Smith v.
Watson.

Pott v.
Eyton.

to be regulated and paid by reference to a calculation on the profits of the adventure." However, it was sufficient for the decision of that case to hold that Young was not a partner in the ship.

But where (t) A. and B. agreed that A. should buy whalebone through B., as his broker, and that B., as a remuneration for his trouble, should receive one-fourth of the profits arising from the sale, and bear one-eighth of the losses, the Court of King's Bench inclined to the opinion that B. was a partner in the profits, so as to be liable to third persons; though it was not necessary to decide that point, the question in the case before the court depending upon whether or not B. was interested as a partner in the whalebone, which he was held not to be.

The distinction above pointed out is well illustrated by the case of Pott v. Eyton and Jones (u). That was an action by the assignees of certain bankrupts to recover money paid by them on account of the defendants. The facts were shortly these-In 1828, Eyton was concerned in a colliery at M., and an agreement was entered into between him and Jones for opening a tally-shop at M., (near the colliery,) principally with a view of supplying goods to the workmen at the colliery. Eyton built the shop, and his name appeared over the door and in the excise licences, and the invoices of goods supplied to the shop were made out in his name, and he paid for them. Jones managed the shop. The workmen at Eyton's colliery were supplied with goods from it, for which they settled at the colliery when their wages were paid until 1831 (x). From that time they paid at the shop once a fortnight. Jones paid over to Eyton the principal part of the money taken at the shop, as he paid for the goods, but reserved enough for small payments at the shop. Eyton received for his own use 77. per cent. on the amount of all sales to his workmen, and Jones had all the rest of the profits. In 1834, the arrangements were changed. Jones was thenceforth to buy in his own name all goods supplied to the shop, and receive payment for all goods sold; and Eyton was to receive ōl. instead of 71. per cent. on the amount of sales to his workmen. Eyton's name remained over the door till October, 1840, when a fire stopped the business. In 1834, when Jones began to buy goods, he opened an account with the bankrupts, who were bankers. The bank failed in 1839, when a balance exceeding 2,000l. was due to it on that account. Besides the shop at M., Jones, after 1834, opened three more at other places, which he carried on in his own name, on his own account, and supplied with goods from the shop at M. The action was brought against both Eyton and Jones to recover the amount due to the bankers. No evidence was given to show that credit was, in fact, given to Eyton by the bankers, or that they knew that his name appeared over the shop, or in the

(t) Smith v. Watson, 2 B. & C. 401; and see Reid v. Hollinshead, 4 B. & C. 867; Cheap v. Cramond, 4 B. & Ald. 670.

(u) 3 C. B. 32; and see Barry

v. Nesham, 3 C. B. 641; Heyhoe v. Burge, 9 C. B. 431.

(a) When the truck system was abolished.

licences, or supposed him to be a partner, and the jury, at the
trial, found that he had not shared profit and loss since 1834,
when the account was opened, and had not been held out as a
partner and his credit pledged to the bank, and gave their
verdict for the defendants. And in the following term a rule
for a new trial, on the ground that the verdict was against
evidence, was discharged, Tindal, C. J., saying, (y)" It was con-
tended that an actual partnership was proved; for that Eyton,
by taking 51. per cent. on the sales to his workmen, received a
share of the profits, and was therefore, in point of law, a partner
as to third persons. But we are of opinion that the taking
of that money was not sufficient to make him a partner.
Traders become partners between themselves by a mutual par-
ticipation of profit and loss; but, as to third persons, they are
partners if they share the profits of a concern: for he who re-
ceives a share of the profits receives a part of that fund upon
which the creditors of the concern have a right to rely for pay-
ment, and is therefore to be made liable to losses, although he
may have expressly stipulated for exemption from them" (2).
Grace v. Smith (a); Waugh v. Carver (b). But in the former
of those cases, Lord Chief Justice De Grey, after laying down
the rule of law in the terms which I have mentioned, proceeds:
-"If any one advances or lends money to a trader, it is lent on
his general personal security. It is no specific lien upon the
profits of the trade, and yet the lender is generally interested in
those profits; he relies on them for repayment." Afterwards he
says, "I think the true criterion is to inquire whether Smith
agreed to share the profits of the trade with Robinson, or
whether he only relied on those profits as a fund of payment,-
a distinction not more nice than usually occurs in questions of
trade and usury. The jury have said that this is not payable
out of the profits." So in the present case, the jury have said
there was no agreement to share the profits. This distinction
has been recognized in many cases, of which it may suffice to
mention Dry v. Boswell (c) and Benjamin v. Porteous (d).
And although, in Ex parte Hamper (e), Lord Eldon said the
distinction was so thin that he could not state it as established
upon due consideration, yet he acted upon it in that case; and
again, in Ex parte Watson (f), where he said, "One who
receives a salary not charged upon profits-according to a
known though nice distinction-is not by that a partner."
" Nor
does it appear to make any difference whether the money is
received by way of interest on money lent, or wages, or salary
as agent, or commission on sales. And it appears to us that, in
the present case, the payment to Eyton was in the nature of
commission on certain sales supposed to be effected through his
influence over his workmen, and was not sufficient to render

(y) 3 C. B. 39.

(z) In French v. Styring, 2 C. B., N. S. 362, Cresswell, J., said, "That has been said ever since Waugh v. Carver, and some judges have pronounced it to be a very bad rule."

(a) 2 W. Bl. 998.
(b) 2 H. Bl. 235.

(c) 1 Campb. 329, ante, p. 41.
(d) 2 H. Bl. 590.
(e) 17 Ves. 404.
(f) 19 Ves. 459.

A

French v.
Styring.

Whether the contract is

one of ap

him, as a matter of legal inference, liable as a partner and in so far as it was a question of fact, it was disposed of by the jury."

In the following case (g) the same question might have arisen, but was avoided by the construction put upon the acts of the parties. The plaintiff was a trainer of horses at Newmarket; defendant was a wine merchant at Huddersfield. In March, 1854, a racehorse called Census was jointly purchased by plaintiff and C. C. afterwards sold his share to M., and it was agreed between plaintiff and M. that plaintiff should keep the horse for the purpose of training him, and should have the entire control and management of him; that 35s. per week should be allowed as the expenses of his keep; that plaintiff should pay the expenses of entering the horse and conveying him to different races; that each of them should pay one-half of the horse's keep and other expenses, and that the winnings should be equally divided between them. M. having sold his share of the horse to defendant, the latter agreed with the plaintiff that he should continue to keep, train and manage him upon the same terms as had been agreed upon with M. The horse was entered and ran at several races, but never won anything, and having broke down, was sold for 201. It was held that, even assuming this agreement to constitute a partnership between plaintiff and defendant, the former might recover from the latter a moiety of the disbursements made by him on account of the horse, as being in the nature of an advance of capital for the defendant.

APPRENTICE OR SERVANT.

Another question, which was formerly of more importance than it is at the present day (h), though even now it may often prenticeship, arise, is whether the agreement into which the parties have or of hiring entered was intended to create the relationship of master and and service, apprentice, or master and servant (i). In deciding this point more attention is now paid to the main object of the parties than to the language used by them (k). Formerly it was held that unless the word "apprentice" was used, the contract might be considered one of hiring and service (7). But the cases in which that doctrine was laid down and upheld have long been overruled (m), and each case is now held to

depends on

(g) French v. Styring, 2 C. B., N. S. 357; see also Hickman v. Cox, 27 L. J., C. P. 127.

(h) Now that settlement by hiring and service is abolished, ante, p. 1, note (b). One great difference between an apprentice and a servant is that the latter may be dismissed for misconduct, whilst the former may not in general. See Winstone v. Linn, 1 B. & C. 460; Wise v. Wilson, 1 Carr. & K. 662; Phillips v. Clift, 4 H. & N.

(i) See further on this point, Burn's Justice, tit. "Poor" (29th edit.) pp. 545, &c., and 651, &c.

(k) R. v. Nether Knutsford, 1 B. & Ad. 730.

(1) R. v. Little Bolton, 2 Bott. 316; R. v. Eccleston, 2 East, 298.

(m) R. v. Rainham, 1 East, 531; R. v. Laindon, 8 T. R. 379; R. v. Crediton, 2 B. & Ad. 493; R. v. Great Wishford, 4 A. & E. 223.

depend upon its own particular circumstances (n). If the the intention parties appear to have contemplated the relation of master and of the parties. apprentice, then the contract must be considered as one of apprenticeship (o), and if it be an imperfect apprenticeship it cannot be treated as a contract of hiring and service. If, on the other hand, it appear that the parties contemplated the relation of master and servant, then it must be deemed a contract of hiring and service (p). Where teaching and learning appear to be the primary object of the parties, then, although work is to be done for the master, the contract is to be considered as one of apprenticeship. But if working for the master appear to be the primary object, and teaching and learning the master's trade a mere secondary consideration, the existence of a stipulation by the master to teach, and a corresponding stipulation by the servant to learn, the master's trade will not alone prevent the contract from being considered one of hiring and service(q).

TENANT OR SERVANT.

Servant oc

his master

tenant,

Where a servant occupies premises belonging to his master, Tenant or as where a coachman occupies rooms over a stable, or a gardener servant. an outhouse, or a gatekeeper a lodge in the park, or a porter a cupying lodge at the park gate, and has on that account less wages, his premises occupation is in law the occupation of his master (r). And belonging to such servants, when dismissed from the service, have no right does not to continue in the occupation of their houses as tenants, nor are occupy as they entitled to notice to quit (s). So, under the law of settlement, the occupation of a tenement connected with and ancillary to the service, would not confer a settlement, though it would if wholly unconnected therewith (t). So a servant at an annual nor is he salary, who resided in two rooms within the walls of a lighthouse to take care of the light, was held not liable to be rated as occupier, his occupation being that of his master (u). But a servant was held liable to poor rate who took a house not belonging to his master, although his master paid the rent (x).

(n) R. v. King's Lynn, 6 B. & C. 99; R. v. Edingale, 10 B. & C. 739; R. v. Northowram, 9 Q. B. 24.

(o) R. v. Bilborough, 1 B. & Ald. 115; R. v. Crediton, 2 B. & Ad. 493; R. v. Newton, 1 A. & E. 238; R. v. Great Wishford, 4 A. & E. 216; R. v. Ightham, 4 A. & E. 937; R. v. Northowram, 9 Q. B. 24.

(p) Per Bayley, J., in R. v. King's Lynn, B. & C. 99; see R. v. Great Wishford, 4 A. & E. 222; and R. v. Northowram, 9 Q. B. 24.

(q) R. v. Crediton, 2 B. & Ad. 497; R. v. Billinghay, 5 A. & E. 676; R. v. Northowram, 9 Q. B. 24. (r) Bertie v. Beaumont, 16

East, 34; R. v. Stock, 2 Taunt.
329; R. v. Rees, 7 C. & P. 568;
St. Anne v. Linnæan Society, 3 E.
& B. 793; and see Cases of
Burglary, 1 Russ. on Cr. 810.

(s) Mayhew v. Suttle, 4 E. &
B. 347, post, p. 46.

(t) R. v. Leacroft, 2 M. & S.
472; R. v. Minster, 3 M. & S.
276; R. v. Cheshunt, 1 B. & Ald.
473; R. v. Iken, 2 A. & E. 147;
R. v. Terrott, 3 East, 506; R. v.
Ponsonby, 3 Q. B. 14; and cas.
cit. Archbold's Poor Law, 574.
(u) R. v. Tynemouth, 12 East,

46.

(x) R. v. Lynn, 8 A. & E. 379; R. v. Bishopton, 9 A. & E. 824.

liable to poor

rates.

Mayhew v.
Suttle.

Brewer's servant in beershop not

a tenant.

Servant can-
not dispute
master's
title.

Government servants per

in part of salary en

titled to vote; but not if

required to do so.

Where S., a brewer, by an agreement, reciting that he was in possession of a messuage and premises whereon the sale of beer and porter had been for some time last past and then was carried on and conducted by U. for and on S.'s account, agreed that M. might from the date of the agreement enter into and upon the said premises, and carry on and conduct thereon such trade or business for S. in the place and stead, in the same manner, and with and upon the same privileges and terms as U. had theretofore done, until the agreement should be determined and put an end to by one month's notice on either side; and the agreement also contained stipulations that M. should take all his beer from S., and not part with the trade or premises without S.'s consent, and on receiving notice to put an end to the agreement should quietly give up possession of the premises, trade, fixtures, &c. without requiring any payment from S.: it was held both by the Queen's Bench and Exchequer Chamber to be abundantly clear that there was no relation between the parties but that of master and servant, and that M. could not maintain trespass against S. for entering without a month's notice, as he had no such possession as would enable him to maintain such action(y). A servant who has been put into possession of a house or other premises by his master cannot of course dispute his master's title nor that of his master's devisee (z). If he wish to do so he must first give up possession (a).

Officers and servants of government who are permitted to mitted to oc- occupy houses belonging to government as part remuneration cupy houses for their services may be considered as occupying as tenants within the Reform Act, 2 Will. 4, c. 45, s. 27, but not if they are required to occupy them with a view to the more efficient performance of their duties (b). But a hall-keeper to the guildhall of a borough who occupied a house (communicating with a yard at the back of the guildhall) which was originally built Hall-keeper as a residence for and was always occupied by the hall-keeper of a borough, for the time being, who was elected annually, and had the exclusive control of the house, and paid rates and taxes, but no rent, his occupation being considered as part payment for his services, and being necessary for the due discharge of his duties, was held to occupy as servant and not as tenant, and therefore not entitled to a vote (c).

to guildhall

A general hiring is a hiring for a year.

GENERAL HIRING, YEARLY HIRING, &c. Where no time is limited either expressly or by implication for the duration of a contract of hiring and service, the hiring is considered as a general hiring, and in point of law a hiring