The name of the firm should be distinct from the names of all other firms. When there is confusion in this respect, the part ners composing one firm may, in some cases, be made responsible for the debts of anoth er. See 7 East 210; Phillips v. Paxton, 3 Mart. N. S. (La.) 39. As to the right of a surviving partner to carry on the business in the name of the firm, see 7 Sim. 127 ; Story, Partn. § 100, n.
A firm can neither sue nor be sued, other wise than in the name of the partners com posing it ; Pars. (Jas.) Partn. 76. Conse quently, no action can be brought by the firm against one of its partners, nor by one of its partners 'against it ; for in any such action one person at least would appear both as plaintiff and defendant, and it is consid ered absurd for any person to sue himself, even in form ; 4 Mylne & C. 171; Ryder v. Wilcox, 103 Mass. 24. For the same reason, one firm cannot bring an action against an other if there be' one or more persons part ners in both firms ; 2 B. & P. 120; unless by statute; as in Pennsylvania, by the act of April 14, 1838.
One partner cannot sue another for his share while their partnership accounts are unsettled ; Bouzer v. Stoughton, 119 Ill. 47, 9 N. E. 208; Robinson v. Green's Adm'r, 5 Herring. (Del.) 115; Ozeas v. Johnson, 1 Binney (Pa:) 191; Learned v. Ayres, 41 Mich. 677, 3 N. W. 178 ; and where a trustee, under a deed of trust executed by one part ner on firm property,' as security for an in dividual debt, has recovered the property in replevin against the partner executing the deed, who was in possession, the other part ner cannot sue at law to recover it from the trustee as its co-owner, but must resort to equity ; Hoff v. Rogers, 67 Miss. 208, 7 South. 358, 19 Am. St. Rep. 301. So a partner can not sue for partition of firm real estate against his co-partner in advance of an ad justment of the firm accounts ; Kruschke v. Stefan, 83 Wis. 373, 53 N. W. 679 ; Meinhart v. Draper, 133 Mo. App. 50, 112 S. W. 709 ; MacFarlane v. MacFarlane, 82 Hun 238, 31 N. Y. Supp. 272 ; contra, Molineaux v. Rey nolds, 54 N. J. Eq. 559, 35 Atl. 536. The rea son of the inability of one partner to sue another upon a claim or liability is that, un til the affairs of the concern are wound up, what one partner might owe the firm is not a debt of the other members to him'; Ives N.
Miller, 19 Barb. (N. Y.) 196; Christopherson v. Olson, 104 Minn. 330, 116 N. W. 840 ; Burns v. Nottingham, 60 Ill. 531; Newby v. Har rell, 99 N. C. 149, 5 S. E. 284, 6 Am. St. Rep. 503.
An appeal or writ of error taken in the name of a firm and not giving the names of the individuals comprising it will be dis missed, and the defect cannot be amended ; The Protector, 11 Wall. (U. S.) 86, 20 L. Ed. 47 ; Porter v. Foley, 21 How. (U. S.) 393, 16 L. Ed. 154 ; Hodge v. Williams, 22 How. (U. S.) 87, 16 L. Ed. 237.
Whenever a firm is spoken of by its name or style, the courts admit evidence to show what persons did in fact constitute the firm at the time in question ; 4 Maule & S. 13 ; 2 Keen 255. If persons trade or carry on business under a name, style, or firm, what ever may be done by them under that name is binding as much as if real names had been used ; 1 Chitty, Bailm. 707 ;• 2 C. & P. 296; 2 Campb. 548.
Any change in the persons composing a firm is productive of a new signification of the name. If, therefore, a legacy is left to a firm, it is a legacy to those who compose it at the time the legacy vests; see 2 Keen 255 ; 7 De G. M. & G. 673; and if a legacy is left to the representatives of an old firm, it will be payable to the executors of the survivors of the partners constituting the firm alluded to, and not to its successors in business; 11 Ir. Eq. 451;• 1 Lindl. Partn. 216. Where a creditor takes a note made by one partner in the firm name after its dis solution, whereby the time of payment of a firm -debt is extended, the other party is dis charged from liability; Silas v. Adams, 92 Ga. 350, 17 S. E. 280.
If a retiring partner leaves a firm and the remaining partners agree to pay the debts and indemnify the outgoing partner, the creditors who -know these facts and raise no objections are bound to treat the outgoing partner merely as surety for the debts ; [1894] A. C. 586.
Again, an authority given to a firm of two partners canhot, it would seem, he exercised by them and a third person afterwards taken partnership with, them ; 0 Bing. ,N. C. 201. See .7 Hare 351; 4 Ves. 649.