#### Henry Wilkes *v.*William M. Clark.

From Hertford.

In an action of assumpsit against a carrier for damage to goods, a dormant partner need not join.

The Defendant had a boat commanded by one of his slaves, plying for freight on the river Roanoke, and a quantity of corn was shipped on board and delivered to the slave by one *John Wilkes,*to be carried to Plymouth *179f*>*’ the customary freight. In this, *John Wilkes*acted as agent for the owner or owners, and it did not appear that any express agreement was made between him and the .slave, or that the shipment was known either to the owners of the corn or of the boat. The corn hating been damaged, this action was brought, in which the Plaintiff declared in assumpsit, and on the trial, before the late Judge Paxton, the fact of the delivery and loss of the corn being shown, the Defendant’s counsel read the deposition of one *W. II. Pugh,*and insisting that upon the facts therein stated, *Pugh*was joint owner of the corn, and should have been joined in the. action, moved for a nonsuit. The material statement in this deposition, was, that the Plaintiff bought the corn of *John Wilkes,*and some time before the shipment, told *Pugh*that be should have to pay for it before be could get it to mat ket, and was not in funds to do *so*— Pugh offered to let him ha\e money to pay for one half of the corn, upon an agreement that the Plaintiff should receive and dispose of the corn in his own name as though *Pugh*had no interest in it, and after the sale, should return the money with one-half the profits. To this proposal, the Plaintiff agreed, and received the money from Pugh. The advance of money was nota gift or a loan, but was put into the Plaintiff’s hands to pay for half the corn, the money and half tiie profits to be returned as stated above, and the witness said that in the event of loss, lie should have felt himself bound in honor to sustain half of it. The whole of the transaction between the Plaintiff and *Pugh,*was entirely private.

The presiding Judge refused to direct a nonsuit, and instructed the Jury to find for the Plaintiff, who accordingly had a verdict and judgment.

*Hogg*& *Badger,*for Defendant,

1st. *Pugh*was a joint owner of the corn. Every person who has a joint interest in property is a joint owner. *180The case states that *Pugh*did not lend or give the amount of his advance to Wilkes, of necessity, he must have bought one half of the corn. If it liad been totally lost, and nothing ever realized from it, he must have submitted to that *loss;*lie could only look to it for a return of his advance, ar.d of course, must have been a joint owner of it.

2d. It cannot be denied as a general rule, that all who are concerned in interest, must join in an action on a contract concerning that joint interest. The exceptions are, where there is a dormant partner and where the name of the copartners is not disclosed. These exceptions result from privity of contract. Where there is no such privity, and the right of action results from implication of law, all who are jointly interested, must join as Plaintiffs. (1 *Chitty’s Pleading 5,7*— Graham *v. Roberson,*2 *1).*& *E. 282*— Waugh v. *Career,*2 *IL Blk.*235, *Lloyd*v. Archbole, 2 *Tam. 324*— Skinner v. *Stocks,*4 *B.*& *A.*437.)

In this case, there was no express agreement at all, unless the deposit amounted to one, and if so, *John Wilkes*and not the Plaintiff, is the party thereto. The only right in any other to sue, is founded on ownership, the law implying a promise to the owner, where there is no express contract with another. But here the ownership being joint in the Plaintiff and *Pugh,*the promise implied is a joint promise to them both, and no reason can be conceived why the Plaintiff, more than *Pugh,*should sue *alone;*it appearing expressly, that *John Wilkes*acted not as the agent of the former, but as the agent of the owner or owners, whoever they were.

*Gaston,*for the Plaintiff,

contended, that a person having an interest in profits, became a partner only as to creditors, for the purpose of giving them a better security for their debts- *(Gow on Partnership,*14, 15, 23 — » *Hoskith*v. *Blanchard,*4 *East. 144*— Morse v. *Wilson**4- *181*]).*# jj, *353*— Waugh v. Carver, 2 ff. *Blk.*255 — Doi v. *Halsey,*16 *Johis.')*But as to debtors, it was indifferent whether a dormant partner joined or not, and his non-joinder was no ground of nonsuit, because the contract was made with the acting partner, the Plaintiff in the action. If he joined, which he might do, his joinder did not affect any defence which existed against the acting partner alone. (Goto 13,153 *154*— Skinner *V. Stocks,*4 *B.*& jJ. *437*— Lloyd v. *Jrchbole,*2 *Taun. 324*— Lsvick v. *Shaftoe,*2 *Esp.*JV*. *P. Gas. 468*— Carr v. *Hinchliff,*4 *B. and C.*547.)

He denied that the difference alleged on the other side, between contracts expressed, and contracts implied, was sanctioned by authority or supported by reason. The law implied the promise to the acting partner, or the ostensible owner, and here, though *Pugh*and the Plaintiff, as between themselves, and where third persons wished to charge them respecting the property, were joint owners ; yet in other respects, the Plaintiff was the sole owner, and might sue without joining *Pugh,*

Tanxor, Chief-Justice.

The question to be decided in this case is, whether the Superior Court erred in refusing to instruct the jury, that *Pugh*had such an interest in the corn, that he should have joined in the action brought by *Wilkes,*and that *Wilkes*alone could not maintain *it;*and my opinion on the case, and *Pugh's*deposition is, that there was no error committed by the Court in refusing this instruction.

The agreement made between the Plaintiff and *Pugh,*took place one or two months after the former had purchased the corn from *John Wilkes,*and it w as a part of that agreement, that, the Plaintiff was to receive and dispose of the corn, in his own name, in the same manner as if Pag/iiiad nothing to do with it. The agreement to this effect was private between them, and *Pugh*thinks *182it was unknown to any other person. It was consequent-iy unknown to *John Wilkes,*when lie shipped the corn, i 11 who must have believed that lie was acting as the agent of, and for the sole account of the Plaintiff *Henry Wilkes.*If therefore, when lie made the shipment, an express contract had.been made between him and the carrier,' it must have been made in the name of his. brother, and would have enured to his benefit; for the law will only imply that, which it may be supposed the parties would have expressed, had they defined the terms of the agreement.

It follows, that *John Wilkes*was the agent for the Plaintiff alone, and that the latter was unknown in the contract of shipment. The case then falls within the rule, that the party with whom the contract was made, may alone sustain the action, although it turn out that another person, whose name is not mentioned, is secretly interested. Thus in the case of *Lloyd*v. *Achbole,*(2 *Taunton*324) it was held that it is no ground of nonsuit in an action on a contract, that a dormant partner, who is not privy to the contract, and is not party to the suit, partakes of the benefit of the contract, and therefore ought to be joined as Plaintiff. The Court in that case, holding that the only ostensible partner who made the contract, was the only proper Plaintiff; for the only acting partner might owe.inuch money to the Defendant, which the Defendant might set off; but if the Plaintiff and t.iie dormant partner had sued, that debt of the acting partner could not be set off. “ If you can find out a dormant partner Defendant, you may make him pay, because he has had the benefit of your work; but a person with whom you have no privity of communication in your contract, shall not sue you,” (Ibid.) To the same effect are the cases cited from 2 *Esp. c.*468—1 *M.*& *S.*249, and several others.

Upon general principles, I think thatPMgk was a partner with the Plaintiff, for though nothing whs expressed *183relative to a possible loss, yet he who takes a moiety of the profits, shall by operation of law be made liable to the losses ; and since by sharing tiie profits, he lessens that fund which is properly liable to the creditors for the payment of the debts, he is justly responsible to them. In such a case, it is not competent for a person having an interest in the profits, to withdraw his share from the liability, and deny his being a. partner. The question in many cases, is susceptible of *different*views, whether considered in relation to the parties themselves, or to third persons dealing with them. There may be a partnership as respects third persons, when the transaction would not be considered such, among the parties themselves. Indeed, there may be cases, in which it is the undoubted intention of the parties to the contract, that they should not be partners, as that one is to contribute neither labour or money, nor to receive any of the profits, yet if by lending his name as a partner, he gives credit to the house, he cannot, as against creditors, deny his being a partner, otherwise the greatest frauds might be practised. But it is needless to pursue this enquiry, for though X think that *Pugh*would have been considered as a partner, in respect to creditors, I am of opinion that he cannot join in the action as Plaintiff, for the reasons above stated.

Per curiam. Judgment affirmed.