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therefore, is, whether the words 'permit or suffer his name to be anyways made use of, upon the account or for the profit of,' &c., are not to be construed in connexion with the other words, thereby to enable him or them to appear, act, or practise,' &c., so as to prevent it from going beyond the mischief that it was intended to provide for." His Lordship concluded by observing, that, if the act were construed by help of the recitals, he was of opinion that this transaction was not within its meaning; that, however, was properly a question for a Court of law.
In a case which occurred in the Court of King's Bench, subsequently to this decision of Lord Eldon, Lord Tenterden gave it as his opinion, that the word thereby applies merely to the sending of process to the unqualified person, and not to the whole of the preceding sentence (a). But this, it is apprehended, will not affect any question similar to that of Candler v. Candler, supposing the act, as in this case it clearly ought, to be construed by means of the recitals (6).
VI. 7. Under the provisions of the stat. 53 Geo. 3, c. 127, s. 8, proctors allowing their names to be used by persons not entitled to act as proctors, are to be struck off the roll; but in this case, there is a saving in favour of “any allowance or allowances, sum or sums of money, that are or shall be agreed to be made to the widows or children of any deceased proctor or proctors, by any surviving partner or partners of such deceased proctor or proctors.”
VI. 8. Various statutes have been passed at different times, for the regulation of the trade of a pawnbroker (C), the effect of which is to restrict the right of entering into partnership in that trade. The leading enactments on this subject are contained in the stat. 39 & 40 Geo. 3, c. 99, which regulates the rates to be taken by pawnbrokers, the form of the tickets to be given by them, (which are to contain the name and place of abode of the pawnbroker), and the description of goods which may be pawned. And by the 23rd section of that act, it is
(a) 1 B. & C. 272.
(c) Stat. 1 Jac. 1, c. 21 ; 30 Geo. (6) Co. Lit. 79. a. And see Cope- 2, c. 24; 25 Geo. 3, c. 48; 36 Geo. man v. Gallant, 1 P. W. 314, Mr. 3, c. 87. Cox's note.
enacted, that all and every person or persons who shall carry on the trade or business of a pawnbroker, shall cause to be painted or written in large legible characters over the door of his or their shop, the Christian and surname or names of the person or persons so carrying on the said trade or business, together with the word pawnbroker or pawnbrokers, as the case may be. In the case of Armstrong v. Armstrong (a), Robert Armstrong, who carried on the business of a pawnbroker, joined with one Warner in executing an indenture for carrying on the business of pawnbrokers in copartnership, for the term of fourteen years. The deed was expressed to be made in consideration of £2000 advanced by Warner, who was to have £50 quarterly, out of the profits. There was an express provision that the trade should be carried on by Armstrong, who was to have power to employ such journeymen, servants, and apprentices, as he should think proper; but it was not stated that Warner was to be a secret partner, though, upon the whole, the inference was, that he was not to appear actively employed in the business. After the execution of the deed, the business was carried on solely by Armstrong, but Warner advanced several further sums by way of capital, on which he received £10 per cent. These further advances were regularly indorsed upon the indenture of copartnership, and amounted, together with the original sum of £2000, to £4300. Upon the deaths of Armstrong and Warner, it became a question in certain suits, instituted between the parties interested under their respective wills, whether the representatives of Warner were entitled to the £4300, in right of their testator as a partner with Warner; and this depended upon the preliminary question, whether the partnership between Armstrong and Warner was legal, within the meaning of the statutes relating to pawnbrokers. Upon the hearing of the causes before Sir John Leach, his Honour directed certain issues to the Court of Exchequer, for the purpose of trying the legality of the partnership; and the point in issue being ultimately argued before the Court of Exchequer Chamber (6), that Court gave it as their opinion, that the deed of partnership taken by itself was
(a) 3 My. & K. 45; Armstrong v. Lewis, 2 Cromp. & M. 274.
(6) Armstrong v. Lewis, 2 Cromp. & M. 274.
valid; as there was nothing in it to shew that a "secret” or “suppressed” partnership was intended : but that if there was any collateral agreement or understanding between the parties, to carry on the partnership in violation of the acts of Parliament, that agreement would be void, and would confer no rights on either party as against the other. The case being then remitted into Equity, Sir John Leach declared it to be his opinion, upon the whole evidence in the cause, that there was a collateral agreement or understanding, that Warner should be a secret partner with Armstrong. His Honour accordingly declared the partnership between those parties to be illegal, and dismissed the claim of Warner's representatives. The causes were ultimately heard upon appeal before Lord Brougham, who affirmed the decree of Sir John Leach. His Lordship, in the course of his judgment, not only adverted to the illegality of the partnership, with reference to the acts relating to pawnbrokers, but treated the transaction as clearly usurious. “No man,” he said, “can so far abstract himself from his common feelings, so far shut his eyes to the plainest indications of common sense, as to hesitate one instant in what light he shall regard the transaction between Messrs. Armstrong and Warner. To call it a partnership at all, is incorrect, indeed, is an abuse of terms. It was a loan transaction much rather than a partnership; but to escape the usury laws, and obtain relief here, the party must treat it as partnership. Money is advanced, large interest is stipulated for, under the name of share of profits, but a share fixed at not under £10 per cent., and the party advancing the money treats his partnership deed exactly as a security for the loan.”
VI. 9. Again, the principles now under discussion are applicable to partnerships in theatres not duly licensed according to statute. In the case of Ewing v. Osbaldiston (a), it appeared, that the Surrey Theatre was licensed pursuant to the stat. 25 Geo. 2, c. 36, “for public music and dancing, and other public entertainments of the like kind ;” but that by virtue of the statutes 10 Geo. 2, c. 28, and 28 Geo. 3, c. 30, no person can "act, represent, or perform for hire, gain, or reward, any interlude, tragedy, comedy, opera, play, farce, or other enter
(a) 2 My. & Cr. 153. See De Begnis v. Armistead, 10 Bing. 107.
tainment of the stage,” within twenty miles of London, except within the city and liberties of Westminster, and with license from the Lord Chamberlain. It was in evidence, however, that some time previous to the contract between the plaintiff and the defendant, the regular drama had been performed at the Surrey Theatre; and that the plaintiff, with knowledge of that fact, and being fully aware that the performance of ordinary theatrical entertainments at that place was contrary to law, entered into an agreement with the defendant, for a partnership in acting plays at that theatre. Upon a bill filed by the plaintiff to enforce the agreement, it was held by Sir L. Shadwell, V. C., and afterwards on appeal by Lord Cottenham, C., that such a bill was not sustainable, for that the contract was altogether void, as being contrary to statute.
VII. But it must here be remarked, that the preceding decisions relative to illegal partnerships arose in cases where the partners had, in the formation of their partnership, infringed certain acts of Parliament made with the express view of protecting the public. But the omission to comply with the directions of an act of Parliament, where the consequence is not directly at variance with the intention of the Legislature, as concerns the protection of the public, will not, it seems, render the partnership illegal, so as to deprive the partners of the right to recover on a contract made by them with third persons. Thus, in the case of Brown v. Duncan (a), the plaintiffs, Brown, Clark, and others, carried on trade in partnership, as distillers. The name of Clark, however, was not inserted as one of the partners in the distillery, in the excise book or license, as required by 6 Geo. 4, c. 81, s. 7. Moreover, Clark carried on by himself the business of a retail dealer in spirits, within two miles of the distillery, contrary to the 4 Geo. 4, c. 94, ss. 132, 133. One Glennie having applied to the plaintiffs to appoint him their agent for the sale of their whiskey in London, they agreed to do so, provided he obtained a guarantie. The defendant, at Glennie's request, then entered into a guarantie to the plaintiffs, for the due payment of all sums of money for which Glennie might become indebted to them as
(a) 10 B. & C. 93; Lloyd & Welsby, 91.
such agent, and for which he should not duly account. An action having been brought on this guarantie, the defence set up was, that the whole trading of the plaintiffs was, under the circumstances, illegal, and that they could not recover the price of the spirits distilled by them, nor even upon the guarantie given to secure the due accounting of their agent for money arising out of such sale. But the Court decided for the plaintiffs. Lord Tenterden observed, that there was no fraud on the part of the plaintiffs on the revenue, although they had not complied with the regulations which had been adopted for conducting the trade in a way most expedient for the benefit of the revenue; and that the cases of Hodgson v. Temple and Johnson v. Hudson (a) were in favour of their right to recover.-—" These cases,” said his Lordship, " are very different from those where the provisions of acts of Parliament have had for their object the protection of the public, such as the acts against stock-jobbing, and the acts against usury. It is different, also, from the cases where a sale of bricks, required by act of Parliament to be of a certain size, was held to be void because they were under that size. There the act of Parliament operated as a protection to the public, as well as to the revenue, securing to them bricks of the particular dimensions. Here, the clauses of the act of Parliament had not for their object to protect the public, but the revenue only. Neither is this one of that class of cases where an attempt is made to recover the price of prohibited goods. On the authority of the two cases which I have mentioned, we think the plaintiffs are entitled to retain their verdict."
VIII. It is evident, that, when Courts of justice refuse to take cognizance of illegal contracts of partnership, the consequences must occasionally bear hard upon one of the parties
(a) 5 Taunt. 181 ; 11 East, 180. which they were delivered, not in In the former of these cases, a dis- the defendant's name, but in the tiller had sold spirits to a rectifier, name of another person. That was who was also a retailer, with the certainly a very strong case, because, knowledge that his vendee filled there, as it was contended, that was both characters ; and had delivered clearly and knowingly, to a certain the spirits, not at the place in which degree, violating the law. The the retail trade was carried on, but Court of Common Pleas, however, at the place in which he carried on thought the plaintiffs were entitled the business of a rectifier, and to to recover.