« PreviousContinue »
cross-examination of the plaintiff's witness, that the partnership firm of Samuel Holland and Co. previous to and at the time of the goods in question furnished, consisted of Holland and Williams, the two bankrupts only ; that for some time before Humble had resided in Yorkshire, retired from business, and that the assignees of Holland and Williams had called upon him to join in the transfer of the ship Susannah, because his name was upon the register as a part-owner, and no legal title could be made to a purchaser without his joining. On the part of the defendant Samuel Holland was called as a witness, who was objected to by the plaintiffs, on the ground of his being a defendant upon the record; but as he had pleaded his bankruptcy and certificate in bar, which was admitted by the plaintiffs having entered a stay of further proceedings against him, the learned Judge admitted his evidence: and he proved that Humble had no concern in the firm of “S. Holland and Co.;' which Co. was Williams alone. That the Susannah had at one time belonged to Humble and Holland, who in 1808 traded as merchants under the firm of Humble and Holland, and they sold her to J. Kinnear for 27001. ; and on the 31st of December in that year Humble ceased to be a partner, and Williams was taken into the firm, which was then changed to “Sl. Holland and Co.;' and this change in the name of the firm was painted upon the countinghouse, and the winding up of the affairs of the old partnership was removed to another place in Liverpool ; and circular letters announcing the change of partners were sent to the correspondents of the old firm; but there was no public advertisement of the change, nor any notice of it proved which could affect the plaintiffs. No alteration was made in the ship's register upon the sale of the Susannah to Kinnear, but he sent her to sea in
M'IVER against HUMBLE.
June 1809, and on her return in the October following, Holland and Williams, the then partners, re-purchased her of Kinnear for 25001., and fitted her out in January 1810, when 'the goods in question, consisting of rope, were furnished by the plaintiffs for the use of the ship in the manner before stated. Objection was taken, on the part of Humble, that there was no evidence to fix him as a part-owner of the ship at the time of the goods furnished in January 1810: but the learned Judge permitted a verdict to be taken for 2281. 9s., the amount of the goods, subject to the question whether Humble continued liable from the circumstance of his name continuing on the register, as a part-owner of the ship down to a period subsequent to the delivery of the goods, and no legal conveyance of the interest out of him appearing in evidence till such subsequent period.
Park, Holroyd, and Littledale now shewed cause against a rule for setting aside the verdict and entering a nonsuit. They denied this to be like the late case of Tinkler v. Walpole (a), which proceeded upon the authority of another case in the Common Pleas (b), where the legal owner was held not liable without evidence of his assent to the conveyance to him on the register. Here Humble was one of the original owners with Holland, and it was proved that he continued as such upon the register with his own consent until after the goods in question were furnished: for he afterwards conveyed his title to another. [Le Blanc, J. The mistake arose from this, that when Williams was taken into the partnership and Humble went out; instead of Humble's conveying his moiety to Williams, Holland the other partner, in his own right, and as attorney to Humble, conveyed a moiety to Wil(a) 14 East, 226. () Frazer v. Hopkins, 2 Taunt. 5.
M'IVER against HUMBLE.
liams, thereby leaving an interest in the other moiety in Humble, which was not discovered till the bankruptcy, which was the occasion of his joining in the transfer in March 1811.] Humble confirmed by that act his continuing ownership to that time; which act was wanting in Tinkler v. Walpole, and in Young v. Brander (a). [Lord Ellenborough, C. J. Supposing at the time that the plaintiffs delivered the goods, they had looked at the registers to see who the owners were, they would not then have seen any thing to prove that Humble was an owner, but only that some person had affected to act in his name, as under a power of attorney from
which would be no more than that person's assertion in writing that he had such an authority. But what is more decisive, the plaintiffs were not in fact deceived by it to give the credit; but they now stand merely upon the point of law, that Humble was a legal owner: and in that view there is nothing to prove him an owner by his own act on the face of the registers before the credit was given. For as to the subsequent act of his own recognition of ownership, it does not affect the question, upon whose credit the goods were furnished.] Any person looking at the register would at least be warranted in presuming that the oath of Holland was true; and if Humble suffers, it is by his own negligence in making a defective transfer of his share: and this appears from his own subsequent act before the action was brought, by which also the plaintiffs might have been misled to join Humble with the other defendants. Besides, after the first oaths taken by Holland and Strickland, Humble acted as owner.
Scarlett and Richardson, contrà,were stopped by the Court. (a) 8 East, 10.
M'IVER against HUMBLE.
Lord ELLENBOROUGH, C. J. A person may make himself liable as a partner with others in two ways; either by a participation in the loss or profit, or in respect of his holding himself out to the world as such, so as to induce others to give a credit on that assurance. The question is whether Humble made himself liable in either of these ways. If there had been an issue to try the fact, it would have appeared that in 1809 he ceased to be a partner, and his whole legal interest was intended to be conveyed out of him; but instead of his conveying his own moiety, his partner in his own name and as attorney for Humble, conveyed a moiety out of the entirety; the legal interest in the whole was therefore defectively conveyed out of him ; but he then ceased in fact to be a partner.
Then did he continue apparently to be a partner so as to induce the plaintiffs to credit him as such ? There was no exhibition of partnership; no appearance of it to which the plaintiffs could have had access to induce them to credit him for these goods. It is urged, however, that his name now appears as owner on the certificate of registry. But it is to be noted that the register was not resorted to by the plaintiffs for information as to who were the owners to whom credit was to be given ; nor was the credit in fact given upon it, though if recourse had been had to it, it would only have appeared that a person, saying that he acted as the attorney for Humble, had conveyed away his share for him ; but that would have been no evidence, without more, against Humble in a legal view; though it might have induced a belief that he had given such a power of attorney, and have led to further inquiry. Then in 1811 the assignees of Holland and Williams prevailed on Humble to join in the conveyance of the legal title to the ship, pro majori cautelâ, when he
had in fact no longer any beneficial interest in it. But there was an ex post facto document, and could not have contributed to the exhibition and appearance of Humble's ownership to the plaintiffs, and therefore does not range under that head of liability for their demand, but applies to a different sort of ownership for another purpose, which has been confounded together in the argument. Therefore, neither considering the case as it actually was at the time, or as it appeared to the plaintiffs to be, are they entitled to sustain their claim against Humble.
GROSB, J. agreed.
LE BLANC, J. It is much to be lamented that the register acts, which were passed for other and public purposes, should ever have operated upon the rights of individuals in other respects. Looking only to the facts of this case, it is clear that Humble was not a partner in the ship at the time when the credit was given by the plaintiffs : looking to the appearance exhibited to the world, he was no longer a partner; for the description of the firm at their counting-house was changed from Humble and Holland to Holland and Co., and the winding up of the concerns of the old partnership was removed to another place; and circular letters sent to the correspondents of the house to announce the change. There was therefore every reasonable notification to the public that Humble had retired from the partnership; and it would be hard indeed to make him liable after this for goods furnished for the ship by persons who never could have looked to him for payment when they gave the credit, and could not have even seen that any legal title remained in him upon the registers till a year afterwards.