SALARIES OF JUDGES.

II.

By the statute of 8 Richard II, the old law that the judges should receive no fee or reward except from the king, was renewed, but in the following year was annulled, because it was too severe. In the twentieth year of this reign it was enacted that "no lord or other of the county, little nor great, shall sit upon the bench with the justices, to take assizes in their sessions in the counties of England." That law has been abolished in this country. William Gascoigne, Shakespeare's and Prince Hal's chief justice, received, according to the issue rolls of the year 1413, the sum of 791. 38. 01⁄2d. for his salary and additional annuity. Richard Grant White says that the chief justice died December 17, 1413, but Mr. Foss proves that he was alive December 15, 1419, for his will is dated that day; he died December 17, 1419.

John Stafford, Bishop of Bath and Wells, and Lord Chancellor from 1432 to 1450, received in the first year as profits of his office, 1,6681. 38. 4d. The justices in the reign of Henry VI were very irregularly paid. In 12 Henry VI, there was then due to "divers judges and other officer of the court" the sum of 780l., also to John Martyn, justice, 75l., and to William Godende, one of the king's sergeants, 50l., and in 10 Henry VI (1440), the justices of both benches, the justices of assize and the king's sergeants and attorney presented a petition to parliament, complaining that they had not received for two years or more their fees and rewards nor their robes, to their great loss and impoverishment, and praying that they might regularly be paid such fees and rewards and such sums of money as had been allowed the keeper of the wardrobe for their robes for the greater part of ten years past, together with all their arrears. With the assent of the king's parliament a writ was issued to the chamberlains of the exchequer, who estimated the average value of the winter robes at 106s. 11d. 3 far. and the sixth of a halfpenny, and the value of the summer robe at 638. and 6d.

The poet Chaucer, who, it is said, studied for the law, was granted by writ dated at Windsor the 23d day of April, 1374, a pitcher of wine daily. This grant was afterward commuted for a money payment, and he received the sum of 71. 2s. 6d. for his daily allowance of wine from October 27, 1376, to June 21, 1377, and at about the same time he received 40s. for his half-yearly robes as one of the king's esquires. If we knew how much a "pitcher" of the time of Chaucer contained we could compute this money value of the allowance to the chancellors.

Sir John Fortescue, author of "De Laudibus Legum Angliæ," was appointed chief justice of the King's Bench on the death of Sir John Hody in 1442; his salary was 1201., with this he received 5l. 16s. 11d. for his robe at Christmas, and 31. 68. 6d. for another at midsummer. He also, soon after his appointment, received a grant for life of one dolium of wine annually, to which a second was added in the following year. In March, 1477, 40l. was granted him in addition to his former allowances.

I do not find that there was any material change in the salaries of the judges during the reigns of Edward IV, Richard III and Henry VII, they received a salary with occasional additional grants. In 15 Henry VIII, the judges were assessed 51. per cent on the estimated value of their incomes. Fineux, chief justice of the

King's Bench, was assessed for 1,000 marks, Robert Brudenell, chief justice of the Common Pleas, on 650 marks, and John Fitz James, chief baron of the Exchequer, on 4001. At this time there were but two puisne justices of the King's Bench, one of whom, Humphrey Coningsby, was assessed on 4001., and the other, John More (the father of Sir Thomas More), on 2001. Lewis Pollard and Richard Broke, judges of the Common Pleas, pay on 500 marks each, and Anthony Fitz Herbert on 240l., the three puisne barons of the Exchequer are charged on 2001. a piece, the attorneygeneral, Job Roper, was assessed on 500l. Twenty-two years later the salary of the chief justice of the King's Bench was increased 301., that of the other judges of both benches 201. apiece.

I find on reference to O'Flanagan's Lives of the Lord Chancellors of Ireland (2 vols. 8vo, London, 1870), that the salary of the Lord Chancellor was anciently 401. a year, exclusive of fees and perquisites. But he had to maintain a special body guard of six men-at-arms and six archers fully equipped. Roger Urtagh, Lord Chancellor in 1335, had a salary of 160 marks per annum. Lawrence Merbury received 68. 8d. a day, upwards of 2001. a year in 1407, and Archbishop Cranley, who was also Lord Chancellor in 1415, had 10s. a day. Sir Richard Read in 1546 received a salary of 300 marks; in addition to their salaries they received fees. Mr. O'Flanagan gives a list of the salary of the Lord Chancellor from the year 1598, which list I copy:

In 1598..

In 1629.

In 1666. In 1709. In 1727.

In 1802, pension

Present salary (1870). Retiring pension

Mr O'Flanagan gives a few of the prices of cattle, etc., in the Anglo-Norman colony in Ireland, but he does not state the time, though, from the connection in which they are given, I suppose them to be the prices of these articles prior to the year 1598. Cows, he says, were from 5s. to 13s. 4d. each, heifers 3s. 4d. to 58. Sheep 8d. to 18., horses 13s. 4d. to 408., pigs 1s. 6d. to 28., and salmon 6d. each. A little money bought a great many things in those days. This reminds me of a story of an Irishman who went from New York (this was before the war) into the neighboring province of New Jersey; while wandering about he came to a farm house and, seeing some hens, asked the price of them; the farmer's wife said they were two shillings apiece. "Och! murther," said Pat, "I could get them for a sixpence in the 'Ould Counthry.' "Well, why didn't you stay there then?" asked the woman. Because," said Pat, "I couldn't get the sixpence!"

Mr. Hallam (vol. 3, Middle Ages, p. 351, Am. Ed.) and Mr. Froude (History of England, Chap. I) give us the wages of laborers and the prices of food from the 13th to the 16th century. In the 14th century, a harvest man had 4d. a day, which enabled him in a week to buy a comb of wheat; under Henry VI meat was about a farthing and a half the pound, and a laborer's wages three pence a day. A shilling of the latter part of the 14th century Hallam considers equal to twenty times that sum at the time he wrote (1784), and a shilling of the 15th century equal to sixteen shillings. Froude says a penny of the reign of Henry VIII is equal to the present shilling. Foss usually reckons a shilling, up to the same reign, equal to fifteen shillings present money.

But Sir Julius Cæsar, for whom this computation was made, subjoined in 1631 the following note: "Thus the proverb is verified: He that accompts without his hoast must accompt againe :-This exceedeth truth by much; for I found it but at 2200 lib. or thereabouts in my first jere; and since abated by litte and litte, so that this last jere it amounted but to 1600 lib. or thereabouts, and no more; and in Q. Elizabeth's time at 1500, or 1400, or 1300, or 1200, or 1100." There must have been some way of making money out of their office other than the above fees and perquisites. Sir Charles Cæsar, son of Sir Julius, gave for the appointment to the office 15000l. with a loan of 20001. to Charles I. It is of this same office that I have read this story. I think it is told of Sir Julius Cæsar. One being asked what the office was worth said, "To him who would save his soul a small sum: to him who would go to Purgatory a larger sum, but to him who would go to Hell as much as he hath a mind to make it."

During the last few years of the sixteenth century the judges received the following salaries and allow

ances:

....

viije iiijxx xiij"

Allowance as justice of assize

mix iiij xil (2020.0.0)

These are the legitimate fees pertaining to the office. The perquisites, the gifts, were much larger. It was the custom for the Chancellor's friends to give him gifts at New Years, and many of them received gifts at any time and from any one. It is said Lord Bacon received £100,000 in bribes and presents in four years. Sir Thomas Egerton, Baron Ellesmore, Viscount Brackley, Lord Keeper of the Great Seal and Lord High Chancellor for twenty-one years, the illegitimate son of a country squire, left at his death, a landed estate of £8,000 per annum, said to be entirely of his own winning, and equal to the largest in England. The above fees, "certen and uncerten," hardly sufficed to pay the Chancellor's household expenses.

We have seen that the Master of the Rolls in Elizabeth's reign received as salary and allowance for robes and wine 491. 178. 4d. Yet the perquisites of the office were large, for in 1608-9, he received 19871. 88.; in 1609-10, 2,110l. 58. 9d. No. 334 of vol. 161 of the Lansdowne MSS. contains a "General View of fees due to the Master of the Rolls, 20 Sept., 1614." It is as follows:

"The moytie of the causal fynes payed by the cursitors upon original writts..

900 li

Fees due for Patents passed the Great Seale ak * * being is. for every xxs. payed for the sale of any patent and so pro rata........

*

cơ li

Lord Chief Justice of the Common Pleas : Fee, reward, and robes Wine (2 tuns)..

Allowance as justice of assize

Fee for keeping the assize in the Augmentation Court....

141

8

20

12 10 8

400

17

60 10

8

20 0 0

From the above list it appears that the Chief Justice of the Common Pleas was not expected to drink as good wine as the Chief Justice of England, while the other judges either went without wine or bought their own wine. Now-a-day, we have done away with all such invidious distinctions. There are judges on the bench of the Marine Court of the city of New York that know good wine as well as any judge of the Supreme Court, and a few years ago there were police justices in the city of New York that were unequaled as judges of the national drink - corn whisky.

During the time of Sir Edward Coke, these salaries

At

FOLGER, J.-At the trial each party asked the court to direct a verdict in its favor. Each thereby conceded that there could be no dispute upon any question of fact; each thereby conceded that there was left for decision only a question of law, and that it arose upon a settled and uncontradicted state of facts. Taking the view of the testimony the most favorable for the appellant, the facts are these: In 1869 one Putnam and Henneberger were partners in business under the firm name of A. D. Putnam & Co. In that year the appellant invested or deposited with that firm $1,500. This sum was credited on its books to Frederick Hyde, the son of the appellant; for this sum the appellant was to share in the profits of the business of the firm. His share was to be one-third, and demandable by him at the end of the year. the end of the year his share of the profits was $500. This sum was also placed to the credit of Frederick Hyde; then, in 1870, the appellant loaned to the firm, for one year, the original sum of $1,500 and the $500 of profits, thus making $2,000. In consideration of this loan the firm agreed to hire Frederick Hyde as clerk, at $10 per week for the year; to pay the appellant one-third of the profits, which were to be settled half-yearly; and at the end of the year to take him in as a partner, if the firm and he should feel satisfied, on his making further investments and putting in more capital. Though it is nowhere in the testimony so stated in terms, yet it is fairly to be inferred that the $2,000 was loaned to be used in the business, and that if at the end of the year the appellant did not become an ostensible partner he was to be repaid out of the concern the $2,000, but without interest strictly as such. The appellant never interfered in the affair of the concern, nor exercised any control in the business. At the end of the first six months there were no profits of the business. The appellant never received any thing for his $2,000, nor any thing by way of interest money.

The prominent and important facts are, that he loaned the firm a sum of money to be employed as capital in its business, and that, therefore, he was entitled to have and demand from it, one-third of the profits of its business every half-year. In my judgment there results from this, that Putnam and Henneberger, making use of that money as capital in that business, used it there for the benefit of the appellant;

because any return to him for the loan to them must come from the use of it. If not used so that profits were made, he got no return. Further, that he had interest in the profits which, while they were anticipatory, was indefinite as to amount, but, when they were realized, was measured and specific as to share. Further, that his interest in them was in them as profits; that is, that he had a right on the lapse of every six months, though having no property in the whole capital, to have an account taken of the business and a division made of the profits then appearing. Ex parte Hampen, 17 Ves. 403. That he had this right to an account and a division at other time than at the end of each six months, if, at any other time, the exigencies of the concern as the dissolution of the firm by death of one partner, or any other reason required an account to be taken. He had that interest in the profits, as profits, because he could claim a share of them specifically, as they should appear on each six months, or other accounting of the business of the term then ended, and could then have and demand payment of his share. By the terms of his contract with the firm, if it be upheld as made, he was interested in and affected by the results only of the year, as ascertained at the end of each six months. It would not affect him in this right to account, though the business of a previous year had been disastrous. If either six months' business should yield a profit, he could insist on payment to him of one-third thereof, and could demand that an account be had of the business of any six months, to ascertain if there had been profits. It was one-third of the profits that he was to have, and not a sum in general equal to that one-third; so that he was to take it as profits, and not as an amount due - not as a measure of compensation, but as a result of the capital and industry. So it is said in Evereth v. Coe, 5 Denio, 182: "If he is to be paid out of profits made, then he has a direct interest in them." And see Ogden v. Astor, 4 Sandf. 321-2. The learned counsel for the appellant states the question of law to be this: Does a loan of money, with an agreement for compensation from the profits of the business, per se, constitute the lender a partner quoad the creditors of the firm? Is this statement of it correct? Does the phrase "compensation from the profits" fully meet the case? Does it fully present the fact that by the agreement the appellant obtains an interest in the profits, as such, and a right to insist upon an accounting and a division thereof half-yearly? With this supplement, the question for decision is as stated by him.

I am not to say what I think ought to be the answer to it, was this a case of first impression. I am to declare what I ascertain to be the answer already given by the law in this State, as it has been settled, and declared by the authorities. The argument of the learned counsel is very ingenious, and very forcible when considered in reference to what should be the proper rule, and what the true reasons upon which a rule should be founded. Yet if it is found that, by a long course of decisions or by long acquiescence in and adherence to a rule some time ago authoritatively promulgated, there has been established a principle of commercial law upon which the community has acted, it is the duty of the courts to adhere thereto, leaving it to the law-making power to find a remedy, if remedy be needed, in a positive authoritative enactment. In England this has been done, and by act of parliament an important change has been made. 28 & 29 Vic. ch. 86. In the first place it matters not that the defend

ants meant not to be partners at all and were not partners inter sese. They may be partners as to third persons, notwithstanding (Manhattan Brass Co. v. Sears, 45 N. Y. 797), and this effect may result, though they should have taken pains to stipulate among themselves that they will not in any event hold the relation of partners. Among the reasons given is this, whether it be strong or weak: That whatever person shares in the profits of any concern shall be liable to creditors for losses also, since he takes a part of the fund which in great measure is the creditors' security for the payment of debts to them. Waugh v. Carver, 2 H. Bl. 235, citing Grace v. Smith, 2 Black. 998. The doctrine took its rise in the decisions in these cases. And commenting upon them, the text writers who have presented most forcible criticisms upon it say: "The principle laid down by Lee Gray, C. J., in Grace v. Smith, has served as the foundation of a long line of decisions which cannot now be overruled by any authority short of that of the legislature; and in all cases in which there is no incorporation, nor limited liability, it must still be regarded as binding on the courts." Lindley on Part. 36. "The doctrine is completely established, upon the very ground asserted in Grace v. Smith. Story on Part., § 36, note 3; and so Mr. Parsons, in his book on Partnership, quoting Lord Eldon, Ex parte Hamper: "But if he has a specific interest in the profits themselves, as profits, he is a partner," adds: "Undoubtedly he is; every principle of the law of partnership leads to this conclusion." He contends, however, that the specific interest in profits which is to make a person a partner must be a proprietary interest in them existing before the division of them into shares. See also 1 Kent's Com. 25, note v, where it is said: The test of partnership is a community of profits-a specific interest in the profits as profits-in contradistinction to a stipulated portion of the profits as a compensation for services.

The courts of this State have always adhered to this doctrine and applied or recognized it in the cases coming before them. In Walden v. Sherburne, 15 I. R. 409, in 1819, Spencer, J., delivering the opinion of the court, says: 'No principle is better established than that every person is to be deemed in partnership if he is interested in the profits of a trade, and if the advantages which he derives from the trade are casual and indefinite, depending on the accidents of trade. See also Dob v. Halsey, 16 I. R. 34, in the same year. The principle is recognized in Chase v. Barrett, 4 Paige, 148, by Walworth, Chancellor; in 1833 by the Court of Errors, per Walworth, Ch.; in 1837 in Champion v. Bostwick, 18 Wend. 175; by the Supreme Court in 1841, per Cowen, J., in Cushman v. Bailey, 1 Hill, 526; and again in 1848, per Beardsly, Ch. J., in Everett v. Coe, 5 Denio, 180; by the Superior Court of the city of New York, per Sandford, J., in Oakley v. Aspinwall, 2 Sandf. 7-21; by the present Supreme Court in repeated decisions, of which see Catskill Bank v. Gray, 14 Barb. 471; Hodgeman v. Smith, 13 id. 302; by the Court of Appeals, per Peckham, J., in Manhattan Brass Co. v. Sears, 45 N. Y. 797; per Leonard, C., Ontario Bank v. Hennessy, 48 id. 545–552; per Gardiner, J., Barckle v. Eckhart, 3 id. 132-138.

It is not too much to say the limited partnership act (1 R. S. 764) is a legislative and practical recognition of this rule of commercial law. Indeed, if it shall be held that such a contract as that of the appellant does not make him a partner as to third persons, there is little or no need of that act. The situation

of the special partner is more onerous than that of the appellant under such a ruling. The first may lose his capital invested, as well as profits, by the same being absorbed in the payment to creditors. The latter may lose his anticipated compensation for his money loaned, but his position is quite as favorable to him as that occupied by creditors for the recovery of his money advanced. Neither may interfere- to transact business or to sign for the firm, or to bind the same - both may advise as to the management; both may examine into the state and progress of the partnership concerns - the special partner from time to time, the appellant at the end of every six months. In one respect the special partner is better placed. He may stipulate for legal interest on his capital invested, as well as for a portion of the profits. The appellant, if he bargained for profits in addition to interest, might be in conflict with usury act.

It is evident that most of the conveniences and advantages of the limited partnership act, and some which it does not give, might be obtained by a loan of money, with a stipulation for compensation for its use, by a share of the profits, if thereby a partnership is not created as to third persons. This is not decisive as to what the law is. But it is strongly indicative of the view of the law held by the revisers and by the legislature. There have been from time to time certain exceptions established to this rule in a broad statement of it. But the decisions by which these exceptions have been set up still recognize the rule, that where one is interested in profits, as such, he is a partner as to third persons. These exceptions deal with the case of an agent, servant, factor, broker or employee, who, with no interest in the capital or business, is to be remunerated for his services by a compensation from the profits, or by a compensation meas ured by the profits; or with seamen on whaling or other like voyages, whose reimbursement for their time and labor is to finally depend upon the result of the whole voyage. There are other exceptions, like tenants of land or a ferry, or an inn, who are to share with the owners in results, as a means of compensation for their labor and services. The decisions which establish these exceptions do not profess to abrogate the rule-only to limit it. It is claimed by the learned counsel for the appellant that the rule as announced in Grace v. Smith and Waugh v. Carver has been exploded, and another rule propounded which shields the appellant. He is correct as far as the courts in England are concerned. Cox v. Hinckman, 8 H. of E. C. 268-9, C. B., N. S. (99 E. C. L. K.) 47, and Bullen v. Sharp, Law Rep., 1 Com. Pl. 86, affirm that, while a participation in the profits is cogent evidence that the trade in which the profits were made was carried on, in part, for or in behalf of the person claiming the right to participate; yet that the true ground of liability is that it has been carried on by persons acting in his behalf. Those cases were very peculiar in their circumstances. After the judgments rendered in them the parliament deemed it needful to enact that the advance of money by way of loan, to a person in trade, for a share of the profits, should not of itself make the lender responsible as a partner. 28 and 29 Vic. ch. 86, as cited in Parsons on Part. 92, note t If the decisions in the cases cited went as far as is claimed, it would seem that the act was supererogatory. It is suggested, however, by Kelly, C. B., in Holm v. Hammond, Law Rep., 7 Exch. 218, that the effect of the statute is, that the sharing in the profits by a