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Wright v. Powell.

WRIGHT v. POWELL.

1. One who contracted with two persons engaged in running a steamboat, as pilot, cannot charge a third person as a partner, who was not in fact a partner, and had never held himself out to the world as such, but who had done some acts from which it might have been inferred he was a partner, but of which the person so contracting, was at the time wholly ignorant, and did not engage as pilot in reference to his responsibility.

Error to the Circuit Court of Dallas.

THIS action was brought by the plaintiff in error, against the defendant, as late partner and joint owner, with three other persons, of the steamboat North Star, upon a due bill of the clerk of the boat, to the plaintiff, as pilot of the boat, for $933 50.

Upon the trial, as appears from the bill of exceptions, there was evidence that plaintiff's intestate regarded Abram Powell, and Eldridge Gardner, alone as the owners of the steamboat North Star, until after their insolvency, and that he had contracted with them, on their credit and responsibility alone. There was evidence that Hudson Powell, the defendant, had held himself out to the public as an owner, by calling the boat his, and contracting for supplies, &c. for her. Under this testimony the Court charged the jury, that if the plaintiff looked on Abram Powell, and Eldridge Gardner, alone as the owners, and contract. ed on their credit and responsibility alone, he could not hold Hudson Powell liable, if not actually an owner, although he might have held himself out to the world as an owner, and was thereby made liable to other third persons, who might have contracted on his credit; to which charge the plaintiff excepted.

The charge of the Court is now assigned as error.

G. W. GAYLE, for plaintiff in error, cited Story on Partnership, 95, 97; Watson on Part. 5; Cary on P. 45.

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EVANS and R. SAFFOLD, contra, cited, 1 Camp. 404, Chitty on Con. 70, 243; 10 East, 264; 11 Wend. 87; Story on Part.

Wright v. Powell.

96; Collyer on P. 44, 214; 3 Car. & P. 202; 4 N. Car. R. 127; 1 John. Cas. 171; 6 Pick. 372; 15 Mass. 339.

ORMOND, J.-The general principle that one who holds himself out to the world as a partner with others, is liable for the partnership debts, although in fact he may not be a partner in the concern, or entitled to share in the profits, is undoubted, and is not controverted in this case. But it is insisted, that as this fact was unknown to the plaintiff in error, and as he gave credit to those who in fact were partners in the concern, the rule does not apply. Such is our opinion. The rule is doubtless laid down by the text writers in terms sufficiently broad, to cover the proposition as contended for by the counsel for the plaintiff' in error, but in applying it, regard must be had to the reason of the rule, and the necessity which led to its establishment.

In the leading case of Waugh v.Carver, 2 H. B, 246, in the judgment of C. Justice Eyre, the rule, and the reason upon which it is founded, are both stated in the most lucid manner: «Now a case may be stated, in which it is the clear sense of the parties to the contract, that they shall not be partners; that A is to contribute neither labor nor money, and to go still farther, not to receive any profits. But if he will lend his name as a partner, he becomes, as against all the rest of the world, a partner, not upon the ground of the real transaction between them, but upon principles of general policy, to prevent the frauds to which creditors would be liable, if they were to suppose that they lent their money upon the apparent credit of three, or four persons, when in fact they lent it only to two of them, to whom without the others they would have lent nothing."

It is very clear, from this opinion, that the reason of the rule is, the credit which is presumed to be given by one, thus holding himself out to the world as a partner, or permitting his name to appear as one of the partners, and the injury which would accrue to the creditor, if the supposed partner was afterwards permitted to contradict it. So in De Berkom v. Smith & Lewis, 1 Esp. N. P. 31, Lord Kenyon says, "though in point of fact parties are not partners in trade, yet if one so represents himself, and by that means gets credit for goods for the other, both shall be liable."

The decision of Lord Mansfield in Young v. Axtell, cited in 2

Wright v. Powell.

H. B. 242, from manuscript, is relied on as an authority, that if the defendant had held himself out at any time as a partner in running the boat, by claiming to be a part owner, and contracting for supplies, he would be responsible to the plaintiff, though he did not know of these acts, and did not contract in reference to his responsibility, but to that of others, who were in truth the only persons engaged in running the boat, as partners. In the case cited, Mrs. Axtell suffered her name to be used in carrying on the business, and upon that ground the decision turned, and the expressions used by Lord Mansfield were made. That" as she suffered her name to be used in the busines, and held herself out as a partner, she was certainly liable, though the plaintiff did not, at the time of dealing, know that she was a partner, or that her name was used." The reason of this decision evidently is, that by permitting her name to be used in the firm transactions, she gave a credit to the partnership to the public generally; she was ostensibly a partner, and therefore whether one dealing with the firm was ignorant, or not of the fact, he was entitled to treat her as a partner, as she had by her conduct precluded herself from denying it.

No such fact exists in this case. The defendant had not permitted his name to go before the world as one of the partners in the firm transactions, he had merely done acts, from which one cognizant of them, might have presumed he was a partner, and and if, acting on that presumption, he had given credit to the firm considering him as one of its members, there would be great reason in holding him responsible, for the false confidence thus induced. But that is not this case. The defendant was not in fact a partner, nor had he done any act to induce the plaintiff to consider him as one of the firm, nor did the plaintiff, in entering upon his engagement as pilot of the boat, look to his responsibili ty for the payment of his wages, he cannot therefore succeed in this action.

The principle here laid down, is abundantly sustained by the authorities. See the cases cited by the counsel for the defendant in error.

Let the judgment be affirmed.

Wood's Adm'r v. Brown.

WOOD'S ADM'R v. BROWN.

1. The act of December, 1844, declaring that "it shall not be lawful for any of the Judges of the Circuit or County Courts," to sign bills of exception after the adjournment of the Court, unless by counsel's consent, in writing, a longer time, not beyond ten days be given; is mandatory in its terms, and intended to provide for an evil which requires that it should be interpreted according to the import of the language employed; consequently a consent extending the time for perfecting the bill must be in writing.

Writ of Error to the County Court of Dallas.

THE defendant in error moves to strike the bill of exceptions from the record, on the ground that it was signed and sealed by the presiding judge after he had adjourned his Court for the term. The facts are substantially these, viz: Certain questions were reserved at the trial, and a bill of exceptions was drawn up by the defendant's counsel, and handed to the judge during the term; as usual in such cases, the judge gave it to the plaintiff's counsel, who then, or not long afterwards, requested that time might be allowed for examining and noting objections to the bill. Thereupon the defendant's counsel expressed a wish to be present when the bill was being examined and passed upon, and asked that a day might be fixed for that purpose. The docket was exceedingly heavy, and being satisfied that the bill could not conveniently be examined during the term, in compliance with the request of the defendant's counsel, a day was appointed exceeding a week from the adjournment of the court. This arrangement, it was understood, was verbally assented to, by the counsel on both sides. Accordingly, on the day appointed, the judge was furnished the notes of objections, alterations and additions of the plaintiff's counsel, and with the aid of the suggestions of the counsel of the respective parties, prepared and signed the bill now found in the record. When the bill was signed, the presiding judge had no intimation that the act of 20th December, 1844, which prohibits the allowance and signing of bills of exception in

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Wood's Adm'r v. Brown.

vacation had passed, nor is there reason to believe that the counsel on either side were aware of the existence of the act.

G. W. GAYLE, for the plaintiff in error.
C. G. EDWARDS, for the defendant.

COLLIER, C. J.-By the act of 20th December, 1844, it is enacted," that hereafter it shall not be lawful for any of the judges of the Circuit or County Courts to give or sign bills of exception, after the adjournment of the Court, at which they may preside, at which the exception may be taken: Provided however, by the consent of counsel reduced to writing, a longer time may be allowed, not to extend beyond ten days from the adjournment of said Court." Further, "it shall be the duty of cach judge of the Circuit and County Courts, when they sign bills of exceptions, to add thereto the correct date of such signing."

The terms of this enactment very clearly indicate, that it is not merely directory to the judges, but that it is mandatory, and its observance imperative. It declares that it shall not be lawful for any of the judges to sign bills of exception, &c. and is not a direction to them to perfect bills in term time.

The evil complained of was, that the judges were frequently called upon after the Court at which the causes had been tried, had adjourned, to seal bills of exception, and when the facts and the points reserved had faded from their memory; that sooner than submit to the suspicion of not being willing to have their judgment revised, they sometimes signed bills which were inaccurate, and which occasioned a reversal to the prejudice of the other party. To avoid such a result, the act in question was passed.

The assent of the parties, that the judge might retain the bill, examine and sign it after Court, we think can have no influence. The statute, by way of proviso to the sweeping prohibition, declares that the consent of counsel, in writing, may legalize the signing, if made within ten days after the Court closes its sitting. This proviso must be regarded as an exception, and equivalent to an express inhibition to sign a bill out of term time, unless the consent is thus given.

We decline considering, at this time, whether the defendant can have the benefit of his bill of exceptions, by adopting the

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