the one branch of the enactment must govern the other; and as the creating a joint stock, the shares in which are absolutely and unqualifiedly transferable, has, with reference to the statute, been held to be illegal, it appears to be a consequence, that the assuming the semblance of a corporation falls equally within the provisions of the act. Supposing, therefore, that it is expressly interdicted, the question arises, what is an "acting or a presuming to act as a corporate body?" And what are the unequivocal indicia and characteristics of a corporation, the assuming of which shall be construed to bring a company or society within the fair sense and meaning of this part of the statute, still remain undefined. Lord Ellenborough has intimated an opinion, that the merely doing business in the same forms as corporate bodies, such as taking a common name, having a managing committee, general meetings, and a power to make bylaws, is not an acting peculiarly as a body corporate, because none of these acts are illegal, and none the distinctive criteria of a corporation (a). This dictum, therefore, affords no solution of the question, what shall be an "acting or a presuming to act as a corporate body," nor, with the exception of what fell from Lord Eldon on a recent occasion, has any attempt whatever been made to expound the meaning of these words. In the case before Lord Eldon, his lordship seemed to lay down as a general proposition, that where the apparatus of a society in all respects corresponds with that of a corporate establishment, and the mode of proceeding of the one is precisely analogous to that adopted by the other, it is one description of acting which the statute contemplated, and against which the enactment was levelled. This position his lordship elucidated by two examples:-In the one he assumed, that the deed of settlement, by which a company was constituted, was a transcript of the charter granted to a

(a) Rex v. Webb, 14 East, 406.

chartered company, and that the former acted in exactly a similar manner to the latter company: in such a case, he conceived, it would be singular to hold that such an assumption of the semblance of a corporation could be legal without the authority of a charter, or that it was not a "presuming to act as a corporate body." The other illustration was founded on the supposition, that a body was legally incorporated for particular purposes, and that that body extended its powers to other purposes, not within the scope of its corporate character, and not described in the charter; as to such purposes, his lordship remarked it would be most extraordinary to contend, that it was not an assuming "to act as a corporate body (a)." But beyond these general dicta, no decided authority has defined what shall, in any one instance, be sufficient evidence of a company having brought itself within the pale of this prohibition. In the absence of authority, therefore, an attempt to describe the different species of acting which may properly be deemed a "presuming to act as a corporate body," could be but speculative, and would be fruitless; but it may be advanced as indisputable, that to bring a society within the meaning of this branch of the statute, it is not necessary, either that its constitution, or its mode of conducting business, should, in all respects, coincide with that of an incorporated or chartered company; for if, in any particular, it assume those powers or those emblems which exclusively appertain to a corporation, it must, in so far as regards its acts or doings in that particular, presume to act as a corporation. Thus, in the case of a corporate establishment, such as the East India Company, we have seen that a proprietor of the corporation stock is not individually responsible for debts contracted on account of the trade; and that, if so improbable an event as the failure of that company were to happen, his loss would be mea

(a) Kinder v. Taylor, MS. And see Child v. Hudson's Bay Company, 2 P.

Wms. 207.

sured by the extent of the share or interest he possessed in the joint stock. And being therefore exempt from personal responsibility, and his liability to loss being computed by the amount of his interest, it follows, that he may, by disposing of that interest, so completely disunite himself from the company, as to avoid all liability in respect of engagements that may have been previously entered into by the company. In the sale of shares in most of the modern joint stock associations, the same principle, though legally inapplicable, is still professed to be acted upon; for, notwithstanding a shareholder, in such an institution, is personally liable, in respect of all contracts entered into during the time he continued a partner in it, and cannot, by any act of his own, shift from himself that responsibility, yet when he sells or disposes of his share, he does so with the object and intent, and on the supposition, that (as in the case of a legal corporation) the effect will be to transfer to the purchaser all the liabilities to which he, as seller, was at the time subjected. This, probably, may furnish an example of one species of acting, which may be deemed a "presuming to act as a corporate body." It remains to be observed that, on the application of a private relator who is himself a subscriber, a criminal information will not be granted against persons for forming themselves into a company, and issuing transferable shares contrary to the provisions of the statute (a); neither will a court of law, on motion or a summary application, decide, whether such a company is a nuisance within the act (b).

(a) Rex v. The United Thames Company, K. B. East, 6 Geo. 4. v. Holt, 4 Taunt. 587.

(b) Brown

46

CHAPTER II.

The Interest of Partners in Stock in Trade.

SECTION I.

HAVING considered the nature of a partnership, the various ways by which the relation of partners may be contracted, and in what instances it is prohibited, we will now proceed to inquire what interest partners have by law, in the goods or capital they contribute at the outset, or acquire in the course of trade.

Partners are, at law, joint tenants of their merchandize; not only of that particular part which was brought into the partnership at the time of its formation, but they continue so throughout their copartnership dealings, whatever changes or additions may be made to it in the course of trade (a). The joint-tenancy, created by the contract of partnership, differs, however, in one of its chief characteristics, from an ordinary joint-tenancy, because, as between partners there is no jus accrescendi, or right of survivorship, a quality, which being appended to a possession per my et per tout, at common law, always accompanies a joint-tenancy. The absence of this distinguishing feature of a joint-tenancy is noticed by Lord Coke, in commenting upon a passage of Littleton, in which it is laid down, that the right of survivorship exists between joint-tenants. That able commentator says (b) "an exception is to be made of two joint-merchants; for the wares, merchandizes, debts or duties that they have, as joint-merchants or

(a) West. v. Skip, 1 Vesey, 242. S. C. 2 Swanst. 586.

(b) Co. Litt. 182. a.

The Interest of Partners in Stock in Trade. 47

partners, shall not survive, but shall go to the executors of him that deceaseth; and this is per legem mercatoriam, which is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico; for the rule is, that jus accrescendi inter mercatores pro beneficio commercii locum non habet." Even where two persons, by testamentary disposition, take, as jointtenants, leasehold and personal estate embarked in trade, and there is no express severance of the jointtenancy, yet if they continue to deal as partners for a length of time, a severance between themselves will be implied, and survivorship will not hold (a). This denial to the survivor of any benefit arising from survivorship is a maxim of lex mercatoria, of which the courts will take notice without its being specially pleaded (b). It has been said (c) that partners are either tenants in common of the partnership effects, or joint-tenants without benefit of survivorship; but it would seem, that, strictly speaking, partners are rather to be considered as falling within the latter denomination (d). Each partner is possessed per my et per tout, that is, by the half or moiety and by all, or, in other words, each has a joint interest in the whole, but not a separate interest in any particular part of the partnership property; and being so possessed, and because the title of partners is undivided, it follows that all have a unity, or the same species of interest in the stock in trade, whether each individual partner contributes exactly in the same proportion or not; but their several degrees of interest must be regulated according to the stipulated proportions, and the different conditions of the partnership. To whatever share a partner may be entitled, in whatever

(a) Jackson v. Jackson, 9 Ves. 591. S. C. 7 Ves. 535. (b) Bellasis v. Hester, 1 Ld. Raym. 281. (c) Wats. on Part. 65. And see 2 Brownl. 99. (d) Abbott on Ship. 94. Com. Dig. Tit. Merchant, D. 3. Bac. Abr. Tit. jointtenants and tenants in common, C. 2 Beawes, 99. Annand v. Honiwood, Cas. in Chan. 129. It seems that the owners of a ship are not interested in it as jointtenants, but as tenants in common. Ex parte Harrison, 2 Rose 76.