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their bonds, and they were to indemnify him from the debts of the partnership. Lord Eldon in giving judgment said, that this was stated to be usury under the device of a partnership agreement. But he thought it impossible to consider it usurious. Hordern became a partner, and though he was not under any liability as between himself and the plaintiffs, yet he was liable for all the debts of the concern, as to all the rest of the world. He thought, therefore, that it could not be made out to be a case of usury; and the answer did not admit any other circumstances, upon which relief could be given.
The preceding authorities are directly opposed by that of Brophy v. Holmes (a), decided by Sir Anthony Hart, while Lord Chancellor of Ireland, but it is conceived that the last-mentioned case is not of such weight as to be deemed to overrule the well-considered decisions which have been already noticed.
In Brophy v. Holmes, the plaintiff, a merchant of Dublin, entered into an agreement with the defendant Holmes, who was the captain of a vessel trading to the West Indies, to provide him with a cargo to be carried to certain ports mentioned in the agreement, and disposed of to the best advantage; and with the proceeds Holmes was to purchase other goods with which he was to return, and to make sale of the return cargo for their joint benefit; the profit to be equally divided. Brophy alone was to advance all the necessary funds, and in consideration of this, and of Holmes having the management of the adventure, Brophy was not to suffer any loss. Holmes proceeded on his voyage, but, previously to his departure, transferred to Brophy certain securities in order to bear him harmless in case of necessity. The adventure proved unfortunate, and a considerable loss accrued, exceeding the value of the securities. Brophy, then, in pursuance of the agreement, applied the securities in exoneration of the loss. Upon the death of Holmes, his administratrix disputed the validity of the agreement, and brought an action against Brophy to recover the amount of the securities; Brophy, on the other hand, insisted that the whole loss was by the agreement to fall on the intestate; and it was not disputed that the amount of the securities fell short of the
(a) 2 Molloy, 1.
entire loss upon the shipments. The action having been referred to arbitration, and the arbitrators having decided in favour of the administratrix, Brophy filed his bill for an injunction, and for relief on the footing of the agreement. Sir Anthony Hart dismissed the bill with costs, holding that the agreement was void, either as usurious, or nudum pactum. His Lordship observed, that it was impossible to say that there was anything inequitable in this transaction, but that an agreement might be equitable, and yet usurious; and that if it was usurious, the law would determine against it, and that he knew that the case of Gilpin v. Enderbey did not please Lord Eldon. His Lordship added, that the agreement was not so much unconscionable as nudum pactum ; that the plaintiff might have had some relief, if he had shaped his case as a partnership case, submitting to bear half the loss; but that as he had proceeded solely on the ground of indemnity, he could not now treat the case as one of partnership.
Upon this case we may venture to remark that it is irreconcilable not only with the particular case of Gilpin v. Enderbey, but with that general principle under which it is unnecessary as between the partners themselves, that they should all be bound to share in the losses of the partnership.
VI. 5. Persons exercising particular professions or trades are frequently restricted by statute in their common-law right of engaging in partnerships. We may, in the first place, mention, that by the 57 Geo. 3, c. 99, s. 3, it is enacted, that spiritual person shall by himself, or by any other for himself, or to his use, engage in or carry on any trade or dealing for gain or profit, or deal in any goods, wares, or merchandizes, by buying and selling for hire, gain, or profit, in any market, fair, or other place, upon pain of forfeiting the value of such goods &c.; and every bargain and contract so made by him, or by any to his use in any such trade or dealing, contrary to this act, shall be utterly void and of none effect.” It is obvious, that under this statute no contract made by a trading partnership, whereof any of the members are spiritual persons, can be enforced in a court of law. Accordingly, it was held in Hall v. Franklin (a), that a plea of this statute was a good defence to an action brought by
(a) 3 Mee. & W. 259.
the public officer of a Joint Stock Banking Company, in which certain clergymen were shareholders, against the defendant, as the drawer and indorser of a bill of exchange. The effect of this decision has to a certain extent been remedied by the stat. 1 & 2 Vict. c. 10, which legalizes all contracts theretofore made, or to be made before the end of the ensuing Session (1839), by associations and partnerships, in which spiritual persons are engaged, provided that such associations and copartnerships consist of more than six members or shareholders, and carry on their trade, whether as bankers, or otherwise, “by means of boards of directors or managers, committees, or other officers, acting on behalf of all the members or shareholders of, or persons otherwise interested in such associations or copartnerships.”
This statute, it will be observed, does not interfere with the case of ordinary partnerships carried on by spiritual persons (a), nor does it protect joint stock companies beyond a certain period.
VI. 6. A partnership between persons as attornies, where any of them are not duly qualified, is illegal.
The stat. 22 Geo. 2, c. 46, s. 11, recites that “ divers persons, who are not examined, sworn, or admitted to act as attornies or solicitors in any Court of law or equity, do, in conjunction with or by the assistance or connivance of certain sworn attornies and solicitors, and by various subtle contrivances, intrude themselves into, and act and practise in the office and business of attornies and solicitors, to the great prejudice and loss of many of his Majesty's subjects, and the scandal of the profession of the law;" and enacts that, “if any sworn attorney or solicitor shall act as agent for any person or persons not duly qualified to act as an attorney or solicitor aforesaid, or permit or suffer his name to be anyways made use of, upon the account or for the profit of any unqualified person or persons, or send any process to such unqualified person or persons, thereby to enable him or them to appear, act, or practise in any respect as an attorney or solicitor, knowing him not to be duly qualified as aforesaid, and complaint shall be made thereof in a summary way to the Court from whence any such process did
(a) By the stat. 37 Geo. 3, c. 99, and may farm to the extent of 80 spiritual persons may keep schools
issue, and proof made thereof upon oath, to the satisfaction of the Court, that such sworn attorney or solicitor hath offended therein as aforesaid, then and in such case every such attorney or solicitor so offending shall be struck off the roll, and for ever after disabled from practising as an attorney or solicitor; and in that case, and upon such complaint and proof made as aforesaid, it shall and may be lawful to and for the said Court to commit such unqualified person so acting as aforesaid to the prison of the said Court, for any time not exceeding one year.”
Various cases have been decided upon the construction of this statute. Where A., who had been an attorney for many years, engaged B., who at one time had been clerk to an attorney, but for some years had been a certificated conveyancer, to conduct his business, and had agreed to allow him a moiety of the profits of the business instead of a fixed salary; and the names of A. and B. were painted on the door of the office, where the business was carried on, and bills were made out in their joint names; and B. received instructions from the clients, and suits were instituted and carried on, in consequence of such instructions :-it was held, that this case was clearly within the act, inasmuch as the attorney had allowed his name to be used for and on account of an unqualified person; and the Court ordered the attorney to be struck off the roll, and the clerk to be committed to prison for a month (a). So, where A. had, under the cover of the names of B. and C., attornies, successively, practised for his own profit, with their knowledge, as attorney in several causes, and during part of the time, B. acted as A.'s clerk, receiving a weekly salary, of which entries were made in his account book; and, after B. had quitted his employment, C. took possession of the office which had been previously occupied by the former, and permitted A. to practise in his name: the Court upon these facts struck B. and C. off the roll of attornies, and committed A. to prison for three months (6). And in another case, where an attorney's clerk carried on the business in the name of the attorney, the latter living at some distance, and receiving a proportion of the profits for occasionally superintending the concern, Mr. Justice Richardson said, that this constituted a part
(a) In re Jackson, 1 B. & C. 270. (b) In re Clark, 3 D. & R. 260.
nership between them, and was consequently an illegal contract (a).
But it seems, that the statute does not extend to an allowance made to the widow or children of a deceased partner, out of the profits of the trade. Henry Candler (6), an attorney and conveyancer, died, leaving a widow, who was his executrix, and ten children. By a deed executed shortly after his death, between Henry Candler, his eldest son, and Mary Candler, the widow, Henry Candler, in consideration of love and affection towards his mother and family, and in compliance with the wish and hope expressed by his father, &c., covenanted to carry on his father's business so long as any of the other children of his father and mother should be living, unmarried, and under twenty-one; and within two months after the taking of every yearly account, to pay to Mary Candler, her executors, administrators, or assigns, a moiety of the clear net gains and profits; and also, to permit her to have free access to the books of account, to devote the whole of his time and attention to the business, to make out accounts annually, and to deliver to her a balance-sheet of the net gains and profits. Mary Candler covenanted to provide him with such sums as should be wanted by him, in order to carry on the business; and also, to use her utmost endeavours and influence to induce her friends and connexions to employ him. The business was for some time carried on upon the footing of this deed, till a claim was made by a creditor of Henry Candler upon his estate. ment of that claim, the question arose collaterally, whether this instrument was legal under the 22 Geo. 2, c. 46, s. 11. Lord Eldon seemed to be clearly of opinion that it was. said he, “we are to construe the enacting part by the recital, there is no doubt that this lady did not intrude herself into, or act and practise in the office of an attorney or solicitor; but the point contended for, I suppose, would be, that her taking the profits would be evidence that she had done so. The meaning of the clause undoubtedly is this, (whether the terms used have gone further, is another question), that qualified persons should not permit their names to be used by others, so as to enable them to appear as attornies; and the question,
In the argu
(a) Hopkinson v. Smith, 1 Bing. 13; 7 Moore, 242.
(6) Candler v. Candler, Jac. 225.