ascertained by the judge or on commission; but it seems altogether unsuitable where this has to be done by the intervention of a jury. Accordingly, it never existed in England, and it would seem that it found its way into Scotland at the time when the trial by assize in civil causes was falling into It is remarkable that in criminal procedure, where trial by jury was retained, the libel has always continued to be framed in conformity with the principles of special pleading. When jury trial in civil causes was reintroduced into this country, it was conceded on all hands that the existing forms of pleading were entirely inapplicable; but instead of importing for the preparation of such causes as were designated for jury trial the English forms of special pleading, or providing some machinery whereby the record might be so adjusted as to be sent like a criminal libel to the knowledge of the assize, the legislature, for reasons which appeared cogent at the time, directed that the questions of fact should be artificially extracted from the record, prepared in accordance with the existing forms, and should be laid before the jury in the form of issues. The evil consequences of this half measure have continued to make themselves felt down to the present day, and form one great cause of the aversion and distrust with which trial by jury, in itself the most searching and efficient mode of ascertaining fact ever invented, still continues to be regarded in Scotland, However well a record may be framed, it is always a matter of more or less nicety to extract from it all the questions of fact which are pertinent to the cause, and to cast them into the distinct yet brief forms of expression which an issue requires. When this process has not been attempted till after the record is completed, and more particularly where the pleadings are loose and confused, the task often becomes extremely difficult, sometimes hopeless. Even when it has been accomplished in appearance, it sometimes turns out when too late that the adjusted issue does not exhaust the matters of fact actually in dispute, or applies to something similar but different. Ruinous expense, and occasional miscarriage of justice, are the consequences to the litigants. From the complexities incident to causes involving the partnership relation, such results are more to be apprehended in that class of cases than in any other.

These observations show that Mr Clark has reflected much upon this subject, which some time ago engaged much the attention of the profession with reference to proposed changes in the practice of the Court of Session. The following admonitions may be very sound, and we dare say are very much required, but we should not have looked for them in a treatise on Partnership Law:

"In the first place, the practitioner should consider whether the state of matters complained of admits of any remedy by judicial intervention; for, as we have already seen, there are some cases in which the courts will not interfere between a company and its members. If the case appears to be one for judicial intervention, he should next set himself to ascertain what is the proper remedy in the particular circumstances, since it will generally turn out that one remedy only is competent, and that even where there are several, one is greatly to be preferred to the others, as being the most com

VOL. X. NO. CXIV.-JUNE 1866.

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modious, speedy, and effective. While making up his mind on these matters, and at all events before any proceedings are taken, he ought to satisfy himself as to what propositions in fact and what propositions in law it is necessary to make out in order that the remedy contemplated may be obtained. The best and surest method of doing this, is to draw out in a logical form the legal principles which, if sound, warrant the conclusion of the action he proposes to raise, and to state in the form of issues the propositions in fact which, if established, will allow those legal principles to come into play. If, after due consideration, it appears that the facts or the law of the case will not warrant the conclusions necessary for the legal remedy contemplated, he ought to consider whether some other remedy is not available; but if none such is to be found, his duty appears plain-to advise his employer that the case should not be proceeded with."

We have already said, the aim of Mr Clark's book is to deal solely with companies that are associated for purposes of mercantile gain. A result of this, and what but for the plan of the work, would seem an omission, is, that in treating of the manner in which companies may sue and be brought into Court, there is almost no notice whatever of the law applicable to the numerous class of unregistered bodies who league themselves for purposes of insurance and protection. Of the remaining part of this book,the law of diligence as applicable to companies,—we are sorry that the space at our disposal does not allow us to give extracts.

In the 5th Book, Mr Clark treats of the dissolution of companies, and the work is concluded with a valuable Appendix, which contains forms of articles of copartnery, observations, practical suggestions upon these, and the various statutes relating to the subject-matter of the treatise. From Mr Clark's observations on articles of copartnery, we make the following quotation. Its length, we hope, will be excused by reason of the good sense and practical sagacity by which it is throughout pervaded :—

"Simplicity, clearness, and brevity ought to form primary characteristics of all partnership articles. It should be remembered that the object of reducing the contract to writing is not only to settle disputes when they arise, but to obviate as far as possible the likelihood of their arising. The articles ought therefore, in many respects, to form as it were a code by which the socii may learn their rights, duties, and liabilities, what they ought to do, from what they ought to abstain. But for the same reason, all complicated provisions should be avoided, as ministering only to obscurity, to misconception, and to litigation.

"As the contracting parties are not generally laywers, all legal technicalities should, if possible, be shunned. This should be carefully observed by the Scottish practitioner, whose legal phraseology is not generally understood over by far the greatest portion of the British Empire. If a contract couched in Scotch law language comes to be made the subject of litigation in English, Irish, Colonial, or American courts, its construction may give

rise to much embarrassment and unnecessary expense. Nor are such technicalities at all necessary. Legal phraseology is not the language of mercantile men. The only cases in which the employment of technical words seem necessary are in the clauses of registration, and in relation to Scotch heritage, the conveyance of which requires the use of the word dispone. Similar observations apply to technical phrases connected with a particular trade or business. Their use has often occasioned much difficulty; for not only do they frequently bear a different meaning in different localities, but they are sometimes altogether unintelligible beyond the particular locality where the contract is framed.

"Intending partners sometimes adopt a form of partnership contract which they have found in use among others in a similar line of business, without considering whether its provisions, however well adapted for the purposes for which they were framed, are at all suitable for the circumstances of their own case; and even where they avail themselves of the services of a law agent, they frequently give him instructions too general and indefinite to enable him to discharge his duty in an efficient manner. Such loose practices are fraught with danger to the future prosperity of the company; and it may be said with truth, that the concern would in many cases work more successfully without written articles at all, than when fettered with provisions unsuitable for its character and purposes, or at variance with the real intention of its promoters.

"When the successful prosecution of the business or undertaking for which a private company is formed is interrupted by dissensions among the partners, it will often be found that this is attributable to their having entered into a contract, the real nature of whose provisions, as expressed in the written articles, was entirely misunderstood by some, or perhaps by all of the contracting parties, who, if they had fully realized the meaning and effect of what they signed, would either have declined to enter into the partnership at all, or would have required its provisions to be materially modified. Intending partners ought therefore, before entering into the contract, to consider maturely whether the proposed articles are in all respects suitable for the purposes they have in view; and each one of their number should take especial care that the true import and effect of the articles adopted are fully understood, not only by himself, but by the others, before the contract is finally executed. It must also be

observed, that if the articles come to be the subject of litigation, the Court will construe them in accordance with their plain meaning and legal import, unless where, by a course of practice, it clearly appears that they originally bore, or were afterwards intended to bear, another construction. This is an additional reason why, in private partnerships, the use of technical phrases should as far as possible be avoided; since by the adoption of such language the partners may commit themselves to a construction essentially different from what they really intended.

"The most effectual means of ensuring that the provisions will be fully understood and carried out in their integrity, by whomsoever they may come to be applied, is to make them as simple in themselves and as little divergent from the common law as possible. If they are complicated, or at variance with what the law if left to itself would provide, it becomes extremely difficult to express them with the necessary clearness and binding force; they are apt to generate misunderstandings between the partners;

and circumstances often emerge, not contemplated at the time, to which they are plainly inapplicable, but in which they will create much unnecessary embarrassment. Of this kind may be instanced complicated provisions as to sharing profits, e.g. that one partner shall receive a larger share of profit in one branch of the business than another; that his share shall increase or diminish with reference to certain contingencies; that he shall receive a salary in addition to his share of profits: provisions as to management at variance with the common law, e.g. that certain partners shall not be entitled to inspection of the books except under certain restrictions; that certain partners, though they share profits, shall be excluded from taking part in the management: provisions as to the introduction of third parties into the concern under certain conditions, and in certain circumstances: provisions as to making contributions at future periods, or in certain contingencies: provisions that the partnership shall determine ipso facto, or at the option of parties, on the occurrence of events about which there may be a difference of opinion provisions as to winding up, realization of the company estate, or division of the assets, on principles at variance with those of the common law. Provisions of the kind alluded to are of no unfrequent occurrence in contracts of copartnery. They should always be avoided. Some of them, such as those excluding from inspection of the company books, are plainly inoperative. The others are objectionable, not only as involving embarrassing complications, but as having a tendency to destroy that harmony of action which is essential in partnership.

It should never be forgotten, that if parties have not full confidence in the honour, integrity and common sense of each other, they should not enter into the contract of partnership. Attempts to make up for the want of these requisites by stipulations in writing are almost always nugatory; and penalties seem very much out of place in a contract, the very essence of which is exuberant trust. If the partners are really suitable to each other, they will discharge their respective duties from a sense of mutual interest, all the more efficiently and zealously that they are not fettered by artificial regulations and compulsitors. If they are unsuitable, the sooner the relation is dissolved the better. If any one of them has ulterior views, and is void of honourable principle, no provisions which the ingenuity of a lawyer can frame will keep him to his duty, and secure the benefit of his services or connection, while guarding against his fraudulent intentions.

"In conclusion, it may be noticed that partnership articles, however comprehensive or exhaustive, are not in law understood to embrace all the mutual rights and obligations of the socii. Much must always be left unprovided for, and will be defined and enforced by well-known legal and equitable principles. Nor will conventional provisions receive such a literal interpretation as would involve obvious and gross injustice. The courts, it is true, will not allow the alleged intention of parties to defeat the plain terms of their written agreement; but, at the same time, they will construe these terms in accordance with the purposes of the contract, and will, if possible, reject a construction which would give occasion to fraud, or the taking of unfair advantage. It must also be observed, that as any article, however fundamental it may appear or be declared to be, may be altered by the consent of all the partners; so this consent may be evidenced not only by writing, but by a contrary course of practice and dealing, provided it be sufficiently marked and of sufficiently long continuance.

"The following matters should be fixed with clearness and precision in all articles of copartnery, as they appear to be essential fundamentals of the contract:

"1 The nature of the business.

"2. The social name; that is, the 'firm' or 'style' by which the company is to be known, and under which it is to contract.

"3. The principal place at which the business is to be carried on. "4. The date of commencement and the period of endurance.

"5. The capital, and the amount of contribution to be made by the partners respectively.

"6. What is to be deemed company property, and what (if any) separate estate, the use of which only is to be given to the company.

"7. The mode and proportions in which profits are to be shared and losses apportioned.

"8. The amount which each partner shall be entitled to draw out from time to time.

"9. The mode in which accounts are to be kept, and balances struck. "10. In what cases the partnership may be dissolved, and what shall ipso facto operate a dissolution.

"11. In what way the company affairs shall be wound up. "12. The appointment of arbiters.

"13. A clause of registration, and a testing clause.

"These appear to be the only provisions necessary in ordinary circumstances to the proper working of a private partnership; and in the absence of any of them it can hardly be said that the articles are complete. If the persons chosen to be partners are at all suited to enter into that relation with each other, these provisions, simply and clearly expressed will generally be found amply sufficient for all practical purposes, and more likely to conduce to harmonious working than articles which contain provisions of a more extensive and minute character. In some cases, however, additional provisions may be found advisable, in consequence of the nature of the business, or the mode in which it has to be carried on. Under this class may be instanced the following:

"1. Restrictions on the right of subscribing the company firm.

"2. Provisions as to continuance of the company notwithstanding the death, bankruptcy, or retirement of a partner.

"3. Power to assume new partners.

"4. The appointment of managing partners, or the limitation of the agency to particular individuals.

"5. Provisions as to apprentices, agents, or servants.

"Beyond these, numerous clauses will be found in books of styles, and in other forms extensively used. Some of them may occasionally be found of importance; but of the great majority it may be said, that they are at best useless, and too frequently minister to embarrassment, misunderstanding, and litigation."

We have already expressed our opinion of the artistic execution of the work. Mr Clark informs us that he has studied compression as far as possible, and that is throughout apparent. It is evident that Mr Clark has striven to give all possible polish to