in respect to purchases on joint account; and it is no matter with what fraudulent views the goods were purchased, or to what purposes they are applied by the purchasing partner, if the seller be clear of the imputation of collusion. A sale to one partner, in a case within the scope and course of the partnership business, *45 is, in judgment of law, a sale to the partnership.a But if the purchase be contrary to a stipulation between the partners, and that stipulation be made known to the seller, or if, before the purchase or delivery, one of the partners expressly forbids the same on joint account, it has been repeatedly decided, that the seller must show a subsequent assent of the other part-ners, or that the goods came to the use of the firm." This salutary check to the power of each partner to bind the firm, was derived from the civil law. In re pari potiorem causam esse prohibentis constat.c It has been questioned, however, whether the dissent of one decided, that there was no implied authority in one partner, without the consent of the others, to appoint a trustee for the partnership, by a general assignment of the partnership effects for the benefit of creditors, and giving preferences. Such an assignment would be illegal, inequitable and void. The other co-partners have a right to participate in the selection of the trustee, and in the creditors to be preferred. Hitchcock v. St. John, 1 Hoffman's Ch. R. 516. Kirby v. Ingersoll, Harrington's Mich. Ch. R. 174. Dana v. Lull, 2 Washburn Verm. R. 390. Gibson, Ch. J., 8 Watts & Serg. 63. S. P. There is no small difficulty, says Mr. Justice Story, in supporting the doctrine, even under qualifications, that one partner may make a general assignment of all the partnership property, so as to break up its operations. Story on Partnership, pp. 145-150. This I consider to be the soundest conclusion to be drawn from the conflicting authorities. Willett v. Chambers, Cowp. Rep. 814. Rap v. Latham, 2 Barnw. & Ald. 795. Bond v. Gibson, 1 Camp. N. P. 185. Baldwin, J., 5 Day's Rep. 515. Spencer, J., 15 Johns. Rep. 422. Galway v. Matthew, 1 Campb. Leavitt v. Peck, 3 Conn. Rep. 124. Feigley v. Sponebeyer, 5 Watts & b Willis v. Dyson, 1 Starkie's N. P. 164. C Dig 10. 3. 28. Pothier, Traité du Con. de Soc. No. 90. partner, where the partnership consists of more than two, will affect the validity of a partnership contract in the usual course of business, and within the scope of the concern, made by the majority of the firm. The efficacy of the dissent was, in some small degree, shaken by the Court of Exchequer, in Rooth v. Quin‚a and in Kirk v. Hodgson, it was considered, that the act of the majority, done in good faith, must govern in copartnership business, and control the objection of the minority, unless special provision in the articles of association be made to the contrary. But this last decision related only to the case of the management of the interior concerns of the partners among themselves, and to that it is to be confined. The weight of authority is in favour of the power of a majority of the firm, acting in good faith, to bind the minority in the ordinary transactions of the partnership, and when all have been consulted. It seems also to be the better opinion, that it is in the power of any one partner to interfere and arrest the firm from the obligation of an inchoate purchase which is deemed injurious. This is the rule in ordinary cases by the civil law and in France,f and yet, if by the terms of the partnership, *the ma- *46 nagement of its business be confided to one of the partners, the exercise of his powers in good faith will 7 Price's Rep. 193. 3 Johns. Ch. Rep. 400. The rule of the common law was, that in associations of a public or general nature the voice of the majority governed, but in private associations the majority could not conclude the minority. Co. Litt. 181. b. Viner, tit. Authority, B. Livingston v. Lynch, 4 Johns. Ch. R. 573. 597. See Story on Partnership, 186. Const. v. Harris, Turner & Russ. 516. 525. Collyer on Partnership, 105. Story on Part. pp. 182-184. • Willis v. Dyson, 1 Starkie, 164. Leavitt v. Peck, 3 Conn. Rep. 124. Dig. 10. 2. 28. Pothier, de Societé, n. 87 to n. 91. Story on Part. pp. 185.598. be valid, even against the will, and in opposition to the dissent of the other members.a A partner may pledge, as well as sell, the partnership effects, in a case free from collusion, if done in the usual mode of dealing, and in relation to the trade in which the partners are engaged, and when the pawnee had no knowledge that the property was partnership property. But this principle does not extend to part owners engaged in a particular purchase; for they are regarded as tenants in common, and no member can convey to the pawnee a greater interest than he himself has in the concern. And if one partner acts fraudulently with strangers in a matter within the scope of the partnership authority, the firm is, nevertheless, bound by the contract. The connection itself is a declaration to the world of the good faith and integrity of the members of the association, and an implied undertaking to be responsible for the acts of each within the compass of the partnership concerns.d Pothier, Traité du Con. de Soc. Nos. 71. 90. This is also the rule in Louisiana, Code, art. 2838, 2839. 2841. b Raba v. Ryland, 1 Gow's N. P. 132. Tupper v. Haythorne, in Chancery, reported in a note to the case in Gow. • Barton v. Williams, 5 Barnw. & Ald. 395. Bond v. Gibson, 1 Campb. 6 B. & Cresw. 561. M. & Jameson, 2 Munf. 53. But a Willet v. Chambers, Cowp. Rep. 814. Rap v. Latham, 2 Barnw. § Ald. 795. Longman v. Pole, Dawson & Lloyd, 126. 185. Hume v. Bolland, 1 Ryan & Moody, 371. M. Bank v. Gore, 15 Mass. R. 75. Hadfield v. a tort, or even a fraud, committed by one of the partners, will not bind the partnership, if it be not in a matter of contract, and there be no participation in it. Parsons, Ch. J., Pierce v. Jackson, 6 Mass. Rep. 245. Sherwood v. Marwick, 5 Greenleaf, 295. There are exceptions, however, to this rule. Partners are responsible for the tortious acts of a co-partner in the prosecution of the co-partnership business, as well as for the tortious acts and negligences of their servants, and a partner himself may sometimes act in that capacity. Moreton v. Hardern, 4 Barnw. & Cress. 223. Attorney General v. Stanneyforth, Bunbury's Rep. 97. Collyer on Partnership, 252–254. 296, 297. 305, 306, 307. Story on Partnership, 257-260. But the servant must be em (5.) How far by guaranty. It was formerly understood, that one partner might bind his co-partners by a guaranty, or letter of credit, in the name of the firm;a and Lord Eldon, in the case Ex parte Gordon,b considered the point too clear for argument. But a different principle seems to have been adopted; and it is now held, both in England and in this country, that one partner is not authorized to bind the partnership by a guaranty of the debt of *47 a third person, without a special authority for that purpose, or one to be implied from the common course of the business, or the previous course of dealing between the parties, unless the guaranty be afterwards adopted and acted upon by the firm. The guaranty must have reference to the regular course of business transacted by the partnership, and be confined to advances made or credit given to the partnership as then constituted, and not extended to new advances or credits, after a change of any of the original partners by death or retirement, and then it will be obligatory upon the company; and this is the principle on which the distinction rests. The same general rule applies when one partner gives the co-partnership as a mere and avowed surety for another, without the authority or ployed by one of them in the prosecution of the business of the partnership. Wayland v. Elkins, 1 Starkie's N. P. Rep. 272. Bostwick v. Champion, 11 Wendell, 571. Hope v. Cust, cited in 1 East's Rep. 53. b 15 Vesey, 286. • Duncan v. Lowndes, 3 Campb. N. P. 478. Sandilands v. Marsh, 2 Barnw. & Ald. 673. Crawford v. Stirling, 4 Esp. N. P. 207. Sutton and M'Nickle v. Irwine, 12 Serg. & Rawle, 13. Ex parte Nolte, 2 G. & Jame. son, 295. Hamill v. Purvis, 2 Penn. Rep. 177. Story on Partnership, 190. 358. 361. Cremer v. Higginson, 1 Mason R. 323. Myers v. Edge, 7 Term R. 250. 252. Strange v. Lee, 3 East's R. 489. Weston v. Barton, 4 Taunton, 673. 682. Pemberton v. Oakes, 4 Russ. R. 154. Dey v. Davy, 10 Adolph. & Ellis, 30. consent of the firm; for this would be pledging the partnership responsibility in a matter entirely unconnected with the partnership business." (6.) How far by deed. Nor can one partner charge the firm by deed, with a debt, even in commercial dealings. It would be inconsistent with technical rules, and contrary to the general policy of the law; for the execution of a deed requires a special authority; and such a power has been deemed by the English courts to be of dangerous tendency, as it would enable one partner to give to a favourite creditor a mortgage or a lien on the real estates of the other partners. But one partner, by the special authority of his co-partners under seal, and if in their presence, by parol authority, may execute a deed for them in a transaction in which they were all interested. It amounts, in judgment of law, to an execution of the deed by all the partners, though sealed by one of them only; and this is the case, if the other partners by assent or acts subsequently ratify the deed. The general doctrine of the English law on this point has been clearly recognised and settled by numerous decisions in our Foote v. Sabin, 19 Johns. Rep. 154. New-York Fire Insurance Company v. Bennett, 5 Conn. Rep. 574. Laverty v. Burr, 1 Wend. R. 531. See, also, the same point, 7 Wend. 158. 14 Id. 146. 15 Id. 364. Andrews v. Planters' Bank, 7 Smedes & Marshall, 192. b Collyer on Part. 308-312. McNaughten v. Partridge, 11 Ohio R. 223. A custom-house bond for duties given by one partner will not bind the firm. Metcalf v. Rycroft, 6 M. & Selw. 75. Elliot v. Davis, 2 B. & Pull. 338. The act of congress of 1st March, 1823, c. 149. sec. 25, has, however, rendered such bonds, given in this country, binding upon the firm. Harrison v. Jackson, 7 Term Rep. 207. Montgomery v. Boone, 2 B. Monroe, 244. Turbeville v. Ryan, 1 Humphrey's Tenn. R. 113. Story on Partnership, 173. Dunsterville, 4 Term Rep. 313. Williams v. Walsby, 4 Esp. N. P. 220. Steiglitz v. Egginton, 1 Holt's N. P. 141. Brutton v. Burton, 1 Chitty's Rep. 707. Swan v. Stedman, 4 Metcalf R. 548. • Ball v. |