TO THE

RIGHT HONOURABLE DUNCAN M'NEILL,

OF COLONSAY,

LORD JUSTICE-GENERAL OF SCOTLAND,

This Treatise

ON

PARTNERSHIP AND JOINT-STOCK COMPANIES

IS,

WITH HIS LORDSHIP'S KIND PERMISSION,

RESPECTFULLY INSCRIBED.

PREFACE.

My design in the present Treatise is to investigate the principles of the Scottish law of Society, in so far as they are applicable to associations formed for purposes of mercantile gain; and to trace their practical working in the private copartnery, in the public company existing at common law, and in the corporation created by Royal Charter, by Registration, or by Special Act.

The systems of partnership law existing in England and Scotland respectively, discover, when properly understood, the same underlying principles of equity, and in the general case eventuate in similar practical results. It is obvious, however, on the most cursory examination, that the theory of each is essentially different, -the Scottish system prominently recognising, the English system entirely ignoring, a quasi person in unincorporated associations however large. The consequence is, that while the English authorities, so much more numerous than our own, form valuable precedents in Scottish practice, their indiscriminate use is fraught with great danger, and has unquestionably tended to obscure the simplicity and artistic beauty which characterize the Scottish law of society. Throughout the present work I have endeavoured to trace out and bring into prominent notice this fundamental distinction, and to show in what respects it produces a mere variance in phraseology, and in what cases it creates a difference in legal principle or in matter of remedy. To accomplish this object in a way commensurate with its importance, would necessitate an acquaintance with English law for which the mere theoretical study of that system is a very inadequate preparation. I have sought to compensate for the disadvantages under which, in this respect, I have

laboured, by appending to each statement in the text a full list of the authorities on which it is based, and of which it is presented as the exponent.

In treating of the law of incorporated associations, I have also been careful to notice what have been deemed differential characteristics between the two legal systems. In many respects, I am inclined to believe that these apparent points of contrariety have been unduly exaggerated, from a misconception of the technical phraseology employed, or from founding on certain usages which were common and perhaps legal prior to the Union, but which appear to be no longer precedents since the Constitution has settled into its existing form.

The Consolidation Acts will be found reviewed at considerable length, and illustrated by authorities taken both from English and Scottish law.

The importance of railway law has induced me to treat of it in great detail. I have endeavoured to bring under review all the existing public statutes bearing upon this subject in the law of Scotland, and have also referred to the corresponding English Acts.

The provisions of the Registration Act of 1862 occupy a considerable portion of the work; and it is hoped that the chapters on winding up will be found to contain all the more important authorities.

Considerable attention has been given to the law of companies formed by royal charter; and this has necessitated a general examination of the Letters Patent Acts.

The Appendix will be found to contain a collection of forms. Those applicable to articles of copartnery are intended more as suggestions than as precedents,—their primary object being to indicate the principles upon which such contracts should be framed, and the meaning and effect of the ordinary provisions.

There has also been annexed a reprint of all the more important Statutes applicable to partnership and joint-stock companies in Scotland. It is hoped that this will supply a want which, from the scattered nature of such enactments, has long been felt.

The subject-matter of the work being very extensive, every effort has been made to study brevity and compression. With this

view, all quotations from opinions or dicta have, except in rare instances, been dispensed with; but while what is conceived to be their import has been stated in the text as succinctly as possible, the authorities themselves will always be found appended in the notes below. The plan of treatment may be thought deficient in symmetry and in order of sequence; nor is it such as I should have chosen if I had been less studious of compression. It is not the form in which the Treatise was originally cast; but was adopted after many others had been tried and abandoned, as it seemed best calculated to avoid repetition or cross reference. I should also mention that, while the manuscript was passing through the press, some important statutory alterations were made on the law, and these I deemed it better to incorporate in the text than to notice in the Appendix.

While engaged in collecting materials for the present work, nothing has so much arrested my attention as the immense superiority which the Scottish theory of the private partnership and unincorporated company possesses over that adopted, or rather contended with, in England; and while observing that the principle of the separate persona has been adopted by the imperial Legislature in the registration statutes, whose enactment the admitted imperfections of the English theory of partnership had rendered necessary, I have often felt surprise and disappointment that no writer on English law appears to have been even aware that this very principle has for ages formed an integral part of the Scottish law of partnership, in which indeed it received still greater prominence at a period when English precedents were little known or regarded. In this as in many other branches of commercial law, and in none more than in that of bankruptcy, it humbly appears to me that the imperial Legislature would find the usages of Scotland presenting much more valuable precedents than any system of foreign jurisprudence is calculated to afford.

But while entertaining an excusable predilection for those characteristic features of Scottish law, which must be appreciated as soon as they are understood, I am very far from undervaluing the intrinsic excellence of the laws of England; and, indeed, I cannot help regarding it as a very great defect in our system of legal education, that a course of English law forms no part of the curriculum.