curred in the very act which he afterwards comes to complain of when it suits his purpose: and so far I think we have determined rightly. But I have never known the restriction carried further; nor am I prepared to carry it to the length now contended for. It is said, these parties are concluded from impeaching the defendant's title, because he has been since elected senior bailiff without their opposition, and because they have attended other corporate meetings with him. But I cannot impute this as blame to them. There must be magistrates, and the powers of Government cannot stand still till the validity of a former disputed election is ascertained. In some corporations, whose charters contain non-intromittant clauses, justice would be at a stand if such elections did not take place. The necessity of a government de facto is recognised even in the instance of title to the crown by the stat. passed in the reign of Hen. 7th, 11 H. 7. c. 1. In this instance, therefore, the relators having objected to the defendant's election to the office of alderman at the time, I cannot think that their not having opposed his election since to a necessary annual office of magistracy is such an acquiescence in the original defect of his title as precludes them from making this application within the time allowed by law. With respect to the merits, the question is put too much in dubio by the affidavits on either side for the Court to say that it is not proper to be inquired into by a jury.

Per Curiam,

Rule absolute(a).

Shirreff and Another v. Wilks (originally sued with G. Bishop and W. Robson, who have been outlawed in this suit.)

1 East, 48. Nov. 18, 1800.

Two (of three) partners, who had contracted a debt prior to the admission of the third partner into the firm, cannot bind him without his assent by accepting a bill drawn by the crediter upon the firm in their joint names: but such security is fraudulent and void as against the third partner, and cannot be recovered in an action against the three, wherein one only of the original partners pleaded to the action.

THIS was an action upon the case upon a bill of exchange for 787., dated the 5th of November 1796, payable to the order of the plaintiffs two months after date, which was stated in the declaration to have been drawn by them on the said G. Bishop, W. Robson, and J. Wilks, by the name and description of Messrs. George Bishop and Company, and to have been accepted by

costs.

And Lord Kenyon, C. J. in delivering his opinion; after shewing that Watts' affidavit had been completely answered, said, "Then it is to be considered who Watts is. If he had shewn that his own and other person's privileges had been injured, he would perhaps have had reason for preferring this complaint; but the fact is otherwise. He comes here as a perfect stranger to the corporation, prowling into other men's rights. I do not mean to say that a stranger may not in any case prefer this sort of application; but he ought to come to the Court with a very fair case in his hands."`

(a) So late as in M. 29. G. 3. the Court held in the case of the King v. Bond, 2 Term Rep. 767, that no possession of a corporate franchise for less than 20 years was of itself a sufficient objection to the granting of an information in the nature of a quo warranto; and it was granted there after a possession of 12 years. It was there also considered to be no objection to the application that the defendant's title had been before attacked by a similar information which was afterwards abandoned. Afterwards, in the case of the King v. Dickin in H. 31 Geo. 3. 2 Term Rep. 284. the Court came to the resolution of limiting in future their own discretion in granting applications of this nature to six years, beyond which they would not under any circumstances suffer a party's title to be impeached. And they acted upon this rule in the case of the King v. Peacock in E. 32 Geo. 3. 2 Term Rep. 684. Soon after the stat. 32 G, 3. e. 58. was passed, which stamped the propriety of it with legislative authority,

them. The defendant Wilks pleaded the general issue, on which issue was joined.

The cause came on to be tried before Lord Kenyon at Guildhall, on the 5th of June last, when the jury found a verdict for the plaintiffs for 907. 10s. including interest on the bill; subject to the opinion of this Court on the question, whether the plaintiffs were entitled to recover under the circumstances of the case..

The plaintiffs, in October 1795, sold and delivered a quantity of porter to Bishop and Wilks, who were then partners, which porter was entered in the plaintiffs' books in the names of Wilks and Bishop; and the same was afterwards shipped for the West Indies, and the defendant Wilks paid the shipping charges. Robson became a partner with Bishop and Wilks in April 1796, and continued so till the 8th of November following, when their partnership was dissolved. The defendant Wilks, previous to the dissolution of the partnership, sent to the plaintiffs a memorandum or calculation in his own hand writing of certain deductions claimed by him in respect of the porter. The balance due to the plaintiffs in respect of the porter was 787. for which the plaintiffs drew upon the defendants the bill mentioned in the declaration, which bill was accepted by Bishop in the partnership firm of all the defendants, by his subscribing thereon "Accepted, G. B. and Co."

Lawes for the plaintiffs. As between the plaintiffs and Bishop and Wilks, the original partners by whom the debt was contracted, it must be admitted that Wilks is bound by Bishop's acceptance, though it were made without his concurrence, because one partner may bind another by accepting a bill on account of a partnership debt. It is true, that one partner cannot pledge the security of another for his own private debt(a), nor if there be any fraud in the transaction as between him and the creditor to whom such security is given: but this was a debt incurred in the course of trade, and not of an individual or private nature. And no fraud is found here, nor can any inference of fraud arise from the facts stated. The creditors were guilty of no imposition in drawing the bill originally, nor could they control the manner in which it was to be accepted: but when accepted by any one of the house in their joint names, they must all be bound by it in the ordinary course of commercial dealings. If Wilks would have been bound, though he did not concur in the act of acceptance, and if the partnership fund were originally answerable to the plaintiffs, the introduction of a third partner cannot vary the case; it was only the continuance of the old partnership with the addition of a new member; and the bill was drawn on the fund which really and truly ought to pay it. The debt as between the defendants must be taken to have been transferred to the new partnership: but whether that were so or not is a matter to be settled between themselves, with which the plaintiffs have no concern. With regard to creditors, the act of one partner must be taken to bind all the rest, otherwise all dealing with them must be attended with great perplexity. It may not be known to many at what time such a partner was taken into the firm.

Gibbs, contra, was stopped by the Court.

Lord KENYON, C. J. I do not know how this case came to be reserved for the opinion of the Court; for I have decided the same question repeatedly at the sittings, and the propriety of my decision has never been canvassed again upon a motion for a new trial. This is an action brought against three persons, Wilks, Bishop, and Robson, as acceptors of a bill of exchange. It appears that the acceptance was in fact made by Bishop alone in the name of the firm. The consideration for this bill was some porter which had been sold by the plaintiffs to Wilks and Bishop only, at a time when Robson had

(a) Gregson and others v. Hutton and Foxcroft, B. R. E. 22 Geo. 3. Marsh v. Vansommer and another. Sittings after Mich. T. 1786. at Guildhall, cor. Buller, J.

no concern with the house. Then the plaintiffs, knowing this, draw the bill upon all the three partners, and knowingly take an acceptance from one of them to bind the other two, one of whom, Robson, had no concern with the matter, and was no debtor of theirs; no assent of his being found, and nothing stated to shew that he had any knowledge of the transaction. It is hard enough for one partner in any case to be able to bind another without his knowledge or consent; but it would be carrying the liability of partners for each other's acts to a most unjust extent, if we suffered a new partner to be bound in this manner for an old debt incurred by other persons. The plaintiffs, therefore, ought not in justice to have taken this security by which they were to bind one who was not their debtor: the transaction is fraudulent upon the face of it. It is no answer to say, that one partner has a general power of binding the rest. So an executor has power to bind the assets of his testator, and to sell and dispose of his effects; and the law reposes a confidence in him that he will apply the proceeds in payment of the testator's debts and legacies: but if fraud could be proved in any particular transaction between the executor and a purchaser such a sale would be void. In the case of Worseley v. De Mattos, 1 Burr. 474, 5. Lord Mansfield, in delivering the opinion of the Court, says, that "valid transactions as between the parties may be fraudulent by reason of covin, collusion, or confederacy, to injure a third person:" and he instances, "if a man, knowing that a creditor has obtained a judgment against his debtor, buy the debtor's goods for a full price, to enable him to defeat the creditor's execution, it is fraudulent. Again, if a man, knowing that an executor is wasting and turning the testator's estate into money, the more easily to run away with it, buy from the executor with that view, though for a full price, it is fraudulent." The same doctrine was recognised by Lord Hardwicke in Mead v. Lord Orrery, 3 Atk. 235,7; and again by Lord Mansfield in Whale v. Booth, cited in the notes of the report of Farr v. Newman, 4 Term Rep. 625; and also in the case of Elliot v. Merryman(a), and in other cases. And nothing can be better established as a general rule than that the law will set aside every contract which is fraudulent. Such is the case here. Wilks and Bishop owed money to the plaintiffs; these latter, knowing that Robson had no concern with the matter, fraudulently receive from Wilks and Bishop a security by which Robson is to be bound: this, therefore, cannot be enforced in this action.

GROSE, J. This is a mere fraudulent attempt to make Robson pay the debt of Bishop and Wilks; and the plaintiffs shall not be permitted to avail themselves of a security so obtained in order to bind a man without his assent for the payment of a debt who owed them nothing. And the security being void against Robson, the plaintiffs cannot recover in this action against the three, wherein if he obtained judgment he might sue out execution against any of the defendants.

LAWRENCE, J. The plaintiffs in this action declare as upon a promise by three defendants, and consequently to entitle themselves to recover they must prove a promise either express or implied binding upon all the three in this they have failed, and therefore there must be judgment against them. In addition to the authorities cited by my Lord to shew that Robson was not bound by this act of his partners, is the case of Hope v. Cust. [He then read the following note from a MS. of the late Mr. Justice Buller, taken by him, when he was at the bar.] Hope v. Cust, Sittings at Guildhall after Mich. Term 1774. Mr. Fordyce, who traded very largely in his separate capacity, as well as in the business of a banker in partnership with others, having considerable dealings in his private capacity with Hope and Co. in Holland, did, for and in the names of himself and partners, give them a general guarantie for the money due from him in his separate capacity. Fordyce became a bankrupt (a) 3 Barnard, Ch. Rep. 81. Vide Crane v. Drake, 2 Vern, 616.

VOL. I.

6

and afterwards all the partners became bankrupts. And a bill was filed in the court of Chancery by Hope and Co. in order to have the benefit of this guarantie: upon which that court directed an issue to try the validity of it. Lord Mansfield in summing up the evidence to the jury, said, there is no doubt but that the act of every single partner in a transaction relating to the partnership binds all the others. If one give a letter of credit or guarantie in the name of all the partners, it binds all. But there is no general rule which may not be infected by covin, or such gross negligence as may amount to or be equivalent to covin: for covin is defined to be a contrivance between two to defraud or cheat a third. Therefore, the whole will turn on this, whether the taking the guarantie from Fordyce himself in his own hand writing, without consulting the other partners or having their privity, is not such gross negligence in the Hopes as will amount to a fraud or covin. Fordyce was acting in two several capacities, having transactions in his own name only, for his own separate benefit, and in the names of the partnership for his own benefit. This case comes out of Chancery, where an affidavit or answer of all parties might have been had if necessary; but none such has been produced, and therefore it must be taken that the partners knew nothing of it, and had no profit by it, or privity in the transaction. Another fact to be granted is, that as between Hope and Co., and Gurnal and Co. and Fordyce, the whole transactions are avowedly with Fordyce only in his separate capacity. The next fact is the correspondence in 1770, preceding the second guarantie. It is clear that Fordyce's deposits and interest in the funds were both doubted, and then the Hopes tried to make a scheme to get a second security without shocking him, by suggesting there was a new partner. The first guarantie was given in 1764, and that never had been called in, and still existed. There was then no occasion for a new one for the change of a partner and taking in a new one would not destroy a former guarantie. The scheme was to get security for debts not well secured, the goodness of which was doubted; and they therefore get this from Fordyce alone, clandestinely, without the knowledge of his partners. If the fact be clear that Hope and Co. and Gurnal and Co. knew that this was done to cheat the partners of Fordyce, there is no question in the cause. But it is manifest that they trusted to it as binding on the partnership. Therefore, this brings it to the second question, Whether it be not a gross negligence; especially as they knew at the time that Fordyce was acting in his separate capacity; and this security was intended to indemnify them against his separate debts. Verdict for defendant. Lord Mansfield afterwards, in his report to the court of Chancery, on a motion being made for a new trial, said, three things were established to the satisfaction of himself, and the jury. First, that the transactions between Hope and Co. and Fordyce were wholly on Fordyce's account. Secondly, That that the partners of Fordyce derived no profit or benefit whatsoever from them. Thirdly, That they had no notice of the guarantie, and consequently did not acquiesce in it. And Lord Mansfield said he left it to the jury, whether under these circumstances the taking of these guaranties were, in respect of the partners, a fair transaction or covinous, with sufficient notice to the plaintiffs of the injustice and breach of trust Fordyce was guilty of in giving them."

LE BLANC, J. This case must be determined in the same manner as if Robson had pleaded to the action. It seems admitted, that if one of several partners pledge the partnership fund for his individual debt, that will not bind the rest. Now I see no difference between the case of one and the case of two of several partners pledging the joint fund for their individual debts; which is the case before us.

Postea to the defendant(1)(2).

(1) Vide Swan v. Steele, 7 East, 210, and the editor's note thereto ad finem. (2) [A security in the name of the firm given for a separate debt of one of the partners,

Farr v. Price.

1 East, 55. Nov. 18, 1800.

A promissory note written upon a stamp of greater value than the proper stamp required cannot be received in evidence, though the stamp were applicable to the same kind of instru

ment.

THIS was an action on a promissory note for 251. 5s. dated the 14th of July 1797, payable to order three months after date. The declaration also contained the common counts. The note was given by the defendant to one Jones, and by him indorsed to the plaintiff. At the trial before Thompson, B. at the last Spring assizes for Hereford, the only evidence produced was the note itself, which was objected to, as having a nine-penny instead of an eightpenny stamp, as required by the stat. 37 Geo. 3. c. 90. which was in force before the making of this note (a): a verdict was however taken for the plaintiff, reserving the question of law for the opinion of the Court.

Bevan obtained a rule in Easter term last, calling on the plaintiff to shew cause why the verdict should not be set aside and a new trial had. This was moved on the authority of Robinson v. Drybrough, 6 Term Rep. 317. where it was holden, that articles of agreement under seal could not be given in evidence unless stamped with a deed stamp, although the respective stamps were of the same value.

Law shewed cause in the same term, and said that as justice had been done in this case, the Court would not disturb the verdict, according to the case of Edmonson v. Machell, 2 Term Rep. 4. where the Court on that account refused to enter into the discussion of the question at law. That it was a case of peculiar hardship on the plaintiff, there having been no intention in this case to evade the duty, and more having been actually paid to the revenue than was necessary. That the case of Robinson v. Drybrough was so far distinguishable from the present that there the stamp used was of a different description from that required by law in the particular case, whereas here both the stamp used and the proper stamp were applicable to the same kind of instrument; and some stress was there laid upon the appropriation of different duties to distinct purposes. Here too the stamp used was larger than was required; and in a late case in the Common Pleas, Lord Eldon had ruled that the larger stamp must be taken to include the smaller one.

The Court thinking this a case of great hardship, where no fraud was intended; and it having been intimated to them, that it was in contemplation to introduce a bill into parliament for affording relief in such cases, they ordered

of course, without more, does not bind the firm. If reception by the creditor furnishes presumption of collusion with the partner giving the security, with a view to the injury of his copartners. The burden of proof lies upon the creditor to shew assent either precedent or subsequent by the other members of the firm. This he is at liberty to do-and it becomes a question of fact for the jury. Collyer on Partnership, 347. See particularly the remarks of Lord Eldon in Ex parte Bonbonus, 8 Ves. 540. Chayoumes v. Edwards, 3 Pick. 5. Munroe v. Cooper, 5 do. 412. Adams v. Paige, 7 do. 542. 548. Noble v. McClintock, 2 W. & S. 152. Everingham v. Ensworth, 7 Wend. 326. Ganswoort v. Williams, 14 do. 133. So, if a partner borrow money, and give his own note for it, it does not become a patnership debt, merely by being applied to partnership purposes. Graeff v. Hitchman, 5 W. 454. Emily v. Lye, 15 East, 6. Bevan v. Lewis, 1 Simons, 376.-W.]

(a) By the stat. 31 Geo. 3. c. 25. the stamp required on such a note as the one in question was 6d., and for a note for above 301. and not exceeding 501. the stamp was 9d. The act of the 37 Geo. 3. c. 90. imposed an additional duty of 2d. on notes of the former description, and 3d. on those of the latter. The fact here was that the note being drawn soon after the passing of the last mentioned act, and before the general issue of the new stamps, was, to avoid any appearance of evading the law, written upon the nine-penny stamp which was then appropriated to notes of greater value.