c. 93, s. 13), partners may carry on business under any name they choose to adopt (Merchant Banking Co. of London v. Merchants' Joint Stock Bank, 1878, 9 Ch. D. p. 563), provided they do not mislead the public by using a name similar to that of another firm, so as to pass off themselves or their goods for that other, or the goods of that other (Burgess v. Burgess, 1853, 5 De G., M. & G. 896; 43 E. R. 351; Levy v. Walker, 1879, 10 Ch. D. 436; Hendriks v. Montague, 1881, 17 Ch. D. 638); and if the firm name truly indicates the persons who compose it they may use this name, although it is similar to the name of another firm (Saunders v. Sun Life Assurance Co. of Canada, [1894] 1 Ch. 537; Turton v. Turton, 1889, 42 Ch. D. 128; Tussaud v. Tussaud, 1890, 44 Ch. D. 678; Burgess v. Burgess, 1853, 5 De G., M. & G. 896; and compare Fine Cotton Spinners, etc. v. Harwood, Cash & Co., Ltd., [1907] 2 Ch. 184), provided they do not make a fraudulent use of it (Croft v. Day, 1843, 7 Beav. 84; Holloway v. Holloway, 1850, 13 Beav. 209; Lewis v. Lewis, 1890, 45 Ch. D. 284; J. & J. Cash, Ltd. v. Cash, 1902, W. N. p. 32).

The firm name, moreover, may be registered as a TRADE MARK for particular classes of goods (46 & 47 Vict. c. 57, ss. 64, 65).

2. RELATIONS OF PARTNERS TO PERSONS DEALING WITH THEM.

(1) Authority of Partner to Bind the Firm-(a) General.-Every partner is an agent of the firm, and his other partners for the purpose of the business of the partnership; and prima facie the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member, bind the firm and his partners (Part. Act, 1890, s. 5).

It is competent for the partners, by agreement between themselves, to restrict the power of any one or more of them to bind the firm, and if such an agreement has been entered into, no act done in contravention of it is binding on the firm with respect to persons having notice of the agreement (Part. Act, 1890, s. 8). But such an agreement does not affect persons who deal with a partner whose authority is thus restricted, without notice of the agreement (Cox v. Hickman, 1860, 8 H. L. C. p. 304; 11 E. R. 446), unless, indeed, they do not know or believe him to be a partner; for in that case he has neither real nor, so far as they are concerned, apparent authority to bind the firm (Part. Act, 1890, s. 5; Nicholson v. Ricketts, 1860, 2 El. & El. 524; Holme v. Hammond, 1872, L. R. 7 Ex. 233).

A partner's implied or apparent authority to bind his firm is limited to acts which are necessary for carrying on the partnership business in the way in which such businesses are usually carried on, and does not extend to acts which, however urgent, are in this sense unusual (Hawtayne v. Bourne, 1841, 7 Mee. & W. 595; 56 R. R. 806; Simpson's Claim, 1887, 36 Ch. D. 532).

If a partner does an act for a purpose apparently not connected with the firm's ordinary course of business, he is not acting in pursuance of any apparent authority, and the firm will not be bound unless the partner in fact had authority. If, for instance, a partner pledges the credit of the firm for a purpose apparently not connected with its ordinary course of business, e.g. for the purpose, to the knowledge of the creditor, of paying his private debts (Leverson v. Lane, 1862, 13 C. B. N. S. 278; In re Riches, 1864, 4 De G., J. & S. 581; Snaith v. Burridge, 1812, 4 Taun. 684; 13 R. R. 731), the firm is not bound unless he is in fact specially

authorised by the other partners (Part. Act, 1890, s. 7). The onus of proving such authority is on the creditor, and it is not sufficient for him to prove that he honestly believed there was such authority (ibid., and Kendal v. Wood, 1871, L. R. 6 Ex. 243), unless the other partners are by their conduct estopped from denying the authority (ibid.; and see Farquharson Bros. & Co. v. King & Co., [1902] A. C. 325, p. 341, overruling ibid., [1901] 2 K. B. 697).

An admission or representation made by one partner concerning the partnership affairs and in the ordinary course of its business is evidence against the firm (Part. Act, 1890, s. 15; as to accounts rendered, see Fergusson v. Fyffe, 1840, 8 Cl. & Fin. 121; 8 E. R. 49; 54 R. R. 12), and may be conclusive by way of estoppel. This, however, does not apply to a representation by one partner as to his authority to bind the firm (Ex parte Agace, 1792, 2 Cox, 312, and 2 R. R. 49; see too Jacobs v. Morris, [1902] 1 Ch. 816, affirming [1901] 1 Ch. 261), nor probably as to the extent and nature of the business of the firm, for the extent of his authority depends upon the nature of that business.

Notice to an acting partner of any matter relating to the partnership affairs, operates as notice to the firm, except in the case of a fraud upon the firm committed by him or with his consent (Part. Act, 1890, s. 16; Williamson v. Barbour, 1877, 9 Ch. D. 535; Lacey v. Hill, 1876, 4 Ch. D. p. 549).

(b) Implied Authority in Matters of Contract.-Inasmuch as an act which is common in carrying on one kind of business in the usual way may not be required for carrying on business of another kind, any general statement as to what acts are and what acts are not within the implied authority of a partner, must be applied with caution; but in the absence of evidence of usage in the kind of business in question to the contrary, it appears

(A) That a partner has implied authority to do the following acts on behalf of his firm :

(i.) Receive and give receipts for debts due to his firm (Stead v. Salt, 1825, 3 Bing. 103; 28 R. R. 603; Porter v. Taylor, 1817, 6 M. & S. 156; 18 R. R. 338), and (probably) retain a solicitor to conduct an action recover such debts (Court v. Berlin, [1897] 2 Q. B. 396).

(ii.) Draw cheques, not post dated (Foster v. Mackreth, 1867, L. R. 2 Ex. 163), on the bankers of the firm in the firm name (Laws v. Rand, 1857, 3 C. B. N. S. 442).

(iii.) Purchase on the credit of the firm goods required for carrying on its business in the usual way (Bond v. Gibson, 1808, 1 Camp. N. P. 185; 10 R. R. 665; Gardiner v. Childs, 1837, 8 Car. & P. 345).

(iv.) Sell any of the partnership goods (Lambert's Case, 1613, Godb. 244; Dore v. Wilkinson, 1817, 2 Stark. N. P. 287) or debts due to the firm (Marchant v. Morton, Down & Co., [1901] 2 K. B. 829; Ex parte Wright, [1906] 2 K. B. 209).

(v.) Engage servants for the partnership business (Beckham v. Drake, 1841, 9 Mee. & W. 79; 60 R. R. 678; Donaldson v. Williams, 1833, 1 Cr. & M. 345).

And if the partnership is an ordinary trading partnership—

(vi.) Draw, accept, make, and endorse bills of exchange and promissory notes in the name of the firm (In re Riches, 1864, 4 De G., J. & S. 581; 46 E. R. 1044; Stephens v. Reynolds, 1860, 5 H. & N. 513). But a member of a firm of mining adventurers (Dickinson v. Valpy, 1829, 10 Barn. & Cress. 128; 34 R. R. 348); quarry workers (Thicknesse v.

Bromilow, 1832, 2 Cromp. & J. 425; 37 R. R. 752); farmers (Greenslade v. Dower, 1828, 7 Barn. & Cress. 635; 31 R. R. 272); or solicitors (Hedley v. Bainbridge, 1842, 3 Ad. & E. N. S. 316; Levy v. Payne, 1842, Car. & M. 453), has no such implied authority; whether auctioneers have is not yet decided (Wheatley v. Smithers, [1907] 2 K. B. 684, reversing ibid., [1906] 2 K. B. 321).

(vii.) Borrow money on the credit of the firm (Lane v. Williams, 1692, 2 Vern. 277; 23 E. R. 779; Bank of Australasia v. Breillat, 1847, 6 Moo. P. C. 152), and for that purpose pledge the personal property of the firm (Ex parte Bonbonus, 1803, 8 Ves. Jun. 540; 32 E. R. 465; Butchart v. Dresser, 1853, 10 Hare, 453; 68 E. R. 1004; and 4 De G., M. & G. 542; 43 E. R. 619); assign the book debts by way of security (Ex parte Wright, [1906] 2 K. B. 209); and (probably) make an equitable mortgage by deposit of deeds or otherwise of its real or leasehold property (Lindley on Partnership, pp. 156 and 165; and see In re Clough, 1885, 31 Ch. D. 324, and In re Bourne, Bourne v. Bourne, [1906] 2 Ch. 427). (B) But that a partner has no implied authority

(i.) To bind his firm by a submission to arbitration (Stead v. Salt, 1825, 3 Bing. 101; 28 R. R. 602; Adams v. Bankhart, 1835, 1 C. M. & R. 681; 40 R. R. 670).

(ii) To bind his firm by deed, even though the partnership be constituted by deed (Harrison v. Jackson, 1797, T. R. 207; 4 R. R. 422; Steiglitz v. Eggington, 1815, Holt N. P. 141; 17 R. R. 622). But a document which is in the form of a deed, but inoperative as such, because executed by one partner only, may bind the firm if a deed is not necessary for the validity of the transaction, and the transaction is within the partner's implied authority (Ex parte Wright, [1906] 2 K. B. 209; Marchant v. Morton, Down & Co., [1901] 2 K. B. 829; see, too, Davis v. Martin, [1894] 3 Ch. 181).

(iii.) To give a guaranty on behalf of the firm (Brettel v. Williams, 1849, 4 Ex. Rep. 623).

(iv.) To make his partners partners with other persons in another business (Singleton v. Knight, 1888, 13 App. Cas. 788).

(v.) To accept shares, though fully paid up, in a company in satisfaction of a partnership debt (Niemann v. Niemann, 1889, 43 Ch. D. 198; cp. Weikersheim's Case, 1873, L. R. 8 Ch. 831).

(2) Firm when bound by Acts of its Agent.-In order that a firm may be bound by the acts of a partner or other agent acting within his authority, the agent whose acts are sought to be imputed to his firm must have acted in his character of agent and not as a principal; if he acted as principal and not as agent, he alone is liable for such acts (see British Homes Ass. Corp., Ltd. v. Paterson, [1902] 2 Ch. 404).

Whether a contract is entered into by an agent as such or by him as a principal, is often, but not always, apparent from the form of the contract (see generally PRINCIPAL AND AGENT; Evans on the Law of Principal and Agent; Storey on Agency; Lindley on Partnership, p. 162 and pp. 205 et seq.).

Apart from any general rule of law relating to the execution of deeds or negotiable instruments, an act or instrument relating to the business of the firm, and done or executed in the firm name, or in any other manner showing an intention to bind the firm by any person thereto authorised, whether a partner or not, is binding on the firm and all the partners (Part. Act, 1820, s. 6).

The signature of the firm name to a bill of exchange or promissory

note is equivalent to the signature, by the person so signing, of the names of all the persons liable as partners in that firm, but subject to that qualification, no person whose name is not on a bill or note is liable to be sued upon it (Bills of Exchange Act, 1882, ss. 23, 89),

If two persons, A. and another, partners in trade, carry on business in the name of A., and a bill is accepted for partnership purposes by one of them in A.'s name, both partners will be liable thereon (Stephens v. Reynolds, 1860, 5 H. & N. 513). And unless A. also carries on a separate business in his own name, the onus of proving that a bill in A.'s name is in fact the bill of A. and not of the firm, appears to be on the other partner (see Yorkshire Banking Co. v. Beatson, 1880, 5 C. P. D. 115, etc.).

If there are two firms with one name, a member of both firms is liable on all bills in the firm name, but a member of only one of such firms will not be liable unless the person giving the bill had authority to use, and did in fact use, the name of that firm of which he is a member (Swan v. Steele, 1806, 7 East, 210; 8 R. R. 618).

No person can sue or be sued upon an indenture unless he be named as a party thereto (Lord Southampton v. Brown, 1827, 6 Barn. & Cress 718; 30 R. R. 511). If an agent executes a deed in his own name, he and he only can sue or be sued upon it (Appleton v. Binks, 1804, 5 East, 148; 7 R. R. 672). An agent cannot bind his principal by deed unless his authority to do so is conferred by deed (Berkeley v. Hardy, 1826, 5 Barn. & Cress. 355; 29 R. R. 261; White v. Cuyler, 1795, 6 T. R. 176; 3 R. R. 147). And even if the partnership be constituted by deed, an express authority under seal is necessary to enable a partner to bind his firm by deed (Harrison v. Jackson, 1797, 7 T. R. 207; 4 R. R. 422; Steiglitz v. Eggington, 1815, Holt N. P. 141; 17 R. R. 622). A document, though in the form of a deed and not binding as such, may nevertheless be binding on the firm (see Ex parte Wright, [1906] 2 K. B. 209, and supra, p. 423).

If a partner does an act on his own behalf or otherwise so as not to bind the firm, the firm will not be bound merely by reason of having obtained the benefit of that act (Emly v. Lye, 1812, 15 East, 7; 13 R. R 347; Bevan v. Lewis, 1827, 1 Sim. 376; 57 E. R. 618; 27 R. R. 205). Thus, if a partner without real or apparent authority borrows money, the lender cannot recover this money from the firm, although the money may have been applied for its benefit (Smith v. Craven, 1831, 1 Cromp. & J. 500; 35 R. R. 706; Hawtayne v. Bourne, 1841, 7 Mee. & W. 695; 56 R. R. 806; sed vide Reid v. Rigby & Co., [1894] 2 Q. B. 40). If, however, the money so borrowed has been expended in paying the legitimate debts of the firm, or for any other legitimate purpose of the firm, the lender is entitled in equity to the repayment of so much of the money as he can show to have been so applied (Reid v. Rigby & Co., supra; Blackburn Building Society v. Cunliffe, Brooks & Co., 1882, 22 Ch. D. 61; and L. R. 9 App. Cas. 857; Baroness Wenlock v. River Dee Co., 1887, 19 Q. B. D. 155, and 36 Ch. D. 675n.; Bannatyne v. D. & C. M'Iver, [1906] 1 K. B. 103).

(3) Liability of Firm for Torts, Frauds, and Breaches of Trust.-A principal is civilly liable for the tortious or fraudulent act, whether criminal or not (Dyer v. Munday, [1895] 1 Q. B. 742), of his agent, not only when he has previously authorised or subsequently ratified the act (as to the requisites of ratification, see Marsh v. Joseph, [1897] 1 Ch. 214; Wilson v. Tumman, 1843, 6 Man. & G. 236; 64 R. R. 770), but

even though he has expressly forbidden it (Collmann v. Mills, [1897] 1 Q. B. 396), if it has been committed by the agent in the course and as part of his employment.

Upon this principle a firm is liable for any loss or injury caused to any person not a member of the firm, or for any penalty incurred by any wrongful act or omission of a partner, acting in the ordinary course of the business of the firm, or with the authority of his co-partners; the extent of the firm's liability is the same as that of the partner so acting or omitting to act (Part. Act, 1890, s. 10). It is to be observed that this section draws no distinction between fraud and other wrongs (see, too, Pearson v. Mayor of Dublin, [1907] A. C. 351). Thus all the members of a firm of solicitors are liable for the negligent advice given by one of them to a client of the firm (Blyth v. Fladgate, [1891] 1 Ch. 337), or for a fraud committed by one of them in the ordinary conduct of their business (Brydges v. Branfill, 1841, 12 Sim. 369; 59 E. R. 1174; 56 R. R. 71; and compare Marsh v. Joseph, [1897] 1 Ch. 213); and, speaking generally, all the partners are answerable for the penalties incurred by any breach of a statute committed by one partner in conducting the partnership business (e.g. of the revenue laws, A.-G. v. Stranyforth, 1721, Bunb. 97; of the poor law (4 & 5 Wm. 1v. c. 76, s. 77), Davies v. Harvey, 1874, L. R. 9 Q. B. 433; as to the Truck Acts, see 1 & 2 Will. iv. c. 37, s. 13), On the other hand, the firm will not be liable for the wilful tort of a partner outside the scope of his authority, though to some extent connected with the business of the firm, e.g. for the malicious prosecution of a person for stealing the partnership property (Arbuckle v. Taylor, 1815, 3 Dowl. P. C. 160); nor for the fraud of a partner in the execution of a contract with him individually, and not as a member of the firm, though he was acting within the scope of the partnership business (British Homes Ass. Corp., Ltd. v. Paterson, [1902] 2 Ch. 404).

By 9 Geo. IV. c. 14, s. 6, a firm is not liable for the false and fraudulent representation as to the character or solvency of any person unless the representation is in writing, signed by all the partners; signature by one partner in the name of the firm is not sufficient (Williams v. Mason, 1873, 28 L. T. 232; Swift v. Jewsbury, 1874, L. R. 9 Q. B. 301; Hirst v. West Riding Bank Co., [1901] 2 K. B. 560).

With regard to the liability of a firm for the misapplication of money or property by one of its members, the Partnership Act, 1890, provides (by s. 11) that--(a) where one partner acting within the scope of his apparent authority receives the money or property of a third person and misapplies it; and (b) when a firm in the course of its business receives money or property of a third person, and the money or property so received is applied by one or more of the partners while it is in the custody of the firm, the firm is liable to make good the loss. In the cases falling under clause (a), the money is received by the partner as the real or ostensible agent of the firm, and the firm is therefore, in accordance with the principles above explained, treated as having received it, and is responsible for its proper application. If, however, money has been received by a partner acting outside the scope of his real and apparent authority, the receipt thereof by the partner is not a receipt by the firm, and the firm will not, without more, be liable for the misapplication of the money by the partner who did receive it. Thus it is within the ordinary course of the business of solicitors to receive money from clients for investment on a specific security, but it is not within the ordinary course of such business to receive money for invest