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and pay the dividends to A. B. during his life, and then to C. D., and afterwards to anybody whom you by will shall appoint: but, mind, I am not to be considered a trustee; the stipulation that he was not to be a trustee would not prevent bis being a trustee. The truth is, that there are certain legal relations which are entered into by agreeing to certain conditions, and when those conditions are agreed to it is quite idle for people to superadd, or to attempt to superadd, a stipulation that the necessary legal consequences of those conditions shall not follow from the arrangement” (m). The question may also arise between persons who share in the profits of a business and third parties. It is clear that the intention of the framers of an agreement not to incur liability to third parties may not prevent them being subjected to such liability. The criterion is sometimes expressed thus : 5

every man who has a share of the profits of a trade ought also to bear bis share of the loss ” (n); "he who takes a moiety of all the profits indefinitely, shall, by operation of law, be made liable to losses if losses arise" (0); anyone who “has a specific interest in the profits themselves, as profits" (p), and not merely a right to be paid a sum equal to the profits, or who " stipulates for a share in the nett profits of a concern, and has a right to an account of the nett profits as a partner" (q), is liable to third persons. Subtle and unsubstantial distinctions were established. Thus, it was held that the receipt of a salary which fluctuated according to the profits of the master's business, did not make a partnership; but if there was a stipulation for a proportion of the profits as profits a partnership was created. The avowed reason for these distinctions was the theory that he who took a part of the nett profits withdrew a portion of the creditors' funds,—a reason which is not in accordance with the fact,

(m) (1881), L. R. 18 Ch. D. 698, 704 ; see also the case of Naylor v. Farrer, mentioned at p. 705.

(a) Grace v. Smith (1775), 2 W. Bl. 998, 1000.

(0) Waugh v. Carver (1793), 2 H.

Bl. 235, 247.

(P) Ex pai Hamper (1811), 17 Ves. 403, 404.

(9) Heyhoc v. Burgc (1850), 9 C. B. 431, 444.

and which is all the more unsatisfactory because nett profits do not exist until debts are paid, and because sharing in gross profits was held not to make one a partner (r). The real reason for these subtleties was generally a desire to shield arrangements from the operation of the Usury Acts. Since the decision of the House of Lords in Co. v. Hickman (s), these refinements have lost their importance. A participation in profits is not a perfect test of partnership, though it is, as Lord Cranworth observed in the leading case, “cogent and often conclusive” evidence. The real ground of liability is that a relationship of principal and agent exists; a person is liable to third parties because a trade or business has been carried on by persons acting on his behalf.

The 28 & 29 Vict., c. 86, enacts :

Sect. 1. The advance of money by way of loan to a person engaged or about to engage in any trade or undertaking upon a contract in writing with such 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 such trade or undertaking, shall not, of itself, constitute the lender a partner with the person or the persons carrying on such trade or undertaking, or render him responsible as such (t).

Sect. 2. No contract for the remuneration of a servant or agent of any person engaged in any trade or undertaking by a share of the profits of such trade or undertaking shall, of itself, render such servant or agent responsible as a partner therein, nor give him the rights of a partner.

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(r) Heyhoe v. Burge (1850), 9 C. B. 440.

(8) (1860), 8 H. L. C. 268 ; 30 L.

J. C. P. 125.

(t) Pooley v. Driver (1876), L. R. 5 Ch. D. 458 ; 46 L. J. Ch. 466.

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APPENDIX A.

!

SERVANT.

APPRENTICE. R. v. Little Bolton (1783), Cald. R. v. Highnam (1785), Cald. 491; 367; R. v. Eccleston (1802), 2 East, R. v. Laindon (1799), 8 T. R. 379 298 ; R. v. Shinfield (1811), 14 East, (use of word "apprentice” not 541 ; R. v. Burbach (1813), 1 M. necessary); R. v. Rainham (1801), & S. 370; R. v. Billinghay (1836), , 1 East, 531; R. v. Mountsorrelt 5 A. & E. 676; R. v. Northowran (1814), 2 M. & S. 459. Agree(1846), 9 Q. B. 24.

ment 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), î 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),

5 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.

APPENDIX B.

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TEXANT.

Nor TENANT. Eyre v. Smallpage (1750), 2 R. v. St. Luke's Hospital (1760), Bur. 1060. Plaintiff, controller of 2 Bur. 1053; 1 W. B. 249. Chelsea College, and residing in the Servants of this charity not ratecontroller's apartments, which he able because not occupying distinct occupied in virtue of his office. See apartments. also reference to the St. Bartholo- R. v. Field (1794), 5 T. R. 587. mew Case, p. 1061.

Person employed at annual wages R. v. Mathews, (1777) Cald. 1. as superintendent of a philanthropic Keeper of a lodge in Windsor Park, society with no distinct apartand two acres of land, appointed ments in the house except a bedby the ranger, rateable as ranger. room ; not occupier of the house. When a servant,” said Mans- The question before the Court was field, C. J., “occupies a house and whether she was the occupier of two acres of land, whether he pays the whole, but the reasoning was for them by a rent or by service opposed to her being the occupier it can make no difference as to his of any part. being rated, he is equally liable." R. v. Tynemouth (1810), 12 East, This test is not now employed. 46. The occupation of a lighthouse

Bute v. Grindall (1786), 1 T. R. by a servant placed there to look 338. The ranger of Richmond after the light in consideration of Park,rateable as beneficial occupier a salary, is the occupation of his of certain enclosed lands yielding master, who is rateable. profit to him.

Bertie v. Beaumont (1812), 16 R. v. Melkridge (1787), 1 T. R. East, 33. A servant from week 598. Person employed as herd by to week put by his master into posseveral persons having a right of session of a cottage divided into common and permitted by them to two parts, one occupied by the occupy a tenement of £10 a-year servant, the other occupied_by as a reward for his services ; settle- Mrs. D., who paid rent. The ment by occupation.

servant paid no rent, but his wages R. v. Terrott (1803), 3. East, were less by £5 in the year on ac506. A commanding officer having count of this circumstance. certain apartments allotted to him R. v. Cheshunt (1818), 1 B. & and his family in barracks for his Ald. 473. A labourer employed residence, heid to be rateable to by the Board of Ordnance. He the poor. The ground of decision previously occupied a house at a as put in Lord Ellenborough's rent of £7. The house was purjudgment, is that the officer, un- chased by the Board.

He conlike a private soldier, who had tinued to reside in part of the no accommodation beyond what house at a weekly rent of 28., was required for sleeping, eating, which was deducted from his and the like, “had a degree of wages. No occupation as tenant. personal benefit, and accommo- R. v. Bardwell (1823), 2 B. &C. dation from the property 161, and 2 D. & R. M.C. 53. Pauper joyed by him, ultra the mere hired for a year as a shepherd. He public use of the thing; and which was to receive a house and a garden excess of personal benefit and ac- rent free, 78. as wages a week, and commodation ultra the public use the goings of thirty sheep with his

en

had a

TENANT.

Not TENANT. may be considered as so much of master's flock for the more consalary and emolument annexed to venient performance of the pauper's the office."

duties ; did not occupy the house R. v. Minster (1814), 3 M. & and garden as tenant. Bayley, J., S. 276.

A master found his took occasion to say that R. v. bailiff, a servant in receipt of Minster was

open to much obweekly wages, a house and pas- servation.” turage for two cows on the master's Hunt v. Colson (1833), 3 Moore land, not connected with the ser- & Scott, 790. Servant, employed vice or necessary for the convenient by Highgate Archway Company to performance of it; the servant collect tolls. He lived in the toll

distinct interest in the house, and one shilling a week was pasturage of the two cows.

deducted from his wages by way of Doe dem. Nicholl v. McKaeg rent. The company having con(1830), 10 B. & C. 721. Defendant, tracted to sell the land on which minister of a dissenting congrega- the cottage stood, discharged the tion. He was put in possession plaintiff from their employment of a chapel and dwelling-house and gave him notice to quit, to by lessors, in whom the legal which he assented. Held, not a estate was vested in trust to per- tenancy, and plaintiff could not mit the chapel to be used for the maintain trespass for pulling down purpose of religious worship. Be- the toll-house. At Nisi Prius, ing a tenant at will after de- Tindal, C.J., ruled that there was mand for possession, he was not a tenancy, and the Court appears entitled to a reasonable term for to have assumed that there was a the purpose of removing his goods. tenancy before the determination "If the tenant,” Lord Tenterden of service. observed, “after the determination Dobson v. Jones (1844), 5 M. & G. of his tenancy in this case, by a 112. Surgeon in Greenwich hosdemand of possession, had entered pital, who was required to occupy on the premises for the sole pur- rooms in the hospital; not entitled pose of removing his goods, and had to vote as tenant. The Court continued there no longer than observed that “the relation of was necessary for that purpose, landlord and tenant could not and did not exclude the landlord, be created by the appropriaperhaps he night not have been tion of a particular house to an a trespasser.” See Doe dem. Jones

officer or

servant as his resiv. Jones (1830), 10 B. &C. 718, and dence where such appropriation Lake v. Campbell (1862), 5 L. T. was made with a view not to the N. S. 582.

remuneration of the occupier, but R. v. Wall Lynn (1838), 8 A. & to the interest of the employer, E. 379. R., a brewer, engagedl L., and to the more effectual performas his clerk, at a yearly salary, and

ance of the service required from agreed to permit him to occupy a such officer or servant.' certain house as residence, free of Mayhew v. Suttle(1854), 4 E. & B. rent, rates, and taxes. Another 347 ; 23 L. J. Q. B. 372; Exch. clerk was to be lodged in the Chamber, 4 E. & B. 357. Desame house. L. rateable; L. being sendant, who was in possession of an" independent holder," and a certain messuage, where the sale having absolute dominion, and the of beer was carried on by one George house not being the master's. Utting for defendant, agreed, in con

R. v. Bishopton (1839), 9 A. & sideration of a bondsman becoming E. 824. Pauper resided in a answerable for the annount of £50

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