held that all the proprietors were liable; but as it appeared that the horsing of each stage was in the hands of individuals, the decision was altered, and it was found that the proprietors were not all jointly liable for furnishings made. to one proprietor for the use of the horses drawing the coach along his part of the road. A like decision has been given in a similar case in Scotland.2 In a late case where the author of certain books, retaining the copyright, published editions on the stipulation that he was to have no risk, and that the profits were to be divided with the publisher, deducting commission to the latter, there was found to be no joint adventure in a question with parties who furnished the paper to the publisher.3 It seems, indeed, that a party to a joint adventure may make a separate contract regarding the property or effects which are to be the object of the adventure, and that if he do so entirely in his own name, he becomes the sole debtor. Thus, where there was a joint adventure regarding the uses to which certain edifices were to be applied, a party to the adventure, who was a builder, contracted to erect them for a certain sum. Having become insolvent, it was found that the persons whom he employed in the work had no recourse against another party to the adventure.4

As in the case of partnership, where there are no conditions, or special circumstances, tending to define the share held by each, equality is presumed in joint adventure. A mere joint purchase for the purpose of division, and with no view of sharing the profit and loss, is to be distinguished from joint adventure.

CHAPTER III.

JOINT STOCK AND PATENT COMPANIES.

SECT. 1.-Principles generally applicable to Joint Stock Companies.

PUBLIC Companies incorporated by royal Charter or act of Parliament, possess the privileges of other Corporations."

1 Barton v. Hanson, 1809, 2 Camp. 97, and 2 Taunt. 49.-2 Jardine v. M'Farlane, 16th February 1828. See Sherman v. Bain, 2d February 1839. Venables, Wilson, & Co. v. Wood, 8th March 1839.- White v. M'Intyre, 12th January 1841.-5 Ferguson v. Graham, 3d June 1836. 6 E. iii. 3, 28.

As such, and as being frequently connected with the formation of railways, harbours, and other public works, a great part of this subject belongs to the department of Public Law.

Whether these exist under the authority of an act of Parliament or of a charter of incorporation, or are merely constituted by the voluntary union of the members, their constitution differs essentially from that of an ordinary partnership. The object is not so much to enable certain parties to unite their efforts for some common object, as to afford an opportunity to individuals to invest money in a project in which they have personally no administration, the management of the common stock being left to committees or official persons. Here it is not the person, but the money, that is essentially the object of the contract, and so it is a general feature in such undertakings that the shares are property, which may be succeeded to, or transferred from hand to hand. Such a body cannot, unless empowered by Act of Parliament, Charter of Incorporation, or Letters-patent, bind itself, or pursue or defend in its descriptive name (see above, p. 176); but it would seem that it may pursue in its descriptive name and the names of a majority of the individual partners. Whether it can do so in the name of any officebearer is questionable; but it is the received opinion that it can. It has been held, however, that a prosecution by a descriptive name and that of an agent-viz. "The Clyde Shipping Company, and Robert Murray, as agent for, and for behoof of, the said Clyde Shipping Company," was incompetent. It has been decided that where parties come under an obligation to a company and an office-bearer of the company or his successors, the office-bearer may pursue for fulfilment.4

3

Responsibility of Members. It is generally the object of such companies to contract on the credit of the joint stock, without rendering the parties individually liable. No case has lately occurred to bring out the question whether this object can be attained without an act of Parliament, nor indeed can it be laid down as fixed law, that a charter of incorporation has in Scotland the effect which it has in England, of limiting the responsibility of the members, unless it be granted in terms of the act 6 Geo. IV. c. 91. A com

Shotts Iron Company, &c. v. Hopkirk, 19th January 1828.-2 B. C. ii. 629.-3 Kerr v. Clyde Shipping Company, 8th June 1839.- Fisher v. Syme, 7th December 1827.

paratively old case appears to countenance the principle that partners in ordinary joint stock companies are not liable beyond their shares of subscribed stock. But it is much doubted if the decision be law, or if there can be any condition created by the members of a joint stock company among themselves, by which they can deprive the creditors of the concern of the ordinary privilege of holding them all individually liable as partners.2 It has been decided that where the responsibility is limited by act of Parliament to the amount of subscribed stock, each partner is liable to meet the debts of the company to the whole amount of his stock, and not merely according to his proportion.3 In France it is fixed law that, by a partnership en commandite, the liability of a portion of the stock-holders may be limited to their amount of stock. In England it is held that this privilege belongs only to corporations, and that "every member of an unincorporated trading company, no matter of what number of persons it consists, is answerable to the full extent of his private property for the whole of the debts of the company." So far as can be inferred from the usual authorities, the evidence which will render a person liable as a partner of a joint stock company in England is stricter than we have warrant for holding that it would be in Scotland. Assuming management as a director, and signing the deed of settlement, are conclusive evidence of partnership, the commencement of which will be carried back to the payment of any deposit. Mere verbal accession, however, will not involve responsibility, and it is laid down in England that an individual cannot be held responsible "if he neglect to perform the conditions which enable him to share the profits," or, if the terms under which he had proposed to become a partner are not reasonably fulfilled by the projectors," unless he have signed the deed of settlement.6

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Where a party had signed a document agreeing to become a partner, and binding himself to subscribe the contract of copartnery as approved of at a general meeting, he was found, on his insisting on his privileges as a partner, to be bound, though he had not subscribed the contract, by its terms, in as far as it contained a stipulation that 5 per cent.

1 Stevenson v. Macnair, 14th February 1757, 5 Br. Sup. 340.—2 B. C. ii. 630. Henderson on Joint Stock Companies.- Malcolm v. West Lothian Railway, 10th June 1835.- Code de Commerce, liv. i. tit. 3, § 1. -Collyer, 764.— Ibid. 734-743. See Wordsworth on the Law relating to Joint Stock Companies, 246, et seq. Walstab v. Spottiswoode, 12th June 1846, 15 L. I. (N. S.) 193.

interest should be charged on all unpaid calls, and that there should be no interest on dividends not called for. How far a banker's receipt for deposit, or a scrip certificate, is evidence of property on the one hand entitling the holder to the benefits of a partner; and how far the obtaining such a document, by agreeing to take shares, or by purchase from another person, subjects the holder to the responsibilities of a partner, are matters still left in a state of doubt. In Scotland we have had no decisions on the point, and those which have occurred in England are not conclusive.2 It has been sometimes supposed that transactions in scrip are invalid, but there are no decisions warranting this opinion.

Deed of Settlement. The regulations of a joint stock company are generally embodied in the deed of settlement. This instrument "constitutes trustees of the partnership property, directors of the partnership affairs, auditors of its accounts, and such other officers as the objects of the society require, and contains covenants for the performance of their respective duties, which are specifically set out, as are those of the other partners or shareholders; it also defines the number of shares, the power and method of transferring them, and of calling for the instalments required to be made thereon; the mode of convening general meetings of proprietors, their rights when convened, and a variety of other rules suited to the exigencies of that particular undertaking." It has been found that a provision in the prospectus or contract of a joint stock company that the capital shall reach a certain amount, is not a condition the nonfulfilment of which will release the subscribers, but that they are bound to pay up their shares though a smaller sum only should be subscribed.4

Statute. When the concerns of the company are extensive, an act of Parliament is generally obtained, which enables the society to sue and be sued in the name of an office-bearer, and usually limits the amount of capital to be subscribed. It has been decided that, as between the partners, stipulations entered into prior to the passing of the act, and not embodied in it, are binding. Of the nature of the statutes by which such public companies are constituted some notice has already been taken (see p. 4). In 1845, three acts

1 Ballandene v. Glasgow Union Bank, 5th July 1839.-2 See Jackson v. Cocker, 4. Beavan, 59. Walford on Railways, 30. Henderson on Joint Stock Companies, 49.-3 Smith's M. L. 62.4 Turner v. Molison, 30th May 1833. Caledonian Dairy Company v. Campbell, 4th February 1834. 5 Wishaw Railway v. Stewarts, 1st March 1837.

were passed, containing clauses of a general nature which must, more or less, form part of the constitution of any new companies established by act of Parliament. They are called respectively, "The Company's Clauses Consolidation (Scotland) Act" (8 & 9 Vict. c. 17); "The Lands' Clauses Consolidation (Scotland) Act" (8 & 9 Vict. c. 19); and "The Railways Clauses Consolidation (Scotland) Act" (8 & 9 Vict. c. 33.)

The directors of a joint stock company are not in the position of agents and other mandatories, who are responsible for the possession of the requisite skill for fulfilment of their duties. They are seldom chosen for their acquaintance with the particular trade or pursuit adopted by the company, but rather on account of the reliance that is placed in their general integrity and discretion. There is usually a clause exempting them from responsibility for omissions and rendering them liable only for their own individual acts and deeds. When fortified by such a clause, there are no authorities for holding that they are personally liable beyond their responsibility as partners, for anything that does not amount to peculation, or gross breach of the contract and the constitution of the company. In the case of the Caledonian Dairy Company, there were allegations that losses had been occasioned by the directors not taking security from the stipendiary officers in terms of the contract; of their having neglected to balance books and call meetings as required by the contract, &c. Yet these were not held relevant to relieve the other members from responsibility for advances by the directors. Their responsibility appears to correspond with that of trustees (see p. 237). They are bound to adhere to the original objects of the company. In a case where a company was organized for the purpose of carrying goods and passengers between Leith and Australia, the Directers, who were empowered to export and import goods, were found not entitled to take consignments of goods guaranteeing the price on del credere, or to trade at ports not intermediate between Leith and Australia.2 For all purposes, however, connected with the legitimate ends of the establishment, such as borrowing money, the purchase and sale of property, &c., the powers of directors are very wide,3 and it would not be easy to say where they are limited.

Transfers. One of the main peculiarities of joint stock

1 MacAlister v. Sommerville, 14th February 1843.-2 Maxton v. Brown, 18th January 1839.-3 Fleming v. Campbell, 25th June 1845.