[Le Roy, Bayard & Co. vs. Johnson.]

the prayer of the plaintiffs' counsel, and instructed the jury, that if they were so understood by them, the plaintiffs were entitled to recover. And if this statement of the facts be correct, and the instructions asked for had been so framed as to present them fairly to the jury, this court entertains no doubt but that such instructions should have been given.

It is well settled, that if a bill of exchange be drawn by one partner in the name of the firm, or if a bill drawn on the firm by their usual name and style, be accepted by one of the partners, all the partners are bound. It results necessarily from the nature of the association, and the objects for which it is constituted, that each partner should possess the power to bind the whole, when acting in the name by which the partnership is known, although the consent of the other partners to the particular contract should not be obtained, or should even be withheld. Were it otherwise, the affairs of the concern could with difficulty be carried on; and these persons could seldom, if ever, know, when they might safely deal upon the credit of the firm. It follows, that such third persons are not bound to inquire, much less to assure themselves that the partner with whom they are contracting is acting on the partnership account, or for his own individual advantage. The interest of the partner in the joint stock of the concern and his consequent authority to use their name, raises a presumption that the contract was made for joint account, which is sufficient to bind the firm, unless the contrary be shown and that the person with whom the partner deals, had notice or reason to believe, that the former was acting on his separate account.

It is now to be seen how these principles of law apply to the case under consideration.

It is quite clear, that the name of this firm is no where designated in the articles of copartnership which have been referred to. The mode in which a particular branch of their business was to be conducted, cannot reasonably be construed to give a name to the firm. It manifestly had no allusion to that subject. The stipulation that the funds necessary for the purposes of the concern should be raised upon the paper of Johnson, to be indorsed by Hoffman, or

[Le Roy, Bayard & Co. vs. Johnson.]

in such other shape as might be found most suitable to the object of the parties, no more designated Jacob Hoffman, than it did George Johnson, as the name of the copartnership. If it did, then the name would be lost or changed, as often as the parties should agree to raise funds for the concern in some other mode than the one specified. It is unnecessary to decide whether the omission to agree upon a partnership name in the body of the instrument was, or was not supplied by the signatures of the contracting parties to it, because it was in full and uncontra dicted proof, that after the concern went into operation under the articles, their books were kept, and the bills and accounts relating to their business were made out at their warehouse, in the joint names of Hoffman & Johnson, by which name the firm was generally known in Alexandria, and in which they acted in relation to the business of the concern, and advertised in the newspapers. Now it cannot be questioned, but that a name thus assumed, recognized and publicly used, became the legitimate name and style of the firm, not less so, than if it had been adopted by the articles of copartnership.

Keeping in mind the principles of law which have been stated, and the fact or the evidence of it, in relation to the name of this concern, it will not be difficult to decide the question, whether the instructions asked for by the plaintiffs ought, or ought not to have been given. It is obvious that the court was required by the two first of them, either to assume the fact that Jacob Hoffman & George Johnson carried on their business as partners under the name and firm of Jacob Hoffman: or to lay it down as law to the jury, that it is competent to one partner to bind the copartnership by a bill drawn in his individual name, even after a dissolution of the partnership, if that fact was not advertised or known to the person taking the bill; provided the object of the partner who draws and negotiates the bill, be to discharge certain debts due by the concern, and the proceeds. are afterwards so applied.

Now the fact which the court was called upon to assume, was all important to be proved to entitle the plaintiffs to It is averred in the declaration, and is in point of

recover.

[Le Roy, Bayard & Co. vs. Johnson.]

law the foundation of the plaintiffs' demand against the defendant Johnson. But what right had the court to assume a fact which was not warranted by any just interpretation of the articles of copartnership, or of any other written instrument which was given in evidence, but which, if it existed at all, was to be deduced from the parol evidence, of which the jury were alone competent to judge?

The court was not called upon to predicate the conclusion of law upon the fact that the defendant and Hoffman traded under the name and firm of Jacob Hoffman; if that fact should be so found by the jury,-and unless it was so found, it is quite clear that the bill in question, although drawn for the purpose before mentioned, and although the proceeds were so applied, did not bind the defendant, and consequently, the court was right in refusing to give these instructions in the form in which they were propounded,— unless the fact was that which all the instructions assume, and which formed the basis of the plaintiffs' argument before this court; the plaintiffs contracted in point of law, as they manifestly did in fact, with Jacob Hoffman alone, and upon his sole responsibility, and the use which Hoffman intended to make or did make, of the proceeds of the bill, was quite as unimportant to them and to their cause, as it would have been, had they contracted with Hoffman & Johnson under the name of their firm.

As to the necessity of bringing home to the knowledge of the plaintiffs, in one of the modes stated in the instructions asked for, the dissolution of the co-partnership, in order to prevent their recovery against Johnson; we are all of opinion, that it did not exist in point of law, unless, in point of fact, the bill was drawn in the name of the firm. We admit that if one of the partners contracted in the name of his firm with a third person, after the partnership is dissolved, but that fact not made public or known by such third person, the law considers the contract as being made with the firm and upon their credit, and this for a reason too obvious to require explanation. But if the partner deal with another in his individual name, and upon his sole responsibility, without even an allusion to the partnership, as the jury won'

[Le Roy, Bayard & Co. vs. Johnson.]

have been well warranted in concluding the facts to be in this case, it was unimportant to that other to know that the partnership was dissolved; since he was dealing, not with the firm, and upon their credit, but with the individual with whom he was contracting, and upon his credit.

It only remains to notice the single point of difference between the last, and the two preceding instructions. These, as has before been noticed, assume the fact that the partners carried on the business of the concern under the name and style of Jacob Hoffman. That places the plaintiffs' right of recovery upon the circumstance, that the defendant and Hoffman sometimes used, in relation to the business of the concern, the name and style of Jacob Hoffman, as representing the firm, in connection with the other facts stated in the preceding instructions.

But would the court have been warranted in stating to the jury, what this instruction manifestly purports; that whatever may be the name agreed upon by the partners, and in which they generally act, in relation to the business of the concern, still, if they have sometimes used, in that relation, the name and style of one of the partners, bills drawn in that name, and negotiated for the purpose stated in the instruction, would bind the other partner? We clearly think not. The circumstance relied upon in this instruction, as to what the partners sometimes did, was no doubt proper to be left to the jury, as evidence conducing to maintain the averment in the declaration, that Jacob Hoffman and the defendant carried on business as partners in trade under the name of Jacob Hoffman; if the court had been called upon to leave that as a fact to the jury. But it was nothing more than evidence of that fact, upon which it would have been highly improper in the court to predicate any principle of law whatever. This point we conceive was fully settled in the case of Townsley vs. Sumrall, decided a few days ago by this court, ante page 170.

We are, upon the whole, of opinion that the court below was right in refusing to give any of the instructions prayed for; and that the judgment of that court ought to be affirmed with costs.

DAVID HUNT AND OTHERS, APPELLANTS vs. ROBERT WICKliffe,

APPELLEE.

An entry was made in the land office of Kentucky, of one thousand acres, in the name of "John Floyd's heirs," without naming the persons who were the heirs. Upon an objection to the validity of the entry, the court said; that substituting a legal description, which cannot be misunderstood, for the more definite description by the proper names of the persons who are the heirs, was not of such substantial importance as to vitiate the transaction. [208] An entry was made " so as to join the settlements on the north east and south sides thereof, so as not to run into the old military surveys which are legal." The old military surveys formed together a parallelogram, and adjoined the lands intended to be described by the entry. It was objected that the limitation on the entry," so as not to run into the old military surveys which are legal," rendered the whole entry so uncertain as to make it void. The rules which are settled in Kentucky, would require that this entry, had the restriction respecting the military surveys been omitted, should be surveyed equally on the north east and south side of the settlement, the whole land to be included by rectangular lines. The old military survey must, therefore, be so contiguous to the settlement, as to stop one or two of those lines. A subsequent locator knows where to look for them, and the testimony in the cause informs us that he would encounter no difficulty in finding them. "We consider the last words which are legal,' merely as an affirmance that they are so, not as leaving it doubtful; and consequently that they make no change in the entry." [209]

It is well settled, both in the court of Kentucky and in this Court, that a possession which will bar an ejectment, is also a bar in equity. [212] Each of the parties held in possession distinct parts of the land in controversy. In this state of things it is well settled, that the party having the better right, is in constructive possession of all the land not occupied, in fact, by his adversary. [212]

The law of Kentucky authorises their courts of chancery to make decrees against absent defendants, on the publication of an order for two months successively in some paper authorised to make the publication, and on fixing it up at certain public places, prescribed by the act. This publication is considered as a constructive service of the process. The supreme court of Kentucky has decided that the publication must be continued for two calendar months. [214] As the plaintiffs in the circuit court claimed under a conveyance made in pursuance of a decree of a court of competent jurisdiction, the bill ought not to have been dismissed for want of parties. The circuit court ought to have given leave to make new parties, and on their failing to bring the proper parties before the court, the dismission should have been without prejudice. [215]

THIS was an appeal from the circuit court of Kentucky, in which court the appellants had filed a bill against the appellee, claiming from him a conveyance of the legal title VOL. II.-2 A