Page images


Particular liens are liens upon goods in CAP. IV. respect of money due on them, or of labour,




Rules as to the exist ence, transfer, and

cesser of liens.

trouble, or care expended upon them; and these liens are favoured in law. So that unpaid vendors of chattels not parted with, parties who have advanced money on the security of chattels, innkeepers, common carriers, shipowners, sailors, factors, artisans, and others to whom chattels have been delivered, in order that such persons might bestow labour, trouble, or care upon them, for a pecuniary consideration, have a lien upon them for it.

General liens are liens in respect of a general balance, due in the ordinary course of dealing in the same business; and these are founded on express agreement or custom only, or the previous course of dealing, which must be proved by the bailee; and they are taken strictly. Warehousemen, factors, insurance brokers, bankers, and solicitors have a general lien. (Add. Torts, 277-8, 282-5; 2 Ste. Com. 81; Sm. Merc. Law, 564-5; Cross on Lien, 14, 15, 20, 23-4.)

A lien must not be at variance with the terms or implied understanding upon which the property was received. (Add. Torts, 279, 282.)

It cannot be transferred. (Add. Torts, PART III. 288.)

A lien can only exist where either payment is to be made in ready money, or security is to be given immediately on the completion of a work.

If security, such as a bill, note, or bond, payable at a distant day, is taken for a debt for which the creditor has a lien, or a new agreement is come to for payment of such a debt in a particular manner, the lien is gone. (Add. Torts, 280; Sm. Merc. Law, 570-1.)

If a bailee voluntarily parts with the possession of property upon which he has a legal lien, the lien ceases. (Add. Torts, 288; Sm. Merc. Law, 569; Cross on Lien, 38.)

A lien may be at once extinguished by a tender of the money. (Add. Torts, 288;

Sm. Merc. Law, 570.)


When a person has merely a right of lien sale. on goods, he has no right to sell them.

(Add. Torts, 193; Cross on Lien, 47.)





PART III. PARTNERSHIP is the voluntary association of two or more persons, who contribute money, Partnership effects, labour, or skill, for the purpose of



Contract of partnership.

Articles of partnership.

Who may be partners.

carrying on, as principals, a common undertaking, for a lawful object, for their common profit. (See Sm. Merc. Law, 20; Tudor Ca. on M. L. 303-4, 307; Lindley, 1 ; and infra.) The partnership contract need not be in writing, but may be entered into verbally, or inferred from the conduct of the parties. (Sm. Merc. Law, 26; Lindley, 81, 87-9.)

An agreement in writing for a partnership is designated by the name of articles of partnership. (Sm. Merc. Law, 32; 2 Ste. Com. 98; Lindley, 88.)

Each of the partners must be competent to contract; and therefore, if the contract of partnership is attempted to be entered into by an infant, it will be avoidable at his full age; and if by an alien enemy, it will be void; and if by a married woman, it will be

* As this Manual relates only to that portion of Common Law which is termed Private Law, it does not include the law of Joint-stock Companies, the statutory part of which has just been consolidated by the statute 25 & 26 Vic. c. 89.



void, except by special custom, or upon the PART III, civil death, transportation, or judicial separation of the husband, or in respect of separate estate. (Tudor Ca. on M. L. 305-6; Sm. Merc. Law, 23; Lindley, 74, 77, 79.)

and requi


A community of profit is the true criterion Criterion of a partnership. This is essential; but an sites of a equality of profit is not necessary; nor is it necessary that there should be a community of that which produces the profit, or a community of loss. For, by express stipulation, one partner may be exonerated from all loss, as between himself and his companions, though he will nevertheless be liable to strangers; and one partner may contribute all the money, all the stock, or all the labour. (Sm. Merc. Law, 20-2; Broom Com. 536; 2 Ste. Com. 100-1; Tudor Ca. on M. L. 306, 308; Lindley, 10, 16, 57.)

sitions of

terested in the profits.

A person may be a partner with one only Different poof a firm, in respect of his share, without persons inAnd perbeing a partner with the others. And sons may stand in the position of partners as to third persons, without being partners inter se. Thus, if a person stipulates for a share in the profits, not as a principal, so as to give him a right to an account, but as a mere agent, factor, or servant, he is not a partner as between himself and his em

PART III. ployers, but he is a partner as to third per


CAP. V. sons. But a person may have a direct

Dormant partner.

Nominal partner.

interest in the profits, by stipulating that he shall receive, as agent, factor, or servant, a sum proportioned to the gross profits, without being a partner, even as to third persons. So that a person having a virtual interest in the profits, may, in respect of that interest, be a partner, both as regards the other person or persons engaged in the undertaking, or one of them, and as regards strangers; or he may be a partner as regards strangers only; or he may not be a partner in any respect. (See Sm. Merc. Law, 22; Broom Com. 536-7; Tudor Ca. on M. L. 304, 310-11; Lindley, 13, 34.)

A dormant partner, that is, one who participates in the profits, but does not appear to the world as a partner, is responsible for the engagements of the firm. (Sm. Merc. Law, 21; 2 Ste. Com. 100; Tudor Ca. on M. L. 311; Lindley, 34, 902.)

Even without entering into any contract, a man may incur the liabilities of a partner, as between himself and third persons, by lending his name and credit to a firm, or in any manner holding himself out to the world as a partner therein. Such a person is called a nominal partner. (Sm. Merc. Law, 24;

« EelmineJätka »