account the terms of the promise are in the singular number, but there can be no doubt that the firm were bound; that the notes were issued as the notes of the firm and taken as the notes of the firm. And if that be so, it seems equally clear that the notes could not bind any partner separately. There is no ground for supposing an intention that the partner who happened to sign any note should be more bound than any other partner, and no such proposition would have ever been stated but for the decision in Hall v. Smith (a), on which the respondents rely. That was an action of assumpsit on note of a form similar to that now before the Court; the action was brought against the party alone, who signed the note for himself and two others, and he pleaded in abatement, and the plea was held bad. Now the Court there did not question that the firm were bound, for that point had been already decided in the affirmative by Lord Galway v. Matthew (b). But the firm being bound, it certainly seems difficult to hold that any partner was separately bound, for that would be to construe the note as containing two promises, which there is no pretence for doing; it would be introducing in fact the words "for myself," in addition to the other words in the note. Suppose a clerk had signed the note in this form, it could never have been contended that he was personally liable. A decision to that effect upon the construction of a deed was come to in Wilks v. Back (c). Hall v. Smith differs from this case, for there, from the nature of the instrument, each party having signed it, each promised to pay; but it cannot be contended here that each of the partners was bound separately by the note. The same answer may be given (c) 2 East, 142. (a) 1 B. & C. 407. (b) 1 Campb. 403. 1844. Ex parte CHRISTIE. 1844. Ex parte CHRISTIE. to another case of Clarke v. Blackstock (a), which is cited in Hall v. Smith. There is also a case in America (the law of which country has the same origin with and bears a remarkable analogy to our own) of Doty v. Bates (b), containing an express decision on the point to the effect for which we contend. It appears therefore that the grounds on which Hall v. Smith was decided were not considered satisfactory, nor are they, whatever respect may be due to that decision, binding on this Court, unless it should be satisfied of their sufficiency. Besides, Hall v. Smith was a decision on a question of pleading, and did not really affect in substance the remedies of the parties, for if the plea in abatement had been allowed to prevail, and a joint action had been brought, execution might have been issued against any partner separately upon it, and the same result would have taken place. But there is an objection of a different nature to this proof. If the note be a separate note of Mitchell, it is not within the licence granted to the firm by the Stamp Office, and therefore the note would require a stamp. As it cannot now be stamped, this objection alone is fatal to the proof. [Mr. Russell, for the respondents. What ground have you for saying the note is not stamped? I do not tender the note in evidence. You are seeking to expunge the proof, and I read the note from your petition, which raises no question as to the stamp or otherwise, except only as to the point of separate liability.] This is a question of proof. The note ought to be produced in Court. [Sir George Rose. Was any ob (a) Holt, N. P. C. 474. (b) Johnson's Reports of Cases in the Supreme Court of Judicature in New York, vol. 11, p. 544. jection taken before the Commissioner as to the stamp?] We do not know whether it was or not, but we now take it and apprise the Court that this instrument is not stamped as required by law. That we apprehend is sufficient; there is no discretion in the Court upon the subject; the Court is bound by the statute. The respondents are bound to have the note here. [Sir George Rose. If you had given them notice to produce it that might be so.] We submit such notice was not requisite ; they cannot maintain their case without producing the note. It is precisely the same as if they were now ten dering a proof on the note. Sir GEORGE ROSE.-It appears to me, considering what has taken place before the Commissioner, and the case as it rests on the petition, that the petitioners are not in a condition to call for the note, unless they had given the respondent notice to produce it, and it does not appear to me that the duty is thrown on me to call for it. If it is here in evidence, of course I must take notice of it. At the same time, whatever may be the effect of your objection, you will not be prejudiced by the Order here, because it is still open to you to go again before the Commissioner, to consider what you had not an opportunity of considering before. Mr. Russell and Mr. Daniell for the respondents. [Sir George Rose. There is one circumstance to which I wish to call attention. It appears to me not unimportant to observe, that the cases at law which have been mentioned went off upon the pleadings, and that the effect of bankruptcy would be to introduce quite a different state of things from that which would exist while the 1844. Ex parte CHRISTIE. parties remained solvent. Granting that a separate contract is raised by force of the word "I" in the instrument, it is a contract which Mitchell obviously enters into in the character of a surety only. The consideration on the face of the instrument passes to the four. Now the contract is to pay the bearer on demand, and no demand is proved to have been made before the bankruptcy. There is a case of Ex parte Fairlie (a) upon the point.] The petition suggests nothing about suretyship, nor about demand; the only question raised is as to the construction of the note. Upon this there could be no reasonable doubt, independently of the case referred to of Hall v. Smith, which settles the case beyond controversy. The note contains the express promise of the individual partner; his being competent to bind and purporting to bind the four does not impair this separate promise, nor get rid of the separate liability which the partner contracts by using the word "I." It surely does not follow from the note being held to bind the firm that it cannot bind the partner. But it is useless to discuss the case on principle, for the decision in Hall v. Smith has stood unquestioned for twenty years, and is referred to in all text books as the leading authority upon the subject, and Mr. Justice Bayley has in his treatise explained most satisfactorily the grounds of the decision (b). With respect to the point suggested by the Court, as to Mitchell being a surety for the firm, that is merely a question between him and his partners, the holder of the note has nothing to do with it. He is the party (a) Mont. 17. See also Rowe v. Young, 2 Bli. 465; but see Ex parte Whitworth, 2 M. D. & D. 158. (b) Bayley on Bills, 51. whom the holder trusts, and to whose estate the holder has a right to look for payment. The instrument does not profess to place him in the character of a surety, and the holder need not inquire by whom the consideration money is received. Besides, the question of suretyship existed equally in Hall v. Smith. The bankruptcy makes no difference, for if the bankruptcy took away the right it would have an effect which bankruptcy is never held to have, that of taking away a right of action without giving a corresponding right of proof. If there was a separate right of action before the bankruptcy, there must be a separate right of proof after it. Mr. Swanston in reply was stopped by the Court. Sir GEORGE ROSE.-The analogy which has been relied on at the bar between cause of action and proof, cannot I think be relied on without some qualification, since there are many instances in the administration of assets in bankruptcy, in which the legal effect of the legal contract is not carried out as it would be by action at law and execution. It really appears to me that the learned Commissioner, in arriving at the conclusion which he has arrived at in this case, has been more influenced by the decision in Hall v. Smith than, without presuming to say that it is not law, even its full legal operation, in my opinion, entitles it to, and certainly, without full attention to those principles, which in bankruptcy regulate the administration of assets. It is I think impossible to deny that this note is both in its legal and equitable effect binding upon the four, and upon the estate of the four, by the signature of one partner, in the partnership style, for value admitted to 1844. Ex parte CHRISTIE. |