Y. 261. Whether it appears upon the instru ment or in some other way that the contract is one of guaranty, suretyship, or accommo dation, the burden of proof is upon the party holding it, if be took it knowing such to be the character of the contract, to show the facts necessary to render it available against the firm. 19 Johns. N. Y. 154 ; 7 Wend. N. Y. 309 ; 2 Cush. Mass. 314, 315 ; 2 Penn. St. 177 ; 21 Miss. 122 ; 22 Me. 188, 189 ; 31 id. 454. Direct or positive proof is not necessary: the authority or ratification may be inferred from circumstances. 2 Cush. Mass. 309 ; 22 Me. 188, 189 ; 14 Wend. N. Y. 133 ; 2 Litt. Ky. 41 ; 10 Vt. 268.
15. One partner, without authority, ex press or implied from circumstances, cannot bind the firm by a contract to convey real estate of the partnership unless there be a subsequent ratification or adoption of the con tract. 5 Hill, N. Y. 107. One partner has no implied authority to bind his copartners by deed, 3 Kent, Comm. 47, 48 ; Story, Partn. 117 et seq.; Collyer, Partn. 463 ; but a deed made by one partner in tbe name and for the use of the members of the firm will bind the other partners, if they assent to it or subse quently adopt it ; and this consent or adoption may be by parol. 11 Pick. Mass. 400 ; 4 Mete. Mass.548 ; 11 Ohio, 223 ; Chitty, Contr. 1860 ed. 278, note ; Collyer, Partn. 462 et seq., 469 et seq. So one partner may bind the firm to a conveyance by deed of the effects of the firm which he might have conveyed with out deed. The mere circumstance of annex ing a seal to the instrument in such a case does not annul a transfer so consummated. 1 Brock, Va. 456 ; 1 Metc. Mass. 515 ; 7 id. 244; 5 Hill, N. Y. 107 ; 8 Leigh, Va. 415. A deed of assignment of tbe partnership pro perty, executed by one partner as his deed only, passes his interest in the property. 11 Mees. & W. Exch. 128. But see 17 Yes. Ch. 193, 200 ; 5 Mo. 466.
One partner cannot bind the firm by sub mitting any of the affairs of the firm to arbi tration, whether by deed or parol. 3 Kent, Comm. 49 ; Story, Partn. 114, 115 ; 3 Bingh. 101 ; 3 Hurlst. & N. Exch. 500 ; 1 Crompt. M. & R. Exch. 681 ; 3 C. B. 742, 745 ; 19 Jolans. N. Y. 137 ; 1 Pet. 221 ; Collyer, Partn. 439, 470. The principle is that there is no iroplieeauthority, excepting so far as it is necessary to carry on the business of the firm. 1 Crompt. M. & R. Exch. 581 ; 3 Bingh. 101. It might also affect the rights of the other partners to resort to the ordinsry course of justice. Collyer, Partn. 439. In
some states, however, one partner may sub mit partnership matters to arbitration. Wright, Ohio, 420; 12 Serg. & R. Penn. 243 ; 3 T. B. Monr. Ky. 433.
16. The rule that one partner cannot bind his zopartners by deed does not extend to re leases. Collyer, Partn. 468 ; 2 Coke, 68 ; 4 Term, 519 ; 3 Bingh. 101 ; 3 Johns. N. Y. 68 ; 4 Gill & J. Md. 310 ; 3 Kent, Comm. 48. As a release by one partner is a release by all, so a release to one partner is a release to all.
March. 202 ; 8 Coke, 136; 23 Pick. Mass. 444 ; 3 Penn. 57 ; 5 Gill & J. Md. 314 ; 22 Pick. Mass. 305 ; Chitty, Contr. 1860 ed. 275, note.
The power of a partner to dispose of the property of the firm does not extend to real estate held by the partnership : one partner ca,nnot convey away tbe real estate of the firm without special authority. 1 Metc. Masa. 518, 519 ; Story, Partn. 101 ; 1 Brock, Va. 456, 468 ; 3 McLean, C. C. 27 ; Collyer, Partn. 394.
One partner cannot by confessing a volun tary judgment bind his copartners, unless actually brought into court by regular eervice of process against bim and his partner. A judgment so confessed will bind the partners who did it only. 1 Wend. N. Y. 311 ; 1 Blackf. Ind. 252 ; 1 Watts & S. Penn. 340, 519 ; 7 id. 172 ; 3 C. B. 742 ; Collyer, Partn. 464, note ; 4 Moore & P. 57: Nor can one partner, by entering an appearance for an other, bind him personally and individually where the latter is not within the jurisdic tion and has not been served with process. 9 Cush. Mass. 360 ; 1 How. 165.
VV. The act of a partner wholly uncon nected with the business of the partnership does not bind the firm. 4 Exch. 623 ; Coll yer, Partn. fl 437, 484 ; 2 Barnew. & Ald. 678 ; 4 Johns. N. Y. 265 ; 8 Me. 820 ; 15 Pick. Mass. 290 ; 3 Conn. 198 ; 3 Johns. Ch. N. Y. 23 ; Story, Partn. N 112, 113 ; Chitty, Contr. 1860 ed. 275 ; 3 Q. B. 316 ; 4 Dan. Ky. 378 ; 2 Ell. & B. 61. Still, a partner may bind the firm in matters out of the usual course of the business of the firm, if those matters arise out of, and are connected with, the regular transactions of the firm. Collyer, Partn. 484 ; 2 Barnew. & Ald. 673. If one partner is a trustee, and he improperly em ploys the trust funds in the partnership busi ness, his knowledge that be is doing so is not imputable to the firm. 1 Lindley, Partn. 231 ; 1 Brock, Va. 386.