between persons who continue to deal, and those who deal for the first time, after the retirement. In the former case an advertisement in the Gazette is not, and in the latter case is, notice of a dissolution or change of partnership (s). The concurrence of a retiring partner may be required for the proper notification of a dissolution or retirement (f). Where a change is made in a firm by admission or retirement of a partner, a person continuing to deal with the firm may after notice elect to charge either firm, but he cannot charge both (u), the obligation being changed from a primary liability to that of suretyship (r). An incoming partner is not liable to the then creditors of the old firm, though he may have agreed with the other partners to share the debts; and a retiring partner is not discharged from the then existing debts without the consent of the creditors (y). CH. II. SECT. III. A partner may bind the firm under his apparent general au- Contracts in thority, though he act in fraud of the firm, unless the other fraud of partnership. contracting party has notice of the fraud (≈); as where a partner buys goods for the firm and applies them to his own separate use (a); or where he receives money in the course of partnership business and misappropriates it (b). A person taking a bill with knowledge of a partial misappropriation of the proceeds by a partner may recover against the firm in respect of the residue as to which he has no such knowledge (c). But in an action against the partners proof that the bill was negotiated in fraud of the firm casts upon the holder the burden of proving that he took it for value and without notice (d). If a partner gives a bill or other Paying joint security of the firm for his own separate debt, it is presump- with partnertively fraudulent and to the knowledge of the creditor receiving it, ship assets. who therefore cannot charge the other partners unless he can prove their consent and authority (e); and they may recover from (8) Graham v. Hope, 1 Peake, 208; Ex p. Central Bank, (1892) 2 Q. B. 633; Re Hodgson, 31 C. D. 177; 55 L. J. C. 245. (t) Partnership Act, 1890, s. 37; Hendry v. Turner, 32 C. D. 355; 55 L. J. C. 562. (u) Partnership Act, 1890, s. 17; Scarf v. Jardine, 7 Ap. Ca. 345; 51 L. J. Q. B. 612. (x) Rouse v. Bradford Bk., (1894) A. C. 586; 63 L. J. C. 890. (y) Partnership Act, 1890, s. 17; Shirreff v. Wilks, 1 East, 48; Gough v. Davies, 4 Price, 200; Vere v. Ashby, 10 B. & C. 288. (2) Partnership Act, 1890, ss. 5, 7, 11. (b) Blyth v. Fladgate, (1891) 1 Ch. (c) Wintle v. Crowther, 1 C. & J. 316; (e) Partnership Act, 1890, s. 7; Lever- 216. separate debt PART II. Cost book mining partnership. Clubs. him the bill or its amount (f). So a partner cannot pay his separate debt with what the creditor knows to be partnership money; nor can he agree to set off his separate debt against a debt due to the firm; and the creditor so dealing with one partner remains liable to the other partners to the extent of their interest in the debt (g). But a partner who uses the partnership name or property for his own use in any transaction which is within the scope of the partnership business, is bound to account to the firm for the profits (). A cost book mining company is a common partnership modified by custom; in which the shareholders are partners, but with the liberty to retire at any time upon receiving or paying their proportionate shares of the balance of the then existing assets and liabilities of the partnership (i).-The manager or purser of a cost book mine has such general authority as is usual for working the mine; presumptively including the buying of necessaries for the mine upon credit, for which the co-partners become liable (); but not including the borrowing of money for the payment of necessaries or for any other purposes of the mine (). Nor does the manager acquire authority by necessity to borrow money to save the property of the mine; as where it is distrained for wages due (m). In the ordinary clubs for social purposes, managed by a committee of members, the authority of the committee depends upon the rules of the club, and if the rules provide for the payment of entrance fees and annual subscriptions and for all charges for the use of the club by the several members, they do not in general authorise the committee to pledge the credit of the members for work done or goods supplied for use of the club (n). And those members of the committee only are liable who give or sanction the (f) Heilbut v. Nevill, L. R. 5 C. P. 478; 39 L. J. C. P. 245. (g) Gordon v. Ellis, 2 C. B. 821; 15 L. J. C. P. 178; Kendal v. Wood, L. R. 6 Ex. 243; 39 L. J. Ex. 167; Piercy v. Fynney, L. R. 12 Eq. 69; 40 L. J. C. 404. (h) Partnership Act, 1890, s. 29; Burton v. Wookey, 6 Madd. 367; Aas v. Benham, (1891) 2 Ch. 244. (i) Ex p. Palmer, L. R. 7 Ch. 286; Re Frank Mills Co., 23 C. D. 52; 52 L. J. C. 457. See the Partnership Act, 1890, s. 1. (k) Peel v. Thomas, 15 C. B. 714; 24 L. J. C. P. 86; Thomas v. Clarke, 18 C. B. 662; 25 L. J. C. P. 309; see Geake v. Jackson, 36 L. J. C. P. 108. (1) Ricketts v. Bennett, 4 C. B. 686; 17 L. J. C. P. 17; see Burmester v. Norris, 6 Ex. 796; 21 L. J. Ex. 43; Nicholls v. Diamond, 9 Ex. 154; 23 L. J. Ex. 1. (m) Hawtayne v. Bourne, 7 M. & W. 595; 10 L. J. Ex. 244. (n) Flemyng v. Hector, 2 M. & W. 172; 6 L. J. Ex. 43. orders for goods; as the general authority of the committee is to buy with ready money only (o). The committee of a charitable institution supported by voluntary contributions is in a similar position (p); and the committee of a volunteer rifle corps (1). The jurisdiction of the courts in protection of members of voluntary clubs is founded upon the rights of the member in the property of the club; and the court will grant an injunction against expelling a member, if contrary to the rules of the club or the principles of justice; but the court will not review the decision of a tribunal appointed by the club for that purpose, if given regularly and in good faith ().—In a club for buying coal, the rules required that the secretary should order coal, which should be paid for by the treasurer out of a fund raised by weekly contribution, and delivered to the members severally in proportion to their contributions; it was held that the members became personally liable to the merchant for the price of the coal as ordered by the secretary (8). (0) Todd v. Emly, 7 M. & W. 427; 8 M. & W. 505; 10 L. J. Ex. 161, 262. (p) Burls v. Smith, 7 Bing. 705. (9) Cross v. Williams, 7 H. & N. 675; 31 L. J. Ex. 145. (r) Lyttleton v. Blackbourne, 45 L. J. C. 219; Labouchere v. Wharncliffe, 13 (s) Cockerell v. Aucompte, 2 C. B. N. S. CH. II. SECT. III. L. BB PART II. Capacity of persons. Foreign States and sovereigns. Aliens-alien enemy-subject adhering to enemy-prisoner of war 371 373 THE parties to contracts have hitherto been considered as consisting of persons having full capacity of contracting, independently of any special condition or status of the person. But special conditions affect the capacity of a person to become party to a contract, and modify the rights and obligations arising out of contract generally. Foreign States and sovereigns, as such, are exempt from being sued in the courts of this country; unless they appear and voluntarily submit to the jurisdiction (a). Hence a contract made with a foreign government, as a bond or debt of such government, cannot be enforced against them by municipal law (b); nor can the contracts of a foreign government be enforced against property of such government within the jurisdiction of the court (c); also the public property of a foreign State or sovereign in public use is exempt from proceedings in rem (d). Foreign States and sovereigns may sue as plaintiffs in the courts of this country in their own names, and may submit to be sued as defendants (e); they thereby (a) Brunswick v. King of Hanover, 6 Beav. 1; 2 H. L. C. 1; 13 L. J. C. 107; 9 E. R. 993; Mighell v. Johore, (1894) 1 Q. B. 149; 63 L. J. Q. B. 593. (b) De Haber v. Queen of Portugal, and Wadsworth v. Queen of Spain, 17 Q. B. 171; 20 L. J. Q B. 488. (c) Smith v. Weguelin, L. R. 8 Eq. 198; 38 L. J. C. 465; Twycross v. Dreyfus, 5 C. D. 605; 46 L. J. C. 510; see Morgan v. Lariviere, L. R. 7 H. L. 423; 44 L. J. C. 457. (d) The Parlement Belge, 5 P. D. 197; 48 L. J. Ad. 18; The Constitution, 4 P. D. 39; 48 L. J. P. 13. (e) United States v. Wagner, L. R. 2 Ch. 582; 36 L. J. C. 624; Vavasour v. Krupp, 9 C. D. 351. render themselves subject to the lex fori respecting discovery, enforcing of cross claims, the recovery of costs, and the like (ƒ). But this does not entitle the defendant to counterclaim for a matter unconnected with the action (g).-Contracts with a de facto foreign government are held by the courts as binding upon their successors, though the latter claim de jure by a title paramount ().—Colonial governors have no general exemption from being sued in the courts of the colony or of this country; and, if sued, it is for the court to decide how far the cause of action is excused as being an act of state within the commission of governor (i). CH. III. The ambassadors and public ministers or representatives of a Ambassadors. foreign State, duly accredited to the sovereign of this country, are privileged from being sued in civil actions; and therefore contracts cannot be enforced against them in the courts of this country, unless they voluntarily submit or appeal to the jurisdiction (). The privilege of the ambassador extends to his own person, and to all the officers of the legation, and to his domestic servants, except so far as they are appointed for the purpose merely of screening them from their creditors (1). It extends to a British subject attached to a foreign legation; unless excluded by an express provision of English law (m).—Where a foreign minister of legation, having been sued, entered an appearance to the action and allowed it to proceed, it was held that he had thereby submitted to the jurisdiction for the purpose of the action; and the court refused his subsequent application to stay proceedings; although he would retain his privilege against execution under it (n). As to personal estate and contracts, there was no incapacity or Aliens. disability incident to the political status of an alien, or subject of (f) King of Spain v. Hullett, 1 Cl. & F. 333; 6 E. R. 941; 7 Bli. N. S. 359; 5 E. R. 808; Prioleau v. United States, L. R. 2 Eq. 659; 36 L. J. C. 36; Peru Republic v. Weguelin, L. R. 20 Eq. 140; 44 L. J. C. 583; Costa Rica v. Erlanger, 1 C. D. 171; 45 L. J. C. 145; The Newbattle, 10 P. D. 33; 45 L. J. Ad. 16. (g) South African Republic v. Compagnie Franco-Belge, (1897) 2 Ch. 487; 66 L. J. C. 747. (h) Peru Republic v. Peruvian Guano Co., 36 C. D. 489; 56 L. J. C. 1081; Peru Republic v. Dreyfus, 38 C. D. 348 ; 57 L. J. C. 536. (i) Musgrave v. Pulido, 5 Ap. Ca. 102; 49 L. J. P. C. 24; see Mostyn v. Fabrigas, Cowp. 170; 1 Sm. L. C. 572. (k) Magdalena Nav. Co. v. Martin, 2 E. & E. 94; 28 L. J. Q. B. 310; Gladstone v. Musurus, 1 H. & M. 495; 32 L. J. C. 155. (7) 7 Anne, c. 12; Triquet v. Bath, 3 Burr. 1478; Lockwood v. Coysgarne, 3 Burr. 1676; Ex p. Cloete, 65 L. T. 102. (m) Macartney v. Garbutt, 24 Q. B. D. 368. (n) Taylor v. Best, 14 C. B. 487; 23 L. J. C. P. 89. |