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C. Graham of the Inner Temple for kind assistance and valuable suggestions during the progress of the work.
I have also to thank Mr. John Macdonell, one of the editors of Smith's Mercantile Law, and Mr. T. E. Scrutton, the author of Charter - parties and Bills of Lading, for permission to use the forms of a charterparty and a bill of lading printed in the text.
J. E. C. MUNRO.
2 New SQUARE,
MERCANTILE PERSONS AND MERCANTILE
§ 1. Mercantile Persons. - Commercial transactions are carried on by individuals or sole traders, partnerships, companies, and by their agents.
§ 2. Sole Traders. — No distinction is now drawn between subjects and aliens as regards capacity to trade, except that an alien cannot own a British ship. If an alien purchase a British ship, the ship thereupon ceases to possess a British character. During war a subject cannot trade with the enemy except by license of the Crown.
Married women were formerly under trading disabilities, inasmuch as they could not bind themselves personally by contract except in the city of London. But now a married woman may carry on a trade as if she were single, when she has obtained a protection order or is living apart under a judicial separation. She can also bind herself so as to affect her separate estate by contract. In respect of her contracts she is in a more favourable position than a man. A man is liable to be imprisoned for disobeying an order of a court to pay a debt, but when a married woman with separate estate contracts a debt, she cannot be imprisoned, the property alone being liable ($$ 44-46).
Persons under twenty-one can, as a rule, bind themselves absolutely for necessaries only (S$ 39-43).
The executors and administrators of a deceased trader are liable to see to the payment of his debts out of his assets, and may be concerned in carrying on the business. An executor is a person appointed as such by a will. An administrator is a person appointed by the Court of Probate where a man has died without making a will, or where he has made a will and has appointed no one as executor.
$ 3. Partnerships.—Partnership is the relation which exists between persons carrying on a business in common with a view to profit. Persons who enter into partnership with one another are called a firm. In Scotland the “firm' is legally a distinct person from the members, but this rule does not prevail in England, though English law recognises the firm for certain purposes.
The relations of partners to one another will be considered in a subsequent chapter, but it may be here pointed out that each member of a partnership is an agent of the firm and of the other partners for the purposes of the business of the partnership. Third parties therefore in dealing with a member of a firm are dealing at the same time with the other members.
§ 4. Companies. A company may be defined as a number of persons incorporated by law, so that the company has a distinct personality apart from the persons who compose it. An unincorporated company is merely a partnership, and has no legal existence apart from its members ; contracts are entered into with the partners as individuals, and every member is liable for the debts of the partnership In the case of an incorporated company, contracts are entered into with the company itself and therefore creditors can only proceed against the property of the company.
$ 5. How Incorporation takes place. - A company may be incorporated (a) by royal charter ; (6) by special Act of Parliament ; (c) by a certificate issued under an Act of Parliament. (a) The Crown in virtue of its prerogative may incorporate a number of persons as a company.