Gambar halaman
PDF
ePub

1862 to 1880, and whose Articles of Association provide for two classes of members, members and participating shareholders, and give both classes a voice in the management, that on that comcompany being wound up by the Court the participating policyholders are liable to be placed in the second list of contributories, the first list containing only the shareholders, properly so called. (Re Albion Life Assurance Society, Winstone's Case, 48 L. J. Ch. 607; L. R. 12 Ch. Div. 239; and see The Albion Life Assurance Society, 49 L. J. Ch. 593; L. R. 15 Ch. D. 79, where the same policy-holders were held to be only secondarily liable to pay a call made in the winding-up of the society, and were not liable at all to pay a call made whilst the society was a going concern; and see Re The Albion Life Assurance Society, Ex parte Brown, 50 L. J. Ch. 714, where a policy-holder who had the good fortune to have assigned his policy away prior to the winding-up was held not to be liable at all in the winding-up as a contributory. The holders of policies in mutual societies are not under any liability, it may be mentioned here, to contribute to the payment of any of the society's debts. (Re The Great Britain Mutual Life Assurance Society, 51 L. J. Ch. 10.)

168. Is it correct to say that partnership contracts are joint at common law, but joint and several in equity?

Can a joint creditor of a partnership support an action for administration of the estate of a deceased partner? If so, who would be parties to the action, and what special directions in the order would be necessary?

No, it is not. Every partner is liable jointly with the other partners for all debts and obligations incurred while he is partner and in the usual course of the partnership business by or on behalf of the firm.

It has been recently decided by the highest authority, that as between living partners and creditors, the liability for the debts of the partnership is joint only, and not several. (Kendall v. Hamilton, (H. L.) 48 L. J. C. P. 705; L. R. 4 App. Cas.) If, however, a partner dies, his estate then becomes severally liable to the unsatisfied debts and obligations of the partnership, and creditors may, at their option, pursue their remedies against the

surviving partners or partner or against the estate of the deceased partner; and it is immaterial what is the state of accounts between the partners, or what the ability of the survivors to pay. In the distribution, however, of the estates of deceased partners in Chancery, and of bankrupt and insolvent partners in bankruptcy, the partnership property is applied as joint estate in payment of the debts of the firm; and the separate property of each partner is applied in payment of his separate debts. If in either case there is a surplus, then the surplus of the joint estate is applicable for the payment of the separate debts, and the surplus of the separate estate for the payment of the partnership debts. (H. A. Smith's Principles of Equity, 546.)

The parties to the action would be

(1.) The creditor of the firm as plaintiff, suing on behalf of himself and all other creditors, joint as well as separate, of the deceased partner ;

(2.) The executors or administrators of the deceased partner;

and

(3.) The surviving partner or partners as defendants.

The form of the judgment would include the following declarations and directions :

(1.) A declaration that all persons who are creditors of the deceased are entitled to the benefit of the judgment.

(2.) A declaration that the surplus of deceased's estate was liable at the time of his death to the joint debts of the firm, but without prejudice to the liability of the surviving partner as between himself and the estate of the deceased.

(3.) A direction that an account be taken of the funeral and testamentary expenses and separate debts of the deceased, and of the debts of the firm.

(4.) A direction that an account be taken of the personal estate of the deceased.

(5.) A direction that his personal estate be applied, first, in payment of his separate debts and funeral expenses, and then in payment of the debts of the firm.

(6.) If the personal estate be insufficient, inquiries are ordered respecting the real estate of the deceased.

(7.) The judgment will, if necessary, direct inquiries whether the creditors of the firm continued to deal with the surviving partners,

L

and what sums have been paid by them to such creditors, and whether such creditors have, by their dealings with the surviving partners, released the estate of the deceased. (Mozeley's Law Exam. Journal, No. 49, p. 131, citing Lindley on Partnership, 4th ed., 369-373; 1053-1056.)

169. What are the tests of the existence of a partnership quoad third parties? State shortly the leading provisions of any recent Act bearing on the point, and show how far these provisions have altered the general law.

The present state of the case law on the subject is, that the real test is the intention of the parties to the alleged partnership contract. The mere sharing of the profits does not alone constitute a partnership at law or in equity. If it is shown that the parties intended to appoint each other the other's agent in transacting the alleged partnership business, and they agreed to share the profits and losses between themselves in certain proportions, no doubt a partnership would be thereby created.

It must also be remembered that if it appears a partnership in effect was contemplated by the parties, its natural consequences cannot be evaded by procuring an advance of capital under the outward and pretended form of a loan. (H. A. Smith's Equity, 538.) The principle that a mere sharing of the profits or receipt of a payment varying with the profits of a business is not of itself sufficient to constitute the relation of partnership therein, was established by the case of Cox v. Hickman (L. R. 8 H. L. 268; 30 L. J. C. P. 125; Haynes's Student's Leading Cases, 113; H. A. Smith's Equity, 535, 536.) And this was shortly afterwards amplified and defined by Bovill's Act, i.e., 28 & 29 Vict. c. 86. (Haynes's Student's Stat., 2nd ed., 164.) That Act, which is the one referred to in the question, enacted that—

(1.) 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, or render him responsible as such.

(2.) 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, shall of itself render such servant or agent responsible as a partner therein, nor give him the rights of a partner.

(3.) No person being the widow or child of the deceased partner of a trader, and receiving by way of annuity a portion of the profits made by such trader in his business, shall, by reason only of such receipt, be deemed a partner of or subject to the liabilities of such trader.

(4.) 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 subject to the liabilities of the person carrying on such business.

(5.) In the event of any such trader as aforesaid being adjudged a bankrupt, or arranging 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 profits, or interest payable in respect 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.

(6.) In the construction of this Act the word "person" shall include a partnership firm, a joint stock company, and a corporation.

The above Act has really done little more than enact, in statutory form, what before was the law of the land on the points to which it extends. Bramwell, L.J. (then B.), said in Holme v. Hammond, 41 L. J. Ex. 157, 163, that the above-named Act was in truth passed before the effect of Cox v. Hickman, supra, was understood. Holme v. Hammond was a case where it was sought, but without success, to make the executors of a deceased partner liable as partners with the survivors.

170. A. advances £1000 by way of loan to B., a trader, upon a contract in writing that A. shall receive a rate of interest varying with the profits of the traile carried on by B. Will such agreement constitute a partnership between them or not?

Give reasons for

your answer. In the event of B. becoming bankrupt, what position will A. be in as to ranking with other creditors on B.'s estate?

The above facts will not of themselves constitute A. a partner with B. (See sect. 1 of 28 & 29 Vict. c. 86, cited in the preceding answer.)

The intention is now the only real test whether a transaction constitutes a partnership or not between the parties thereto. (See Cox v. Hickman, L. R. 8 H. L. 268; 30 L. J. C. P. 125; Haynes's Student's Leading Cases, 113.) If B. becomes bankrupt, A. cannot claim payment of either principal or interest until all B.'s creditors have been paid 208. in the pound, by virtue of 28 & 29 Vict. c. 86, s. 5, cited in the preceding answer.

If, in a case like the above, the loan is only a matter of form to hide the real nature of the transaction, then a partnership would arise. (In re Megevand, Ex parte Delhusse, (App.) 47 L. J. Bankr. 65; L. R. 7 Ch. D. 511; Pooley v. Driver, 46 L. J. Ch. 466; L. R. 5 Ch. D. 458.)

PATENT RIGHTS.

171. In an action for the infringement of letters patent, what step must the plaintiff and defendant respectively take in addition to the delivery of statement of claim and statement of defence and in reference thereto, and under what statute; and what will be the consequence of the omission to take such additional steps?

In addition to the delivery of the statement of claim the plaintiff must deliver to the defendant or his solicitor particulars of the infringements complained of.

In addition to the delivery of the statement of defence the defendant must deliver to the plaintiff or his solicitor particulars of his objections to the plaintiff's patent upon which he intends to rely at the hearing of the action.

Without such particulars the plaintiff on his part cannot go into evidence relating to the defendant's infringement of his patent, and the defendant on his part cannot make any objections to the plain

« SebelumnyaLanjutkan »