BILL DRAWN BY PARTNER CONTRARY TO PARTNERSHIP AGReement is BINDING on the firm, as against third persons taking it without notice of the agreement, if drawn in the firm name for a partnership demand.

ASSUMPSIT on certain bills of exchange drawn by one John Allen upon one William Monteath, and accepted by the latter in his own name. The bills were payable to the drawer's order, and indorsed by him. They purported to be drawn "to pay for towing," "to pay tolls and balances due captains," etc. They were discounted by the plaintiff's bank, and the proceeds placed to Allen's credit. At the trial at the circuit it appeared that the defendants Keeler and George Monteath, and John Allen, the drawer of the said bills, were, at the time of the drawing and acceptance of the same, engaged, under a written agreement, in running the Clinton line of canal boats. The agreement between them, which was introduced in evidence, provided, among other things, that the business of the line at Rochester should be conducted and superintended by John Allen, and in his name, and that the business of the line at Albany, the other end of the route, should be conducted by and in the name of William Monteath, for and on behalf of the defendants Monteath and Keeler, and that they should be responsible for all his acts in the conduct of the said business. The agreement further provided that neither party should draw, indorse, or accept paper or borrow money in any partnership name nor on partnership account, and that no partnership should be held out to the public, and that no name or indication of partnership other than the names of John Allen and William Monteath should be used in the business of the line, nor should the other parties to the agreement be liable for debts contracted by either of them. The expenses were to be borne by the parties in proportion to their interests, and the net profits to be divided equally. A letter of the defendant Monteath, to the president of the plaintiff's bank, before the drawing of the bills in question, was admitted in evidence, against the defendant's objection, in which letter Monteath stated that his son William's acceptances and notes were not worthless, even if the defendant were not bound for them, and that he considered himself responsible therefor "according to articles of agreement made with John Allen." The cashier of the bank testified, against the defendant's objection, that he discounted the bills in question after being shown the above letter, on the credit thereof and of John Allen, or of the said Allen, Monteath, and Keeler, or the partnership. Motion for a nonsuit overruled. Verdict for the plaintiffs, under the

instructions of the court, and the defendants moved for a new trial.

I. Harris, for the defendants.

C. P. Kirkland, for the plaintiffs.

By Court, BRONSON, C. J. The objection to recovering against the defendants as acceptors is, that their names do not appear upon the bills; and as a general rule there can be no recovery on a bill or note against one whose name does not appear upon it. When the agent acts in his own name, he binds himself, and not his principal: Pentz v. Stanton, 10 Wend. 271 [25 Am. Dec. 558]; Thomas v. Bishop, 2 Stra. 955; Barlow v. Bishop, 1 East, 432; S. C., 3 Esp. 266; Leadbitter v. Farrow, 5 Mau. & Sel. 345; Stackpole v. Arnold, 11 Mass. 27 [6 Am. Dec. 150]; Allen v. Coit, 6 Hill, 318; Chit. on Bills, 32-34, ed. of 1842. If we do not look beyond the fact that William Monteath was the agent of the defendants, then, by accepting the bills in his own name, he bound himself, and not the defendants.

But the defendants and Allen were partners in running the Clinton line of canal boats, under an agreement that the business at Albany should be done in the name of William Monteath. That was the partnership name, for all the purposes of transacting the business of the firm at Albany; and the partners could bind themselves by that name as well as by any other: Bank of South Carolina v. Case, 8 Barn. & Cress. 427; Ex parte Bolitho, Buck, 100; Rogers v. Coit, 6 Hill, 322; Mason v. Rumsey, 1 Camp. 384. The bills were drawn on the partners by their firm name of William Monteath; and in that name the bills were accepted by the authorized agent of the firm. If William Monteath had also been in business on his own account, then the acceptance by writing his name on the face of the bills would have been an equivocal act; and it would have been necessary to show that he accepted on account of the partnership, and not in his own private business: Manufacturers and M. Bank v. Winship, 5 Pick. 11 [16 Am. Dec. 369]; The United States Bank v. Binney, 5 Mason, 176; Ex parte Bolitho, Buck, 100; Coll. on Part. 226, 227. But there was no evidence that William Monteath was engaged in any other business than the affairs of this partnership. We must, then, regard these bills as drawn on, and accepted by, the house doing business in the name of William Monteath, which was composed of the defendants and John Allen; and as the non-joinder of Allen has not been pleaded in abatement, the defendants must answer alone.

In the view which has been taken of the case, the defendants are parties to the bills as acceptors, and liable to the plaintiffs in that character. I do not see why they are not also liable both as drawers and indorsers of the bills. The name of their firm at Rochester was John Allen, and in that name the bills were drawn and indorsed. It does not appear that Allen was engaged in any other business, so that the bills could have been drawn on his private account. And besides, the bills appear on their face to have been drawn for "towing," "tolls," and "balances due captains," which are things connected with the partnership business. And the bills were discounted on the credit of the partnership. As the defendants drew on themselves, they had notice of the dishonor of the bills in the very act of dishonoring them; and may, therefore, be held answerable both as drawers and indorsers. There would, perhaps, be a difficulty in the way of recovering for money lent, without showing that the avails of the drafts actually went into the partnership business: Allen v. Coit, 6 Hill, 318; Pentz v. Stanton, 10 Wend. 271 [25 Am. Dec. 558]; Denton v. Rodie, 3 Camp. 493; Ducarry v. Gill, 4 Car. & P. 121. But it is enough that the defendants are liable as parties to the bills.

Although Allen may have departed from the agreement between himself and his partners in drawing the bills, that can not affect third persons who took the paper without notice: Bank of South Carolina v. Case, 8 Barn. & Cress. 427; Whitaker v. Brown, 16 Wend. 505, per Chancellor Walworth.

The several objections made by the defendants have been sufficiently noticed in examining the leading features of the case. We think the objections were properly overruled.

New trial denied.

CONTRACT MADE BY AGENT IN HIS OWN NAME, WHO BOUND BY: See Pentz v. Stanton, 25 Am. Dec. 558; Andrews v. Estes, 26 Id. 521, and the note to the latter case collecting previous decisions in this series. See also Welsh v. Usher, 29 Id. 63; Newhall v. Dunlap, 31 Id. 45; Rice v. Gove, 33 Id. 724; Simonds v. Heard, 34 Id. 41; Despatch Line v. Bellamy Mfg. Co., 37 Id. 203. As a general rule, if the agent in the course of his agency sign a bill in his own name, he and not the principal is liable: Joynson v. Richard, 12 Jones & S. 20; so also one assuming to act as agent of another without competent au thority to do so, becomes personally bound: Hochster v. Baruch, 5 Daly, 440, both citing principal case. Weeks v. Fox, 3 Thomp. & C. 355, regarded the Bank of Rochester v. Monteath as authority for the position that a defendant, on proper proof, may be rendered liable upon acceptance signed by his agent, although his name does not appear on the paper.

POWER OF PARTNER TO BIND FIRM BY NEGOTIABLE INSTRUMENT: See Foot v. Sabin, 10 Am. Dec. 208; New York Firemen Ins. Co. v. Bennett, 13 Id.

109; Manufacturers' Bank v. Winship, 16 Id. 369; Hawes v. Bunton, 19 Id. 663; Taylor v. Hillyer, 26 Id. 430; Wilson v. Williams, 28 Id. 518. A note by a partner in his individual name does not bind the firm, though the firm receives the consideration: Holmes v. Burton, 31 Id. 621. As to when the firm is bound by a drawing, acceptance, or indorsement of negotiable paper in the firm name, by a partner for his individual debt, and when not, see Brown v. Duncanson, 1 Id. 409; Lansing v. Gaine, 3 Id. 422; Livingston v. Roosevelt, 4 Id. 273; Poindexter v. Waddy, 8 Id. 749; New York Firemen Ins. Co. v. Bennett, supra; Eastman v. Cooper, 26 Id. 600; Bank of St. Albans v. Gilliland, 35 Id. 566; Potter v. Dillon, 37 Id. 185.

The principal case was regarded as authority for the position, that where there was an agreement between partners on dissolution, that one of them only should use the firm name, and a bill was accepted by the other, the arrangement could not affect third persons who took the bill without notice, in Mechanics' Bank v. Livingston, 33 Barb. 463.

NON-JOINDER Of Parties Plaintiff or Defendant, how and when taken advantage of: See Hinman v. Hapgood, ante, 663, and cases cited in the note thereto. As to non-joinder of a copartner in an action against partners, see Fogg v. Virgin, 35 Am. Dec. 757, and Cleveland v. Woodward, 40 Id. 682.

USE OF PARTNER'S NAME AS FIRM NAME.-The principal case was cited to the point that partners have a right to deal under the name of one of the firm, in Martin v. Johnson, 8 Daly, 543; all the partners being bound by a note drawn by such partner in his own name: Joynson v. Richard, 12 Jones & S. 20; and was referred to in support of the position, that where the name is the firm name and the individual is not in business on his own account, it will be presumed that it was used for the firm, in Palmer v. Elliot, 1 Cliff. 65, and was regarded by Wright v. Hooke, 10 N. Y. 58, as establishing the principle that it is no objection to a partner's liability that his name does not appear as a drawer, if the partnership name was used in the business, as all the partners are embraced in it.

FREELAND V. McCULLOUGH.

[1 DENIO, 414.]

LIMITATION OF ACTIONS ON STATUTES TO THREE YEARS GOVERNS ACTION AGAINST STOCKHOLDER of a corporation for a corporate debt under a charter making the stockholders liable for the debts, such action being regarded as an action on a statute, the benefit whereof "is limited to the party aggrieved," within the meaning of the New York revised statutes.

STOCKHOLDERS OF CORPORATION ARE NOT LIABLE FOR ITS DEBTS at common law.

DECLARATION IN ACTION AGAINST STOCKHOLDER of a corporation for a corporate debt, under a charter making the stockholders individually liable for debts, where judgment has been recovered therefor against the corporation, and execution thereon has been returned unsatisfied, or where the corporation has been dissolved, need only show a debt due from the corporation, that the defendant was a stockholder at the time, that judg ment has been recovered against the corporation, and execution returned unsatisfied, or that the corporation has been dissolved, and need not show a debt from the defendant to the plaintiff.

INDORSEE OF NEGOTIABLE DRAFT OF CORPORATION MAY SUE STOCKHOLDER in his own name, where the stockholders are personally liable for corporate debts, without showing that he is assignee of the debt forming the consideration of the draft.

REFERENCE IN ONE COUNT OF DECLARATION TO PRECEDING COUNT, supplying material allegations, is admissible.

AVERMENT IN ACTION BY INDORSEE OF DRAFT OF CORPORATION AGAINST STOCKHOLDER, where the stockholders are liable for the debts, that the defendant was a stockholder when the draft was drawn, is unnecessary where the declaration shows that he was a stockholder when the debt forming the consideration of the draft was contracted, although the plaintiff does not allege that he is assignee of the original debt. STATUTE IS REMEDIAL WHICH GIVES RIGHT OF ACTION AGAINST STOCKHOLDERS of a corporation for corporate debts, and should be liberally construed.

SUPERFLUOUS ALLEGATION IN DECLARATION MAY BE REJECTED as surplusage, as where in an action against a stockholder in a corporation, for a corporate debt, the plaintiff avers that he has judgment and execution against the corporation, and also that the corporation has been dissolved, when either fact would entitle him to recover.

DEMURRER TO SEVERAL COUNts, One of WHICH IS GOOD, must be overruled.

DEBT, on the act incorporating the Rossie Galena Company, against the defendant as a stockholder. The declaration in the first count alleged the passage of the act, and set out the ninth *and tenth sections thereof. The ninth section is given in the opinion. The tenth section provided that before the action given by the previous section could be commenced, the plaintiff must obtain judgment against the corporation and have his execution returned unsatisfied, or the corporation must have been dissolved. There were six counts in the declaration. The defendant pleaded nil debet and the statute of limitations to the first three counts, and it is unnecessary to set them out in full, as it was conceded that the defendant was entitled to judgment thereon if the statute limiting actions on statutes to three years applied to an action against a stockholder to recover a debt from the corporation, under a provision in its charter such as that under consideration. The third count, however, set out, among other things, that after the passage of the act before mentioned, to wit, on the twenty-seventh of April, 1839, the "Rossie Galena Company" was indebted to one Barker for goods sold and delivered for money lent, and for work and labor, etc., in the sum of three hundred and four dollars and seventy-five cents, and being so indebted, promised, etc. The fourth and fifth counts set out that after the passage of the act before referred to, to wit, on the twenty-seventh day of April, 1839, the