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THESIGER, L. J., read the judgment of the court. This is an action brought upon two bills of exchange of which the plaintiffs are the holders. The first is a bill for 2761. 15s., dated 6th March, 1878, drawn by R. K. Kelly & Co. upon and accepted by Messrs. J. & R. Wilson, payable to the order of the drawers four months after date, and bearing the indorsements "R. K. Kelly & Co.," Wm. Beatson," and "Josiah Carr & Sons." The second is a bill for 4841. 13s., dated 13th March, 1878, drawn by Josiah Carr & Son, addressed "Mr. Wm. Beatson, chemical works, Rotherham," and accepted in the name "William Beatson," payable to the order of the drawers four months after date, and indorsed by them; both bills were discounted by the plaintiffs upon the 14th March, 1878. The defendants to the action are Wm. Beatson and John Henry Mycock. The signature "Wm. Beatson" upon each of the bills was the signature of the defendant William Beatson. He has allowed judgment to go by default, and the action is defended by Mycock alone, who disputes his liability upon either of the bills. The circumstances of the case are as follows: Beatson for many years prior to Dec. 1877, carried on business as a chemical manufacturer at certain works at Rotherham. At the end of the year 1873, and the beginning of the year 1874, the plaintiffs made inquiries as to Beatson's commercial position of Josiah Carr, who was bringing them paper for discount with Beatson's name upon it; and the result of the inquiries being satisfactory, they discounted such paper. Beatson and Carr had some trade transactions together, but apart from these trade transactions, there was a series of accommodation transactions carried out by accommodation bills between Beatson and the other parties to the bills now sued upon, including Carr himself, and these accommodation bills were from time to time renewed. Down to the end of the year 1877 Beatson had no partner; but upon the 11th Dec. in that year, a deed of partnership was entered into between him and the defendant Mycock. By its terms the partnership was to last for a period of five years, with power of continuance. The value of the good will of the business, the works and premises where the same was carried on, and the machinery, plant, and effects belonging to it, was estimated at 25,000l., and Mycock was to purchase a onefifth share of the business by the payment of the sum of 5,000l. The business was to be carried on under the style of "William Beatson." The works and premises were to remain vested in Beatson, who was to stand possessed of them for the purposes of the partnership, and the business was to be managed by Beatson, his partner not being required to attend to the business any further than he should think fit. By the 11th clause of the deed it was provided that "neither of the partners, without the written consent of the other first obtained, should, on the credit of the firm, make any payment, advance, or other application of the moneys or effects of the said partnership, or in any manner engage or use the same, or the name or credit of the partnership firm, except on account of and for the benefit of the partnership, and in the usual manner of carrying on the business;" and by the 12th clause it was provided "that neither of the partners should lend or deliver upon credit any of the moneys or effects belonging to the partnership to any person whom the other partner should previously have forbidden to be trusted, nor without the previous consent in writing of the other partner would become bail, surety or security with or for any person whomsoever, nor make, give, draw, accept or indorse any bond, bill, promissory note, or other instrument, or enter into any obligation or engagement, or make any default whereby the estate and effects of the partnership might be made liable for the payment or satisfaction of any sum of money for which the partnership should not have received a full and sufficient consideration." The

object with which Mycock entered into this partnership was that of ultimately putting his son, who was then under age, into it, and as a matter of fact, Mycock never interfered in any way with the management of the business, or occupied any other position in connection with it than that of a dormant partner. Beatson concealed from him any information relating to his accommodation transactions, and for his fraud upon him in this and other matters connected with the inception of the partnership was ultimately prosecuted and convicted. The plaintiff's never knew of the partnership until after July, 1878, at which date Beatson was a bankrupt. For some time prior to the formation of the partnership Beatson had kept an account at the Sheffield and Rotherham Bank, headed "William Beatson," and after the formation of the partnership that account was continued without any change in its heading, and into this account Beatson paid all moneys, whether moneys belonging to the partnership or his own private moneys; and upon It he drew, whether for the purposes of the business or his own private purposes. Beatson himself was called as a witness for the plaintiffs, and in addition to proving the facts already mentioned, gave evidence to the effect that he kept two cash-books, of which one was, as he stated, a private book, kept by him as manager at the place of business, the other a partnership cashbook; that in the former he did not enter cash received on account of the partnership, but that in the latter all business payments were entered. With reference to his bill accommodation transactions generally, he stated that none of these were brought into the ledger, either before the partnership or after; that the cash transactions relating to these accommodation bills were entered in the private cash-book, to which Mycock had no access, and were never put into the partnership cash-book, to which Mycock himself might have had access. With reference to his particular transactions with Josiah Carr, he stated that all trade transactions between them were over before the partnership, and that as regards the particular bills sued on, they were bills drawn for his and Carr's accommodation, not for Mycock's, although he added that they were in a degree for the business, as one way of finding capital, and that without the bill transactions there was not capital enough to work the business. He admitted that Mycock found the 5,000l. which he was to pay for his share in the business; that he never told Mycock that money was wanted; that he thought he was not making Mycock liable for any of the accommodation bills, whether renewals or otherwise, and that he considered them private transactions, and did not enter them in the partnership book. He further said that he considered the bank-book private, and that Mycock had left him to keep the banking account as he thought proper; that the proceeds of accommodation bills were paid into the banking account, and that out of such proceeds the price of 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 as this occurred Beatson drew out more than he paid in. On the part of Mycock an accountant was called who, upon an 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 transactions was to reduce the balance; and that Beatson had drawn out for his own purposes, independent of the business, about 4,000l. 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, as appears from the shorthand writer's notes, that the questions for them were: First, "was the name Wm. Beatson

put to the bills to denote the firm or to denote Wm. 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 Wm. Beatson only?" The jury retired, and upon returning into court, the foreman stated that as regards the bill for 484l. 13s., it having been drawn upon William Beatson at the chemical works, Rotherham, the jury agreed that Wm. 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 that presumption by showing that the signatures to the bills sued upon were respectively the signatures of the firm, and that Beatson was authorized to use the firm 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. 40 L. T. Rep. (N. S.) 658; L. Rep., 4 C. P. Div. 212. 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 in this case, a signature is common to an individual and the 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 a 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 contentious, we think that it is not a well-founded one. The only authoritative sanction to it upon which the learned counsel for the plaintiffs rely is in a case of McNair v. Fleming, which appears to have been decided in the House of Lords in 1812, but which is not reported otherwise than in Montague on Partnership, vol. I, p. 37, and in the opinion of Lord Eldon delivered to the House of Lords in the case of Davidson v. Robertson, 3 Dow. 229, and which, without further knowledge of the facts of the case, and the exact bearing of the judgment upon them, it is impossible to treat as an authority. Lord Eldon does not quote it in support of so wide a proposition as that under consideration, but as bearing upon the proposition that a joint adventure was as proper a partnership as any other, and one of the adventurers would be bound by the indorsement and acceptance of the other, a proposition which had been negatived by one of the interlocutors of the Scotch court, finding that whatever might be the case in a proper partnership, one person concerned in a joint adventure is not entitled by subscribing a firm to bind the other. While, therefore, there is really no authoritative sanction for this contention, there is abundance of authority against it in the numerous cases in the English and American courts, where the liability of partners upon a bill signed in a name common to the firm, and an individ

ual member of it, has come under consideration, and has been discussed, not upon the footing of any right of election on the part of the holder of the bill, but upon the particular circumstances of each case, and the presumptions applicable to them, cases which we shall have to refer to in connection with the plaintiffs' second contention. 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 ou 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 consideration 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 the judgment may 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 where 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 interest 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 a partnership; and if they were compelled to go further, and prove that the particular bill was a 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 upon 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 negatived this view, and that the weight of English authority is in favor of the American view of the law. We propose then to consider first the English authorities. In Swan v. Steele, 7 East, 209, two persons of the name of Wood & Payne were wholesale grocers in Liverpool, trading under the firm name of

to our judgment": (2 Q. B. at p. 418.) This decision is in no way shaken by that in Nicholson v. Ricketts, 2 E. & E. 497, where two firms with distinct trade names agreed to carry on joint exchange operations under such circumstances as to make them partners in them; and it was held that the signature to bills of one of the two firms drawn in course of the exchange operations did not make both firms liable as drawers; for the decision proceeded simply on the ground that by the arrangements between the two firms the names of the two firms were to be used separately, the paper to be dealt in being drawn by one firm and accepted by the other, and as Cockburn, C. J., said, at p. 523, it did not appear that the drawing firm had any authority, express or implied, to bind the defendant by drawing bills. The case of Re Adansonia Fibre Co.; Miles' Claim, L. Rep., 9 Ch. 635, was substantially the same as that of Nicholson v. Ricketts, and was decided upon the same considerations. In each of these cases the court came to the conclusion, as a matter of fact upon all the circumstances before it, that the name on the bill was not intended to be, and was not, the name of the partnership sought to be made liable upon it. Upon this view of the 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 authorities specially cited in the judgment of the court below are Parsons on Bills of Exchange, 531; Story on Partnership, 106, 142; the decision in the Supreme Court of New York of Oliphant v. Mathews, 16 Barb. 608 and the direction of Story, J., to the jury in United States Bank v. Binney, 5 Mason, 176, 185. The passage referred to in Parsons does not bear out the proposition for which it is cited. He says: "The burden of proof is upon the plaintiff to show that the paper was given in the business, and for the use of the firm, for it will be intended prima facie to have been given in the separate business of the partner signing it, and to be binding on him alone, at least if he is also engaged in business on his own separate account." The views of Story, J., are best taken from his ruling in United States Bank v. Binney, where, in directing the jury, he used this language: "In the present case the signature of John Winship may be on his own individual account, as his personal contract, or it may be on account of the partnership. Upon the face of the paper it stands indifferent. The burden of proof is upon the plaintiffs to establish that it is a contract of the firm, and ought to bind them." But there was evidence to go to the jury in that case that the partnership was limited to a soap and candle business, and that the accommodation notes which were sued on were given in respect of consignments of meat, which might have constituted, and it was contended, did constitute the separate business of Winship. It is doubtful therefore whether Story, J., intended his proposition to extend to a case where no separate business could even be suggested as existing. On the other hand, in the case of Mifflin v. Smith, 17 Serg. & Rawle, 165, Rogers, J., dealt with the doctrine of presumption in a case where the question was whether the loan of money obtained by a member of a partnership carried on in his individual name was obtained on the faith of the partnership business, or on the credit of the indi

vidual partner, and he laid it down that the presumption was that it was made on the faith and credit of the business, saying, "If a retail merchant gets a note discounted, is it not to be presumed to be in the regular prosecution of his business?" and adding, "Tho difficulty arises from tho name of the individual and the name of the firm being the same. That is the presumption, liable, however, to be rebutted, if the jury believe from the evidence that was not the state of the fact." A motion to the Supreme Court of Pennsylvania, founded, amongst other things, upon the alleged error of this direction, was refused. This case was decided in 1827. The case before Story, J., was in 1828. In 1845 the question under consideration again arose in the Supreme Court of New York in the case of Bank of Rochester v. Monteith, 1 Den. 402, where the name of Wm. Monteith, an agent of tho firm, had been used as the firm name, and the court said: "If Wm. Monteith had also been in business on his own account, then the acceptance by writing his name on the face of the bills would have been an equivocal act, and it would have been necessary to show that he accepted on account of the partnership, and not in his own private business," and after citing among the authorities for this proposition the United States Bank v. Binney, thus indicating that they must have thought that in this case there was a separate business carried on by tho individual whose name was used, the court added: "But there was no evidenco that Wm. Monteith was engaged in any other business than the affairs of this partnership. We must then regard those bills as drawn and accepted by the houso doing business in the name of Wm. Monteith." In 1853 was decided, also in the Supreme Court of New York, the case of Oliphant v. Mathews, which is the second of the two cases cited in the judgment of the court below. That case, when critically examined, will be found not to be inconsistent with the cases of Mifflin v. Smith and Bank of Rochester v. Monteith. It is true that the court laid down in general terms that where a partnership is carried on in the name of an individual, and a suit is brought against the partners upon a note or other obligation signed by such individual, the legal presumption is that it is the note of the individual and not of the partners. The court immediately qualified the generality of the proposition laid down by saying that the presumption might be repelled and overcome (in other words the onus of proof might be shifted) by proof as to the business in which such person was engaged; and while citing Mifflin v. Smith as explaining what proof would be sufficient, the court pointed out that in the case before them it was proved that the individual did business and borrowed money on his own account, as well as on account of the partnership; and it was not shown that one was not as constant and regular as the other. This case, therefore, is in no way inconsistent with the previous case decided in the same court of Bank of Rochester v. Monteith, and none of the other cases cited in the argument before us carries the doctrine of presumption in favor of the defendant further. 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 tho present case, the matter stands thus: The only business carried on in the year 1878 in the name of and by Wm. 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 the 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 partnership by bills of exchange, and his partner, although a secret one, must be held responsible upon any bill signed by Beatson in the name of the firm in favor of a holder whose title cannot be impeached, however much Beatson in siguing 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: "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 such a name and 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 a firm, and is therefore entitled to have all 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 cxpediency and general law. But assuming that there is no difference, as matter of law, between the two cases, there is as 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, 5 H. & N. 513, 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 really 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 Re Adansonia Fibre Co., Miles' Claim, 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. In the first place it is clear that the bills were bills, which, if signed by Beatson for the partnership, were so signed by him without the authority and in fraud of his partner, and in respect of which no action would have lain against Mycock, if they had remained in the hands of Josiah Carr & Son, who took them with notice. In the second place, it is, we think, equally clear that as between Beatson and Mycock the bills were not treated as having been signed by Beatson on the partnership account. They were not entered in any partnership book, and indeed, even before the partnership as well as after it com

menced, the accommodation transactions of Beatson were treated as not forming any part of the transactions of his business, and were excluded from the ledger. In the third place, the evidence establishes that the accommodation transactions of Beatson after the commencement of the partnership diminished rather than added any thing, even temporarily, to the. capital of the firm; and lastly, Beatson himself, called as a witness by the plaintiffs themselves, disproved, as it appears to us, the fact that in siguing the bills in question he signed for the partnership. He stated that he thought he was not making Mycock liable for any of the accommodation bills, whether renewals or otherwise, and that he considered them private transactions, and did not enter them in the partnership books. Can any other 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 "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. The reason given in support of their finding by the jury that one bill was addressed to the drawee or drawees as of the Chemical Works, Rotherham, and that the other was so connected with it as to stand or fall with it, might have been a good reason in a case where the evidence was in other respects doubtful, but it is in the present case met to some extent by the very form of the bill itself, which, while addressed to the drawee or drawees at the partnership works, contains in the term "Mr." prefixed to the name "Wm. Beatson" an indication that the individual and not the firm was intended, and is entirely outweighed by the clear evidence to which we have referred, and we understand that the learned judge who tried the case was himself dissatisfied with the finding. The additional finding that the bank took the bills as the bills of the chemical works is clearly irrelevaut if the former finding is wrong, for if the bills were in fact signed not in the name of the partnership, but of Wm. Beatson individually and for his private purposes, the fact that the plaintiffs were unaware that Mycock was a partner with Beatson, and never advanced any money on the faith of his credit, but did at the same time give credit to the name of Beatson as being the name of the owner of the chemical works, can give them no more right against Mycock than if he had been a mortgagee of the works instead of a partner in them. The law in a case of bankruptcy asserts a title in the general body of creditors of a bankrupt to property of which he may have been at the time of his bankruptcy in apparent possession with the consent of the true owner, and upon the faith of which he gained a false credit. But in actions founded upon purely personal contracts, the law does not use the mere moral right which a creditor may attempt to assert against a person in consequence of his having intrusted to another property in the belief of his ownership, of which the creditor may have contracted with him. In other words, in a case like the present there is no conduct on the part of the dormant partner which makes it inequitable on his part to deny, or estops him from denying, his liability upon a contract to which he was in fact no party, from which he has derived no benefit, and in respect of which he was not held out to the person suing him as liable. As regards this point, nothing turns on the subject-matter of the action being negotiable instruments. Beatson, by giving the use of his name to a partnership of which he was a member, and the only ostensible member, did not preclude himself from making contracts binding himself alone, and in any contracts de facto made by him, whether by parol or in writing, the question, the answer to which would determine Mycock's liability or freedom from liability,