Platt v. Halen

By the Court, I am of opinion that Stevens may be regarded in the light of a dormant partner in respect to the chancery suits conducted by the firm of which he was a member ; and that the suit is well enough in the name of the plaintiff alone. The point, I think, has been heretofore decided, but it seems not to have been reported. The chancery business of the office was uniformly done in the name of Platt, as solicitor, the other partner not being known therein on the papers. Collyer on Part. 2, 3, 153. Cary on Part. 97. 3 Cowen, 85. Sutherland, J. was inclined to this opinion in Warner v. Griswold, 8 Wendell, 666, when it was made a question whether in such cases both partners could sue.

The objection urged on the argument that the suit in the name of one would exclude a set-off against the partnership, is not sound; the suit is for the benefit of the firm, and in a name by which it is represented, and a set-off would be allowed. 7 Cowen, 416.

It was not competent for the plaintiff to litigate the items of the bill on the trial. It had been regularly taxed on notice, and the remedy for the allowance of improper items was by appeal from taxation. Doug. 198. 12 Johns. R. *315. Though the bill need not now be serv- [ *458 ] ed before suit brought, the effect of a regular taxation is the 6ame as before.

New trial denied.