a promise to pay; and, 2. That under the declaration in the cause evidence of a balance struck and promise to pay was inadmissible. The court sustained the objections taken by the defendant and nonsuited the plaintiff; who excepted to the decision of the court and sued out his writ of error.

VAN ORDEN & DORLON, for plaintiff in error.

POWERS & DAY, for defendant in error.

SAVAGE, Ch. J., delivered the opinion of the court.

I am inclined to the opinion that a technical partnership existed as to the lime; each contributed materials and labor, and the lime was to be equally divided be ween the parties; but I apprehend it is not necessary to send these parties into a court of chancery to settle a dispute about $12.50. If there had been a partnership there was but a single item to liquidate, the partne ship being at an end; and in such case it was held by Lord Ellenborough, in Robson v. Curtis, 1 Stark. 63, that the difficulty as to partnership would disappear. On this point, therefore, I am of opinion that the plaintiff should not have been nonsuited.

In jus

On the other point, also, I think there was error. tice's courts, where the pleadings are usually conducted by the parties themselves, that technical nicety and precision are not required which are required in courts of record, un'ess the pleadings are demurred to: 5 Johns. 122. The declaration is to be liberally construed, so as, if possible, to meet and embrace the proof: 10 Johns. 104; 3 Cowen, 187, 278. I think the proof of a promise should have been received.

Judgment reversed, with venire de novo.

CARTER V. WHALLEY ET AL.

(1 Barnewall & Adolphus, 11. King's Bench, 1830.)

1 Liability of withdrawing partner-Notice. S. and others carried on business under the name of the "Plas Madoc Colliery Company." S. withdrew from the firm, which afterward became indebted to C., no notice having been given to C. or the public of S.'s withdrawing. Held, that S. was not liable for the debt, there being no sufficient evidence that he had ever, while a partner, represented himself as such to C., or appeared so publicly in that character that C. must have been presumed to know it.

Assumpsit, by the indorsee against the defendants, as acceptors of a bill of exchange. Plea, by Whalley, the general issue; judgment by default against the other defendants. The bill, dated Birmingham, May 16, 1829, was drawn by Jackson upon "The Plas Madoc Colliery Company, near Ruabon, North Wales," payable to Jackson's order; accepted, per procuration, by Veysey, for the company, and indorsed by Jackson to the plaintiff.

At the trial before Lord TENDERDEN, C. J., at the London sittings, after Easter term, 1830, it was proved that Carter, a person residing at Birmingham, had discounted the bill for the Plas Madoc Colliery Company at the request of Jackson, who managed their pecuniary affairs, and who remitted the proceeds of the bill to them in Wales. The company, some time before this transaction, consisted of the four defendants, but in April, 1829, Saunders withdrew from the partnership. It did not appear that any notice of this fact had been given to the public or to Carter. There was no proof of any dea!ing between Carter and the firm before May, 1829, when the bill was drawn. For a short time, in 1828, the company had an account at the Wrexham Bank in North Wales, and Saunders was known there as one of the partners. He had been seen at the colliery in April, 1828, taking some part in the getting up of a steam engine. Jackson lived at Birmingham, and an attorney who witnessed the instrument by which S unders made over his share in the partnership, and who knew all the defendants at that time, also resided there. The

1 Waller v. Davis, 59 Iowa, 153; Heath v. Sansom, 1 Nev. & Man. 104.

plaintiff had stated in December, 1829, that he did not know the defendant Whalley at the time when the bill was drawn. On this evidence Lord Tenderden was of opinion that the action was not sustained, Saunders having withdrawn from the firm before the acceptance was given, and that the plaintiff could not avail himself of the want of notice, as it did not appear that he had ever dealt with the company while Saunders was a member, or that the partnership during that time had been so known at Birmingham, where the plaintiff carried on business; that he must be supposed to have looked upon Saunders as a partner, in default of notice to the contrary. The plaintiff was therefore nonsuited.

CAMPBELL now moved for a rule to show cause why the nonsuit should not be set aside and a new trial had. The plaintiff was entitle to consider Saunders as one of the acceptors, having had no notice of his withdrawing from the firm. Evans v. Drummond, 4 Esp. N. P. C. 89, may appear an authority to the contrary; but that was the case of a dormant partner; where the partner has been ostensibly such and retires, there must be notice of that fact to exempt him from future liability: Parkin v. Carruthers, 3 Esp. N. P. C. 248. In that case the plaintiff was not proved to have had any dealing with the firm as at first constituted; Le Blanc, J., laid it down as a clear rule of law, that where there is a partnership of any number of persons, if any change is made in the partnership and no notice is given, any person dealing with the partnership, either before or after such change, has a right to call upon all the parties who first composed the firm. Here no notice whatever was given, though Saunders had been known as a partner during the continuance of the partnership.

LORD TENTERDEN, C. J., read over the evidence and restated the opinion expressed by him at the trial.

LITTLEDALE, J.—It was incumbent on the plaintiff in this action to prove a contract between the parties whom he named as acceptors and himself as indorsee. If they were all partners when the acceptance was given by Veysey that contract is established. But it appears that they had ceased to be so, Saunders having withdrawn. Then it is said that the defend

ant ought to have proved some notice received by the plaint iff of this separation; and it is true that if the plaintiff at any previous time knew Saunders to be one of the partners, such notice ought to have been shown. Now, where all the names in a firm appear, it may be presumed that every one knows who the partners are; but where there is only a nominal firm, as in the present case, the fact of such knowledge must be ascertained by express proof. No proof of that kind appears here; and I therefore thi k that no contract was established between the plaintiff and Saunders.

PARKE, J.-The plaintiff was bound to show an acceptance by four parties; that is, that Veysey, who did accept the bill, was authorized to do so. by the three others named in the declaration. Saunders had given no direct authority; he was not a partner at the time. But he may by his conduct have represented himself as one, and induced the plaintiff to give him credit as such, and so be liable to the plaintiff. Such would have been the case if he had done business with the plaintiff before as a member of a firm, or had so publicly appeared as a partner as to satisfy a jury that the plaintiff must have believed him to be such; and if he had suffered the plaintiff to continue in and act upon that belief, by omitting to give notice of his having ceased to be a partner, after he really had ceased, he would be responsible for the consequences of his original representation, uncontradicted by a subsequent notice. But in order to render him liable on this ground, it is necessary that he should have been known as a member of the firm to the plaintiffs, either by direct transactions or public notoriety; in the present instance that was not so. The name of the company gave no information as to the parties composing it, and the plaintiff did not show that Saunders had dealt with him in the character of a partner, or had held himself out so publicly to be one as that the plaintiff must have known it. Carter, the plaintiff, lived at Birmingham; it should have appeared that there had been such a dealing at that place by Saunders, or that his connection with the company had been so generally known there that a knowl edge of it by Carter must have been presumed. There having been no evidence for the jury on these points, I think the nonsuit was right.

Rule refused.

FAITH V. RICHMOND ET AL.

(11 Adolphus & Ellis, 339. Queen's Bench, 1840.)

1 Use of unusual firm name in signing note. Where a partner, accustomed to issue notes on behalf of the firm, indorses a particular note in a name differing from that of the partnership, and not previously used by them, which note is objected to on that account in an action brought upon it by the indorse, the proper question for the jury is, whether the name used, though inaccurate, substantially describes the firm, or whether it so far varies that the indorser must be taken to have issued the note on his own account, and not in the exercise of his general authority as partner.

Idem-Facts of the case. So held where a partner in "The Newcast'e and Sunderland Wall's End Coal Company" drew a note in the name of The Newcastle Coal Company," and made it payable at a bank where the first mentioned company had no account.

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Assumpsit. The declaration stated that defendants, on, etc., made their promissory note in writing and delivered the same to John Botcherby, and thereby promised, etc. (Count in the usual form by J. B.'s indorsee on a note for £350, payable at` six months.) Barbour and Hannay pleaded that they did not make the note as in the declaration alleged, and on this plea issue was joined. Richmond suffered judgment by default.

On the trial before Lord DENMAN, C. J., at the sittings in London after Michaelmas term, 1839, it appeared that Richmond, Barbour and Hannay carried on business in partnershi under the name of "The Newcastle and Sunderland Wall's End Coal Company." The note declared upon was drawn by Richmond and was as follows:

LONDON, April 28, 1837.

Six months after date we promise to pay to Mr. John Botcherby, or order, three hundred and fifty pounds, for value received.

For the Newcastle Coal Company, WILLIAM RICHMOND, Manager. At the London and Westminster Bank, 9 Waterloo Place. There was no proof of a specific authority to draw such a The defendants' firm had no account at the London

note.

1 Palmer v. Stephens, 1 D ni, 472; Kirk v. Blurton, 1 M. & W. 283.