4 The Alliance Bank v. Kearsley, Law R. 6 C. P. 433 (1871). See Cooke v. Seeley, 2 Exch. 746. 5 Yates v. Dalton, 4 H. & N. 850 (18 8).
6 Edwards v. Tracy, 62 Penn. St. 374 (1869); Hoskinson v. Eliot, ib. 393.
1 See ante, Agency; Story on Part. § 111 et seq., § 127, 128; Sandi-lands v. Marsh, 2B.& Al. 678; Payne v. Ives, 3 Dowl. & Ryl. 664; Coll. on Part. B. 3, ch. 1, § 3, p. 279, 280, 281; Crawford v. Stirling, 4 Esp. 207; Hope v. Cust, cited 1 East, 53; Ex parte Nolte, 2 Glyn & Jam. 306; Sutton v. Irwine, 12 S. & R. 13; Hamill v. Purvis, 2 Penn. 177; Duncan v. Lowndes, 3 Camp. 478; Dickinson v. Valpy, 10 B. & C. 128; Dob v. Halsey, 16 Johns. 38;' Shirreff v. Wilks, 1 East, 52; Mullett v. Huch-ison, 7 B. & C. 639; Thicknesse v. Bromilow, 2 Cr. & J. 425; Green-slade v. Dower, 7 B. & C. 635; 3 Kent, Comm. lect. 43, p. 46, 4th ed.; 2 Bell, Comm. B. 7, p. 618, 5th ed.
2 Story on Part. § 102; 3 Kent, Comm. lect. 43, p. 40 to 42, and cases cited; Winship v. Bank of U. S., 5 Peters, 529; U. S. v. Binney, 5 Mason, 176; s. c. 5 Peters, 529; South Carolina Bank v. Case, 8 B. & C. 427; Fisher v. Tayler, 2 Hare, 218; Moseley v. Ames, 5 Allen, 163.
3 Beale v. Caddick, 2 H. & N. 326 (1857).
4 Hedley v. Bainbridge, 2 G. & D. 483; Levy v. Pyne, Car. & M. 453.
5 Forster v. Mackreth, Law R. 2 Exch. 163 (1867).
6 Hope v. Cust, 1 East, 53; Duncan v. Lowndes, 3 Camp. 478; Hasle-ham v. Young, 5 Q. B. 833; Butterfield v. Hemsley, 12 Gray, 226.
§ 303. Again, all acts and contracts intended by a partner to bind the firm must be made in its name, or they will ordinarily be considered as his private act and contract.4 It is not necessary, however, that the name of the firm should be signed, provided it appear on the face of the written contract or note that it is to be for partnership purposes.5 And though a note be signed individually by the members of a firm, instead of in the firm name, by reason of the preference of the payee, it will be a partnership note, if the consideration for which it was given went into the firm business.6 Yet if the partner authorized to draw a bill of exchange in behalf of this firm, make it in his own sole name, and there is nothing to show that it was on partnership account, the partnership is not bound thereby, even though the bill be made for a partnership purpose.7 For when credit is given solely to the individual partner, no partnership liability arises. And where a partnership is carried on in the name of one partner, in order to bind the firm on contracts signed by him, it is necessary to show that the signature was intended to bind the firm,8 and that the transaction was for partnership purposes, and within his authority; - and the burden of proof is on the creditor.1 But where a partner signs a bill or other instrument with his own name, he will not be personally responsible, if on the face of the note it appear that he signs for his copartners. Thus, where a partner signed a promissory note " for John Clarke, Richard Mitchell, Joseph Phillips, and Thomas Smith," - Richard Mitchell; it was held that the firm was liable.2
1 Martin v. Thrasher, 40 Vt. 460 (1868).
2 Wilson v. Williams, 14 Wend. 146; Catskill Bank v. Stall, 15 Wend. 364; Mayberry v. Bainton, 2 Harring. 24; Mauldin v. Branch Bank, 2 Ala. 502. See Darling v. March, 22 Me. 188; Rollins v. Stevens, 31 Me. 454.
3 Barnard v. Lapeer, etc, Plank Road Co., 6 Mich. 274 (1859).
4 Kirk v. Blurton, 9 M. & W. 289; Faith v. Richmond, 11 Ad. & El. 339; Story on Part. § 102.
5 Mason v. Rumsey, 1 Camp. 384; 3 Kent, Comm. lect. 43, p. 41.
6 Kendrick v. Tarbell, 27 Vt. 512 (1855); Patch v. Wheatland, 8 Allen, 102.
7 Emly v. Lye, 15 East, 7; Siffkin v. Walker, 2 Camp. 308; Faith v. Richmond, 11 Ad. & El. 339; Kirk v. Blurton, 9 M. & W. 284; Pothier, De Societe, n. 100, 101, 105.
8 U. S. Bank v. Binney, 5 Mason, 176, 183; Bank of Rochester v. Mon-teath, 1 Denio, 402.
§ 304. To the general rule that a partner may bind the firm in transactions within the scope of the business of the copartnership, there are two exceptions. The first is, that one partner cannot, without the consent of his copartners, submit or refer any matter to arbitration, although it immediately refer to the business of the partnership.3
§ 305. The other exception is, that one partner cannot execute a specialty so as to bind his copartners, unless authority be expressly given him under seal.1 This doctrine is strictly declared in all the English decisions, with one exception; namely, that where a specialty is signed and sealed by one partner in the presence, and with the consent of the others, they will be bound thereby, although the agent have only parol authority to execute it. Except in this one instance, therefore, the execution of a sealed instrument must be by authority, given under seal; and no previous parol assent, or subsequent parol ratification, is sufficient to render the partnership liable.2 § 306. In America, however, this exception is subject to many restrictions and modifications.3 And the more equitable doctrine, declared in the courts of the United States, is, that a previous parol assent, or a subsequent parol ratification, whether express or implied, is sufficient to give validity to a deed signed by one partner in behalf of the partnership; although, unless such assent or ratification be given, a deed so signed would only be binding upon the particular partner.4 A fortiori, if one partner, in the presence of his copartners and without their objection, subscribe their names to a sealed instrument, it becomes the deed of all.6
1 Etheridge v. Binney, 9 Pick. 274.
2 Ex parte Buckley, 14 M. & W. 472. In this case the contrary doctrine, as held in Hall v. Smith, 1 B. & C. 407, was expressly overruled. Baron Parke says, " This is, prima facie, a promise by one partner, for himself and the other three partners, and it amounts to one promise of the four persons constituting the firm; and if Mitchell had authority, the firm is bound. I really must say I think Hall v. Smith cannot be supported. The partner, in making the promise, is only an agent for the firm. Then does it bind him personally, or does it bind the firm ? No doubt the instrument was intended to bind the firm; and as he had authority as a partner to do.it, it had that effect. I think we must certify our opinion to the Lord Chancellor, that there was no separate right of action against Mitchell upon any of these notes." See also Story on Part. § 143, in which Mr. Justice Story, speaking of the case of Hall v. Smith, says: " This construction of the instrument certainly goes to the very verge of the law, and perhaps may be thought to deserve further consideration." See also Bank of Rochester v. Monteath, 1 Denio, 402; Palmer v. Stephens, 1 Denio, 471.