unless they can be disproved (a). But it has been held, that entries in the private books of one partner are not evidence against the heirs of another, where the question was between the heirs of both partners (b). This decision was, of course, prior to the recent changes in the law of evidence. cedent. Before, however, the admission of one partner can be made Condition preavailable against another, the fact of partnership must be admitted or established (c); and, in general, the admissions of an alleged partner will not be received to prove its existence against another (d). Admissions by a person who afterwards becomes a partner with another, are no evidence against the latter with reference to what took place prior to the date of the partnership (e). directors. As directors are special agents, companies are affected by their Admissions by admissions in such matters only as fall within the sphere of their agency (ƒ). POWER TO TAKE PAYMENT OF DEBTS DUE TO THE FIRM, AND As a partner has implied power to contract debts and obligations on the part of the firm, so also has he implied authority to receive payment of and discharge such debts as are owing to the company. This is so obvious a deduction from the principle that every partner is implied agent for the company within the sphere of its business, that it appears never to have been questioned in this country. In England, it has been specially decided to be law (g). It is a consequence of this implied power, that a tender of payment to one partner is a tender of payment to the firm, so as to stop the currency of interest, and involve the firm in the costs (a) 2 Bell's Com. 618; Nisbet's Trs. v. Morrison's Trs., 1829, 7 S. 307, per Lord Glenlee; Lucas v. De la Cour, 1 M. and Sel. 248; Wood v. Braddick, 1 Taunt. 104. Lindley 236. National Bank v. Hope, 1837, 16 S. 177. (b) Smith v. Logan, 1826, 5 S. 29, 4 W. and S. 47. (c) Grant v. Jackson, Pea. Ca. 203; Nicholls v. Dowding, 1 Stark. 81; Campbell v. M'Farlane, 1840, 2 D. 663. (d) Dundas v. Belch, 1806, 2 Bell's Com. 399, n. 4; Smith v. Puller, 1820, 2 Mur. 342. (e) Tunley v. Evans, 2 Dowl. and L. 747; Catt v. Howard, 3 Stark. 3. (f) Meux's Exrs., 2 De G. M. and G. 522; Bell v. London and NorthWestern Ra. Co., 15 Beav. 548. (g) Anon., 12 Mod. 446; Hawkshaw v. Parkins, 2 Swanst. 539; Henderson v. Wild, 2 Camp. 561. Partner has power to dis charge on payment. He has no power to dis and consequences of any proceedings they may aftewards take forr recovery or in security of the sum already offered. E converso, a tender of payment by one partner is a tender by the firm (a). But it must be observed, that while a partner has power to discharge except charge company claims on payment or performance, he has no implied authority to settle them otherwise, as by compromise (b), or set-off against counter claims due by himself as an individual. on payment. Does power survive dissolution? As partnership survives after dissolution for the purpose of winding up (c), it may be argued that payment to one partner even after dissolution can be made in safety, as he has still implied agency to grant a discharge on receiving payment of the company's claims (d). But it is questionable how far this can be taken as settled in the law of Scotland, since the case of Oswald's Trustees v. Dickson, where, from the opinions of the judges, it would seem that they thought something more was necessary to entitle a partner to discharge a company debt, than the mere fact that he was a partner while the concern subsisted (e). In the case of Morris v. Stewart, an action having been raised by a company, one of the partners died during the litigation, and his widow was sisted as his executrix. Decree having been pronounced against the defender, the Court held that he was not bound to be satisfied with a discharge by the surviving partner, but that he was entitled to insist that the widow should confirm, and be a party to the discharge (ƒ). Be this as it may, there can be no doubt that, since a discharge or release is not probatio probata, the company will not be held bound, when it can be shown that in granting such an acquittance the partner had acted collusively with the obligant (g). It has been held in England, that a partner may bind the firm by taking a bill from a company debtor in lieu of money payment (h). (a) See the English cases of Douglas v. Patrick, 3 T. R. 683; and Pierse v. Bowles, 1 Stark. 323. (b) Nottidge v. Prichard, 2 Cl. and Fin. 379; Wallace v. Kelsall, 7 M. and W. 264. See p. 528. (c) 2 Bell's Com. 637; Buchanan v. West of Scotland Iron Co., 1855, 17 D. 461; Gordon v. Douglas, Heron, and Co., 1795, aff. 3 Paton's App. 428. (d) Duff v. East India Co., 15 Ves. 198; Brasier v. Hudson, 9 Sim. (e) Dec. 3, 1833, 12 S. 156. (g) Farrar v. Hutchinson, 9 A. and E. 641; Henderson v. Wild, 2 Camp. 561; Aspinall v. London and N.-W. Ra. Co., 11 Ha. 325. (h) Tomlin v. Lawrence, 3 Moo. and P. 555. not innovate or delegate. Reasoning from analogy, it would seem that a partner has no Partner canimplied power to innovate or delegate a debt due to the firm; that is, to accept one obligation for another, or take one debtor in room of another. This would not only imply a power to settle a debt otherwise than by payment, but might have the effect of destroying existing securities, and of liberating cautioners. Something might, however, in such a case, depend on the custom of the trade in which the firm was engaged. When an action has once been raised by the company against one of its debtors or obligants, no discharge or release can be granted by an individual partner, to the effect of staying the suit at the company's instance (a). If the release be granted in name of the individual partner, it will be of no avail, because it does not even bear to be the deed of the pursuer, who is the company. If, again, it be granted in name of the company, it must be equally valueless, because the will of the company being already known by the raising of the action, all implied power in the partner to represent it in the matter sub judice has necessarily ceased. It may even be said that a company debtor is not in safety to pay to one partner, after action has been raised in the company's name, unless at least the payment includes the amount of costs that have been already incurred. It would seem to be the safest course for the defender in such circumstances, to insist for a discharge in name of the other partners, or for decree of absolvitor. Release by partner after action raised does not bind company; him indivi dually. But while a release by a single partner can have no effect to but may bind bind the company, there seems no reason why it should not bind him as an individual, so as to found a claim of indemnity at the instance of the company debtor against him, at least pro rata of his share, or to the effect of extinguishing the debt or obligation altogether, if by succession or otherwise they should come to be centred in his person. In England a very different principle prevails. There a release Contrary English rules. by one partner is held in law to be a release by all; and it makes no difference whether such release has been granted before or after judicial proceedings have been adopted, or whether it has been for an onerous or a gratuitous cause. This principle is apparently (a) See, as to this, the Report of the Mercantile Law Commission, 1854-5, s. 78. traceable to the non-recognition of the separate person of the company, and has been justly condemned by high authority as productive of great injustice (a). Even, however, in the English system, a release will be set aside where fraud or collusion can be plainly shown to have been the inducing cause (b). NOTICE. To whom notice must be given so as to bind the company. As a general rule, notice to one partner of a private firm is notice to the firm, on the common principle that notice to an agent is notice to his principal (c). This does not, however, apply where the transaction is beyond the implied agency, when it is personal to the partner receiving the notice, or when by retirement the agency has been withdrawn (d); nor to cases of fraud (e). Intimation to its manager is intimation to the company apparently in all cases (ƒ). Notice to a shareholder of a common law company managed by officials is not sufficient (g), but notice to one of its directors is enough (h). Intimation of an assignation of shares or stock must either be made to the manager or to all the partners, inasmuch as such a transaction may seriously affect the internal management or the balance of the membership (i). Intimation is, however, not necessary to complete the transfer of his share from one partner to the other, when there are only two partners, and the conveyance is immediately acted on (k). (a) See Report of Commissioners noted supra, s. 78. Arton v. Booth, 4 Moore 192; Phillips v. Clagett, 11 M. and W. 84; Furnival v. Weston, 7 Moore 356. (b) Barker v. Richardson, 1 Y. and J. 362. (c) Mayhew v. Eames, 1 Car. and Pa. 550; Alderson v. Pope, 1 Camp. 404; Bignold v. Waterhouse, 1 M. and S. 259; Porthouse v. Parker, 1 Camp. 82; Jacand v. French, 12 East 317. (d) Bignold v. Waterhouse, 1 M. and S. 255; Collinson v. Lister, 20 Beav. CHAPTER III. HOW PARTNERSHIPS AND COMMON LAW COMPANIES MAY It is a fundamental principle of Scotch as well as of English law, that the right of suing and being sued in the corporate or descriptive name is a privilege competent to no other associations than such as are incorporated or privileged by public authority, that is, by special act, charter, letters patent, or registration (a). But beyond this, the two systems widely diverge. The law of England sees in an unincorporated association nothing but the individual members of which it is composed, and has generally held inflexibly to the rule, that it can only appear judicially when every member has been made a plaintiff or defendant, as the case may be (b). The law of Scotland, on the other hand, inasmuch as it sees in such associations not only the individual members, but their aggregation, forming the quasi person of the company, requires indeed that the members shall be before the Court, but in most cases is satisfied by the appearance of some, as representatives of the whole. Fundamental principle of English and Scotch law. Where the two systems diverge. The consequences of the English principle have been unsatis- Consequences of English factory in the extreme. In questions with the public, the company rule." (a) Masons of Lodge of Lanark, 1730, M. 14554; Wilson v. Jobson, 1771, M. 14555; Heritors etc. of Dalry, 1791, M. 14557; Stevenson v. Arran Fish. Co., 1757, M. 14560; Lawson v. Gordon, 1810, 15 F. C. 741; Culcreuch Cotton Co., 1822, 2 S. 47; Sea Insurance Co., 1827, 5 S. 348; Commercial Bank, 1828, 3 W. and S. 365; Tannoch v. Reed, 1829, 7 S. 606; Kerr v. Clyde Ship. Co., 1839, 1 D. (b) See Lindley, p. 383 et seq., and |