variance with the rule next stated, that a liability is incurred by any participation in the profits. profits. A liability to the debts of a partnership is also incurred Participation in by a participation in the profits, although the circumstance of such a participation may be unknown to the creditors (r). Thus if a person place money in a partnership(s), or leave it there on retiring (t), with a stipulation to have a compensation for it, under whatever name, subject to abatement or enlargement as the profits may fluctuate, he will be liable as a partner. If, however, he leaves no money in the concern, but is to receive a compensation for his services or otherwise, a nice distinction is then drawn between taking a share of the profits as such, and taking a per centage upon, or a salary varying with, the profits. He who takes a share of the profits as such is liable as a partner (u); but he who takes an equivalent in the shape of per centage or salary, though varying with the profits, escapes the liability (x). the other in the When the relation of partners has been established Each partner between two or more persons, either ostensibly or by liable to acts of participation in profits, each incurs liability from the ordinary course acts and dealings of the other in the ordinary course of of business. business. For any one partner may buy, sell (y), or pledge goods (z); draw (a), accept (b), or indorse (c) bills (r) Beckham v. Drake, 9 Mee. & Wels. 79; 11 Me. & Wels. 315. (s) Grace v. Smith, 2 Wm. Black. 998, 1001. (t) Re Colbeck, Buck, 48. (u) Ex parte Rowlandson, 1 Rose, 89, 91; Barry v. Nesham, 3 C. B. 641; see, however, Rawlinson v. Clarke, 15 Mee. & Wels. 292. (x) Ex parte Hamper, 17 Ves. 403; Pott v. Eyton, 3 C. B. 32. (y) Hyat v. Hare, Comb. 383; (z) Reid v. Hollinshead, 4 B. & Cress. 867. (a) Smith v. Jarvis, 2 Lord Raymond, 1484; Re Clarke, Er parte Buckley, 14 Mee. & Wels. 469; 1 Phil. 562. (b) Pinkney v. Hall, 1 Salk. 126; 1 Lord Raym. 175; Lloyd v. Ashby, 2 B. & Adol. 23. (c) Swan v. Steele, 7 East, 210; Vere v. Ashby, 10 Barn. & Cress. 288. Notice to one partner is notice to all. of exchange and promissory notes; give guarantees (d), receive moneys (e), and release or compound for debts (ƒ) in the name (g) and on account of the firm, in the ordinary course of business. Each partner is also answerable for the fraud of his copartner in any matter relating to the business of the partnership (h). And in like manner notice of any matter relating to the partnership, if given to one partner, is constructively notice to them all (i). And any agreement between the partners, by which any one of them may be restrained from doing any act to pledge the credit of the firm, though binding as between themselves, will not be binding on any creditor (k) who may not have notice of it (l). If, however, not in the ordi- the transaction be not in the ordinary course of the business of the partnership, the other partners will not be liable as such in respect of it. Thus one partner cannot bind the firm by a submission to arbitration (m); and one partner has ordinarily no authority to execute a deed in the names of the others so as to bind the partnership (n). So a farmer carrying on his business in partnership with another would not be liable on a bill of exchange drawn by his partner in the name of the partnership (o); neither would a solicitor be liable on Transactions nary course of business. (d) Ex parte Gardom, 15 Ves. 286; see Hasleham v. Young, 5 Q. B. 833. (e) Duff v. East India Company, 15 Ves. 198, 213. (f) Per Lord Kenyon, 4 T. Rep. 519; per Best, C. J., 10 Moore, 393. (g) Kirk v. Blurton, 9 Mee. & Wels. 284. (h) Willet v. Chambers, Cowp. 814; Stone v. Marsh, 6 Barn. & Cress. 551; Lovell v. Hicks, 2 You. & Coll. 481; Blair v. Bromley, 5 Hare, 542. (i) Per Lord Ellenborough, 1 Mau. & Selw, 259. (k) Waugh v. Carver, 2 H. Black. 235; South Carolina Bank v. Case, 8 Barn. & Cress. 427; Hawken v. Bourne, 8 Mee. & Wels. 703, 710. (1) Minnit v. Whinery, 5 Bro. Parl. Cas. 489. (m) Stead v. Salt, 3 Bing. 101; S. C. 10 J. B. Moore, 389. (n) Harrison v. Jackson, 7 T. Rep. 207; see Burn v. Burn, 3 Ves. 573, 578. (0) Per Littledale, J., 10 Barn. & Cress. 138. a bill drawn by his partner in the name of his firm, though given to secure a partnership debt (p); for bill transactions form no part of the ordinary business of either farmers or solicitors. Again there is no right Directors of joint stock or power implied by law in any of the directors of a companies. joint stock company to bind the company by drawing or accepting bills or notes (q); and in like manner notice of any matter relating to the business of a joint stock company given to any member, even a director, is not constructive notice to the company itself (r). For joint stock companies are essentially different from ordinary partnerships. It is not necessary that the directors should have any other power to bind the company by bills or notes than such as may be conferred on them by the charter or deed of settlement (s); and the business of such companies is always carried on at an office for the purpose, and is not, like that of ordinary partnerships, confided to any one individual member. The liability of a shareholder in a joint stock company Shareholders in to the debts of the company has been already noticed. joint stock companies. It varies, as we have seen, according as the company is incorporated under a special act(t), or under the general act for the incorporation of joint stock companies (u), or under the act for the regulation of joint stock banks (x). The mere circumstance, however, of a person allowing Provisional his name to be published as a provisional committee- committee-man. man of a projected joint stock company (y) does not confer on the solicitor or secretary of the intended com (p) Hedley v. Bainbridge, 3 Q. B. 316. (9) Dickinson v. Valpy, 10 B. & Cress. 128; Bramah v. Roberts, 3 N. C. 963. (r) Powles v. Page, 3 C. B. 16; Martin v. Sedgwick, 9 Beav. 333. (s) See stat. 7 & 8 Vict. c. 110, s. 45; c. 113, s. 22. (t) See stat. 8 & 9 Vict. c. 16, s. 36; ante, p. 160. (u) Stat. 7 & 8 Vict. c. 119, ss. (x) Stat. 7 & 8 Vict. c. 113, ss. Powers of assignees in bankruptcy to bind the creditors. Assignees of insolvents. pany, or on any one else, implied authority to pledge the credit of such person for goods supplied to the company, or work done on its account (z). For to agree to become a member of a committee is merely to agree to become one of a body, to whom others have committed a particular duty, and does not constitute an agreement to share with the other members of that body in profit or loss, which is the characteristic of a partnership (a). Assignees in bankruptcy have no authority to compound any debt due to the bankrupt's estate, or to give time or take security for the payment of any such debt, or to submit disputes to arbitration, or to commence any suit in equity, without the consent of the major part in value of the creditors who shall have proved, present at a meeting duly convened for each particular case; but if one-third in value or upwards of such creditors shall not attend the meeting, the consent of the commissioner under his hand will be sufficient (b). And any agreement of reference to arbitration made by the assignees may be made a rule of the Court of Bankruptcy (c). The assignees of insolvents cannot bind the creditors by any of the above acts, without the consent in writing of the major part in value of the creditors present at a meeting duly convened, nor without the approbation of the court or one of the commissioners (d). But as the consent of the creditors is required only for their protection, the want of such consent is no defence to any suit instituted by the assignees of any bankrupt or insolvent (e). (z) Reynell v. Lewis, 15 M. & (a) 15 Mee. & Wels. 529. 91. (c) Stat. 1 & 2 Will. IV. c. 56, s. 43; see ante, p. 139. (d) Stat. 1 & 2 Vict. c. 110, s. 51; 7 & 8 Vict. c. 96, s. 13. (e) Piercy v. Roberts, 1 My. & Keen, 4; Casborne v. Barsham, 6 Sim. 317. CHAPTER III. OF A WILL. ALL kinds of personal property may be bequeathed by Growth of right will. This right, in its present extent, has been of very alienation. of testamentary gradual and almost imperceptible growth; for anciently, by the general common law, a man who left a wife and children could not deprive them by his will of more than one equal third part of his personal property. If, however, he left a wife and no children, or children and no wife, he was then enabled to dispose of half, leaving the other half for the wife or for the children (a). This ancient rule, however, gradually became subject to many exceptions, by the customs of particular places, until the rule itself took the place of an exception and became confined to such places as had a custom in its favour. These places, in later times, were the province of York, the principality of Wales, and the city of London; as to all which places, a general power of testamentary disposition was conferred by acts of parliament of William and Mary, Anne, and George I. (b); and now, by the recent act for the amendment of the laws with respect to wills (c), every person of full age is expressly empowered to bequeath by his will, to be executed as required by the act, all personal estate to which he (a) 2 Black. Com. 492; Williams on Executors, pt. 1, bk. 1, ch. 1; see also 1 C. P. Cooper's Reports, p. 539. (b) Stat. 4 & 5 Will. & Mary, c. 2, explained by stat. 2 & 3 Anne, c. 5, for the province of York; stat. 7 & 8 Will. III. c. (c) Stat. 7 Will. IV. & 1 Vict. |