case of realty, the periods during which income of personalty may be accumulated are prescribed by the Thellusson Act and the Accumulations Act, 1892.1 Personal property may be owned by several jointly, or in common, or it may be owned by one in severalty, in the same manner as real property.2 Blackstone says: 3 "If a horse, or other personal chattel, be given to two or more, absolutely, they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements. And, in like manner, if the jointure be severed, as by either of them selling his share, the vendee and the remaining part-owner shall be tenants in common, without any jus accrescendi or survivorship. So also, if £100 be given by will to two or more, equally to be divided between them, this makes them tenants in common; as the same words would have done in regard to real estates." Chap. I. Ownership, joint, in com mon, or several, The maxim jus accrescendi inter mercatores locum non habet Partnership. expresses the rule of law that there is no right of survivorship in chattels belonging to partners. In truth, the share of each partner is not a share in any specific asset or any specific part of the assets, but is his share of what will ultimately come to him when the accounts are ascertained, and when the partners who are to contribute have contributed, and the assets are got in, the debts paid, and the property realised." Co-ownership, in which we include joint tenancy and tenancy in common, must be carefully distinguished from partnership. It is not easy to give a true definition of partnership. Perhaps the best description that can be given of partnership is that it is the relation subsisting between persons who have agreed to combine their property, labour, or skill, in some business, and to share the profits and losses thereof between them. The definition in the Partnership Act, 1890,7 is as follows:-" Partnership is the relation which subsists between persons carrying on a business in common with a view of profit." The mere sharing of gross profits, with or without a common interest in the property whence the profits come, does not create a partner Chap. I. Partnership distin guished from co-ownership. Liability of partners for debts of firm. 1 ship. Thus, an agent paid by his commission on the receipts is not a partner with his employer. It used to be considered that an agreement to share net profits, without more, constituted a partnership; but it is now decided that the question whether a partnership exists depends on the intention of the parties as shown by the whole facts of the case. The principal differences between co-ownership and partnership are stated by Lord Lindley as follows:-3 1. Co-ownership is not necessarily the result of agreement. Partnership is. 2. Co-ownership does not necessarily involve community of profit or of loss. Partnership does. 3. One co-owner can, without the consent of the others, transfer his interest to a stranger, so as to put him in the same position as regards the other owners as the transferor himself was before the transfer. A partner cannot do this. 4. One co-owner is not, as such, the agent, real or implied, of the others. A partner is. 5. One co-owner has no lien on the thing owned in common for outlays or expenses, nor for what may be due from the others as their share of a common debt. A partner has. 6. One co-owner of land is entitled to have it divided between himself and co-owners, but not (except by virtue of a recent statute) to have it sold against their consent. A partner has no right to partition in specie, but is entitled, on a dissolution, to have the partnership property, whether land or not, sold, and the proceeds divided. 7. As between the real and personal representatives of a deceased co-owner of freehold land, the equitable as well as the legal interest in his share is real estate; whilst, as between the real and personal representatives of a deceased partner, the equitable interest in his share of partnership freehold property is treated as personal estate, although the legal interest in it is real estate. 8. Co-ownership not necessarily existing for the sake of gain, and partnership existing for no other purpose, the remedies, by way of account and otherwise, which one co-owner has against the others, are in many important respects different from, and less extensive than those which one partner has against his co-partners. The firm is liable, in other words, the partners are jointly liable, and in the case of mercantile contracts (at all events) each 153 & 54 Vict. c. 39, s. 2 (2). 2 Pooley v. Driver, 5 Ch. D. 459; Badeley v. Consolidated Bank, 38 Ch. D. 238; Partnership Act, 1890, s. 2 (3); Davis v. Davis, [1894] 1 Ch. 393; Re Young, [1896] 2 Q. B. 484. Lindley on Partnership, 52. It must be remembered that in English law, the firm is not an entity in the nature of a corporation, and has no existence distinct from the individuals composing it. See R. S. C., Order XLVIIIA., post, p. 308. partner is severally liable, for all debts and obligations incurred. in the usual course of partnership business by or on behalf of the firm. It need hardly be said that a partner is not liable to creditors of the firm in respect of any liability incurred by the firm before he became a member of it, or after he ceased to be a member if due notice has been given of the dissolution of partnership. A person who is in fact, though not known to the public to be, a partner, is liable to creditors of the firm, and a person who holds himself out to be a partner whereby credit is given to the firm, though he is not a partner, is liable to creditors of the firm in the same manner as if he were a partner. 5 Chap. I. Loan in consideration of share of The hardship caused by the rule that an interest in the net Bovill's Act. profits of the business might make a man liable to third parties as a partner gave rise to an Act (known as "Bovill's Act "),1 passed in 1865. This Act was repealed and its provisions substantially re-enacted by the Partnership Act, 1890, which provides that the receipt of a debt by instalments or otherwise out of the accruing profits of a business; or a contract for the remuneration of a servant or agent by a share of the profits; or the receipt by way of annuity by the widow or child of a deceased partner of a portion of the profits; or the loan to a person engaged or about to engage in business on a written contract that the lender should receive a rate of interest varying with the profits, or a share of the profits; or the receipt by way of annuity or otherwise of a portion of the profits in consideration of the sale of the goodwill of the business, does not of itself make the creditor, servant, agent, widow, child, lender, or vendor a partner in the business or liable as such; but that, on the bankruptcy or insolvency of the borrower under such a contract (whether written or oral), or of the buyer of the goodwill on such terms, the lender or the seller of the goodwill shall not be entitled to recover anything until the claims of all other creditors for value have been satisfied.9 profits. action. When a chose in action is in joint names, for instance, stock Joint chose in in the public funds in the names of two trustees, the legal right Chap. I. Possession. Possession de facto. is in the survivor alone,1 though he may be responsible to others in equity. Possession. The word "possession" is ambiguous. Its popular meaning does not exactly coincide with either of its legal meanings, and it has more than one legal meaning. "In common speech," says Sir F. Pollock, "a man is said to possess, or be in possession of, any thing of which he has the apparent control, or from the use of which he has the apparent power of excluding others." For instance, a thief is in possession of a coat that he has carried off, though the true owner is entitled to the possession of it. A lends a book to B.; here B. is lawfully in possession, but he is bound to give up possession to A. when A. demands it. In each of these cases there is the danger of confounding the rights of the person who is in fact in possession with the rights of the person who has a right to possession, either absolute, or subject only to the performance of a condition, i.e. (in the case that we have last mentioned), that of demanding possession. "Possession," in its legal meaning, is used for- 66 (2.) Possession in law. De facto" (or "actual") possession means effective occupation or control, manifested by some outward act. What amounts to de jacto possession depends upon the nature and position of the thing possessed, and the intention with which the act was done. The acts by which I manifest the possession of the coat that I am wearing are of a very different nature from those by which I manifest my possession of a seat in my garden. Primâ facie, the act of wearing the coat is a strong manifestation of my possession; but, if I went to a vendor of ready-made clothes and tried on a coat to see whether it fitted me, the circumstances would show that the act of wearing the coat was not intended to manifest my possession of it. The possession of a house or land carries with it, in general, possession of everything attached to or upon or under that land, and, in the absence of a better title in another, the right to possess it.1 1 Crossfield v. Such, 8 Ex. 825. 2 Bourne v. Fosbrooke, 18 C. B. N. S. 515; Lyell v. Kennedy, 18 Q. B. D. 796. 3 Pollock and Wright on Possession, 1. 4 S. Stafford Co. v. Sharman, [1896] 2 Q. B. 44. A common case, in which the circumstances show that an outward act is not intended to amount to a claim to possession, is where the person apparently having de facto possession holds, and admits that he holds, that possession for some other person, as where a servant holds it for his master, or where a bailiff holds property taken under a distress. In a case of this nature the word "custody" is sometimes used instead of "possession." We speak of a servant having "custody" of the things placed in his charge by his master, and of goods seized under the distress as being in the "custody" of the law. Possession in law is (1.) Where a person has the de facto possession and no other person has or can without his consent acquire the right to the possession. This includes the common case of the owner being in possession. (2.) Where a person has the de facto possession, and has the manifest intention of excluding every other person from the de facto possession, notwithstanding that another person has the right to the possession. This is the case. where a thief is in possession of a thing that he has stolen. He manifestly intends to exclude every other person from possession; yet the owner has the right to the possession. (3.) Where a person has the de facto possession with the con sent of the owner. This is the case where a man has hired owner. (4.) Where a person who has had legal possession in any of the cases above mentioned has lost the thing, or has ceased to It should be observed that a person who has de facto possession has possession in law as against all the world except the Chap. I. Possession in law. 1 Per Hardwicke, C., Ward v. Turner, 2 Ves. sen. 438. 2 As to the difference between goods taken in execution and under a distress, see Pollock and Wright, 82. |