
    Jonathan Boardman vs. Abner Keeler & Ebenezer Allen.
    Grand-Isle,
    
    January, 1829.
    •An action of Book-debt witi lie to recover tiie amount due for the freight of certain commodities shipped onlboard the plaintiffs vessel by the 'defendant, and transported to the place of destination—-thougKihe price of freight be agreed on.
    .If the owner oFa vessel let her.to another person, tvho’is to have the sole charge and controul of her, and, by agreement', is to pay the owner one half of the net earnings, after deducting expenses of repairs—the owner cannot joia in an|action to recover for the freightafterwards earned by the vessel.
    A dormant partner -cannot join asa eo-plamtiffjn a suit brpughtto recover a debt dua to the company.
    The?questions of law which the court were called upon to .decide, in this case, arose upon the acceptance of an Auditor’s-report, in the County Court of this county, April Term, 1827;
    The case shows that one Elisha Boardman of South Hero was the owner of a sloop or boat which navigáted Lake Champlain j ■and that Jona. Boardman was the master; arid, by the terms of the contract between the said Elisha and Jonathan, the latter was to have the entire controul of said boat, and was bound to account with the said Elisha for the one half of the net proceeds, after deducting expenses and repairs—That Abner Keeler, one of the defendants, is the owner of a farm in South Hero, which he rented to Ebenezer Allen, the other defendant, who obligated himself to deliver to Keeler one half of the products of the same; that if any of the produce was taken to market, Allen was to make the sale, and account to Keeler for one half of the proceeds; and neither had an exclusive right, until a division—That in the fall of 1825, twenty one hogs were fatted on the farm, and Keeler agreed with Allen to market the same in Montreal, and was to be allowed fifty cents per day by Allen for his time—That Allen, with the knowledge and consent of Keeler, applied to Jona. Boardman to freighg the same to St. Johns, L. C.; but had no authority from Keeler to make use of his name, it appears Jona. Boardman required $20 for running down a load, and could carry about forty. Board-man then informed AllentYiztm case he and Keeler should conclude to put their hogs into his boat, one Fletcher Would furnish part of a load upon notice ; and requested Allen to notify him, Which he did, and also notified Keeler of the plaintiff’s terms.—• Keeler and Allen put the twenty one hogs, together with nine others, the property of Keeler, on board; Fletcher also sending eighl other hogs on board. After sailing, plaintiff enquired of Keeler, who was in the boat, to whom the hogs belonged ? Keefer’s reply was, thathe had the charge of them ; (that is, the thirty; Fletcher sending his own son with the eight,)—that the plaintifi had no knowledge to whom the hogs belonged, other than from the conversation with Allen and Keeler before stated.
    
      ^6S0 are &0 only material facts in the case. Jona. Board-nan brought his action of book debt for the freight against Allen and Keeler jointly. Many questions were raised and decided by -Auditor, which are not necessary to notice. He reported to. the County Court a balance due irom the defendants to the plaintiff, of $11,95 cents, for the freight of the 21 hogs. '
    To the acceptance of the report the defendants filed the following exceptions in substance;
    1. The report ought to be rejected, because Elisha Boardman was not joined with the plaintiff in the action.
    2. Because said Fletcher was not made a co-defendant with Allen and Keeler; and
    3. Because the plaintiff ought to have brought assumpsit, and not book debt. .
   The cause being submitted without argument, the opinion of the Court was delivered by

Paddock, J.

It would be doing the plaintiff an injury, without benefitting the defendants, to turn him around to a new action, if book debt will lie in the present instance ; and that it will, the Court have little doubt. There is frequently some difficulty in drawing the line where book debt ¿hall end, and assumpsit commence ; but the Court think this case sufficiently marked as falling within that class of dealing between persons, which was intended by the Legislature, and policy dictates, to be charged on book, and recovered in an action of book debt.

There are no grounds for saying that Fletcher ought to have been joined with the defendants. There is neither community of interest, nor privity of contract, between Fletcher and the defendants, to be found in the case.

.The objection that Elisha Boardman ought to have been joined with the plaintiff, deserves a more particular consideration.

Itis said that those who share in the profit and loss of a particular business, the law will declare partners; and if they do not participate in profit and loss, if they hold themselves out to the world as partners, they may be treated as such. As where one of the partners withdrew from the firm without giving notice, and the name of the firm was stilfpreserved. Parkin vs. Carruthers et al. 3. Esp. R. 248. Or where a person acknowledged himself a partner, when-in fact he was not; yet the other thereby gained a verdict; as in De Berkam vs. Smith and Lewis, 1 Esp. R. 29. And if persons engaged in the same, or different pursuits, enter into such articles of agreement as constitute a partnership, though they intend no such thing, and are altogether unconscious that such will be the effect of their agreement, yet, third persons may treat them as partners. Waugh vs. Carver et al.2.H. Blk. R. 235. Gouthwaite vs. Duckworth et al. 12 East, 420. — Hesketh vs. Blanchard, 4 East, 144.

C. Adams and Perigo, for plaintiff.

Allen, Swift and Smith, for defendants.

According to the current of decisions, had Jonathan Board-man contracted a debt for repairs upon the boat, or for labourers to navigate it, Elisha Boardman would have been holden with him for the payment, upon its appearing that he was to share “ half of the net earnings of the boat, after deducting expenses and repairs.” Such was the decision of Lord Ellenborough in Day vs. Boswell, 1 Camp. 329. But had the contract between the Boardmansbee n, that for working the boat, Jonathan should receive half her gross earnings, and Elisha, as owner, should receive the other half, Lord Ellenborough, in the same case last cited, says, “ that no partnership eould exist: it would only be a mode of paying the one wages who did the labour.” The same was held by Lord Alvanley in Wilkinson vs. Frasier, 4 Esp. N. P. Ca. 182; and also in Muzzy vs. Whitney et al. 10 Johns. 226. Had Jonathan and Elisha Boardman brought their joint action against Keeler and Allen, what would have been the effect ? The law will not suffer a dormant partner to join as* plaintiff in an action ; for by bringing his name upon tile record, when it was not known in the contract, it might prejudice the defendant’s set-off. Therefore, in the case of Lloyd vs. Archbowle, 2. Taunt. 325, Ch. J. Mansfield says, “ a person, with whom you have had no privity of communication in your contract, shall not sue you.” The same question being presented in that case, that is raised in the one now at bar, it was decided that a dormant partner could not join in the suit. But there is a distinction where partners are defendants; it is then at the election of the plaintiff to join a dormant partner as defendant in the suit, or not, as his interest may dictate, if a dormant partner of the-defendant can be discovered, he can be compelled to pay, because, he participated in the profits of the contract; but he cannot claim to be joined, nor the active partner for him; having hid him in his contract, he can only be drawn forth by the plaintiff.

The court are satisfied that the suit is well brought; therefore,

The Judgment of the County Court is affirmed.  