tate of the deceased partner. (d) In the case here supposed the judgment does not affect his estate. Effect of rule on creditors inter se. Burn v. Burn. The doctrine acted on in Bishop v. Church and other cases of the same sort, is applied not only for the benefit of creditors against the partners and their representatives, but also as between competing creditors. This was settled in Burn v. Burn. (e) In that case, partners being indebted to a large amount, gave to their creditor a joint bond; one of the partners died; the others afterwards became insolvent; and a bill was filed by the bond creditor for payment out of the estate of the deceased partner. Two questions then arose between the plaintiff and the simple contract creditors of the deceased partner, viz., first, whether the plaintiff could rank as a creditor at all against the assets of the deceased? and, secondly, whether, if he could, he should rank as a specialty or only as a simple contract creditor? The Court decided both questions in favor of the plaintiff, and held that he was entitled to rank as a specialty creditor, although the consequence was that after satisfying his demand, little remained for payment of the other creditors. equitable and are the same. But it must not be supposed that in equity every liability conCases where the tracted by partners is several as well as joint. It is a legal liabilities question of intention on the part of the firm and on the part of those with whom it deals. If, therefore, partners enter into a contract binding themselves jointly and not severally, and if such contract is not a mere security for the payment of a debt, or for the performance of a joint and several obligation, and if it has not been made joint in form by mistake, the effect. *372 of the *contract will be in equity as in law to impose a joint obligation and no other. (ƒ) Sumner v. A leading cese on this head is Sumner v. Powell. (g) There one of a firm of partners died, the firm being at the time of his death liable for a breach of trust committed by one of its members. A new partner was admitted into the firm, and a deed was executed between the executors of the deceased partner (d) Liverpool Borough Bank v. Walker, 4 DeG. & J. 24; Jacomb v. Harwood, 2 Ves. Sen. 265. (e) 3 Nes. 573, and see Simms v. Barry, there cited. (f) See, in addition to the cases noticed in the text, Richardson v. Horton, 6 Beav. 185; Jones v. Beach, 2 De G. M. & G.886; Other v. Iveson, 3 Drew. 177; Rawstone v. Parr, 3 Russ. 424, 539. (g) 2 Mer. 30, affirmed on appeal, T. & R. 423. and the surviving partners and the new partner, whereby, in consideration of certain payments by the executors and of a release by them of all demands, the surviving partners and the new partner covenanted jointly to idemnify the executors from the debts and liabilities of the old firm. A suit was afterwards instituted in respect of the breach of trust, and the executors were ordered to make good the same out of the assets of their testator. The executors then filed a bill to be indemnified out of the estate of the new partner, and contended that the covenant into which he had entered, though joint in form, ought to be considered as joint and several. But it was held otherwise, for the obligation of the new partner to indemnify the plaintiffs existed only by virtue of his covenant, and the extent of the obligation could therefore be measured only by the words of such convenant. Bickers. *373 Wilmer v. Again, in Clarke v. Bickers (h), a lease was made to two partners jointly, of lands wanted by them for partnership pur- Clarke v. poses. The demise and lessees' covenants were all joint. After the death of one of the partners his executors were sued in equity in respect of various breaches of covenant, and it was contended that the covenants ought to be treated as joint and several. But it was held on demurrer that no equity arose to the lessor from the fact that the lessees were co-partners; the lessors were domini factorum, and determined for themselves how their leases should be granted. The demurrer was consequently allowed. The same doctrine was acted on and even carried further in Wilmer v.Currey.(i) In that case three partners dissolved partnership, one of them the plaintiff, retiring. By a deed made between the three partners, the plaintiff assigned all his share and interest in the other two, and they jointly covenanted to pay the debts of the firm, and to indemnify the plaintiff therefrom and to pay the plaintiff certain sums of money. One of the two continuing partners having died, and the covenants not having been performed, the plaintiff filed his bill against the surviving partner and the executors of the deceased partner, in order to obtain the sums remaining due to him, and to have the unliquidated partnership debts paid. But it was held on demurrer that the plaintiff had no equity against the estate of the deceased partner; for although that partner was, irrespectively of the deed, liable to contribute towards payment of the (h) 14 Sim. 639. (i) 2 DeG. & Sm. 347. partnership debts, that was different from the obligation which arose by virtue of the covenant of which the plaintiff sought the benefit. It is, however, difficult to reconcile this case with Beresford v. Browning. (k) Torts create joint and sev 2. As regards torts. For torts imputable to a firm all the partners are liable jointly and severally. ()' To this general rule an exception eral liabilities. Occurs where an action ex delicto is brought against several persons in respect of their ownership in land, for then they are liable jointly, and not jointly and severally. (m) breaches of Although for general purposes it may be convenient to distribute Distinction be acts and forbearances which give rise to obligations tween torts and under the heads breach of contract and tort, it would contract. not be difficult to show the impossibility of always distinguishing between the two. And yet if a breach of a contract binding on the firm imposes a joint liability only on its living members (as to which see ante, p. 369), whilst a tort imputable to the firm imposes a joint and several liability, the importance *374 of being able accurately to *distinguish between a breach of contract and a tort becomes apparent. The difficulty, however, of doing so is increased by the doctrine that there are cases in which the same breach of an obligation may be regarded from two different points of view; and may at the option of the person injured, be made the foundation either of an action ex contracu or (k) The Court of Appeal, however, thought the two might be distinguished. See 1 Ch. D. 30. (1) Mitchell v. Tarbutt, 5 T. R. 649; 1 Wms. Saund. 291 f, and g; Com. Dig. Abatement, F. 8. 1 See Cooley on Torts, 133. An action on the case for negligence occasioning the loss or destruction of a slave hired by plaintiff to a co-partnership, may be maintained against one of the members of the firm, without joining the other partners. So, if the negligence be that of an agent of the co partnership. White v. Smith, 12 Rich. 595. Where partners assign property to a creditor as security for the debt, and he' intrusts such property to the partners to sell, as his agents, and to pay over the proceeds to him, they do not become liable, upon sale of the property, as tortfeasers, as upon an unauthorized disposal thereof. Their liability rests upon contract, not upon tort, and is necessarily joint, not several. Harris v. Schultz, 40 Barb. 315. (m) See 1 Wms. Saund. 291, ƒ and g. Breaches of of an action ex delicto. (n) Suppose, for example, that property is entrusted to a firm of bankers for the purpose of sale and investment, and that some member of the banking firm misapplies the property so entrusted. This breach of duty is a breach of the contract which was tacitly, if not expressly, entered into by the bankers when they received the property. But the misapplication of the property is a wrong independently of any contract; amounting in effect to a conversion or destruction of that which belonged to the customer. Regarded as a breach of contract, the liability arising therefrom would before the Judicature acts have been joint at law; whilst regarded as a wrong independently of contract, the liability would have been joint and several; and at law the tendency was to consider the wrong as a breach of contract. (0) But in equity the wrong imposed a joint and several liability on all the partners; on the ground that each partner was bound to see to the proper application of what was entrusted to the firm. (p) In such cases as these, the several liability of each partner to the creditors of the firm is not affected by the circumstance that the act imposing such liability was done by one only of the members of the firm without the knowledge or consent and in fraud of the others. If the act in question imposes a liability which upon the principles of agency can be imputed to the firm, each member thereof is in equity severally liable for such act, just as much as if there had been no fraud in the case (2); and it is well established in equity that a breach of trust which is imputable to several *persons, imposes upon *375 breach of trust. them a liability which is both joint and several.(r) trust impose eral liabilities. joint and sev Liability for How far the Judicature Acts have altered the law on this subject cannot be predicted with any certainty; but probably all breaches of contract which can be regarded as torts or breaches of trust will be held to impose several as well as joint liabilities. (n) See on this subject, Brown v. Boorman, 11 Cl. & Fin. 1, and the cases there referred to, and especially Powell v. Layton, 2 Bos. & P. N. R. 365; Bretherton v. Wood, 2 Brod. & Bing. 54; Pozzi v. Shipton, 8 A. & E. 963; Boson v. Sandford, 2 Show. 29 and 101. See, also, Pontifex v. Midland Railway Co. 3 Q. B. D. 23. (0) See the cases last cited. (p) See Blair v. Bromley, 2 Ph. 354; Sadler v. Lee, 6 Beav. 324. (q) See Vulliamy v. Noble, 3 Mer. 619; Clayton's case, 1 Mer. 576; Ward's case, ib. 624. (r) Devaynes v. Noble, Sleech's case, 1 Mer. 563; Baring's case, ib. 614; Sadler v. Lee, 6 Beav. 324; Brydges v. Branfill, 12 Sim. 369; Blair v. Bromley, 2 Ph. 359; Wilson v. Moore, 1 M. & K. Nature of liability of shareholders com pared with that of partners. In order to contrast the nature of the liability of shareholders with that of partners, companies must be divided into those which are incorporated and those which are not, and each class must be again subdivided; for, owing to the diversity of the statutes relating to companies, little is common to thein all. The general principles which require to be borne in mind are, first, that unincorporated companies are not at common law distinguishable from partnerships; and secondly that incorporporated companies are distinguishable from them, and that the shareholders in such companies are not liable for the corporate debts and engagements save so far as they are rendered so by act of Parliament. If shares in an incorporated company are registered in the names of two persons jointly and one of them dies, the survivor is the only person liable to be made a contributory in respect of them. (8) Joint holders of shares. ners, liability at SECTION II.-EXTENT OF LIABILITY. 1. At common law. By the common law of this country, every member of an ordiExtent of part-nary partnership is liable to the utmost farthing of his common law. property for the debts and engagements of the firm. The law, ignoring the firm as anything distinct from the persons composing it, treats the debts and engagements of the firm as the *376 debts and engagements of the partners, and holds each partner *liable for them accordingly. Moreover, if judgment is obtained against the firin for a debt owing by it, the judg 127 and 337. Compare, however, Parker v. McKenna, 10 Ch. 123, and Vyse v. Foster, L. R. 7 H. L. 318. (s) Hill's case, 20 Eq. 595. 251. Nebraska R. R. Co. v. Colt, 8 Neb. In an action to charge several persons as joint partners in a stock speculation, in which plaintiffs were employed as brokers, and in which the defense was that each of the defendants was, by special agreement, liable for his own share only: Held, that it was competent for the plaintiffs to show that one of the defendants had a separate stock account with them. Binney v. Young, 5 Daly, 327. In Louisiana commercial partners are bound in solido for the debts of the firm, while ordinary partners are liable |