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2. In determining whether a partnership does or does not exist, regard shall be had to the following rules:
(1) Joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use thereof.
(2) The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived.
(3) The receipt by a person of a share of the profits of a business is primâ facie evidence that he is a partner in the business, but the receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make him a partner in the business; and in particular
(a) The receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not of itself make him a partner in the business or liable as such:
(b) A contract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does not of itself make the servant or agent a partner in the business or liable as such :
(d) The advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business, or liable as such. 14. (1) Every one who by words spoken or written or by conduct represents himself, or who knowingly suffers himself to be represented, as a partner in a particular firm, is liable as a partner to any one who has, on the faith of any such representation, given credit to the firm, whether the representation has or has not been made or communicated to the person so giving credit by or with the knowledge of the apparent partner making the representation or suffering it to be made.
Distinction between Servant and Apprentice (p. 40).
R. v. Little Bolton (1783), Cald. 367; R. v. Eccleston (1802), 2 East, 298; R. v. Shinfield (1811), 14 East, 541; R. v. Burbach (1813), 1 M. & S. 370; R. v. Billinghay (1836), 5 A. & E. 676; R. v. Northowran (1846), 9 Q. B. 24.
R. v. Highnam (1785), Cald. 491; R. v. Laindon (1799), 8 T. R. 379 (use of word ' apprentice not necessary); R. v. Rainham (1801), 1 East, 531; R. v. Mountsorrell (1814), 2 M. & S. 459. Agreement by a father with R. that R. should take the son of the former for six years to teach him the trade of a frame-work knitter. A contract of apprenticeship, distinguishing the case from R. v. Little Bolton, inasmuch as the son in the former was entitled to none of the earnings. "The whole contract with the father was bottomed and had for its object the instruction of the son and nothing else." R. v. Bilborough (1817), 1 B. & Ald. 115; R. v. Kidwelly (1824), 4 D. & R. 309; R. v. King's Lynn (1826), 6 B. & C. 97; R. v. Combe (1828), 8 B. & C. 82; R. v. Tipton (1829), 9 B. & C. 888; R. v. Edingale (1830), 19 B. & C. 739; R. v. Knutsford (1831), 1 B. & Ad. 726; R. v. Crediton (1831), 2 B. & Ad. 493; R. v. Newton (1834), 1 A. & E. 238; R. v. Wishford (1835), 4 A. & E. 216; R. v. Ightham (1836), 4 A. & E. 936. When the contract was not under seal and was not properly stamped, but the manifest object was to teach, the Courts held that there was a defective contract of apprenticeship.
Occupation, whether as tenant or not (p. 41 et sqq.).
Eyre v. Smallpage (1750), 2 Bur. 1060. Plaintiff, controller of Chelsea College, and residing in the controller's apartments, which he occupied in virtue of his office. See also reference to the St. Bartholomew Case, p. 1061.
R. v. Mathews (1777), Cald. 1. Keeper of a lodge in Windsor Park, and two acres of land, appointed by the ranger, rateable as ranger. When a servant," said Mansfield, C. J., occupies a house and two acres of land, whether he pays for them by a rent or by service, it can make no difference as to his being rated, he is equally liable." This test is not now employed.
Bute v. Grindall (1786), 1 T. R. 338. The ranger of Richmond Park, rateable as beneficial occupier of certain enclosed lands yielding profit to him.
R. v. Melkridge (1787), 1 T. R. 598. Person employed as herd by several persons having a right of common and permitted by them to occupy a tenement of 107. a year as a reward for his services; settlement by occupation.
R. v. Terrott (1803), 3 East, 506. A commanding officer having certain apartments allotted to him and his family in barracks for his residence, held to be rateable to the poor. The ground of decision as put in Lord Ellenborough's judgment is that the officer, unlike a private soldier, who had no accommodation beyond what was required for sleeping, eating, and the like, "had a degree of personal benefit, and accommodation from the property enjoyed by him, ultra the mere public use of the thing; and which excess of personal benefit and accommodation ultra the public use may be considered as so much of salary and emolument annexed to the office."
R. v. Minster (1814), 3 M. & S. 276. A master found his bailiff, a servant in receipt of weekly wages, a house and pasturage for two cows on the
R. v. St. Luke's Hospital (1760), 2 Bur. 1053. Servants of this charity not rateable because not occupying distinct apartments.
R. v. Field (1794), 5 T. R. 587. Person employed at annual wages as superintendent of a philanthropic society with no distinct apartments in the house except a bed-room; not occupier of the house. The question before the Court was whether she was the occupier of the whole, but the reasoning was opposed to her being the occupier of any part.
R. v. Tynemouth (1810), 12 East, 46. The occupation of a lighthouse by a servant placed there to look after the light in consideration of a salary, is the occupation of his master, who is rateable.
Bertie v. Beaumont (1812), 16 East, 33. A servant from week to week put by his master into possession of a cottage divided into two parts, one occupied by the servant, the other occupied by Mrs. D., who paid rent. The servant paid no rent, but his wages were less by 5l. in the year on account of this circumstance.
R. v. Cheshunt (1818), 1 B. & Ald. 473. A labourer employed by the Board of Ordnance. He previously occupied a house at a rent of 71. The house was purchased by the Board. He continued to reside in part of the house at a weekly rent of 28., which was deducted from his wages. No occupation as tenant.
R. v. Bardwell (1823), 2 B. & C. 161. Pauper hired for a year as a shepherd. He was to receive a house and a garden rent free, 78. as wages a week, and the going of thirty sheep with his master's Block for the more convenient performance of the pauper's duties; did not occupy the house and garden as tenant. Bayley, J., took occasion to say that R. v. Minster was 66 open to much observa
Hunt v. Colson (1833), 3 Moore & Scott, 790. Servant, employed by Highgate Archway Company to collect tolls. He lived in the toll-house,
TENANT. master's land, not connected with the service or necessary for the convenient performance of it; the servant had a distinct interest in the pasturage of the two cows.
Doe d. Nicholl v. McKaeg (1830), 10 B. & C. 721. Defendant, minister of a dissenting congregation. He was put in possession of a chapel and dwelling-house by lessors, in whom the legal estate was vested in trust to permit the chapel to be used for the purpose of religious worship. Being a tenant at will after demand for possession, he was not entitled to a reasonable term for the purpose of removing his goods. If the tenant," Lord Tenterden observed, "after the determination of his tenancy in this case, by a demand of possession, had entered on the premises for the sole purpose of removing his goods, and had continued there no longer than was necessary for that purpose, and did not exclude the landlord, perhaps he might not have been a trespasser.' See Doe d. Jones v. Jones (1830), 10 B. & C. 718, and Lake v. Campbell (1862), 5 L. T. (N. S.) 582.
R. v. Wall Lynn (1838), 8 A. & E. 379. R., a brewer, engaged L., as his clerk, at a yearly salary, and agreed to permit him to occupy a certain house as residence, free of rent, rates, and taxes. Another clerk was to be lodged in the same house. L. rateable; L. being an "independent holder," and having absolute dominion, and the house not being
and one shilling a week was deducted from his wages by way of rent. The company having contracted to sell the land on which the cottage stood, discharged the plaintiff from their employment and gave him notice to quit, to which he assented. Held, not a tenancy, and plaintiff could not maintain trespass for pulling down the toll-house. At Nisi Prius, Tindal, C. J., ruled that there was a tenancy, and the Court appears to have assumed that there was a tenancy before the determination of service.
Dobson v. Jones (1844), 5 M. & G. 112. Surgeon in Greenwich Hospital, who was required to occupy rooms in the hospital; not entitled to vote as tenant. The Court observed that "the relation of landlord and tenant could not be created by the appropriation of a particular house to an officer or servant as his residence where such appropriation was made with a view not to the remuneration of the occupier, but to the interest of the employer, and to the more effectual performance of the service required from such officer or servant."
Mayhew v. Suttle (1854), 4 E. & B. 347. Defendant, who was in possession of a certain messuage, where the sale of beer was carried on by one George Utting for defendant, agreed, in consideration of a bondsman becoming answerable for the amount of 501. in default of payment by the plaintiff, to let the plaintiff enter into the premises and carry on therein the trade for the defendant until the agreement should be determined by the notice mentioned in the agreement. The plaintiff was to carry on business" in the place and stead in the same manner and with the same privileges as G. Utting hath heretofore done." The agreement proceeded, "whenever either of the said parties hereto shall be desirous of determining and putting an end to this agreement, he, the said F. Mayhew, shall and will, on receiving from the said G. Suttle one month's previous notice in writing of such desire, and without being paid, or requiring to be paid, any sum of money, &c., quit and deliver up to him, the said G. Suttle, the said trade
M. & G. 54. A master ropemaker occupied a house in a Government dockyard. He paid no rent for it, and held it as part remuneration for his services. No part of the house was used for public purposes, and he had the exclusive control of it. The distinction to be deduced from the settlement cases, Tindal, C. J., took to be this:-If a servant is not permitted to occupy as a reward, in the performance of his master's contract to pay him, but required to occupy in the performance of his master's contract to serve his master, his occupation is that of his master. As nothing in the facts of the case showed that the master ropemaker was required to occupy the house for the performance of his duties, or did occupy it in order to perform them, or that the occupation was conducive to that purpose more than any other house, held that the claimant occupied the house as tenant within 2 Will. IV. c. 45, s. 27.
Gambier v. Lydford (1854), 3 E. & B. 346. The governor of a prison rateable in respect of a coachhouse and stabling within the precincts of the prison to the extent to which the occupation was in excess of what was necessary for the performance of his duties. Outside the prison precincts were buildings occupied by the officers of the prison. None occupied more than was necessary for the discharge of their duties and the accommodation of their families; the dwellings were assigned to the officers by the directors, and they had no discretion as to the houses and apartments assigned to them. Held, by Campbell, C. J., and Wightman, J., that the residences outside the walls were rateable. Coleridge, J., dissented as to the latter point.
Ford v. Harington (1869), L. R. 5 C. P. 282. Canon of a cathedral church and one of the chapter occupied a house with which the chapter could not interfere, and which the canon repaired. Held, that he occupied as canon and a corporation sole and not as one of the chapter, and that he could vote in respect of it.
Smith v. Seghill (1875), L. R. 10 Q. B. 422. S., a collier, resided in
or business, and the full quiet and peaceable possession of all and every of the said premises." Notwithstanding the provisions with respect to determination by notice, the Court thought that no tenancy had been created, and that the occupation was ancillary to the carrying on of the trade for the defendant.
Clark v. Bury St. Edmunds (1856), 1 C. B. N. S. 23. Keeper of the Guildhall at Bury St. Edmunds held to occupy house attached to it as servant because he was required to reside there for the performance of his duties.
R. v. Tiverton (1861), 30 L. J. M. C. 79. A Wesleyan minister, who lived in a house taken by the stewards of the circuit within which he officiated, paid the rates and taxes; but they were repaid by the stewards. It appeared to be the practice of the stewards to take houses for the ministers. No settlement gained. According to Crompton, J., the minister was very much in the position of servant to the stewards. This case appears peculiar. (1) The minister does not appear to have been required to reside in the house; (2) it was not the house of the stewards; (3) he actually paid the rent to the landlord. (See remarks of Willes, J., in the following case.)
White v. Bayley (1861), 10 C. B. N. S. 227. Plaintiff appointed librarian and storekeeper on these terms, inter alia: that the person to be appointed should have premises, rent and taxes free, in a good situation; that 351. per cent. should be allowed to the storekeeper on all books sold out of the shop, but not on donations or subscriptions, he making such arrangements with booksellers, agents of the society, as the committees should from time to time determine. To carry on a retail business in other New Church works and general literature for his own benefit. The society had purchased the lease, which was assigned to trustees for it. Held, that tenancy existed. In the view of Willes, J., no tenancy in the premises even to the extent of a tenancy at will ever did rest in the plaintiff." The agreement was one of service,