within three calr months from such terminon of his engagemt, or so soon afterwards as he shl be able to journey with safety. Third. Ir the engagemt of the sd B. shl continue until the or at end. of engage. expiron of the sd term of yrs, & he shl always conduct himself pperly in the pformce of his duties, & shi start on his journey to England within three calr months from the expiron of the sd term of

yrs.]

ment.

[11. In case the engagemt of the sd B. shl at any time, Repayment of passage within two yrs from the date of this agreemt, be terminated by money. notice given by the sd B. psuant to the 8th clause, or be terminated from any cause other than the illness of the said B., psuant to the 9th clause, he, the sd B., shl thrupon immedly repay to the sd A. the sum pd by the sd A. psuant to the 2nd clause. SUCH sum may be recovered by the sd A. as a debt due from the sd B., in an action or orwise in any Court of competent jurisdon [in England or India]. PROVD that this clause shl not prejudice or affect any other claim or remedy of the sd A. agst the sd B. for breach of contract.]

[12. THE sd B. shl, at his own expse, find & provide two Sureties. responsible sureties to the amt of £ each or the guarantee

of a responsible Co to the amt of £ & for the due pformce by him of this

for his good conduct,

agrmt.]

IN WITS, &C.

VI.

AGREEMENT under SEAL with TRADERS for a LOAN for a
TERM of YEARS at INTEREST and a SHARE of PROFITS (d).

THIS INDRE, made the day of

BETN A. & B., Parties.

carryg on business in ptnp togr as

(d) The main point is to protect the lender from being liable as a partner As to what to creditors, as to which such an agreement as the above would clearly be constitutes within the protection of the Partnership Act, 1890, 53 & 54 Vict. c. 39, which partnerhas repealed, but, in effect, re-enacted the provisions of Bovill's Act, 28 & 29 ship. Vict. c. 86 (so far as the protection is needed, the repealed Act having, as it seems, in this respect done no more than declare what was already the law); see the late Act, s. 2 (3), and s. 3; and the following cases (before the Act) as to what constitutes a partnership: Bullen v. Sharp, L. R. 1 C. P. 86;

Recital.

Covenant

to pay principal, interest

and share

of net profits.

What are

net profits.

style or firm of A. & Co. (hinafter refd to as the borrowers) of
the one pt, & C. of, &c. (hinafter refd to as the lender, wch
expression shl be deemed to include his exs, ads, & assns,
where the context so admits), of the other pt: WHAS the lender
has this day pd & advced by way of loan to the borrowers the
sum of £ for the term of
yrs from the date hrof

upon havg the repaymt of the same with such intt as is hinafter
mentd seed in mner hinafter appearg, NOW THIS INDRE
WITNETH that it is hby covtd & agrd by & betn the sd pties
hto as follows:-

1. Jt & sevl cort by the borrowers with the lender, that the borrowers will pay to the lender the sum of £- on the day of, AND until the sd ppal sum shl be repd will pay to him intt thron or on so much thof as shl remain owing at the rate of p.c. p.a. by qtrly paymts on the usual qtr days in each yr, AND will also pay to him, by way of addonal intt, for each yr durg wch the borrowers shl make any net profits, such further sum as shall be equivalent to one equal part of such net profits derived from the sd business, such last-mentd yrly paymts to be payable on the

in each yr.

2. Yrly Accts, see p. 19.

day of

3. THE net profits shl, for the ppose of ascertaing the amt of such addl intt as afsd, be taken to be the amt of the gross rects after deductg intt on the sd sum of £- at the afsd rate p.c. p.a., as well as intt at the like rate on any other

of

Holme v. Hammond, L. R. 7 Ex. 218; Mollwo, March & Co. v. The Court of Wards, L. R. 4 P. C. 419; Exp. Mills, 8 Ch. 569; Ross v. Parkyns, 20 Eq. 331; Syers v. Syers, 1 App. Cas. 174; Exp. Sheil, 4 Ch. D. 789; Exp. Tennant, 6 Ch. D. 303; Exp. Delhasse, In re Megevand, 7 Ch. D. 511; Pooley v. Driver, 5 Ch. D. 458; Walker v. Hirsch, 27 Ch. D. 460; In re Stone, 33 Ch. D. 541 ; Badeley v. Consolidated Bank, 34 Ch. D. 536, reversed on appeal on the question of partnership or no partnership, 38 Ch. D. 238; and after the Act, Davis v. Davis, [1894] 1 Ch. 393. The result of the Act and the decided cases appears to be that a partnership is not necessarily excluded by a provision such as that in clause 7, nor by any means necessarily implied by a sharing of profits, but that the whole of the agreement is to be looked at to ascertain whether the meaning is that the parties should carry on the business as principals and as agents for each other, i.e., as a joint business, or that it should be the business of one only. See further Lindley on Partnership, pp. 23-76. As to agreements of the nature of that in the text, see Re Vince, [1892] 1 Q. B. 587, 2 Q. B. 478, where, however, on the appeal the agreement was held void for obscurity, Re Hildesheim, [1893] 2 Q. B. 357.

capl employed by the sd borrowers in the sd business & all paymts for rent, rates, taxes, repairs, wages & other workg expses & outgoings pperly deducted in the estimon of net profits.

proper

account.

4. THE borrowers shl keep all usual & pper books of acct of Borrowers & concerng all pchases & sales of goods made by them, & of to keep all other mres & transons concerng the prems, & the sd books books of & accts & all bills, notes, secs for moy, lres, & other writgs relatg to the mres afsd in the posson or under the control of the borrowers shl be carefully preserved by them (damage by fire or other inevitable accident only excepted) & shl at all reasble times be open to the inspon of the lender, who or whose agent or agents shl have full liberty to make copies or extracts of or from the same or any of them.

day of

When

lender may

require re

5. THE lender may require repaymt of the sd sum of £to be made bfe the sd if the borrowers shl cease to carry on the sd business [or shl, witht the consent in payment, writg of the lender, admit any ptner with them in the sd business], or if any qtrly paymt of the sd intt on the sd sum of £ or any sum payable by way of addonal intt as hinbefe

provd shl be in arrear for 28 days, or if the lender shl have on notice. given to the borrowers or sent by post to their place of business for the time being not less than

in writg in that behalf.

calr months' notice

6. Ir shl be lful for the borrowers to repay the sd sum Borrowers at any time bfe the sd day of on givg to the may repay

of
lender or sendg by post to his usual or last known address not
less than calr months' notice in writg of their intention
in that behalf, such notice to expire on the

in any yr.

day of

7. Agrmt not to create a ptnp, see p. 19. [Arbitron clause, see ARBITRON.] IN WITS, &c.

on notice.

A. to be managing. director.

Powers and duties.

Managing director to pay out

hire clerks.

VII.

AGREEMENT between a BANKING COMPANY and a MANAGING
DIRECTOR of a BRANCH ABROAD.

day

PARTIES, The Bank Limd (hinafter called the Bank), 1. A. of, &c. (hinafter genlly called the Managing Diror), 2. 1. THE sd A. shl become & be from & after the of Managing Diror of the business of the Bank, at its branch establishmt opened or forthwith to be opened in (hinafter called the Branch).

2. THE Managing Diror shl possess all such powers, & pform all such duties as shl be necy usual or convenient to enable him effectually to manage & superintend the business of the Branch, subjt nevs to the stipulons hinafter contd & to any such addonal or other stipulons & condons as may from time to time hrafter be created or imposed by any resolons of the Bank or its Board of Dirors.

3. FOR the pposes of the business at the Branch, the Managing Diror shl have power to authorize & make all necy goings and expenditure & pay all necy outgoings, & to hire & employ all such clerks, messengers, or other servants as he shl consider to be required for carryg on the business of the Branch, & shl also have the absolute control over, & also power at his absolute discron to dischge any such psons, save & except that he shl, if & when exply required so to do by the Bank or its Dirors, hire, employ or dismiss any clerk, messenger, or other servant, whether such hirg, employmt or dismissal shl be accdg to his wish or not.

To transmit to Bank

statement

of out

goings.

To keep

accounts.

4. THE Managing Diror shl make out & deliver, or transmit to the Bank or its Board of Dirors, or to such pson or psons as they shl require from time to time, a statemt of such expenditure & outgoings, & of the psons so employed, & the amt of the salaries, wages, or other remuneron to wch they are resply entled, & in respt of what mre or services such expenditure or outgoings, salaries, wages, or other remuneron is or shl be payable, togr with such other parlars in relon to such mres or psons as the Bank or its Dirors shl from time to time require.

5. THE Managing Diror shl keep, or cause to be kept, full & correct entries, minutes or accts of all Bankg accts opened

or withdrawn, & of all rects of moys, secs or effects, & of all advces made & discounts or credits granted, & of all special operons entd into on behalf of, or connected with, & of the genl assets, balces, debts, & credits of the Branch, & also all such further or other parlars & details as shl from time to time be required by the Bank or its Dirors with referce thto.

to Bank statement

6. THE Managing Diror shl also from time to time, as & To transmit when he shl be required by the Bank or its Dirors so to do, compile or extract, & transmit to the Bank or its Dirors at its of business, chief establishmt in London or elsewhere, as required, or to any officer thof or other pson or psons who shl be duly named for that ppose, an abstract, epitome, or statemt in full detail of all parlars & ordinary or special circes relatg to the sd business at or connected with the Branch, or to his managemt of the same, & parlarly & immedly upon the occurrce of any circe callg for special attention on the pt of the Bank or its Dirors, and imporshl transmit to the sd chief establishmt full & sufft notice thof, tant infor& also shl at any time permit the Bank or its Dirors, or any To permit pson or psons duly authorised by the Dirors in that behalf, to inspection inspect & examine all books of acct, entries, minutes, & other parlars so kept by him, & shl give to the Bank or its Dirors, or any pson or psons authorized by them as afsd, all such informon, facilities, & assistce as shl be reasbly required, to enable them or him fully to understand any such accts or other parlars.

mation.

of accounts.

7. THE Managing Diror shl not divulge or make known in Faithful any mner whatsr any dealgs or concerns of or relatg to the dealing. business of the Bank, wheresr carried on or transacted, witht the authority of the Bank or its Dirors, but shl at all times be true & just to the Bank in all his dealgs, & shl not injure or unduly pledge its credit or assets, or employ or make liable the same save in the usual & regular course of business, & shl use his best endeavours & exertions to promote the welfare of the Bank & its business, & shl give his whole time & attention to the business of the Branch, & shl not give his time or psonal attention to any other business or mercantile transons whatsr (e).

(e) As to this being enforceable by injunction, see Whitwood Chemical Co. v. Hardman, [1891] 2 Ch. 416.