138 Review: Tudor's Treatise on the Contract of Partnership. of obtaining a rate of interest varying with the profits of the concern, and were therefore within the mischief of usury; but as the laws against usury (except where land forms part of the security) have been repealed, this objection can now have no weight. "Another objection is, that these kinds of partnership would lead to undue speculation. To this we may answer that in private undertakings the owners of capital are in general the best judges as to whether they would or would not be productive, and that the Legislature which confers the privilege of limited liability upon companies formed for carrying out undertakings of a public character, might depend upon individuals exercising ordinary prudence in their own affairs. "With regard to partnerships en commandite it will be observed that the partners whose names appear to the world are, like partners en nom collectif, jointly and severally liable for all the debts, while the partners en commandite whose names do not appear, if they comply with the provisions of the code, as to registration and non-interference with the management of the affairs of the partnership, will only be liable to the extent of their capital. This "Another objection is, that it is not right species of partnership does not exist in Eng- that the partner with limited liability should land, because it is here a maxim of the law participate in the profits and throw the losses that all persons entitled to a share in the profits upon innocent parties. There is, however, no of a partnership, even dormant or concealed weight in this objection, for if a partner en partners, are, as regards third parties, notwith-commandite contracts with third parties (as he standing any stipulations among themselves, does in all cases), that he will be liable only liable in solido for all the debts of the partner- to the extent of his capital in the concern, ship. (See Blundell v. Winsor, 8 Sim. 601; those parties who, after full notice, deal with Walburn v. Ingilby, 1 My. & K. 61, 76; Stor. the partnership, have no natural or equitable. Partn. 254). So likewise if a person advance right to more than what they have contracted money to a firm at a rate of interest varying for. with the profits of the concern, he will be liable as a partner. Partnerships of this kind exist in all parts of the Continent of Europe, and have been adopted in many of the States of North America; and it appears to be the opinion of mercantile men, and of lawyers in those countries, that they have greatly contributed to commercial prosperity, and towards bringing capital, which would otherwise have remained dormant, into active and useful circulation. "The introduction of partnerships en commandite into this country has been recommended by many persons whose opinions are entitled to great consideration; and as it is believed that here as well as elsewhere they would promote the prosperity of small capitalists, and especially of the working classes, it is to be hoped that the commission now sitting for the purpose of taking into consideration the mercantile laws of England, Scotland, and Ireland, with a view to their assimilation, will not pass over without notice a subject of such deep importance. The principle of limited liability, as in partnerships en commandite, has been long since recognised and adopted in this country, where Acts of Parliament or Charters have constituted companies for public undertakings, such as for railways, gas, or waterworks, docks, &c. The Irish Anonymous Partnership Act (21 & 22 Geo. 3, c. 46), passed so far back as the year 1781-2, adopts the principle of limited liability, but as it interferes too much with what ought to be left to the discretion of the parties, its success has not been very encouraging. "One of the objections which might formerly have been raised to partnerships en commandite was, that they were merely the means "That creditors are better circumstanced when part of the capital to carry on a business is subscribed by partners en commandite, than when it is borrowed by a firm, is clear. Thus, if a firm carries on business with a capital of 20,000l., 10,000l. of which is borrowed, in the event of ill success the lender, after obtaining perhaps a far higher rate of interest than the average rate of profits, either obtains a preference over the other creditors, or proves as a creditor for what remains unpaid of the 10,000l., whereas a partner en commandite would only be entitled to a share of the profits, if there were any, and would be liable to the extent of his 10,000l. embarked in the concern to its creditors. "The principal opponents of partnerships with limited liability will most likely be found amongst the large capitalists, who perhaps naturally fear that a combination of small capi talists, by bringing dormant capital into active› competition with their own, would thereby diminish their profits." On the distinction which exists in our Law between Partnership and Community, or Part ownership, we may cite the following note of the learned Editor: "In both, indeed, there exists a community of interest; in the former, however, it is the result of a contract between the parties, whereby there is either expressed or implied a community of profit and loss? the latter often either exists independent of any contract whats ever, as in the case of joint legatees, or devisees, or coheirs, or at any rate independent) of any contract implying a community of profit and loss; as where persons jointly purchase: Administration of Oaths in Chancery Act-Construction of the Act: 139, property, which is not to be sold for their com- places of business, to administer oaths and take mon benefit, but to be allotted to them in dis- declarations, affirmations, and attestations of tinct shares, such community of interest will honour in Chancery, and to possess all such not constitute a partnership. Hoare v. Dawes, Doug, 371; Coope v. Eyre, 1 H. Black. 37; Gibson v. Lupton, 9 Bingh., 297. So, likewise, although there is a community of interest between the representatives of a deceased partner and the surviving partners, there is not, independently of contract, any partnership between them. Pearce v. Chamberlain, 2 Ves. 33. "Upon the same principle, where persons engage to do some particular work and receive money for it, not on a joint account or for their joint benefit, but to be divisible between them on receipt; the contracting parties, it seems, will not be partners, but joint contractors. Finckle v. Stacy, Sel. Ch. Ca. 9. See the remarks of Wigram, V. C., 7 Hare, 174; 3 Ersk. 3 13; Bell's Law of Scotland, 133." The concise description we have given of the scope of the work, and the quotations we have thus laid before our readers, will show that Mr. Tudor has in this translation, and the notes he has appended, made a valuable contribution to our stores of legal literature. ADMINISTRATON OF OATHS IN CONSTRUCTION OF THE ACT. LONDON Commissioners to administer Oaths in Chancery are not limited as to the place at which they may administer the oath by the words "at their respective places of business," in the 2nd section of the 16 & 17 Vict. c. 78, those words being only used to indicate the area within which they are to be taken as "practising." The Clerk of Records and Writs having refused to file an affidavit taken before a London Commissioner, on the ground that it was not sworn at the place of business of the Commissioner (it was, in fact, sworn in the AccountantGeneral's Office), Follett moved for an order that the Clerk of Records and Writs should file the affidavit, and referred to a decision of the Lord Chancellor and Sir G. J. Turner, L. J., reported in the Legal Observer for the 14th January, 1854. The application was first made to the Master of the Rolls, but his Honour intimated a wish that the point should be brought before the Lord Chancellor. The point turned upon the construction of the 2nd section of the Oaths in Chancery Act, 16 & 17 Vict. c. 78, which is in these words :-" It shall be lawful for the Lord Chancellor from time to time to appoint any persons practising as solicitors within 10 miles from Lincoln's Inn Hall, at their respective other powers and discharge all such other duties as aforesaid; and such persons shall be styled London Commissioners to administer Oaths in Chancery;' and they shall be entitled to charge and take a fee of 1s. 6d. for every oath administered by them, and for every declaration, affirmation, or attestation of honour taken by them, subject to any order of the Lord Chancellor varying or annulling the same." J. H. Taylor, for the Suitors' Fee Fund, contended, that if the words "at their respective places of business" were not construed to denote the place at which the oath was to be administered, those words would be mere surplusage, as it must of necessity follow that a solicitor must practise at his place of business; and further, that if the contention of the other side be right, then there would be no limit as to the distance from London at which a London Commissioner might administer an oath; whereas it was the object and intention of the Act of Parliament that there should be a distinction between the London and Country this from what took place in Parliament upon Commissioners. He was proceeding to show the discussion of the Bill, but was stopped by the Lord Chancellor. He stated that the case in the Legal Observer was an exparte applica tion. Lord Chancellor.-Although the order there was made exparte, yet it was not made without due consideration. I am of opinion that the words "at their respective places of business" must be referred to "persons practising as solicitors," whose respective places of business for practice are within 10 miles of Lincoln's Inn Hall. If this was not the construction, quently be defeated, for if a party was sick and then one object of the Legislature would freunable to attend at the Commissioner's office, he could not be sworn. Another objection would be, that if the oath could only be administered by a solicitor at his place of business, it could only be administered to parties other than his own clients, so that A's clients would have to come to B.'s office, and B.'s clients to A.'s office. I do not think that it could have been the meaning of the Legislature that the Commissioner could only administer the oath at his own place of business. I think probably that the meaning of introducing the words "place of business;" was only to indicate the area within which the solicitors were to be considered as "practising." I therefore think that this affidavit ought to be filed. J. H. Taylor said, that the inconvenience was found to be very great at the affidavit office, in consequence of many of the London Commissioners making appointments to swear the affidavits there. The Lord Chancellor said, that if parties came into the offices who had no business there, they must be turned out, but that inconveniences must be met as they arise. In re the 140 New Order in Chancery.→→ Manor of Kennington,→County Court Jurisdiction. MANOR OF KENNINGTON. Clerks of Records and Writs, June 3. [From The accuracy of our report of the former de- THE Copyholders in this manor consider cision of this case was questioned by a corre- themselves peculiarly entitled to a favourable spondent of The Jurist, and we consequently consideration, inasmuch as they were in 1852 gave the shorthand-writer's notes verbatim absolutely deprived, through an Act of the (see 47 Leg. Obs. p. 256). The recent deci- Legislature, of their rights of common and sion which we reported, ante, p. 109, goes even pasturage on Kennington Common, and of farther as to the power of the Commissioners any allotments to which they would have been than the previous decision. Our contempo- entitled on an inclosure. rary, The Jurist has given a somewhat fuller report of the last decision, of which we have above availed ourselves. NEW ORDER IN CHANCERY. REDUCTION OF FOLIO FROM 90 TO 72 THE Right Honourable Robert Monsey Lord Cranworth, Lord High Chancellor of Great Britain, doth hereby, in pursuance of an Act of Parliament passed in the 15th & 16th years of the reign of her present Majesty, intituled "An Act for the relief of the Suitors of the High Court of Chancery," and in pursuance and execution of all powers enabling him in that behalf, order and direct as follows, that is to say: It cannot be questioned, looking at the locality, that such allotments would have been of almost incalculable value, and not less as building ground than from 500l. to 600l. an acre. The copyholders, however, perceiving the laudable design of Prince Albert to frame a park on the common for the recreation of the public, considerately abstained from all opposition to the Bill introduced into Parliament in 1852, intituled "An Act to empower the Commissioners of her Majesty's Works and Public Buildings to inclose and lay out Kennington Common as Pleasure Grounds for the recreation of the Public." Whereas, on the contrary, on a similar measure being passed in reference to Battersea, those interested claimed and were allowed some 1,500l. for their common rights. And yet, by the Kennington Common Act, sect. 4, that common is kindly vested in the Commissioners, "freed and discharged from all rights of common and all other rights whatsoever.” 1. That from and after the 2nd day of July, 1854, all office copies and other copies of pleadings, proceedings, and documents in the Court of Chancery shall (except in the cases hereinafter mentioned) be counted and charged for after the rate It may be observed, that had Kennington of 72 words per folio; and where such Common been inclosed under the sanction of copies, or any portion thereof, shall com- Commissioners, the portion usually allotted to prise columns containing figures, each figure shall be counted and charged for as one word. 2. From and after the 2nd day of July, 1854, the charge for all transcripts of accounts made in the office of the Accountant-General shall be after the rate of 28. for each opening of such transcript consisting of the debtor and creditor sides of the account to be entered therein. the lord of a manor being about a sixteenth, so that in truth the copyholders relinquished no less that fifteen-sixteenths of the common for the use of the public to meet the wish of the prince. Surely, then, it would be manifestly unjust to charge them for their enfranchisement based on the rack-rents, and not on the rents reserved by the building leases. R. COUNTY COURT JURISDICTION. DISTANCE OF PARTIES HOW MEASURED? 3. The charges hereinbefore directed to be made shall be paid by means of stamps according to the General Orders of the Court of Chancery in that behalf now in force, so far as relates to documents fur-perior Court shall have jurisdiction if the plaintiff lives more than 20 miles from the nished by the said Court. place of business of the defendant. June 21, 1854. CRANWORTH, C. A defendant owed a man, who lived at London Bridge, on a note of hand made in London for a balance of 31., and a few shillings for interest. He claimed 81., and indorsed his County Court Statistics.—Metropolitan and Provincial Law Association. note to a brother-in-law who lives at Graves-cuit the number is 26-the distance of the end, who gave it to an attorney in the Temple, prison only averaging nine miles from the who issued a writ in the Superior Court Court. In the Yarmouth Circuit there are three against the defendant for 81. and costs. The prisons for the several parts of the district, disdefendant took out a summons to stay on tant 1, 20, and 54 miles, and a creditor may payment of 41. odd, the real balance due on therefore have to pay from 1s. to 54s. for the the note, including interest, which was imme-debtor's conveyance to prison. diately assented to, and the costs were taxed at 27. 10s., and the debt and costs, amounting to 77., immediately paid. Was the defendant bound to pay costs as in the Superior Court? Gravesend, as the crow flies, is less than 20 miles from where the defendant carries on his business, but by turnpike road, railroad, or by water exceeds 20 miles. B. COUNTY COURT STATISTICS. METROPOLITAN AND PROVINCIAL ANNUAL REPORT OF THE COMMITTEE OF April 29th, 1854. State of the Association.-During the past year, Mr. John Bulmer, of Leeds, and Mr. Ryland, of Birmingham, have each kindly unFrom the Statistics of the County Courts The Committee have also had the pleasure of dertaken the duties of Corresponding Member. (ante, p. 108) it appears :— That the proportion per cent. of causes tried to plaints entered under 20l. is 52-varying from 71 to 31 per cent., and of causes above 201., is 58. In the Metropolitan districts the proportion is high; while in Wales, Northumberland, Cornwall and other thinly populated parts of the country, in which the distances to be travelled to the Courts are very great, the proportion of causes heard is small. That the average amount for which plaints were entered, is 27. 188. That the proportion per cent. of costs to amounts for which judgment has been obtained is 25. This is made up of 17-25ths Court fees, and 8-25ths expenses of counsel, attorneys, and witnesses. In some of the country circuits the costs and fees are much more than 25 per cent. of the amount of the claims adjudicated on. This may be accounted for by the mileage fee payable for the service of the summons and the travelling expenses of witnesses in these districts. The difference between the proportion in one country circuit and another may be caused from the practice which exists in some circuits of allowing a plaintiff, where his evidence is material, his expenses as a witness, and in others not to allow them. In the Metropolitan Courts and in the large towns such as Liverpool, Manchester, and Bristol, the costs are low, as no mileage is payable either for service or witnesses. That the number of judgment summonses heard per 100 issued, is 51. adding to the list of their provincial colleagues, the name of Mr. F. L. Bodenham, of Hereford. They have also made arrangements with the Bristol Law Society, by which the officers of that Society will, during their tenure of office, become Members of this Association. The Committee must once more press upon the members the importance of extending this organization as widely as possible. And for this purpose, they would again call attention to the resolution passed last year : "That in every town where there are five or more subscribers, the members be invited to send to the Committee the names of such of their number as they may desire should be added to the Committee." The Committee regret to say that, except by their friends at Hull and Leeds, this resolution has not been responded to in any one case. In Leeds, a canvass of the town has been undertaken by a local Sub-Committee, and the result has been that thirteen additional members have been added to the Association. During the last Long Vacation, the Secretary made his usual tour, and visited the towns of Reading, Oxford, Bath, Bristol, Monmouth, Hereford, Newport, Cardiff, Swansea, and Carmarthen. As on former occasions, he found everywhere a general feeling of depression at the actual state and prospects of the Profession, accompanied by the opinion that, however desirable a general union of all its members would be, it is not to be expected that such a union can be effected. This feeling is too often made the excuse of doing nothing, even by those who acknowledge the great need of increased association. However, by visiting That the number of persons actually taken the various towns, and, where necessary, callto prison on every 100 judgment summonses ing upon gentlemen in their own offices, the issued, is 11. The smallness of that number Committee are gradually getting into commuarises from the prisons being many miles dis-nication with those who are willing to do tant from Courts, and the plaintiff having to pay a fee of 1s, a mile to convey the defendant to prison. Thus, in the Liverpool Circuit there were only four warrants actually enforced for every 100 commitment summonses, the prison being 52 miles off, while in the Norfolk Cir That the number of warrants of commitment on every 100 judgment summonses issued, is 26. something, and are thus enabled to furnish a reply to the question that meets them upon every application,--" What have the Committee done for us?"-a question to which the Committee trust the members will deem that a satisfactory answer is found in the history of 142 1 Metropolitan and Provincial Law Association-Annual Report. the operations of the Association, contained in Equity, other than and except serjeants-at-law, the Annual Reports and the periodical Cir- barristers, solicitors, attorneys, notaries, procculars--a history which shows a continued, tors, agents, or procurators, having obtained and not altogether unproductive course of ex-regular certificates, and special pleaders, draftsertion on the part of the Committee. Although men in equity, and conveyancers, being memit is true, and a truth which the Committee are anxious to impress more and more upon all the members of the Profession, that those exertions would have been very much more productive if the means of action had been more generally contributed by the Profession. Encroachments.-During the past year, the Committee have had to direct their attention to various cases, in which the proper province of the Profession has been occupied by irregular practitioners. They have received complaints from several of their correspondents, of the extent to which professional business is transacted by accountants, house-agents, and brokers; and they regret to say, that in the majority of these cases, there is no law which will fford them any protection. At the same time, is perfectly true that, if the Profession were really united, they would be enabled very greatly to diminish the evil, by continually exerting the influence they possess, to keep up the proper boundary between professional and non-professional business, and never lending such encroachments even the apparent sanction of a tacit acquiescence. One kind of encroachment, which appears to be somewhat on the increase, consists of the attempts made by law stationers in London to attract to themselves a large proportion of the business, usually confided to country attorneys to their town agents. This is a point which is of course entirely within the control of the Profession, and the Committee of this Association, comprising, as they do, a majority of provincial members, feel bound to record their conviction, that such small saving as may be secured in this way to one portion of the Profession, is very much more than counterbalanced by the injury which is done to the whole body, where any encouragement is given to the encroachments of the unprofessional classes who hang upon its borders. It is important, with this view, that all solicitors should know, that the Attorney and Solicitor's Act only secures to the Profession the privilege of "suing out for another party any writ or process;" and prohibits all other sons from " commencing, prosecuting, or defending any action, or suit, or any proceedings in any Court of Law or Equity," or "from acting as an attorney or solicitor." per The Act is entirely silent upon all the various branches of professional business, except those enumerated above. The only other protection enjoyed by the Profession is that derived from the stamp duty upon conveyancers' certificates. The law upon this point is found in the 14th sect. of the 44th of Geo 3, c. 98, which enacts, that every person who shall for, or in expectation of, any fee, gain, or reward, directly, or indirectly, draw or prepare any conveyance of, or deed relating to, any real or personal estate, or any proceeding in Law or bers of one of the four Inns of Court, and having taken out certificates, and other than and except persons solely employed to engross any deed, instrument, or other proceedings not drawn or prepared by themselves, and for their own account respectively, and other than and; except public officers drawing or preparing official instruments applicable to their respective. offices, and in the course of their duty, shall forfeit and pay for every such offence the sum of 50l., provided always, that nothing herein contained shall extend, or be construed to ex tend, to prevent any person or persons drawing. or preparing any will or other testamentary papers, or any agreement not under seal, or any letter of attorney." The Committee are not unfrequently requested to give assistance in prosecuting irregular conveyancers, and they have therefore thought it well to point out to the members the provisions under which any such prosecution must be conducted; and it is necessary for them to state, in addition, that the only mode in which it can practically be instituted is by obtaining clear evidence of some particular offence, which must be placed in the hands of the Solicitor to the Board of Inland Revenue, in the shape of affidavits. Another case of encroachment, being an offence, not against the law of the land, but against the well-understood etiquette of the Profession, was brought, some time ago, under the attention of the Committee, in the shape of an advertisement in the "Carlisle Patriot," by a Mr. Solomon Atkinson, a Barrister of the Society of Lincoln's Inn, ; in which that gentleman commenced by inviting the Public to resort to his chambers for advice in all cases of difficulty, and wound up by proclaiming that he was ready to draw all kinds of conveyances "at one-third the usual charge." The Committee felt that this was a case that could be best dealt with by the authorities of Lincoln's Inn, to whom accordingly they sent a communication on the subject; and from whom they received a reply, that "the case had for some time engaged the attention of the Benchers, and would be duly considered by them on the part of the Society of Lincoln's Inn." The Committee believe that the advertisement in question has disappeared, and they have requested their friends at Carlisle to give them immediate notice, should it again make its appearance. The Committee last year presented a me morial to the Lord Chancellor, calling his attention to the increasing class of irregular practitioners; and praying his lordship to give directions that no document should be received in any office under his control, except from the party concerned, or through a solici tor's office. In reply, they were favoured with |