of such proceeds goods supplied to the business and wages were sometimes paid. As regards the proceeds of the bills sued on, it appeared that a portion of them found their way into the banking account, but that upon the same day when this occurred Beatson drew out more than he put in. On the part of Mycock an accountant was called, who upon examination of Beatson's books proved that, apart from the accommodation bill transactions, the business had during the period between the beginning of January and the end of May, 1878, a cash balance to its credit, that the net result of the accommodation bills was to reduce the balance, and that Beatson had drawn out for his own purposes, independent of the business, about £4,000. Upon these facts taken from the notes of Lindley, J., before whom, with a jury, the case was tried, that learned judge stated to the jury that the questions for them were, first: "Was the name (Wm. Beatson) put to the bills to denote the firm or to denote William Beatson?" Secondly: "Did the bank take the bills as the bills of the Chemical Works, whoever the proprietors might be, or as the bills of William Beatson only?" The jury retired, and, returning into the court, the foreman stated that as regards the bill for £484. 13s., it having been drawn upon William Beatson at the Chemical Works, Rotherham, the jury agreed that William Beatson's acceptance of it must be held to denote the acceptance of the firm, but that as regards the other bill they found no evidence upon the point. Upon being asked by the learned judge to answer the question as regards that bill according to their judgment, the jury conferred again, and subsequently stated that from the fact of that bill being put in connection with the other they might take it as being the same thing, and to the second question they answered that the bank took the bills as the bills of the Chemical Works. Upon these findings a verdict and judgment was entered for the plaintiffs against the defendant Mycock. That judgment was subsequently set aside, and judgment entered for Mycock, by the Common Pleas Division, upon the ground, stated shortly, that in a case where the name of an individual is the name also of a firm, and that name is put to a bill, the presumption is that the signature is the signature of the individual, and not of the firm; that consequently it lay upon the plaintiffs in this case to displace the presumption by showing the signature to the bills sued upon were respectively the signatures of the firm, and that Beatson was authorized to use the firm's name on the particular occasions and for the particular purposes-in other words, that the bills were given for partnership objects and as partnership acts, and that the plaintiffs had failed to discharge the burden cast upon them. Against the judgment of the Common Pleas Division the present appeal is brought.

In support of the appeal it is contended for the plaintiffs either, first, that where, as this case, a signature is common to an individual and a firm of which the individual is a member, it is open to the bona fide holder for value without notice, whose paper it is, of a bill with

such signature upon it, to sue either the individual or the firm; or, secondly, that if this option is not open to the holder, there is a presumption that the bill was given for the firm and is binding upon it, at least where the individual carries on no business separate from the business of the firm of which he is a member.

As regards the first of these two contentions, we think that it is not a well-founded one. Apart, too, from authority, it appears to us manifestly contrary to true principles of law that the holder of a bill bearing upon it a name which prima facie indicates an individual, and would naturally lead to credit being given to the individual alone, should, upon discovery and proof that there is a firm of which the individual is a member carrying on business under his name, have the right of going against the firm, although at the same time that the proof is given it is proved, also, that the bill was signed by the individual for himself, and not for his firm, and for considerations entirely unconnected with any partnership purpose.

The second contention made on behalf of the plaintiffs is one of more weight, and, apart from the intrinsic importance of the question involved in it, there is an additional importance derived from the fact that, if the contention be correct, it at least displaces the ground upon which. the judgment of the court below rests, although it will still remain to be considered whether judgments may or not be rested upon another ground. As a matter of principle, there is considerable force in the arguments both for and against the contention. Against it it is said that when a signature to a bill is of a name, which in itself and prima facie indicates an individual and would lead to credit being given to the individual, and the holder of the bill suing upon it is therefore compelled to give some proof that the name indicates a partnership, it is but just that he should be compelled to go the whole length of proving, not only that a partnership existed under the particular name, and that the individual carried on no business separate from that carried on by the firm, but, further, that the bill was signed by the individual as a partnership act and for partnership objects. In support of the contention it is said that, inasmuch as a bill of exchange is ordinarily used as a trade instrument, there is a presumption that a bill having upon it a name common to the firm and to the individual is a trade bill, and therefore the bill of the firm, in a case where it is proved or admitted that there is no trading in the name except by the firm. In the absence of authority upon this question, our opinion upon it would be in favor of the plaintiffs' contention. In point of convenience and expediency, and in the interests of trade, it has much to support it. The vast majority of bills given under the circumstances supposed would be really partnership bills,. and yet it would be often difficult, if not impossible, for the holders of such bills to do more than prove that the only trade carried on under the individual name was the trade of partnership, and if they were compelled to go further, and prove that the particular bill was a GIL.PART.-11

partnership bill, the effect might be that in many cases dormant partners, and in some cases ostensible ones, too, might escape from just liabilities. On the other hand, the partners sought to be made responsible on the bills would in most instances be able to prove whether any particular bill sued on was or was not a partnership bill, and should, as it appears to us, at least have the onus of doing so thrown upon them, when it is through their own act, in allowing the firm. name to be the same as that of an individual in the firm, that difficulty and doubt arise.

But in the court below it was considered that the American authorities clearly negative this view, and that the weight of English authorities is in favor of the American view of the law.

We propose to consider first the English authorities. [The court. here examines Swan v. Steele, 7 East, 209; Emly v. Lyle, 15 East, 6; Ex parte Bolitho, 1 Buck. 100; Bank of South Carolina v. Case, 8 B. & C. 427; Furze v. Sharwood, 2 Q. B. 388; Nicholson v. Ricketts, 2 E. & E. 497; In re Adansonia Fibre Co., Miles' Claim, L. R. 9 Ch. 635.]

Upon this review of English authorities they appear to support the view that where a name is common to a firm and to an individual member of such firm, and the individual member carries on no business separate from that of the firm, there is a presumption that a bill of exchange drawn, accepted, or indorsed in the common name is a bill drawn, accepted, or indorsed for the partnership, and for which the partnership is liable, and that it lies upon the defendants in an action against the partners upon such bill to get rid of the prima facie case made against them. But as the court below relies much upon the American authorities as uniformly negativing this view, and those authorities have been much discussed in the argument before this court, we think it desirable to refer to them.

[The court here examines Parsons on Bills of Exchange, p. 131; Story on Partnership, pp. 106, 142; Oliphant v. Mathews, 16 Barb. (N. Y.) 608; U. S. Bank v. Binney, 5 Mason (U. S.) 176, 185, Fed. Cas. No. 16,791; Mifflin v. Smith, 17 Serg. & R. (Pa.) 165; Bank of Rochester v. Monteith, 1 Denio (N. Y.) 402, 43 Am. Dec. 681.] It appears to us, therefore, that the American authorities are in accord with the English upon the point under consideration, and that both fail to support the view taken by the court below, and are in favor of the second contention urged in this case on behalf of the plaintiffs.

Applying, then, the presumption for which the plaintiffs contend to the circumstances of the present case, the matter stands thus: The only business carried on in the year 1878 in the name of and by William Beatson was the business of the partnership, and both the bills sued upon have the appearance of trade bills. Prima facie, then, the bills were bills indorsed and accepted, respectively, in the name and on account of the partnership; and, if that prima facie case were not displaced, Mycock would be liable upon them to the plaintiffs as

bona fide holders for value without notice, even though they were so indorsed and accepted for private purposes of Beatson and in fraud of his partner. The nature of the partnership business was such as to give Beatson, in respect to persons dealing with him in business, an implied authority to bind his partner by bills of exchange, and his partner, although a secret one, must be held responsible upon any bills signed by Beatson in the name of the firm in favor of a holder whose title cannot be impeached, however much Beatson, in signing that name, may have exceeded the authority and broken the trust reposed in him by the agreement of partnership. As was said by the court in giving judgment in the case of Wintle v. Crowther, 1 C. & J. 316, 318: "Where a partnership name is pledged, the partnership, of whomsoever it may consist, and whether the partners are named or not, and whether they are known or secret partners, will be bound, unless the title of the person who seeks to charge them can be impeached." And the authorities generally, both English and American, are uniform in support of this view. There is no difference in this respect between the dormant and the ostensible partner, and, when once it is established that a name common to a firm and an individual member of it has been put to a bill as the name of the firm, there is no difference between the liability of partners carrying on business in a name which bears in itself the stamp and evidence of a partnership. It may, perhaps, be argued that in the latter case the bona fide holder without notice is induced by the name itself to trust the firm, and is therefore entitled to have the responsibility of all the members of that firm, while an individual name would suggest no responsibility other than that of the individual whose name it is; but when it is remembered that firm names are often used by individual traders, while individual names are often used by firms, the argument practically comes to nothing, and a common principle applicable to both cases remains alone consistent with mercantile expediency and general law.

But, assuming that there is no difference as matter of law between the two cases, there is as a matter of evidence a very real and very practical difference. A name in itself indicating a firm does not, except in rare instances, of which the case of Stephens v. Reynolds is an example, leave open any doubt as to the meaning of a signature. in such name; but a name which in itself indicates an individual is, notwithstanding the effect of any legal presumption, ambiguous, and there are likely to be few, if any, cases where the decision of the jury or of a court will be rested upon the presumption alone. The present case is no exception to the rule, and the presumption in favor of the plaintiffs, arising from the fact that Beatson carried on no business. separate from that of the partnership, sinks into comparative insignificance by the side of the additional facts which are proved in the case. Upon those facts we have to decide, as the courts in Nicholson v. Ricketts, and In re Adansonia Fibre Co., Miles' Case, were called

upon to decide, whether the signature to the bills upon which the dispute arises was intended to denote and did denote the partnership of which the defendant was a member. [After commenting on the evidence the opinion continues:]

Can any inference be reasonably drawn from such evidence than that Beatson, in signing the bills, intended to sign and did sign them for himself? We think that no other inference ought to be drawn, and that the jury, in finding that the signature "William Beatson" upon each of the bills was intended to denote the firm, gave a verdict against the evidence, and one which ought not to stand.

We think that the judgment of the court below should stand, and that the appeal should consequently be dismissed.

Judgment affirmed.

SECTION 3.-PARTNERSHIP PROPERTY.

I. CAPITAL.

DEAN et al. v. DEAN et al.

(Supreme Court of Wisconsin, 1882. 54 Wis. 23, 11 N. W. 239.)

*

COLE, C. J. This action is brought by the plaintiffs, as executors, to obtain a construction of the codicil to the will of N. W. Dean, who died February 28, 1880. The will was dated February 29, 1876, and makes a full disposition of the testator's estate, both real and personal. * * There is no controversy as to the proper construction of the will, and we need not further give its provisions. The codicil bears date February 23, 1880. On May 1, 1871, the decedent and his brother, Thaddeus Dean, entered into partnership in the business of dealing in lumber in the city of Chicago, which partnership was continued to the death of N. W. Dean. The will makes no express reference to this partnership business. But the codicil, after reciting that this partnership business had hitherto been profitable to the testator, which was largely due to the business capacity and integrity of his brother Thaddeus, contains this language:

66* * * I hereby direct my said executors to allow my present capital in said business to remain for the period of two years after my decease, collecting and receiving annually, from my said brother Thaddeus, the net profits arising from said business, under my agreement with him, belonging to me, for the benefit of my estate. At the expiration of two years it is my will and I direct that my said executors have a full settlement and accounting with my said brother Thaddeus in relation to said business, and that thereupon they collect and,