TCAL CONEW
HE NEW LAW RULES, with PRACTI-THE LAW OF EVIDENCE AMENDMENT ACT; with NOTES,
TO, EACH RULE.

DUBLIN, JULY 22, 1854.

357

It is with much satisfaction that we have learned that an Act has passed for enabling parties to suits to compel witnesses resident in any part of the United Kingdom to attend and be examined in any other part, when required for the purposes of justice. It is really delightful to see how universally antiquated prejudices are yielding to the march of improvement. No doubt, a time did once exist,

when it would have been unreasonable to have com

of

pelled a witness resident in England to encounter the risk and inconvenience of what might possibly prove a fortnight's sea voyage, for the purpose giving viva voce evidence in Ireland; but the modern facilities of travel have absolutely rendered all the supposed difficulty in the way of the transit of witnesses a mere legal fiction, and this absurdity has now been exploded by the good sense of the Legislature. The subpoena ad test. of the Superior Courts in either country will henceforward be in force in any part of the realm where the witness resides, just as previously, by a strange anomaly, he might have been reached for purposes of Parliamentary inquiry by a Speaker's warrant. This will practically have the effect of putting an end to commissions for the examination of witnesses, capable of being reached

COURT OF QUEEN's Bench:

REG ". O'NEILL. Criminal law-Challenge to the array-Allocutus- 3 & 4 W. 4, c. 91.-16 & 17 Vic. c. 113.........

363

by summons, and will thus save much trouble and expense to the parties, and also the perplexity arising from imperfect evidence. While, however, we rejoice in this excellent measure, we trust that the marked distinction will not be forgotten between giving force to writs issued in aid of legal proceedings already commenced, and those by

which suits are instituted. We think that where

separate judicatures have been established in each of the three kingdoms, it would be most unjust, as a general rule, that a party should be sued for a debt in any other country than in that wherein he resides. Granting that the facilities for travel are great, travelling is and ever will be expensive, and the situation of the witness whose expenses are, in any event, secured to him, and who may therefore be reasonably asked to put himself a little out of his way for the sake of justice, is not for a moment to be compared to that of a defendant who is sought to be dragged before a foreign tribunal, at the certainty of a much greater immediate outlay than if

his case were tried at home, and at the risk of hav.. ing eventually this additional mulct confirmed. We trust that such will never become the law, and we are happy to say that an attempt which was made this very session to make such a change has been

defeated. We believe that the Witnesses Act is due to the exertions of Mr. Butt.

THE MERCANTILE LAWS, AND THE
LAW OF PARTNERSHIP.

OPINION OF LORD CURRIEHILL.

(Continued from page 203.)

case in partnerships en commandite. And although in such partnerships the special partners do not take any part in the active management, yet neither they nor the general partners are bound to keep the existence of their partnership a secret; and, generally, it will be well enough known to the public that the parties are connected as co-partners, although many may be in ignorance of the footing on which their connexion may have been formed.

In the next place, I do not see that the law of commandite limits the injustice it would inflict upon creditors to the mere creation of a presumption that Another fraud which would arise from the opethey had agreed to liberate one or more of their ration of this law would be this,—that although, in joint debtors from their claims; and it appears to theory, the law of commandite holds out that the me that this theory is a mere imagination of the partnership has a certain amount of in-put stock, supporters of this law, which they have invented in yet there is no security that such stock is in existorder to silence their sense of the wrong its opera-ence at the time when the debts are contracted. A tion would inflict upon creditors. If its only ope- commanditaire is bound only to place the sum, which ration were to create such a presumption, then it he agrees to contribute, in the hands of the gerant, would not affect such creditors as might exclude but not to keep the capital up to that amount in the presumption, by establishing by legal evidence the event of its being partly or wholly lost in the that they entered into no such agreement, and were course of the business. And although he is entiutterly ignorant of the proceedings on which the tled to draw out of the concern his stipulated share presumption is founded. But even in such a case of the profits in every year when the business is a the commanditaire partner and his general funds lucrative concern, he is not bound to contribute any are free from payment of the partnership debts. share of the loss in any year when it is a losing one. Moreover, this theory of a presumed agreement by Nor does the law require that notice should be pubthe creditors to relinquish their legal right, is incon-lished of the losses incurred by such partnerships. sistent with the immunity of commanditaire part- And thus it might, and would, often happen, that ners being effectual as to those numerous classes of at the time when funds are acquired by such a comdebts, which may be incurred by partnerships with-pany on credit from third parties, the in-put capital, out any credit whatever being voluntarily given by which it is proposed to substitute for the joint liathe creditors. Such are debts incurred by partner- bility of the partners would have previously ceased ships failing to deliver goods, or other ways to to exist. fulfil their obligations, under ready money contracts. Such, also, are debts of many kinds which may be incurred by partnerships otherways than by contract, e. g., by their committing frauds,-by their obtaining undue preferences in contravention of the bankrupt laws, by their committing injuries to the property of other parties, by their culpable negligence in the performance of duties,-by companies of carriers by land or water, warehousemen Thus it is that, in my opinion, the interests of or wharfingers, not exonerating themselves of their commerce would be exposed to a new variety of obligations in reference to goods coming into their frauds, if any of the partners of a company were hands in the course of their transit from the con- to be empowered to free themselves from their lesigners to the consignees, and by many other kinds gal liability for the debts of their partnership, withof proceedings. The law of commandite, therefore, out the actual consent of the creditor, and by merely is not mere machinery for working out a presump-adopting the conditions prescribed by the foreign tion that creditors of certain partnerships have law of commandite. agreed to liberate some of the partners from their legal liability for its debts. It simply inflicts a forfeiture of the right of the creditors to recover what is owing to them from some of the joint obligants in the debts. I therefore cannot look at the operation of that law, without a conviction that were it adopted by us, its operation would expose our commerce to serious frauds.

Nor is it a good answer to this objection that the name of a commanditaire partner is not mentioned in the firm. Although this is the case in very many ordinary partnerships, all the partners are jointly liable for the debts to those from whom their partnership obtains funds on credit; for this very good reason, that all of the partners become the joint owners of the funds so acquired, and so are joint purchasers, borrowers, &c., in the transactions by which the funds are so acquired. The same is the

This would be the case even if the capital had so disappeared by innocent misfortunes. But I undestand that experience has shown that it is very easy by collusion among the partners to begin business without the stipulated capital being in bona fide paid in; and still more easy to withdraw it in the name of profits, or under other disguises; and that frauds of this kind are often practised.

II. The operation of that law would further tend to affect commercial credit injuriously. In particular the introduction of this privileged class of partnerships into the commercial community might seriously affect the credit of other partnerships, whose partners might have no wish to avail themselves of such an immunity. For example, under our existing law, if a house in Glasgow or Belfast, known to have partners of substance, send an order to a London merchant, he executes that order at once on the credit of the wealthy partners, although their names be not set forth in the firm. But he would hesitate to do so, if partners of companies had the power of freeing themselves from liability for the debts of their partnerships, without the consent or knowledge of their creditors, on the conditions required by the law of commandite; because it might be that the partners, on whose cre

dit he could rely, might, unknown to him, have procured such an immunity for themselves. And although, on inquiry, the suspicion or doubt in such a case would be obviated, it would be a great hardship to the house giving the order to be exposed to such doubts and investigations, and to the delays and other inconveniences which might thereby be occasioned. All the partnerships in the country, the names of whose partners might not be set forth in their social forms, might be constantly exposed to the risk of such evils, if partners of companies were empowered to free themselves from liability for partnership debts in the manner proposed. And thus the existence of authorized partnerships of that description in this country might injuriously affect the credit of partnerships generally. This might be the case even in the home market; and their credit would be still more lessened in foreign countries, where the requisite inquiries could not be easily made.

III. The worst effect, which the introduction of commandite partnership into the commerce of this country would probably produce, would be the stimulus it would give to excessive speculation.

It is admitted on all hands, and is matter of no toriety, that this country is characterized by the spirit of commercial adventure; that, while in a large proportion of our traders this spirit is controlled, and kept within salutary bounds, by the dread of loss, in which overtrading generally results; yet in a very numerous class of traders sanguine hopes of success are not sufficiently balanced by a due estimate of the risks of failure; that this latter class are ever ready to avail themselves of opportunities of indulging in excessive speculation; that when this is done to a great extent, they bring ruin and distress on themselves; and that this ruin and distress extend to the more prudent class of traders, and even reach agriculturists, operatives, and more or less the general community. It is needless to inquire into the causes of all this. The opinions of those on both sides of the present controversy, however much they may differ as to the best mode of preventing or curing this evil, coincide in avowing that such is the true state of the case.

genial to their own, and who, in effect, although not ostensibly, would carry on the management according to their wishes.

There would probably be no limit to their speculations, so long as other parties would give them credit. The law of commandite itself does not impose any limit to the amount on which such a partnership may speculate on credit. If the in-put stock by the commanditaires were only £1,000, the partnership might purchase, borrow, or otherwise acquire funds on credit (if other parties would trust them), and speculate thereupon, to the extent of £10,000 or £100,000, or any other sum, for not one farthing of which would the privileged partners or the rest of their fortunes be liable.

This evil would be aggravated in cases where all the in-put stock may have been lost in the course of the business; for in such cases the special partners, although they would have a chance of retrieving their losses, by the success of further speculations, could not be made worse by their failure; and the managing partners in such cases would generally have already lost their all, supposing they had ever been worth anything. In such a state of matters, the temptation to embark in hazardous adventures, the whole risk of which would be thrown on the creditors, would naturally be yielded to by the class of persons who would generally be found in such partnerships.

In many of the opinions returned to the Commissioners it is contended that the introduction of partnership en commandite, instead of promoting such objectionable speculation, with its usual train of revulsions and other evils, would tend in two different ways to prevent their existence, and these opinions are supported by forcible reasoning.

In the first place, it is said that if such partnerships were legalized, much of the capital,-which merchants and manufacturers at present, in prosperous times, obtain on loan and speculate upon, but the sudden recall of which, when the money market becomes straitened, leads to revulsions, would be obtained as partnership stock by the lenders becoming commanditaire partners; and that that capital being so fixed in business, commerce Now let the Legislature confer on partners the would cease to be of such a speculative character, power of freeing themselves from liability for debts and would not be so much exposed to the d sasincurred by their partnerships, on the conditions re- trous contingencies above referred to. And let it quired by the law of commandite; and what would be assumed (although the assumption can only be happen? Few of the prudent class of persons would matter of conjecture,) that many persons, who at probably avail themselves of it, as they might reckon present speculate on horrowed money, would, by it too dearly bought, by surrendering the right of the introduction of partnership en commandite, betaking part in the management and control of their come the managing partners of companies with paidown business, and of dissolving their partnerships up capitals. And the inference which is drawn from when such a step might appear to be proper. On this assumption might be logical, if the law of comthe other hand, it is too probable that if the specu- mandite required such partnerships to limit their lative classes were enabled to acquire this privilege business to their in-put stock, or, in other words, by merely contributing a small portion of their to contract no debts by purchasing, borrowing, or means to the stocks of partnerships on such condi- otherwise acquiring funds on credit. But this is tions, and so to indulge their spirit of adventure not the case. It would not extinguish, nor even without endangering the remainder of their for- check, the spirit of speculation. If a merchant tunes, this would prove to be an irresistible temp-who, while he had no capital of his own, thought tation to these classes; and that they would meet proper, and was able, to speculate on borrowed cathe stringent conditions, on which the law allows pital to the extent of, say, £5,000,-were to obtain them the benefit of that privilege, by selecting as £5,000, placed in his hands as stock in trade by their managing partners persons of dispositions con- commanditaire partners, the same spirit of specu