court by writ of error, now came on for argument before Lord Denman C.J., Lord Abinger C. B., Littledale, Patteson, and Williams JJ., and Alderson, Gurney, and Rolfe BB. Erle (Stammers was with him), for the plaintiff. It is well established that a dormant partner is liable for all contracts made by the firm in respect of the partnership business; Coope v. Eyre (a), Waugh v. Carver (b), Robinson v. Wilkinson (c), Wintle v. Crowther (d), Ex parte Gellar (e); and here the agreement set out on the record clearly appears to have been entered into by Knight and Surgey on account of their firm. It was contended in the court below on the part of the defendant Drake, that a dormant partner cannot be charged upon an express contract, and this view was adopted by the court, who relied principally upon Emly v. Lye (g), and Siffkin v. Walker (h), in giving their judgment for the defendant Drake. It is submitted, that whether the contract be in writing, or depend on vivâ voce evidence, as soon as it is established all the incidents. to it attach. In Coope v. Eyre the agreement was in writing, and Lord Loughborough there says; "this being an action on a contract of sale, the vendor can have no remedy against any person with whom he has not contracted, unless there be a partnership, in which case all the partners are liable as one individual." [Alderson B. The difficulty here is, that the contracts set out in the declaration and in the plea are different: the declaration states a contract between the defendants and the plaintiff, whereas the plea sets out a contract between Knight and Surgey of the one part, and the plaintiff of (a) 1 H. Black. 37. (b) 2 H. Black. 235. (c) 3 Price, 538. (d) 1 Tyrwh. 210.; 1 C. & J. 316. VOL. I. *3 c 8 (e) 1 Rose, 297. 1840. BECKHAM V. KNIGHT. 1840. BECKHAM บ. KNIGHT. the other part, whereby the latter engages to serve the two and the survivor of them, as their foreman for seven years, and they undertake to employ him for that period if they, or either of them, shall so long live. The dormant partner may possibly be liable on the contract disclosed in the plea, but it is not the contract which has been declared upon.] Wherever the two partners are named throughout the agreement, the court taking it according to its legal effect, will read the firm, for it is in reality a contract to serve the firm, and the survivor of the firm. [Lord Abinger. The contract is with Knight and Surgey in their individual characters: but it is a contract made in respect of the partnership; consequently, one who is a member of the firm may be sued upon it, but you must declare on the true contract. Alderson B. All that the law can do, is to add the responsibility of the secret partner when discovered; but the contract must not be varied. The declaration should have disclosed the special circumstances.] Stephen Serjt., and E. V. Williams, contrà, were stopped by the court. Lord DENMAN C. J. We are of opinion, that the judgment of the court below must be affirmed, on the ground that the contract is misdescribed in the declaration; the duration of the service being stated to depend upon the lives of Knight and Drake only, whereas in legal effect the contract would operate as an engage. ment for seven years, provided Knight or Surgey should so long live. Judgment affirmed. END OF TRINITY VACATION. DEBT UNWIN v. Leaper. Nov. 5. EBT for money had and received, and upon an Pending an account stated. Plea: nunquam indebitatus. At the trial before Tindal C. J. at the sittings at Guildhall after last term, the following facts appeared : action of ejectment on the demise of A. against B., A. is served with notice of B.'s intention to sue for certain statutable penalties incurred by A. An arrangement is made, under which the action of ejectment is discontinued, and B. receives from A. 50l. towards the costs of B.'s defence in that action. A. may recover back the 50l. as money received by B. to A.'s use, if the 50%. is found to have been paid with reference to, and by the coercion of, the threatened penal action, and not to have been paid voluntarily, and with reference to the action of ejectment only. So, although the arrangement contain terms to be performed, and which are performed, by B., the performance of which prevents B. from being restored to his original position, otherwise than by the intervention of a court of equity. 1840. UNWIN v. LEAPER. In 1836 a dispute arose between the plaintiff and the defendant as to the title of the latter to a spot of ground called the Chaseway, leading from East Street, in the town of Great Coggeshall, to a meadow, the property of the plaintiff. In 1838 the plaintiff brought an action of ejectment against the defendant in the court of Queen's Bench, to recover possession of the Chaseway. Notice of trial was given, in that action, for the Esser Summer assizes, 1838, which notice was afterwards countermanded. On the 21st of February 1839, the defendant having discovered that the plaintiff, who was one of the trustees of the Braintree and Colchester turnpike road, had let for hire his waggon, horses, &c. for the use of that turnpike road, and had received a sum of money out of the tolls collected on the said road, served the plaintiff with notice of an action of debt for the recovery of twelve penalties of 100l. each, under the General Turnpike Act. (a) The plaintiff, being alarmed at this notice, called the next day with his solicitor, on Mr. Hanbury, whom he knew to be a friend of the defendant, and urged Hanbury to use his influence to prevail upon the defendant to withdraw his notice. Hanbury stated to the plaintiff that the defendant had been very shamefully treated by the plaintiff, and that, until the action then pending was settled, he should use no endeavour to induce the defendant to abandon his notice. The plaintiff and his attorney then offered to settle with the defendant's attorney, but no terms were mentioned. On the same day the plaintiff's attorney called on the defendant's attorney, and promised to countermand a notice of trial, which had been given a few days before, for the Spring assizes, 1839. On the 25th of February the following agreement was arranged between the respective attorneys : (a) 3 G. 4. c. 126. In the Queen's Bench. (Doe dem.) Stephen Unwin, plaintiff. The plaintiff to abandon this action, and within fourteen days from the date hereof, to pay to the defendant or his attorney the sum of 501., being an agreed sum to be paid by the plaintiff and accepted by the defendant for his costs. The plaintiff to release to the defendant within the same time, by a sufficient instrument in the law, all claim to the freehold of the Chaseway, the subject of this action, reserving to the plaintiff, for himself, his heirs and assigns, at all times, and his and their workmen, the right of passage over such part as is necessary to his meadow with waggons, carts, and other carriages, and with horses and other cattle. The above are the terms of settlement of the action this day agreed upon, which, on the part of our respective clients, we severally undertake to fulfil. Dated this 25th day of February 1839. Samuel Wayler, attorney for plaintiff. Thomas Sadler, attorney for defendant. On the 9th of March an indenture was executed by the plaintiff and the defendant, whereby, after reciting that the plaintiff had lately commenced an action against the defendant touching the title to a certain Chaseway or slip of land, leading &c., which had for many years been claimed by both of the parties thereto, and that it had been agreed that the plaintiff should release to the defendant his claim to the freehold of the said Chaseway or slip of land, and should have and retain only a right of way over the same, it was witnessed that in consideration of the premises, and of 5s. of &c., to the defendant paid by the plaintiff, the receipt whereof, and that the same was in full dis 1840. UNWIN v. LEAPER. |