3. But as regards payment (m), it was held that if one of sever al joint debtors paid any money on account of the principal or interest due from them all, such payment was sufficient to take the debt out of the statute, not only as against the person making the payment, but as against all the others jointly liable with him. (n)' And this doctrine applied, although *457 *the statute had run before the payment was made (o); and to cases where the debt had been contracted by a firm, and that

firm had been dissolved and the payment was made after the dissolution (p), and in collusion with the creditor and on the eve of the bankruptcy of the partner making the payment. (2) Even after one partner had become bankrupt, payment out of his estate was at one time held sufficient to take the debt out of the statute as against the others. (r) But payment by a surviving partner did not at law prejudice the estate of a deceased partner (s) any more than a payment by the executors of the deceased prejudiced the partners who survived (t); for the executors of a deceased partner are not liable jointly with the surviving partners. But if one of the surviving partners was an executor of the deceased, then a question of a different nature arose, turning not only on the effect of the payment as such, but on whether it was made by the survivors as surviving partners only, or as to one of them in his character of executor also. (u)

Liability in

equity of estate partner.

deceased

The effect of the Statutes of Limitation upon suits in equity against the executors of a deceased partner was not well settled. In Winter v. Innes (x) Lord Cottenham expressed a doubt whether the executors could set up the statute where the surviving partner continued liable and had a right of contribution against them, and his lordship held that if the executors did not themselves set up the statute the surviving partner was not at liberty to do so for them. However, in Way v. Bassett

liquidation, gave to a partner of the firm an amount of money, to be applied by him towards the payment of the debts of the firm, such partner agreeing to pay the debts in full; such partner made a part payment on a claim against the firm: Held, sufficient to take the case out of the statute of limitations as to S., though the claimant may have recived no part of the identical money furnished by S.; and though the whole of the money so furnished may have been applied to the payment of other firm liabilities before any payment on the claims in suit. Burnet v. Snyder, 13 Jones & Sp. 577.

(p) Burleigh v. Stott, 8 B. & C. 36. The payment must, however, have been made on account of the partnership debt, Sims v. Brutton, 5 Ex. 802.

(q) Goddard v. Ingram, 3 Q. B. 839 : a very strong case.

(r) Jackson v. Fairbank, 2 H. Blacks. 340; Ex parte Dewdney, 15 Ves. 499; Ex parte Woodward, 3 Deac. 294. But see Brandram v. Wharton, 1 B. & A. 463; Davies v. Edwards, 7 Ex. 22; and, as to an acknowledgment, Martin v. Bridges, 3 C. & P. 83.

(8) Atkins v. Tredgold, 2 B. & C. 23. (t) Slater v. Lawson, 1 B. & Ad. 396. (u) See Braithwaite v. Britain, 1 Keen, 206, where the payment prevailed; Way v. Bassett, 5 Ha. 55; Brown v. Gordon, 16 Beav. 302, where it did not. See, further, Griffin v. Ashby, 2 Car. & Kir. 139; Atkins v. Tredgold, 2 E. & C. 23.

(x) 4 M. & Cr. 101.

Principle on
which pay-
m nt by one
enures against
all.

*458 (y) the statute was successfully relied upon as a defense *byt he executors of a deceased partner, although the surviving partners had by various payments kept the debt alive as against themselves. The law now is in accordance with the latter decision. (z) The doctrine that payment by one partner took a debt out of the statute as against all, was generally rested on the ground that the partner making the payment acted virtually as the agent for the rest. (a) But the right of one of several co-debtors (whether they are partners or not) to make a payment on account of the joint debt, is not derived from any authority conferred by the other debtors, for they have no right to prevent their co-debtor from relieving himself from a liability to which he is subject as much as they. Moreover, admitting that the doctrines of agency are applicable to payments made by one of several co-debtors, it is impossible to justify, on that ground, the decisions which have just been noticed. They were all, it is said, based upon this, that a part payment is evidence of a new promise to pay more. (6) But upon what principle can it be held, that after a partnership is dissolved, one partner has any implied authority from his late partners, to bind them by a fresh promise to pay an old debt? Assuming the debt to be already barred, the question can admit of no satisfactory answer, and yet the decisions went the length of binding the firm even in this extreme case. (c) The law upon this subject is, however, no longer what it was.

Alterations in

troduced by 19

By the Mercantile law amendment act, 19 & 20

& 20 Vict. c. 97. Vict. c. 97, it is enacted as follows:

§ 13. In reference to the provisions of the acts of 9 Geo. 4, c. 14, §§ 1 and 8, and 16 & 17 Vict. c. 113, §§ 24 and 27 (Irish), an acknowledgment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby, duly authorized to make such acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself. (d)

*459

*§ 14. In reference to the provisions of the acts 21 Jac. 1, c. 16, § 3; 3 & 4 Wm. 4, c. 42, § 3, and 16 and 17 Vict. c. 113, § 20 (Irish), when there shall be two or more co-contractors or co-debtors, whether bound or liable jointly only or jointly and severally, or executors or administrators of any co-contractor, no such co-contractor or co-debtor, executor or ad

Payments by one of several co-debtors.

(y) 5 Ha. 55.

(z) 19 & 20 Vict. c. 97, § 14, infra. (a) See Whitcomb v. Whiting, 2 Dougl. 652.

(b) See Bateman v. Pinder, 3 Q. B. 574. (c) There is an admirable American

judgment on this subject, in Bell v. Morrison, 1 Peters, 351. It is to be found in Story on Partnership, § 324, note.

(d) This alters the law as laid down in Hyde v. Johnson, 2 Bing. N. C. 776.

ministrator, shall lose the benefit of the said enactments or any of them, so as to be ehargeable in respect or by reason only (e) of payment of any principal, interest, or other money, by any other or others of such co-contractors, or co-debtors, executors or administrators.

statute on

The above statute, it will be observed, has materially altered the law as regards the effect of acknowledgments and part Effect of above payments. An acknowledgment by an agent being partners. now sufficient to affect his principal, acknowledgment by one partner would probably be regarded as an acknowledgment by the firm and notwithstanding § 14, a part payment by a partner would probably be regarded as a part-payment by the firm. (f) But after a dissolution a part-payment by a continuing or a surviving partner will not prevent a retired partner (g), or the executors of a deceased partner (h) from availing themselves of the statute; and the same is true of an acknowledgment. (¿)

TERMINATION OF LIABILITY (CONTINUED).

B. In Companies.

power to

In conformity with the general principles of agency, the directors of a joint-stock company continue to have bind it, not only as long as their appointment lasts, but also as long as its termination is *460 unknown to the public. But this proposition

Duration of Directors' power to bind company.

must be taken in connection with the rule that the public are deemed to have notice of the contents of companies acts of Parliament, charters and registered deeds of settlement; and consequently, if it is sought to make a company liable for the acts done.

(e) See, as to this word, Cockrill v. Sparkes, 1 H. & C. 699.

(f) See Watson v. Woodman, 20 Eq. p. 730.

(g) Ibid. 721.

(h) Thompson v. Waithman, 3 Drew. 628, in which the surviving partner was the sole executor of the deceased. In this case, § 14 of the act in question was treated as having a retrospective operation, and as destroying the effect of a payment made before the act

passed. This, however, was a mistake. In every other respect the case is good law. As to the non-retrospective operation of § 14 of the statute, see Jackson t. Woolley, 8 E. & B. 778; Flood v. Patterson, 29 Beav. 295.

(i) If in any case it could be shown that a continuing or surviving partner was in point of fact authorized to act for the late partner or his executors in making acknowledgments or payments, the case would be different.

by its directors after their retirement from office, it must be ascertained whether, upon the principle alluded to, there was or was not constructive notice of the cessation of their authority to act for the company.

1. Termination

ers' liability in

ture acts.

It has been seen that a member of an ordinary partnership may, even during the continuation of the partnership, deterof sharehold- mine the authority of his co-partners to bind him, by respect of fu- giving proper notice. This is, in truth, only an instance of the more general proposition, that an agent's authority is determinable by his principal at any time before the authority has been acted on. But as the directors of an incoporated company are the agents of the company, and not of the individual members, a notice by one of them to the effect that he will not be responsible for the future acts of its directors, would, it is conceived, be simply inoperative. As regards incorporated companies, the only mode in which a shareholder can escape liability for future acts of the directors is by duly severing his connection with the company.

When a shareholder ceases to be such, he obviously determines the authority conferred by himself upon the company and its agents to bind him. If he is a shareholder in a company which has no register of its members accessible to the public, he is in the position of a dormant partner, and consequently he cannot be made liable for what occurs after his retirement; and no notice of retirement is necessary except to those who knew him to be a shareEffect of con- holder. (k) But a person who is a shareholder in a company which has a register of its members accessible to the public, is prima facie in a different position; and reasoning from analogy, a retiring shareholder ought in such a case to take care to have his name removed from

tinuing on reg

ister.

the register, for so long as it is there he is held out as a *461 *shareholder. It is true that a person whose name is on the list

of shareholders without his authority cannot be considered as holding himself out as a shareholder(); but it is quite consistent with this proposition that a person who has been properly registered as a shareholder and has ceased to hold shares, but has taken no steps to

(k) See Acc. Northey v. Johnson, 19 Law Times, 104 Q. B. 1852, the case of a shareholder in a cost-book mine. (1) See Lyster's case, 4 Eq. 233;

Birch's

case,

2 DeG. & J. 10; Lofthouse's case, ib. 69; Powis v. Buller, 4 C. B. N. S. 469, affirming S. C. 3 ib. 645. See, also, ante, p. 50.