon them were not paid. All the consignments, however, agreed to be made by J. T. Weyman to the house in England were made, and received by the English house, and disposed of by them. Bills on England are not, in general, negotiable in Charleston; this was the cause of the arrangement for drawing bills in the first instance on Coffin and Weyman. The bills in question were duly presented to Coffin and Co. at maturity, and dishonored, and due notice given to J. B. Clough in America. The value of the bills in question, in English money, is 83331. 6s. 8d. These particular bills were not entered by J. B. Clough in the books kept by him, because the agreement with J. T. Weyman was, that bills were to be drawn on Crowder, Clough, and Co. to such an amount as precisely to raise the amount of the four bills on Coffin and Co., and thereby exactly reimburse their payments; and as the bills so drawn would be paid in England out of the proceeds of the consignments, no profit or loss could arise to J. B. Clough or his partners from the sale of

these bills on Coffin and Co. in America, and, therefore, no entry was made by J. B. Clough in the books kept by him. J. B. Clough had no separate estate. If the plaintiffs are entitled to recover, a verdict is to be entered for 4167. 13s., the amount of the debt due from Crowder, Perfect, and Clough being 83337. 6s. 8d.; if not, a nonsuit is to be entered. Parke for the plaintiffs. It is clear that the bills in question were indorsed in the course of the partnership business of Crowder, Clough, and Co., and to raise funds for partnership purposes. They were indorsed in the name of J. B. Clough, and the only question is, whether that made him individually liable, or whether, under the facts found, that signature must be taken as the copartnership name. Now the case states, that all the business of the firm in America was carried on under that name. It is true that in Ex parte Emly, 1 Rose, 61, and Emly v. Lye, 15 East, 7, it was held that the indorsement of one partner does not make the firm liable, although the money thereby raised may be applied to partnership purposes, if the indorsement cannot be treated as the indorsement of the firm; but, on the other hand, it is clear that a firm consisting of several may carry on business in the name of an individual partner, and then the whole firm will be bound by acts done by him as representing the firm: Ex parte Bolitho, Buck. 100. The only question, therefore, is, whether the name of J. B. Clough on these bills, is to be treated as the copartnership name. Clearly it must, for all the business in America was carried on in that name, with the sanction of the partners in England, and the transaction in question was for the benefit of the partnership.

Patteson, contra. This transaction was clearly This transaction was clearly a discount for the accommodation of J. T. Weyman, and not for the use of the partnership. If the name of J. B. Clough, in which the bills were indorsed, can be considered as the name of the firm, he, by making that indorsement, violated the instructions given when he went to America, in which it is expressly stated, "It is understood that our names are not to appear on either bills or notes for the accommodation of others, and that they should appear as little as possible on paper at all, and then only as regards direct transactions with the house here." Now the authority of one partner to bind the firm, must depend upon the partnership articles. Here Clough had no such authority, the bills in question being for the accommodation of others, and not regarding a direct transaction with the house in England. This mode of dealing might have rendered the firm of Crowder, Clough, and Co. liable to two sets of bills, those now in question, and the second set, drawn upon Crowder, Clough, and Co., and which, but for their failure, would have been accepted by them.

Cur. adv. vult.

The judgment of the Court was now delivered by Lord TENTERDEN, C. J., who after stating the case said-Upon these facts it is contended, that the parties are to be charged as indorsers, that is, that the indorsement by J. B. Clough is to be considered as an indorsement by the house of which he was a member; and we think that, under the circumstances stated in the case, J. B. Clough is to be considered as the name of the firm for the purposes of business in America.

That being so, the bankrupts and Clough were liable as indorsers of the bills; and a verdict must be entered for the plaintiffs for the sum agreed upon at the trial. Postea to the plaintiffs.

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GIBBINS and Another, Assignees, v. PHILLIPS. — p. 437.

After a verdict for a defendant, the Court made a rule absolute for a new trial, and ordered that the costs of the former trial should abide the event of such new trial. The record was carried down to the Spring assizes following, when it was made a remanet It was tried a second time at the Summer assizes, when a verdict was again found for the defendant. The Court afterwards ordered that that verdict should be set aside, and a new trial had between the parties upon the payment of the costs of the last trial, and that the costs of the first trial should abide the event of such new trial. Upon the third trial a verdict was found for the plaintiff: Held, that the plaintiff was entitled to the costs occasioned by the cause having been made a remanet at the assize's next following the term when the first rule was made absolute for a new trial.

THIS cause was tried at the Summer assizes for the county of Stafford, 1826, when a verdict was found for the defendant. The Court ordered that that verdict should be set aside, and a new trial had between the parties, and that the costs of the former trial should abide the event of such new trial. The record was again carried down to the Spring assizes, 1827, when it was made a remanet. It was tried a second time at the Summer assizes, 1827, when a verdict was again found for the defendant. The Court afterwards ordered, that that verdict should be set aside, and a new trial had between the parties upon payment of the costs of the last trial, and that the costs of the first trial should abide the event of such new trial. The costs of that trial (not including those of the remanet) were paid by the plaintiffs to the defendant. The cause was tried a third time at the Spring assizes, 1828. when a verdict was found for the plaintiffs. The master allowed to the plaintiffs the costs (1771. for witnesses), occasioned by the cause having been made a remanet at the Spring assizes, 1827. A rule nisi having been obtained for the master to review his taxation,

Taunton and Holroyd showed cause. The general rule is, that where a cause is made a remanet, the costs thereby incurred abide the ultimate event of the cause, Standen v. Hall, Sayer, 272, Sadler v. Evans, 4 Burr. 1984. Here the plaintiffs have ultimately succeeded, and are entitled to the costs occasioned by the cause having been made a remanet.

Barstow, contra. The general rule undoubtedly is, that the costs of a remanet are considered costs in the cause, and go to the party who finally succeeds. But in this case a rule for a new trial was made absolute upon condition that the costs of the second trial should be paid by the plaintiffs. Now the Court must have intended to have included the costs of the remanet in the costs of that trial, for they in terms provide for the costs of the first and of the second trial. When those costs were incurred, the defendant had already obtained one verdict, and he afterwards had another. It was made a remanet in that stage of the proceeding when the defendant was successful. The costs are costs of the second trial.

Lord TENTERDEN, C. J. The general rule is, that the party who succeeds ultimately, is entitled to the costs occasioned by the cause having been made a remanet. Here the plaintiffs have ultimately succeeded. I think that, as a rule made by the Court after the second trial did not provide in express terms for the costs of the remanet, they ought to be considered as costs in the cause, and that they were properly allowed as such by the master. The present rule must, therefore, be discharged. Rule discharged.

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