OF THE LAW OF PARTNERSHIP. BY FREDERICK POLLOCK, OF LINCOLN'S INN, ESQ., BARRISTER-AT-LAW, LATE FELLOW OF STEVENS AND SONS, 119, CHANCERY LANE, Law Publishers and Booksellers. INTRODUCTION. THE present work was undertaken, in the first place, in order to supply the want of a concise work on the Law of Partnership and if this were all, it would be needless to say much by way of introduction. But the form I have adopted in vites, if it does not demand, some words of explanation; the adoption of it, moreover, commits the writer to certain opinions on matters of much wider range and importance than the subject actually handled. Those opinions are still far from being established, and one who attempts to exemplify them in practice is in some sort thereby bound to set forth his understanding of them, and to bear his part, however slight it may be, in their justification. My desire has been to follow to the best of my power the example set by Mr. Justice Stephen in his 'Digest of the Law of Evidence,' and repeated by him in the yet more weighty and difficult work of a 'Digest of the Criminal Law,' which has since been made the foundation of a Draft Code. This being said, it is almost superfluous to say that I agree with him in thinking the Indian Codes a desirable model for the exposition of English law, by authority if possible, but if and so far as that is too much to hope for, then by private endeavour; and that I likewise agree with the reasons which he has given for that opinion both in the introduction to his 'Digest of the Law of Evidence' and on various other occasions. Some of those reasons, however, I may without presumption try to restate in my own way, this being a topic on which repetition is certainly proper not vain in the sense of being needless; and it seems also in addition to this general statement, to explain why the subject of Partnership has appeared to me a specially fit one for an experiment of this kind. The method of stating the law in general propositions accompanied by specific illustrations was introduced into Indian legislation by Macaulay, though not brought into operation till many years afterwards, and to him the merit of the invention is chiefly if not wholly attributable.1 It seems to me the greatest specific advance that has been made in modern times in the art called by an ingenious writer "the mechanics of law-making." We should by no means underrate the gradual improvements of detail, the introduction of orderly arrangement and cutting down of prolix and slovenly drafting, which have made recent Acts of Parliament comparatively readable; but Macaulay's invention stands on a different level. It is an instrument of new constructive power, enabling the legislator to combine the good points of statute-law and caselaw, such as they have hitherto been, while avoiding almost all their respective drawbacks. Case-law gives particular instances and concrete analogies, from which general rules may be inferred with more or less exactness, and their application to new instances predicted with more or less certainty; but it does not, strictly speaking, lay down general propositions beyond the limits which happen to be determined by the precise facts of each case. Every decided case does within those limits affirm a general proposition, with the help of the fixed understanding by which our Courts are governed, that similar decisions are to be given 1 Traces of the idea may be found in Bentham. He proposed to give in the body of a Code a running accompaniment of authoritative reasons and explanations, which might have dealt more or less in specific instances; and such instances do occur in the 'Specimen of a Penal Code' (Works, vol. i.). But this amounts at most to a very vague foreshadowing of the Anglo-Indian method. on similar facts. It involves, namely, the decision of all future cases exactly like it, and also of all such as, though not exactly like it, may be in the opinion of the Court so nearly like it that they ought to follow its analogy. The investigation of the likeness or unlikeness of the facts of different cases for this purpose is often a matter of great difficulty and nicety, and the power of forming a judgment on such questions can be acquired only by legal training and experience. Thus the framework of case-law consists of the statement of a great number of sets of facts, together with the legal results which have been decided to follow from them: the generalities which make it possible to state the law in a connected form are supplied by a process of discussion, inference, and comment carried on partly by the judges themselves in dealing with the cases, partly by private text-writers. The inspection of such a work as Fisher's Digest, or perusal of the reported judgments in any current case in the Court of Appeal, will give in a short time, even to a lay reader, a much better notion of the manner in which English case-law is constructed than can be given by any description. In the result, our English case-law, or any other system developed in substantially the same manner, has the great advantage of being full and detailed, and of preserving the memory of the remedies administered to the practical needs of men's affairs in a record rich in experience and fruitful of suggestions. But there is no security for completeness, and imperfect security for consistency. While in some departments no possible scrap of mint or anise or cummin seems to remain unnoted, in others we may still wait for authority to give a certain answer on the greater matters of the law; we have decisions of the most elaborate minuteness on the construction of documents, and questions of substantive principle which are both important and elementary remain in an unsettled condition. And the system of graduated authority, an excellent one as far as it goes, which makes the decision of a Court of Appeal |