ceased partner, and to take his portion pari passu with separate credit

ors.

Under our laws no such thing as a joint contract, in the sense in which it is used in England, can be allowed. Our statute regulating proceedings upon such subjects enacts "that all joint debts or obligations shall survive against the heirs, executors, and administrators of such joint debtor or obligor, as may die before the discharge of such joint debt or obligation." Rev. St. 1837, p. 475, §§ 1-6. This act makes a partnership debt a several as well as a joint contract; and the partnership creditor is, consequently, invested with a legal right to proceed immediately against the estate of the deceased partner, and to be paid at the same time with separate creditors. The debt against the firm being separate as well as joint, the death of the one partner cannot extinguish the separate demand against his estate. That contingency leaves his right in full operation, and the deceased partner's estate bound separately for the debt. Judgment reversed.

HALL v. COOK.

(Supreme Court of Alabama, 1881. 69 Ala. 87.)

This was a suit by Bolivar H. Cooke against Oliver L. Hall, Alexander H. Mackey, and Luther C. Hall, on an account for goods, wares, and merchandise sold and delivered to the defendants by the plaintiff, and was tried on the plea of the general issue. On the trial the depositions of the plaintiff and another witness examined on his behalf, taken upon interrogatories, were offered in evidence by the plaintiff. In the interrogatories propounded to the plaintiff he was asked whether there was any thing due to him from Hall, Mackey & Co., and, if so, how much, and for what it was due. To this question he answered, in substance, that they owed him $140.50 for goods sold. and delivered to them by him. To the question and answer the defendants objected, on the ground that the question "called for an indebtedness due from Hall, Mackey & Co., and the answer purported to prove an account due from Hall, Mackey & Co., and not these defendants," and that, therefore, there was a variance between the proof offered and the allegations of the complaint. On the statement of the plaintiff that he would show that the defendants were members of the firm of Hall, Mackey & Co., the court overruled the defendants' objection and allowed the answer to be read to the jury, and the defendants excepted. Other objections of like character were made by the defendants to other interrogatories propounded to the plaintiff and the other witness, and their answers thereto, which were also overruled by the court, and exceptions reserved to the rulings of the court thereon. by the defendants. The plaintiff afterwards proved that his attorney. presented the claim sued on to the defendants, "who were members GIL.PART.-20

of the firm of Hall, Mackey & Co., and they each admitted the justness of the amount of the claim." The depositions read in evidence also tended to prove the correctness of the account sued on. The defendants offered no evidence. The court charged the jury, at the request of the plaintiff, in writing, that it was sufficient if the evidence showed that the defendants were members of the firm of Hall, Mackey & Co. To the giving of this charge the defendants excepted. The giving of this charge and the rulings of the circuit court on the evidence are here assigned as error.

* *

STONE, J.. Under our statute (Code 1876, § 2904), when there are "two or more persons associated together as partners in any business or pursuit, who transact business under a common name, whether it comprise the names of such persons or not, any one of the associates, or his legal representative may be sued for the obligation of all." The effect of our statutes is to make the promises, contracts, and obligations of partnerships, given within the scope of their partnership dealings, the promises, contracts, and obligations of the part, nership and of each and every member thereof. The contract itself makes it joint, and our statute makes it also several; this because, when the promise is given or obligation entered into within the scope of the partnership dealings, it is alike the contract or obligation of all and of each member of the firm. Such promise need not be in writing, unless it is of the nature which the law requires to be in writing; and joint contracts may be made, with or without writing. In McCulloch v. Judd, 20 Ala. 703, it was said: "A creditor may sue one or all the members of a firm on a debt contracted in the firm name, and may declare on the demand as the individual liability of the partner or partners sued."

We find no error in this record, and the judgment of the circuit. court is affirmed.1

SECTION 2.-NATURE AND EXTENT OF LIABILITY IN TORT.

WHITE v. SMITH.

(Court of Appeals and Court of Errors of South Carolina, 1860. 12 Rich. Law, 595.)

WARDLAW, J. This is an action on the case to recover damages from the defendant for negligence in the care of a slave committed to his custody on hire, by means whereof the slave was destroyed and wholly lost to the plaintiff. The first ground of appeal insists that

1 In Sandusky v. Sidwell, 173 Ill. 493, 50 N. E. 1003 (1898), it was held that a statute providing that "all joint obligations and covenants shall be

there is a variance between the allegation that the slave was hired to defendant and the proof of hiring to defendant and his partner, Moore, fatal to the action against one of the partners, inasmuch as both should have been sued. In actions ex contractu it was formerly the rule that the nonjoinder of one or more joint contractors was fatal on motion for nonsuit, where the general issue was pleaded; but it is settled since Rice v. Shute, 5 Burr. 2611, in avoidance of the delay and expense of a trial, that this objection is waived by pleading the general issue, and that advantage of it can be taken only by plea in abatement, even where the plaintiff fully knew who were the joint contractors. And whatever may be the form of action, wherever the nonperformance of a contract is the basis of the suit and the contract must be proved, as in case for breach of a warranty of sale, the nonjoinder of a joint contractor is fatal on plea in abatement; for the plaintiff will not be allowed, by varying the form of his action, to annul or obviate the rules of legal procedure concerning parties to contracts. 1 Chit. Pl. 87; Max v. Roberts, 12 East, 94; Weall v. King, 12 East, 4541; Stockfleet v. Fryer, 2 Strob. 307; Patton v. Magrath, Rice, 162, 33 Am. Dec. 98. On the contrary, in actions ex delicto generally, and always where a contract is not the gravamen of suit and is merely a matter of inducement or recital, a plaintiff may, at his option, treat the tort committed by two or more persons as either joint or several, and accordingly sue all or any of the tort-feasors; and if one of the wrongdoers be sued alone, as the tort attaches upon each individually, he cannot plead the nonjoinder of the others in bar or abatement, nor give it in evidence under the general issue. 1 Chit. Pl. 87; Atty. Gen. v. Burgess, Bunb. 223; Govett v. Radnidge, 3 East. 62; 6 Taunt. 29, 35, 42; 6 Jno. 31. Now, in this case, the gist of the action is the negligence of the defendant in the safe-keeping of a slave under his charge, and the contract of hiring is merely matter of preliminary statement, to explain that the slave was really under the charge of defendant, and proof of any other process by which the charge resulted would have been admissible.

In his first ground of appeal defendant also insists that if there were any negligence it was on the part of the agent of the partners, Moore & Smith (and not his individual agent), for the torts of whom he is not separately liable. From the community of interests between partners, each is responsible for the contracts of all or any one of them in the prosecution of the business of the partnership. Jackson was no less the agent of the defendant because he was also the agent of the partner, Moore. Gow, in his treatise on Partnership, 184, 185, and notes there, and 160, after laying down the doctrine that in such actions as case for malfeasance the tort as between partners attaches upon each of the wrongdoers individually, and that one may be sued

taken and held to be joint and several obligations and covenants" applies only to contracts, obligations, and covenants made jointly by persons in their individual capacity, and has no reference to partnership obligations.

alone, proceeds: "Nor in such an action is it material whether the tort was committed by the partners personally, or by their servant in the prosecution of their business, since, in the latter case, the rule 'qui facit per alium, facit per se,' applies, and renders them and each of them responsible for the consequences." To the same effect, other text-writers on partnership express the doctrine. Story, Part. 167; Story, Agency, 308; 3 Collyer, Part. p. 414, c. 1, § 6; Id. p. 640, c. 6, § 3; Watson, Part. p. 235, c. 4. In Mitchell v. Tarbutt, 5 T. R. 649, in an action on the case, against some of several partners in the ownership of a ship, for negligence in their servant or agent, in running down a ship of plaintiffs laden with sugar, whereby the sugar was lost, it was held that defendants could not plead in abatement that there are other partners not sued. Carthew, 171, 294; 7 T. R. 257. Defendant's motion for new trial refused.

LOOMIS et al. v. BARKER.

(Supreme Court of Illinois, 1873. 69 Ill. 360.)

This was an action of trover by Richard P. Barker against William R. Loomis, Chauncey Lewis, and Charles F. Bogue, for the conversion of a span of horses. Bogue not being found, the suit was dismissed. as to him. There was a verdict and judgment in favor of the plaintiff for $311.15. The leading facts are stated in the opinion.

SCHOLFIELD, J. The proof is sufficiently clear that the horses belonged to appellee and that at the time they were taken they were merely in the possession of Cook as a general agent, who was authorized to sell them for appellee and required to account to him for the proceeds of their sale. This did not invest Cook with any title to the horses, so as to render them liable to be seized on execution or attachment against him and sold for the payment of his debt.

Although it does not appear that Lewis was actually present when the horses were levied upon or sold, yet it does appear that he placed the claim upon which this was done in the hands of the constable, Bogue, and that his partner and codefendant, Loomis, treated and spoke of the property as having been taken and sold on an attachment issued upon this claim, that he was present and a bidder at the sale, and that he received the proceeds of the sale from Bogue as a payment upon this claim.

The rule is that partners are liable in solido for the torts of one, if that tort were committed by him as a partner and in the course of the business of the partnership. Parsons on Partnership, 150. "So," it is said, “in an action of trover it is not necessary that there should be a joint conversion in fact in order to implicate all the partners, for such a conversion may arise by construction of law. Thus an assent by some of the partners to a conversion by the others will make them

wrongdoers equally with the rest provided the conversion was for their use and benefit, and that they were in a situation to have originally commanded the conversion." Gow on Partnership, 175. See, also, Bane et al. v. Detrick et al., 52 Ill. 20.

We think the verdict was, under the evidence, in conformity with the law, and the judgment of the court below is therefore affirmed. Judgment affirmed.

SECTION 3.-EXTENT OF LIABILITY IN CONTRACT.

HALLOWELL v. BLACKSTONE NAT. BANK.

(Supreme Judicial Court of Massachusetts, 1891. 154 Mass. 359, 28 N. E. 281, 13 L. R. A. 315.)

HOLMES, J. This is a bill to redeem certain stock given by one Smith, the plaintiff's insolvent, to the defendant as collateral security for a loan to Smith. The main question is whether the defendant can hold the stock as security, not only for the loan mentioned, but also for two acceptances of a firm of which Smith was a member, which' acceptances the defendant had discounted before the date of the loan in question. The note given by Smith for the loan authorizes the defendant to sell the stock "on the nonperformance of this promise, said bank applying the net proceeds to the payment of this note, and accounting to me for the surplus, if any." It then goes on, and these are the important words, "and it is hereby agreed that such surplus, or any excess of collaterals upon this note, shall be applicable to any other note or claim against me held by said bank."

The counsel for the plaintiff based his argument on the proposition. that the right to apply the excess of collaterals to any other note or claim was conditional upon Smith's nonperformance of his promise. We think it doubtful at least whether that is the true construction of the words which we have quoted. We are disposed to read the agreement as an absolute pledge or mortgage of the securities for other notes and claims. But if this be not so we are of opinion that Smith did not perform his promise within the meaning of the note. The bank demanded payment of Smith on January 3, 1889, and he made partial payments, but failed to pay the residue and requested the bank to make the balance a time loan, which the bank refused. This was a nonperformance of his promise by Smith. It is true that the report states that it was understood that the demand should not be pressed without further notice. But this did not take away the effect of the breach. It merely called on the bank to give notice before taking further steps, such as selling the security, and this it did. We neither