The addition of a member to a firm cre ates a new firm and operates as a dissolu tion of the old one, even though the business be continued under the old firm name, and se .does; the retirement of a member ; Allen v. Logan, 96 Mo..591, 10 S. W. A name may, be a trade-mark ; and, if it is, the use of it by others will be illegal, if they pass themselves or their own goods the firm , or the goods of the firm whose name is made use of; 2 Keen 213 ; 4 K. & J. 747. Moreover, if this is sapue intentional ly, the illegality, not be affected, by the that the imitators of the trade mark are themselves of the same ,name as those whose mark they imitate; 13 Beay. 209 ; 3 De G. M. & G. 896.
The protection of a name is not individuals, but the right belongs as well to a partnership ; Meriden Britannia Co. v. Parker, 39 Conn. 450, 12 Am. Rep, 401; Mat tingly v. Mattingly, 96 Ky. 430, 27 S. W. 985, 17 Ky. Law,Ilep. 1; id„ 31 S. W. 279, 17 Law Rep. 1; Fish Bros. Wagon Co. v. Wag on Works, 82 Wis. 546, 52 N. W. 595, 16 L. R. A. 453, 33 Aim St. Rep. 72.
Where one partner acts for the firm in demanding illegal charges and detains goods until they are paid, every member of the firm is liable for damages ; Lockwood v. Bartlett, 130 N. Y. 340, 29 N. E. 257.
An action by a firm may be defeated by a defence founded on the conduct of one of the,.partners. If one member of, a firm is guilty of a fraud in entering into a contract on behalf of the firm, his fraud may be re lied on as a defence to an action on the con tract brought by him and his copartners; for their innocence does not purge his guilt. See Ry. & M. 178; 2 Beay. 128 ; 9 B. & C. 241. The above rule seems not to rest upon the ground that the act of the one partner is imputable to the firm ; Pars. (Jas.) Part. 139 ; it governs when the circumstances are such as to exclude the doctrine of agency. Thus, if a partner pledges partnership prop erty, and in so doing clearly acts beyond the limits of his authority, still, as he cannot dispute the validity of his own act, he and his copartners cannot recover the property so pledged by an action at law ; 5 Exch. 489.
So, although a partner has no right to pay his own debt by setting off against it a debt due from his creditor to the firm, yet if he actually agrees that such set-off shall be made, and it is made accordingly, he and his copartners cannot afterwards in an action recover the debt dud to the firm; 7 M. & W. 204 ; 9 B. & C. 532. When a partner executing a firm note waives exemptions, and signs the firm name, the waiver is confined to the partner signing ; Reed Lumber Co. v. Lewis, 94 Ala. 626, 10 South. 333. An in dividual note given by a partner, and in dorsed by him in the name without au thority, in satisfaction of a debt which the creditor knows to be that of the individual, is not enforceable by the latter against the firm ; Lyon v. Fitch, 18 N. Y. Supp. 867.
If a person becomes surety to a firm, it is important to ascertain whether he clearly contemplated changes in the firm, and agreed to become surety to a fluctuating body, or not. If he did, Ms liability is not discharged by any change among the members consti tuting the partnership at the time he became surety; 10 B. & C. 122 ; 5 B. & Ald. 261; but if no such intention can be shown, then a contract of suretyship entered into with a firm will be deemed to be binding so long only as the firm remains unchanged, and Consequently any change in it, whether by the death or the retirement of a partner ; Hare 50 ; 3 Q. B. 703 ; or by the introduc tion of a new partner ; 2 W. Bla. 934 ; im mediately puts an end to the surety's lia bility so far as subsequent events are con cerned. In all such cases the surety's posi Iiou and risk are .altered, and, whether he has in fact been damnified by the change or not, he has a right to say, non in lime fie dere yeti. Similar doctrines apply to cases where a person becomes surety for the con duct of a firm ; 5 M. & W. 580. See 6 Q. B. 514; 4 B. & P. 34; 8 Cl. & F. 214 ; 1 Lindl. Partn. 172.