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No. 557, NEW SERIES.-Vol. XI.

No. 1496, OLD SERIES.-Vol. XXIX.

SEPTEMBER 9, 1865.

AW-A Gentleman, age 28, admitted in 1861, taining, by PURCHASE, a SHARE in an old-established CITY OFFICE. Satisfactory testimonials to character and ability can be given.-Address, LAW, Messrs. Begbie & Co.'s, 10, Coleman-street, E. C.

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II

Leading Article

CONTENTS.

343 344

Judicial Statistics, 1864-Civil, Side
Statutes passed during the late Session of Parliament..

NAMES OF THE CASES REPORTED.

The Cases reported in the Common-law Courts are under
the Editorship of R. E. TURNER, Esq., and the Equity
Cases under H. B. INCE, Esq., Barristers at Law.]
HOUSE OF LORDS.

By W. W. KNOX, Barrister at Law.
Blades v. Higgs.—(Feræ naturæ-Game-Property
Trespasser)

COURT OF APPEAL IN CHANCERY.

By C. MARETT, Barrister at Law.

Macintosh v. The Great Western Railway Company.(Practice-Payment- Appeal)

....

Willoughby v. Brideoake.-(Reversion-PurchaseTime)

......

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705

706

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THE JURIST.

LONDON, SEPTEMBER 9, 1865.

Fifthly, that the relation of principal and agent is not constituted merely by an agreement which entitles one person to be paid sums varying with the profits made by another. Sixthly, that the relation of principal and agent is not instituted merely by the existence of a trust entitling one person to profits made by another. Seventhly, that primâ facie the relation of principal and agent is constituted by an agreement entitling one person to share the profits made by another to an indefinite extent.

Accepting, then, the late Lord Chancellor's statement of the true principles of our law, and Mr. Lindley's statement of the deductions and consequences arising from the reasoning in the judgments in Cox v. Hickman to be correct, let us see if there be anything in this new statute which is more than a statutory affirmation of them.

The 1st section enacts, that "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."

We have in a previous number (Aug. 12) discussed the "Act to amend the Law of Partnership," passed during the last session, but the measure is so important, that we think some further remarks upon it will not be out of place. Two matters struck us, during the passage of the bill, as being rather curious; the one was, that there should have been such a general impression that the bill was introducing a great novelty-a something contrary to the accepted principles of English law; the other was, that it does not seem to have been pointed out; that in truth it was merely substantiating the reasoning on which the learned lords who gave judgment in the important case of Cox v. Hickman founded their decision. With respect to the first (as was pointed out by the late Lord Chancellor), according to the true principles of English law, the existence of a partnership should depend upon the conduct and intention of the parties; and where the parties have not entered into a contract of partnership, the law should not hold them partners, as respects their liability to third parties, except in the case of their holding themselves out as such, and thus bringing into play another distinct principle of law; and the curiously fine-drawn distinctions and elaborate decisions which have so long been a disgrace to this portion of our law, have all sprung out of a struggle against an old and erroneous decision, causing the law of partnership, as his Lordship forcibly put it, to depend on subtle distinctions, and not on the wholesome and well-established principles of the law of England. With respect to the second, Lords Cranworth and Wensleydale, in delivering judgment in Cox v. Hickman, laid down, that the law of partnership was merely a branch of the law of principal and agent, and was to be governed by the same principles; so that an agreement to share profits was not a final criterion, but a test to be used, as other circumstances, for arriving at a conclusion in each case. And thus, as pointed out by Mr. Lindley in his learned book on the Law of Partnership, the principles on which the judgment was founded would seem to establish the following propositions:-First, that persons who share the profits of a business are, like other persons, only liable for the acts of themselves, and of their real or ostensible agents. Secondly, that, whether in any particular case, the relation of principal and agent does or does not exist between one person who carries on a business, and another person who shares its profits, depends not on the mere fact that the business is carried on, more or less, for the benefit of the latter, but on all the circumstances of the case. Thirdly, that the relation of principal and agent is not constituted merely by an agreement which entitles one person to share the gross returns of a business or adven- The same may be said of sect. 3, which enacts, "No ture conducted by another. Fourthly, that the rela- person being the widow or child of the deceased parttion of principal and agent is not constituted merely ner of a trader, and receiving by way of annuity a by an agreement which entitles one person to be paid portion of the profits made by such trader in his budefinite sums out of the profits made by another.siness, shall, by reason only of such receipt, be deemed

The section we see carefully provides, that such a contract shall not of itself constitute a partnership, leaving it, however, as a circumstance to be taken into consideration with other surrounding circumstances in determining the liability as respects third parties, and it can only be considered as an extension of the principles deduced by Mr. Lindley from Cox v. Hickman, in so far as it may affect his seventh deduction, that a participation of profits to an indefinite extent will primâ facie, and without any explanation afforded by other circumstances, constitute a partnership liability; but it would really seem hardly to do this, as, in order to come within such seventh deduction, an indefinite participation of profit is requisite ; whereas sect. 1 evidently points to a definite participation, dependent in some definite way on a fixed sum, viz. the amount of the loan; and this appears to be clearly the case, on referring back to the previous proposition; while, on the other hand, the provision as to the contract being in writing materially restricts Mr. Smelley's proposition.

Sect. 2 enacts, that "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." This certainly cannot be considered as any extension of Mr. Smelley's propositions; and we here parenthetically remark, that the provision as to the contract being in writing is confined to sect. 1.

to be a partner of or to be subject to any liabilities incurred by such trader;" and of sect. 4, which enacts, "No person receiving by way of annuity or otherwise a portion of the profits of any business, in consideration of the sale by him of the goodwill of such business, shall, by reason only of such receipt, be deemed to be a partner of or be subject to the liabilities of the person carrying on such business." And, indeed, sects. 2, 3, and 4 are sections, the justice and policy of which can hardly be doubted, and to which no objection seems to have been offered; sect. 1 being the provision which has provoked discussion, and excited division of opinion. And now we come to sect. 5, which enacts, "In the event of any such trader as aforesaid being adjudged a bankrupt, or taking the benefit of any act for the relief of insolvent debtors, or entering into an arrangement to pay his creditors less than 208. in the pound, or dying in insolvent circumstances, the lender of any such loan as aforesaid shall not be entitled to recover any portion of his principal, or of the profits or interest payable in spect of such loan, nor shall any such vendor of a goodwill as aforesaid be entitled to recover any such profits as aforesaid until the claims of the other creditors of the said trader for valuable consideration in money or money's worth have been satisfied." This section, it will be observed, applies to sect. 1, and is most eminently restrictive.

made law instead of (as in every probability would have otherwise been the case) the mere decision on the particular case.

JUDICIAL STATISTICS, 1864—CIVIL SIDE.

(Continued from p. 340).

It has been shewn that in 1864 the number of writs

of summons issued, which represent the suits commenced, was 113,158, and the number of appearances entered 30,116, or 26-6 per cent. of the number of writs issued. It would, therefore, appear that 734 per cent. of the cases commenced were uncontested, the defendants at once settling the claims, except where judgment was obtained in default of the entry of an appearance. It appears remarkable in how slight a degree the proportion borne by the number of appearances entered to the number of writs of summons issued varies from year to year. In 1863 it was 27·0 per cent.; in 1862, 26.6 per cent., the same as in 1864; in 1861 it was 25-4; in 1860, 26-2 per cent. Again: of the cases in which appearances were enre-tered, 3823 only were entered for trial, the suits being thus reduced by 12.7 per cent. Of the number entered for trial, 2171, or less than 2 per cent. of the suits commenced, were tried; and of these, 117 per cent. were undefended.

As has been observed in former years, however, the issue of the suits commenced is not fully represented by the causes brought to trial, or by the appearances entered. The judgments obtained are a further test. Of these, as already shewn, there were, under the different forms of procedure, 36,564, leaving 76,594, or 67.7 per cent., as the number and proportion of the suits commenced in which no proceedings were taken beyond the issue of the writ of summons. In 1863 this proportion was 663 per cent. Of these cases, some may have been settled between the parties after the issue of the writ of summons; some may not have been pursued further by the plaintiff; and in either case they are lost from the record; some may have been left pending, the time which may elapse between the proceedings being uncertain.

It thus, then, would appear that this statute, which many contended to be a dangerous innovation, is merely a proper carrying out of the true principles of our law, and the reasoning contained in the judgments of our highest legal tribunal, or, with some accuracy, perhaps, a statutory restriction thereon. It must not, however, be considered that it is therefore of little value, for the law lords were so careful in distinguishing former cases, and professing not to overrule them, and there was such a division among the judges, and such a disinclination to upset any old case, that we cannot but see that the reasoning of the law lords would have never been acted on, but the judgment in the particular case, and an application to it alone, For the enforcement of the judgments, writs were would have alone been effectual. The statute in this issued, as already shewn, in 25,574, or 69.9 per cent of view is most important and effective, and has put the the cases. In the preceding year the proportion was law of partnership on its proper footing, and effec-70-4 per cent. of the cases. In 1864, 69.1 per cent. of tually nipped in the bud an enormous amount of ex- the writs were to levy upon the goods; 28.3 per cent. pensive litigation which would inevitably have imme- were against the person; 1.6 per cent. for possession diately arisen in the struggle to carry out the prin- after recovery in ejectment; the remainder under the ciples enunciated in Cox v. Hickman, which thus may different forms before shewn. In 1863 these propor be said to have been statutorily indorsed with definite tions were, respectively, 67.9, 27-6, and 1.8 per cent. applications. The practically trenchant effect of the statute we do not underrate, but we deny its novelty, and look on it merely as a return to proper principles, and a parliamentary enactment, whereby the principles of law enunciated in Cox v. Hickman are

Upon the large amount of procedure which has been shewn, the number of remanets under the different descriptions was as follows at the end of each term in 1864, as stated in the returns for the respective courts:

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The sittings in banco of the Court of Exchequer in the year 1864, relating to business on the revenue side of the court are shewn, as in preceding years, in a return furnished by the Queen's remembrancer, and were as follows:-One judgment on a motion for a new trial argued in 1863, rule discharged; five special cases, in three of which the decision was for the

Writs of error allowed
Memorandums of error lodged
Notices of appeal lodged

Crown, in one, judgment was for the defendant, and Set down for argument:

Errors
Appeals

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Remanets from 1863

one was adjourned for judgment; four causes in equity,
in three of which decree was for the Crown, and one
was adjourned for judgment; five motions in court,
and seventy-six motions in court (without argument), How disposed of—
touching legacy and succession duties. In court of
error, sitting as a court of appeal on a revenue case,
the appeal was dismissed on the ground of no juris-
diction. In court of error, there was one case, in
which judgment, as to the Crown was affirmed, and
as to the defendant reversed.

On the 9th November the customary ceremony takes place of the presentation of the lord mayor of London to the barons of the Court of Exchequer; and on the morrow of Saint Martin (12th November), on the as

Errors:
Judgments affirmed
reversed
Venire de novo
Struck out

Standing for judgment :
Appeals:
Judgments affirmed
reversed
Venire de novo
Struck out

sembling of the council in the Court of Exchequer, Remanets and standing for judgnomination takes place of the sheriffs for England and

Wales.

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Returns of the proceedings into the court of error, The statements furnished by the Masters prove an Exchequer Chamber, have been made by the Masters increase in the receipts to the Suitors' Fund, and in of each of the three superior courts of common law the fees levied in 1864, as compared with the prein the same form as the returns furnished by them ceding year, amounting with regard to the former to for each of the last two years, and shew the pro- 41-6, and with regard to the latter to 8.1 per cent. ceedings from each court to have been as follows for 1864:

In the amount disbursed for the Court of Common Pleas is included, it is stated, a sum of 2841. 138., paid

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