The affidavits upon which the order to arrest the defendants in this action was founded, state that “ the defendants compose the firm of Bogart, Jefferis & Co., and have been heretofore, and now profess to be engaged in the auction business in the city of New York;" that goods were purchased *364from the plaintiffs by the defendant Jefferis in the name of the firm of Bogart, Jefferis & Co., and professedly for their benefit; that purchase is shown to have been made by gross misrepresentations, and a most aggravated fraud in procuring the goods is shown to have been perpetrated by Jefferis; and enough is shown to indicate very clearly that the defendant Jackson was a party to the fraud, and was active in the endeavor, by repeated false representations, to quiet the apprehensions of the plaintiffs, induce the belief that the goods would be paid for, and so prevent their resort to legal measures for redress.
An order of arrest having been obtained against all of the defendants, the defendant Bogart moves to discharge that order so far as it relates to himself, on the ground that it does not appear that he has been guilty of any fraud, or that he is liable to arrest in this action for the fraud of Jefferis and Jackson.
It is clear that when goods are purchased for, and come to the use of a copartnership by means of the fraud of one of the partners, no title to the goods is acquired thereby, and trover may be brought for the conversion thereof, or the goods may be replevied. Or an action on the case will lie for the deceit practised by one of the partners to obtain the goods.
If the goods are in the possession of the firm, or if they have been converted to the use of the firm, the action of trover will lie against all of the partners.
And even if no benefit has been derived by the firm, or by the innocent partners, from the fraud, still, if the fraud was committed by the others while acting within the scope of the copartnership business, it has been held that all are liable for the damages sustained thereby, even though some were ignorant of the fraud.
The principle upon which this rests is stated in Hawkins a. Appleby (2 Sandf., 428) to be, that by forming the connection, partners pledge themselves for the good faith of each other, and impliedly agree to be responsible for what they shall respectively do within the scope of their copartnership business. (See the cases there cited, and Collyer on Part., book 3, ch. 1, §5; Perkin's ed., 401-413, §§445-456 ; Cary a. Hotailing, 1 Hill, 313.)
And the principle is supposed to be the same as that which holds all the partners liable for the negligence of one in the conduct of the copartnership business. (Bostwick a. Cham*365pion, 11 Wend., 571; 18 Ib., 175 ; Cotter a. Bettner, 1 Bosw., 490; Moreton a. Hardern, 4 Barn. & Cr., 223; and see also 15 Mass., 75, 331.)
But to maintain trover against all the partners for goods fraudulently purchased, or an action on the case for the deceit, it must appear that the goods came to the possession and use of the copartnership, or that the purchase was within the scope of the copartnership business, or that the act of fraud by which the damages complained of were caused, was within the power and authority conferred upon the fraudulent partner, either express or implied from the nature of the copartnership. This will be found to lie at the foundation of all the cases which hold one partner liable for the fraud of the other.
If the ■ present action was an action of trover for the wrongful conversion of the plaintiffs’ goods, or was an action on the case for the deceit practised by the defendant Jefferis, the propriety of the order to arrest all of the defendants would depend on the single question, whether the plaintiffs have shown that such action can be maintained against them all. Showing such cause of action, shows at the same time a right to have the defendants arrested in the action founded thereon. (Code, §179, subds. 1, 4.)
But the plaintiffs’ affidavit states distinctly that this is an action “ brought to recover the price of 300 dozen knit shirts and drawers, sold and delivered by the plaintiffs to the defendants.”
It is, therefore, not an action of trover for the wrongful conversion of the plaintiffs’ goods.
It is not an action on the case for false representations, fraud, or deceit, to recover the damages sustained thereby.
It is not an action of tort in any form or by any name, unless we are to assume that the affidavits are founded in mistake, and do not truly represent in legal terms the nature of the remedy the plaintiffs are pursuing.
But it is an action affirming the sale of the goods as a valid sale. It seeks to recover the price as a debt due by the defendants to the plaintiffs upon and for such sale.
That the defendants are all liable upon a contract of sale made in the name of all, and for goods delivered to all, is not questionable.
And if it be true in fact, as is somewhat loosely and generally *366stated in the affidavit, that the goods were “ delivered to the defendants,” they may be all liable for the price, whether the purchase was within the scope of the copartnership business or not.
The same principles which would make them liable in trover, where trover would lie against all, or in an action for the deceit when that could be sustained against all, would, a fortiori, establish their liability for the debt.
But establishing a joint liability for the debt, does not,per se, entitle the plaintiffs to hold the defendants to bail. In an action of trover, or an action on the case for deceit, it is enough to show a cause of action against all, and the right to hold to bail follows of course; but here proving the debt only shows a joint liability to such consequences as flow from the recovery of a judgment for money due on a contract, and these do not include a liability to arrest. Something more—some extrinsic facts, not appearing by the record—must be shown.
Bogart may therefore be liable for the debt—a cause of action may be established, prima facie, against him, and he may be liable to all the consequences which flow from showing a joint liability with his partners for a demand accruing in the copartnership business, upon a contract made in the name of the firm, and still not be liable to arrest in this action for his partners’ fraud.
I am not prepared to say that, where a plaintiff affirms the contract of sale, and founds his action thereon, and shows the fact of the defendants’ copartnership, and so their joint liability for the price, each of the copartners is liable to be held to bail, because the purchase was obtained by the fraud of one of them.
The only provision of the Code under which, in such case, the defendants can be held to bail, is subdivision 4, of section 179, which imposes the liability to arrest “ when the defendant has been guilty of a fraud in contracting the debt for which the action is brought.”
I apprehend that this does not mean that every defendant who is liable for the debt shall be liable to arrest, when one only committed the fraud, and the others are innocent. It is the defendant “ who has been guilty of the fraud” that may be arrested. If it were not so, then all joint makers of a note *367might he arrested, though some of them were in truth makers for accommodation, or sureties for the rest, if the latter by fraud procured it to be discounted.
There may be many persons liable for the same debt, and by force of the same contract, but it is opposed to the legislation of this State, for nearly thirty years, to hold any debtor to bail, and subject him to imprisonment, unless he is himself guilty of some fraud.
The construction of this subdivision of section 179 must be, in this respect, the same as the next following, which provides that the defendant may be arrested when he “ has removed, or disposed of his property, or is about to do so with intent to defraud his creditors.” It would hardly be claimed, I think, by any one, that, in an action against three partners, on a co-partnership note, all of them could be held to bail on proof that one of them had disposed of his property to defraud his creditors.
And in the present case, if it were conceded that all of the defendants are liable to the plaintiffs for the price of the goods, they cannot, in my opinion, be all held to bail in an action on the contract to recover that price, unless the proof also shows that they are all parties to the fraud. No one but he or they who are “ guilty of the fraud in contracting the debt,” are liable to the arrest in such an action.
This being an action on the contract, in affirmance of the sale, and to recover the price; the plaintiffs must, to sustain the order of arrest as against the defendant Bogart, show two things:
First, that he is liable in the action for the price of the goods; and, second, that he has been guilty of a fraud in contracting that liability.
Under this latter proposition it may, however, be conceded, that if with knowledge of the fraud he assents to, and adopts the purchase, or receives the benefit of it, he is a fraudulent debtor within the meaning of the clause in question.
The goods in question do not appear to have been purchased in or for the business in which the copartnership was engaged. That was the “ auction business.” That is not shown to embrace the purchase of goods at all. It is not shown that prior to the purchase in question the firm of Bogart, Jefferis & Co. *368had ever purchased any goods. They had received consignments of goods for sale at auction, and had sold them. They had been employed by the plaintiffs to sell goods at auction, and for all goods consigned to them by the plaintiffs, and sold, they had duly accounted and paid.
The affidavits fail to show that the purchase of goods was within the scope of the copartnership business, or that Bogart was cognizant of the fraud, or that he ever assented in any manner to become a party thereto.
If it were conceded that the words of the plaintiffs’ affidavit, which, in general terms, states that the “ goods were delivered to the defendants,” in connection with the fact that they were disposed of, sufficiently shows that the goods came to the use of the firm so as to make the partners liable in trover for their value, or in assumpsit for their price; still, if the action be brought in affirmance of the sale, and for the price of the goods as a debt due by the firm, the extrinsic fact that the defendant Bogart was guilty of a fraud in contracting the debt, is wanting. It is not shown that he was aware of the representations by which the goods were procured, nor that he at any time assented to the purchase with any such knowledge. Bor is it even shown that he ever had'actual knowledge that the goods had been purchased or disposed of.
Being one of the partners, he may no doubt be assumed to know what goods are purchased in the copartnership business. It not being shown that this purchase was within the scope of the partnership, that presumption does not arise here. If the goods were in fact delivered at the defendants’ store, it does not follow that Bogart knew that Jefferis had committed any fraud in procuring them, or that he committed any in disposing of them: still less that he knew they were procured or disposed of without intent to pay for them.
I am conscious that the case made by the plaintiffs’ affidavits may warrant the suspicion that Bogart was a party to the fraud, but an order of arrest ought not, I think, to be made on suspicion. Those affidavits may, perhaps, by some be regarded as showing, prima facie, that he was cognizant of the fraud, and assented to it. If the purchase and sale; of goods had been within the scope of the copartnership, or it had appeared that he knew that the goods were purchased in the name of the *369firm, or it had appeared that the goods were appropriated to the use of the firm with his assent, I should incline to that opinion. In such case he must be deemed to have been so far acquainted with the business of his own firm as to know that the goods had not been paid for, and also to know that the proceeds of the sale thereof were not applied to that payment, and that the purchase was made without the means of payment; and his acquiescence under such circumstances would tend strongly to show that he was a party to the whole fraud, and would at least warrant the continuance of the order, when he, by no affidavit or proof, denies his complicity in the fraud.
The proposition upon which I insist is, that in an action on the contract for the price of the goods, a partner who has not been guilty of the fraud as an actual participator therein, nor by assenting to or adopting the purchase with knowledge of the fraud, cannot be held to bail. I think that the affidavit of the plaintiff in this case ought to be taken to mean what it says; and that this is, what the plaintiff swears it is, an action founded on a sale, and to recover the price agreed to be paid.
I do not appreciate the suggestion, that wherever trover would lie against all to recover goods purchased fraudulently by one partner, there each may be held to bail in an action on the contract of purchase.
The Legislature have seen fit to permit the holding to bail in all actions of trover, whether the right to maintain the action arises out of a fraud or not. And so they have permitted an arrest wherever an action on the case, for fraud in obtaining property, will lie. But they have not permitted an arrest in an action on the contract, for the price, on mere proof that the action will lie.
If it were conceded that the plaintiffs had a choice of remedies, i. e., to sue in trover, and hold all the partners to bail, or to sue on the contract, and hold those only to bail who were guilty of the fraud, I perceive no legal absurdity in the result.
And when the Legislature, in subdivision 4, of section 179, provided that in an action on contract, the defendant who had been guilty of a fraud in contracting the debt, or incurring the obligation, might be held to bail, I think they meant a defendant who had been guilty of actual fraud, and not one who *370might have incurred a responsibility in some other form, for the fraud of a partner.
Robertson, J., also dissented.