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Limited Liability Partnerships.--Differences in the Mercantile Laws. 203 " 2nd. That they be allowed to do so by pri- way: if A. B. and C. D. are to be liable with
vate agreement among themselves, on re. out limit, and others not, let the style of the gistering their names, place and nature of firm be 'A. B., C. D., and Co., with limited business, term of partnership, and capital liability. The names of the unlimited part
subscribed by the limited partners. ners being always specified; those of the “ I think this registry desirable, for the sake others not. of such partnerships ; for the greatest appre- “5th. I need hardly say I would allow hension of mischief I have from their being money and services to be paid for by a allowed is, that persons will join them in the portion of profits. belief of a limited liability, and be unjustly
“I would not prohibit interference by the made liable to claims by dishonest creditors, limited partners, or advise or require return who will declare that they always thought the of profits, or additional liability, in case of indefendant a partner, that he conducted himself solvency of the general partner, or the publishas such, and that they had no means of know-ing of accounts. I believe all those regulations ing his liability was limited. The last topic to be useless, mischievous, and unjust. If any will be taken away, or at least diminished, by a partner so conducts himself as to induce perregistry.
sons to trust the firm on his credit as a general **** 3rd. That where the liability of all the partner, let him (as any one who is no partner
partners is to be limited, the partnership now may), be made liable to the debts so conshould be incorporated, on registration.
tracted. In that case, where one man has so "4th. That the partnership name should be acted as to induce another to trust him, and in
used, and in such way as to indicate the the case where he bas himself, or his actual limited liability: "In the case of corporations there is no he ought to be liable, and in my judgment in
agent has by his authority, pledged his credit, difficulty; in the case where some partners are those cases only. to be liable unlimitedly, there is perhaps a little
“I desire to add my entire concurrence in practical difficulty, arising from the present the views and reasoning contained in the paper permitted use of the names and styles of firms
put in by Mr. Kirkmani Hodgson. wbich do not truly describe those who use them. It may, however, be obviated in this
“G. W. BRAMWELL.”
DIFFERENCES IN THE MERCANTILE LAWS OF ENGLAND, IRELAND,
PRINCIPAL DEBTOR AND SURETY.
Having in the last Number noticed the differences pointed by the Mercantile Law Commissioners relating to bills of exchange and promissory notes, we proceed now to various conflicting rules in the Law of Debtor and Creditor :England and Ireland.
PRINCIPAL DEBTOR AND CAUTIONER. 1. Where an engagement by principal and 1. If in an engagement by principal and surety is joint, though the creditor must in- cautioner the latter have bound himself only stitute proceedings against both, yet having as cautioner, and not also jointly and severally, obtained judgment or decree, he is at liberty to or “as full debtor," the cautioner is entitled enforce payment against the surety being liv- to have the principal “discussed,” i. e. coming, and, if there be two or more sureties, pelled by diligence or execution to perform the against any one of them, who is living, ex- obligation so far as the creditor can enforce it. clusively; such surety being left to adjust with the principal, and with the other sureties (if any), his right to indemnification and contribution.
2. The surety, on performing the obligation, 2. The cautioner, on performing the oblicannot have the benefit of bonds or judgments gation, is entitled to an assignation of the by or against the principal debtor, or other creditor's claim on the principal debtor, and like securities which are extinguished by such on co-cautioners, and of all the securities of performance. (Bond.) Gammon v. Stone, 1 every description held by the creditor from or
against the principal debtor, and not subject to any other claim of the creditor. i Bell's
Comm' 348. 3. An unqualified discharge of one co-surety 3. An absolute discharge of one co-cautioner is a discharge of all. Nicholson v. Revell, 4 operates as a discharge of the others only to Ad. Ell. 675.
the extent of the proportion which the one discharged should have contributed in the re
lief of the others. i Bell's Comm. 359. 4. The discharge of a written guarantee may 4. The discharge of a written guarantee can be proved without writing. See per Parke B., be proved only by the writing or oath of the 6 Exch. 851.
creditor. But when the implement of the
204 Differences in the Mercantile Laws of England, Ireland, and Scotland.
PRINCIPAL DEBTOR AND CAUTIONER. principal obligation admits of being proved by parol, such implement by the cautioner may be
so proved. 5. Remedies against sureties cease at the end 5. The liability of a cautioner ceases at the of six or twenty years from the time at which end of seven years from the date of the oblithe right to sue accrued, according to the na- gation, if he is bound by a bond, or written ture of the instrument.
contract, for a sum of money, and if the requisites of the Act 1695, c. 5, have been complied with.
DEBTOR AND CREDITOR.
DEBTOR AND CREDITOR.
Pupils and Minors. 1. A person is not bound hy, but he may 1. A pupil, i. c. a male under 14, or a female enforce performance of, a contract entered into under 12, years of age, cannot enter into a by him while under the age of 21 years, contract with any effect whatever. whether alone or in conjunction with others. But the contracts of a minor, i. e., a person
beyond the years of pupillarity but be-
Comm. n., 4.
Married Women. 2. If a married woman living apart from 2. A married woman living separate from her husband, and not possessed of separate her husband, who engaged in trade with his estate, engage in trade, either alone or in parts acquiescence, may create obligations or debts nership, she is not, nor is her husand, unless in respect, or in the course of her trading, his consent be proved, liable in respect of any which may be enforced against herself and her contract entered into by her in the course of husband. such trading; subject, however, to the ex. ception of the wife being liable, if the hus. band have abjured the realm, or been transported, or if her trade be carried on in the city of London. Administration of the estate of a deceased Administration of the estate of a deceased Person.
Person. 3. Debts are of different degrees of legal 3. Debts of every description whether conimportance, as debts of record, debts by spe- stituted by judgment, bond or bill, or an open cialty, and debts by simple contract.
account, so far as they are not secured by a Assets are divisible into legal and equitable. charge on specific property, or by diligence In the administration of legal assets, debts used in the lifetime of the debtor, are payable
of a higher degree must be paid before out of all his real and moveable property, pari those of an inferior degree. In the admi- passu. nistration of equitable assets, all debts are There is no distinction between legal and payable pari passu.
equitable assets. 4. Creditors of a deceased debtor may, by 4. If the real estate of a defunct, although it suit in Chancery to which his heirs or devisee be in possession of his heir, be adjudged within is party, obtain payment of their debts out of three years after his death for his own debts, his real estate at any time previous to alienation such adjudications are preferable to those by the heir or devisee.
which may be expede for the debts of the heir. But after the three years, this privilege ceases, and the proper creditors of the heir may thereafter get a pari passu preference with the cre
ditors of the defunct. Retainer and Preference.
Retainer and Preference. 5. An executor or administratior can retain 5. An executor may retain for a debt due to for a debt due to himself out of equitable as. himself, to the exclusion of all other creditors sets, only pari passu with other creditors, and of the deceased who have not used diligence out of legal assets, only in preference to all within six months after the death of the deother creditors of an equal or inferior degree, funct.
Differences in the Mercantile Laws-Oaths in Chancery.
205 DEBTOR AND CREDITOR.
DEBTOR AND CREDITOR.
Retainer and Preference. 6. And he cannot retain for a contingent or 6. And this even to the effect of securing unliquidated debt due to himself.
himself in relief of engagements undertaken for the deceased, and not yet broken. 2 Bell's
Comm. 84. 7. An executor or administrator may, before 7. An executor cannot prefer any of the creproceedings are commenced against him, pay ditors over others who claim within six months any creditor in full in preference to other cre- after the debtor's death. ditors of an equal or inferior degree.
But the claimants within that period being
satisfied, the executor may thereafter pay
in full the other creditors as they apply. S. The signature in all writings must be 8. The signature in all writings executed prored on the part of the person adducing them with the formalities prescribed by statute, and in evidence.
also in bills of exchange and promissory notes,
granted in commercial affairs, or followed
but not otherwise. And all other kinds of writings granted by
private parties are invalid, although signed by the granters, if the execution of them be not authenticated by the statutory for
malities. 9. Express discharge (without payment or 9. Express discharge (without payment or performance) of contracts in writing not under performance) of contracts in writing of any seal may be oral. (A promissory note.) Fos- kind can be proved only by writing or oath of ter v. Dauber, 6 Exch. 839.)
the creditor, 10. Discharge of one of several joint debtors 10. Discharge of one of several joint debtors in terms which do not reserve the remedy does not release the others further than their against the other debtors operates as a dis- right of relief against the party so discharged charge of all. Co. Litt., 232, a. (Joint ac- may be affected. ceptors of a note.) Rex v. Bayley, i Carr. & P., 435. (Giving time to one co-obligor.) Oakeley v. Pasheller, 4 Clark & Finn., 207.)
11. Exoneration of one of several joint 11. Anything done by a creditor, whereby debtors before breach would exonerate all ; so the right of relief, which one of several joint would satisfaction from one after breach. So debtors is entitled to, is detrimentally affected, everything which gives one an answer to the has the effect of extinguishing the creditor's action, except personal discharge, as bank- claim against such debtor to that extent, but ruptcy-insolvency. But a covenant not to no further. sue one does not release the others.
12. To an action for the recovery of specific 12. A person who has in his lawful possesproperty by the owner or his assignees in sion the property of another person who bebankruptcy, the existence of a debt due from comes bankrupt has a right of retention thereof the owner to the person, in whose possession for any debt due to him from the owner of the the property is, affords no defence unless there property. is a lien or pledge for that dett.
13. The creditor at whose suit the goods of 13. When diligence or execution has been a debtor are first seized is entitled to be first executed against a debtor, so as to make him paid out of the debtor's goods.
notour bankrupt, all arrestments and poindings used within sixty days before or four months after such bankruptcy are ranked puri passu.
QATHS IN CHANCERY. affidavit sworn in Scotland before a Master
Extraordinary, described as a Commissioner MASTERS EXTRAORDINARY IN SCOTLAND. for taking affidavits to be used in the Court of
Is The Times of Saturday the 8th inst., the Chancery'. The Clerk of Records and Writs following appeared among the Law Reports, had refused to file same on the ground that viz. :
Lord St. Leonards' Act, 16 & 17 Vict. c. 78, "Before Vice-Chancellor Sir J. Stuart, -enacted, that the style or appellation of Master Friday, 7th July,- Faithful v. Gillett. Extraordinary in Chancery should cease, and
Mr. Smythe applied for liberty to file an that of Commissioner to administer Oaths in
206 Oaths in Chancery.-Law Students' Debating Society-Annual Report. Chancery be substituted, but as the act did, and that the title given to those who were fornot extend to Scotland, the person administer- merly Masters Extraordinary, should be used, ing the oath should consequently have de
viz., scribed himself as a Master Extraordinary.'”
a Commissioner to administer oaths in "The Vice-Chancellor having conferred with Chancery in England.” Such is the title, the Clerk of Records and Writs, it was ulti- though the oath may be taken in Wales.-Ed.] mately arranged, by the consent of both parties, that the affidavit should be filed in its present form."
LAW STUDENTS' DEBATING Being one of those whose appointment
SOCIETY. originally was that of a “Master Extraordinary," allow me to propound this question to ANNUAL REPORT OF THE COMMITTEE. yourself, or some of your readers :-Supposing Your Committee, on surrendering into the that I were to go and reside in Wales, or-as
hands of the Society the trust reposed in them frequently do-visit that country, and whilst during the past year, have much pleasure in there were to be called upon to administer an presenting a report of the proceedings, and it oath in Chancery:--which would be the correct is gratifying to add, the progress and success way I should designate myself on so doing of the Society during that period. “A Master Extraordinary" or simply "A While laborious professional duties demand Commissioner to administer Oaths in Chan-such assiduous attention from most of the cery?” For, on referring to the Act, I find no members, it is very satisfactory to find so large mention is made of its extension to Wales, as a number of Law Students continuing to deis done in the Lunacy Regulation Act 16 & 17 vote time and pains to the objects of the SoVict. c. 70 (L. O., vol. 46, p. 448). Unless, ciety. Acknowledgments are especially due to then, Wales be included by implication in the those members who have outlived the period Act, I presume the registrar's objection would of studentship and entered upon responsible be equally as well founded to file an affidavit positions, and who yet have not abated their sworn before " A Commissioner” in Wales, as interest in the Society. It is further matter of in Scotland. But taking it for granted the congratulation that among the new members Act embraces Wales, I find, however, by sect. there are those who manifest considerable zeal 1, that the new designation is to be “Com- and talent in sustaining the debates. missioners to administer Oaths in Chancery in The number of new members elected during England.” So that a Commissioner swearing the past twelve months has been 36, and the an affidavit in Wales must, I anticipate, end total number of members now on the books is with " in Chancery," and leave out " in Eng-81, being an increase of 17 since the last Apland,"—thus, Å Commissioner to administer nual Meeting, and a larger advance than in Oaths in Chancery,”—though the Act is silent any previous year. The average attendance at thereon.
the meetings has been 25. A resolution has By sect. 6 we find, that the recited provi. been passed exempting members of three sions of the 15 & 16 Vict. c. 86, are to be ex- years' standing, and members of the Incortended to the Isle of Man, and that all affida- porated Law Society, from the usual fine for vits, &c., to be used before any registrar or absence. This has preserved on the list many other officer in Great Britain or Ireland for old and valuable members who would otherany purpose connected with the registration of wise have been compelled to resign, and pardeeds or wills or other documents or things tially accounts for the rather low proportion under the authority of Parliament, may be which the weekly attendance bears to the total sworn or taken in Scotland or Ireland, the Isle number of members. of Man, or the Channel Islands, &c., before
There have been held, during the twelveany Court, Judge, notary public or person months, 37 meetings, at which 23 legal and hereby or otherwise lawfully authorised to ad- 8 jurisprudential questions have been disminister oaths in such country, &c.
cussed and decided,--two of the jurispruSuch being the case, it certainly appears to dential questions having occupied two evenme, that if an affidavit, “connected with the ings each. registration of deeds or wills or other docu
Your Committee have, during the year, inments, &c.," was sworn to in Scotland or Ire- vestigated about 100 questions suggested to land, the party administering the oath, if “a them for discussion, from which they have Master Extraordinary,” should then by virtue chosen 35 for the monthly papers. The seof this very Act, describe himself as A Com- lection is only made after a careful review of missioner to administer Oaths in Chancery:" the authorities to be found on the point and a
A Commissioner's authority to administer deliberate vote of a Committee meeting. It apoaths is not, I take it, limited to any locality pears from the record of the votes, that by this in England or Wales (if the latter be included) | means scarcely, any questions on which there as it is (for what reason I know not) by the has not been room for serious doubt have been Commissions issued to administer Oaths in the admitted into the paper, inasmuch as on only Courts of Queen's Bench, Common Pleas, and six out of the 37 meetings out of the past year Exchequer.
have the votes been unanimous, while on five A SUBSCRIBER SINCE 1836. other evenings a decision has been arrived at [We think that Wales is included in the Act, only by the casting vote of the chairman. On
Law Students' Debating Society.-Legal Obituary.
207 a general average, the majority by which the tor, aged 68 (firm Belcher and Brewster). He decision has been carried has borne to the was born at Manchester, and served his clerknumber of voters a proportion of only four ship to Messrs. Milne, and in 1811 entered to 10.
into partnership with Mr. Clarke, of Guis. The Committee desire to express their thanks borough, and continued to carry on business to those members who have furnished them under the firm of Clarke and Belcher,-then with questions for discussion, and they trust for several years alone,-in 1835 with Mr. Nathat members generally will not neglect this thaniel Langborn, and afterwards under the essential duty.
firm of Belcher, Langborn, and Buchannan. The Society has in the course of the year From 1835 (Mr. Langborn having died in sustained a loss in the resignation of office by August, 1844, and on the retirement of Mr. their late secretary, who for several years had Buchannan) to 1850 he continued alone, when most efficiently performed his duties. The va- he was joined by Mr. Gray, and afterwards by caney was supplied by the election of Mr. Mr. Brewster. Admitted on the Roll of SoliBompas, who at present holds that office. citors 28th May, 1811. Died Feb. 14.
The members have resolved to present Mr. Brutton, Charles, of Exeter, Solicitor, aged Howlett with a testimonial of their appreciation 63. Admitted on the Roll Hilary Term, 1813. of the services rendered by him, which will be Died Jan. 31. presented at the annual dinner on the 7th of Bunny, Jéré, of Newbury, Berkshire, SoliJuly.
citor (firm Bunny and Talbot). Admitted on The details of the Society's proceedings have the Roll Hilary Term, 1812. Died March 29. thus been given. The results effected by those Chambers, Robert, of 6, South Square, proceedings it is not in the Committee's power Gray's Inn, Barrister-at-Law, aged 55. Called to state. These lie in the improved powers, to the Bar by Lincoln's Inn, 26th Nov., 1830. both of thought and language, acquired by the Died March 12. individual members. It is at least an agree- Daniell, Edmund Robert, Commissioner of able token, that law students do not count Bankruptcy for the Birmingham District. their profession as an insipid drudgery, but as Called to the Bar at the Middle Temple, 22nd an interesting and agreeable pursuit, when we Nov., 1816. Died March 16. find that so many take pleasure after the hours Dean, John Joseph, formerly of 16, Essex demanded by business are expired in con- Street, Strand, Solicitor, aged 34. Admitted tinuing by these legal debates their profes- on the Roll Trinity Term, 1846. Died Feb. sional studies.
17. When it is remembered that, during the last Fardell, John, of Holbeck Lodge, Lincolnseven years, no fewer than 200 members in all shire, Barrister-at-Law. Called to the Bar by have been elected into the Society, it will be the Middle Temple, July 2, 1824. Died Feb. 5. granted that the objects of the Society have not *Frere, George of 45, Bedford Square, aged been unappreciated, nor its success confined 80. He was admitted an the Roll Hilary or partial.
Term, 1797, and was struck off the Roll at his The treasurer's account has been audited, own request, by rule of Court dated 15th Nov., and shows a balance in hand of 411. 128. 11d. 1844. Mr. Frere was one of the founders and [The meetings of this Society are held every Society, and of various measures for the im
a powerful supporter of the Incorporated Law Tuesday evening in one of the arbitration provement of his branch of the Profession, rooms at the Incorporated Law Society, by particularly by the institution of Lectures and permission of the Council, free of expense. the Examination of Articled Clerks. He was Our readers will no doubt agree with us that a member of the Council till his retirement in
1844. Died April 27. this Report is highly creditable to the mem
Goodwin, James, of Norwich, Solicitor, aged bers of the Law Students' Society.-Ed.] 79. Admitted on the Roll Easter Term, 1797.
Died March 25.
Gouldsmith, Richard, M.A., of the Charterhouse, Barrister-at-Law. Called to the Bar
by Lincoln's Inn, 9th May, 1806. Formerly Acland, Arthur, late Judge of the County a Commissioner of Bankrupts for Bolton-leCourt of the District of Huron, Canada, aged Moors. Died Jan. 28. 46. Called to the Bar by the Inner Temple, Holland, Henry, of West Bromwich, Staf18th Nov., 1831. Died April 21.
fordshire, Solicitor. Admitted on the Roll Allen, Robert, of 3, Serjeant's Inn, Chancery Hilary Term, 1831. Died March 18. Lane, of the Oxford Circuit, Serjeant-at-Law.
Hulton, Edward Horne, of Southampton, Called to the Bar by Gray's Inn, 18th Nov., Barrister-at-Law, aged 60. A Magistrate of 1835, and received the coif in 1845, and after the Borough and County and Member of the wards a patent of precedence. Died Feb. 17. Town Council. Called to the Bar by Lincoln's
* Ambrose, Thomas Henry, of 7, Manchester Inn, 7th June, 1839. Died May 27, Square, and Copford, near Colchester, Solici- Jackson, George, of 3, Copthall Buildings tor, aged 31. Admitted on the Roll Easter and Walworth, Solicitor, aged 59. Admitted Term, 1844. Died April 6.
on the Roll Hilary Term, 1817. Died Feb. 4. Belcher, Henry,of Whitby, Yorkshire, Solici- Jennings, Joseph Crew, of Eveshot, Dorset