and pay the dividends to A. B. during his life, and then to C. D., and afterwards to anybody whom you by will shall appoint: but, mind, I am not to be considered a trustee;' the stipulation that he was not to be a trustee would not prevent his being a trustee. The truth is, that there are certain legal relations which are entered into by agreeing to certain conditions, and when those conditions are agreed to it is quite idle for people to superadd, or to attempt to superadd, a stipulation that the necessary legal consequences of those conditions shall not follow from the arrangement" (m). The question may also arise between persons who share in the profits of a business and third parties. It is clear that the intention of the framers of an agreement not to incur liability to third parties may not prevent them being subjected to such liability. The criterion is sometimes expressed thus: "every man who has a share of the profits of a trade ought also to bear his share of the loss" (n); "he who takes a moiety of all the profits indefinitely, shall, by operation of law, be made liable to losses if losses arise" (o); anyone who has a specific interest in the profits themselves, as profits " (p), and not merely a right to be paid a sum equal to the profits, or who "stipulates for a share in the nett profits of a concern, and has a right to an account of the nett profits as a partner" (q), is liable to third persons. Subtle and unsubstantial distinctions were established. Thus, it was held that the receipt of a salary which fluctuated according to the profits of the master's business, did not make a partnership; but if there was a stipulation for a proportion of the profits as profits a partnership was created. The avowed reason for these distinctions was the theory that he who took a part of the nett profits withdrew a portion of the creditors' funds, a reason which is not in accordance with the fact, (m) (1881), L. R. 18 Ch. D. 698, 704; see also the case of Naylor v. Farrer, mentioned at p. 705. (a) Grace v. Smith (1775), 2 W. BL. 998, 1000. (0) Waugh v. Carver (1793), 2 H. Bl. 235, 247. (p) Ex parte Hamper (1811), 17 Ves. 403, 404. (g) Heyhoe v. Burge (1850), 9 C. B. 431, 444. and which is all the more unsatisfactory because nett profits do not exist until debts are paid, and because sharing in gross profits was held not to make one a partner (r). The real reason for these subtleties was generally a desire to shield arrangements from the operation of the Usury Acts. Since the decision of the House of Lords in Cox v. Hickman (s), these refinements have lost their importance. A participation in profits is not a perfect test of partnership, though it is, as Lord Cranworth observed in the leading case, cogent and often conclusive" evidence. The real ground of liability is that a relationship of principal and agent exists; a person is liable to third parties because a trade or business has been carried on by persons acting on his behalf. Sect. 1. The advance of money by way of loan to a person engaged or about to engage in any trade or undertaking upon a contract in writing with such person that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on such trade or undertaking, shall not, of itself, constitute the lender a partner with the person or the persons carrying on such trade or undertaking, or render him responsible as such (t). Sect. 2. No contract for the remuneration of a servant or agent of any person engaged in any trade or undertaking by a share of the profits of such trade or undertaking shall, of itself, render such servant or agent responsible as a partner therein, nor give him the rights of a partner. (r) Heyhoe v. Burge (1850), 9 C. B. 440. (s) (1860), 8 H. L. C. 268; 30 L. J. C. P. 125. (t) Pooley v. Driver (1876), L. R. 5 Ch. D. 458; 46 L. J. Ch. 466. SERVANT. APPENDIX A. R. v. Little Bolton (1783), Cald. 367; R. v. Eccleston (1802), 2 East, 298; R. v. Shinfield (1811), 14 East, 541; R. v. Burbach (1813), 1 M. & S. 370; R. v. Billinghay (1836), 5 A. & E. 676; R. v. Northowran (1846), 9 Q. B. 24. APPRENTICE. R. v. Highnam (1785), Cald. 491; R. v. Laindon (1799), 8 T. R. 379 (use of word "apprentice" not necessary); R. v. Rainham (1801), 1 East, 531; R. v. Mountsorrell (1814), 2 M. & S. 459. Agreement by a father with R. that R. should take the son of the former for six years to teach him the trade of a frame-work knitter. A contract of apprenticeship, distinguishing the case from R. v. Little Bolton, inasmuch as the son in the former was entitled to none of the earnings. "The whole contract with the father was bottomed and had for its object the instruction of the son and nothing else." R. v. Bilborough (1817), 1 B. & Ald. 115; R. v. Kidwelly (1824), 4 D. & R. 309; R. v. King's Lynn (1826), 6 B. & C. 97; R. v. Combe (1828), 8 B. & C. 82; R. v. Tipton (1829), 9 B. & C. 888; R. v. Edingale (1830), 19 B. & C. 739; R. v. Knutsford (1831), 1 B. & Ad. 726; R. v. Crediton (1831), 2 B. & Ad. 493; R. v. Newton (1834), 1 A. & E. 238; R. v. Wishford (1835), 4 A. & E. 216; R. v. Ightham (1836), 4 A. & E. 936. When the contract was not under seal and was not properly stamped, but the manifest object was to teach, the Courts held that there was a defective contract of apprenticeship. TENANT. APPENDIX B. Eyre v. Smallpage (1750), 2 Bur. 1060. Plaintiff, controller of Chelsea College, and residing in the controller's apartments, which he occupied in virtue of his office. See also reference to the St. Bartholomew Case, p. 1061. R. v. Mathews, (1777) Cald. 1. Keeper of a lodge in Windsor Park, and two acres of land, appointed by the ranger, rateable as ranger. 66 When a servant," said Mansfield, C. J., "occupies a house and two acres of land, whether he pays for them by a rent or by service it can make no difference as to his being rated, he is equally liable." This test is not now employed. Bute v. Grindall (1786), 1 T. R. 338. The ranger of Richmond Park, rateable as beneficial occupier of certain enclosed lands yielding profit to him. R. v. Melkridge (1787), 1 T. R. 598. Person employed as herd by several persons having a right of common and permitted by them to occupy a tenement of £10 a-year as a reward for his services; settlement by occupation. R. v. Terrott (1803), 3 East, 506. A commanding officer having certain apartments allotted to him and his family in barracks for his residence, held to be rateable to the poor. The ground of decision as put in Lord Ellenborough's judgment, is that the officer, unlike a private soldier, who had no accommodation beyond what was required for sleeping, eating, and the like, "had a degree of personal benefit, and accommodation from the property joyed by him, ultra the mere public use of the thing; and which excess of personal benefit and accommodation ultra the public use en NOT TENANT. R. v. St. Luke's Hospital (1760), 2 Bur. 1053; 1 W. B. 249. Servants of this charity not rateable because not occupying distinct apartments. R. v. Field (1794), 5 T. R. 587. Person employed at annual wages as superintendent of a philanthropic society with no distinct apartments in the house except a bedroom; not occupier of the house. The question before the Court was whether she was the occupier of the whole, but the reasoning was opposed to her being the occupier of any part. R. v. Tynemouth (1810), 12 East, 46. The occupation of a lighthouse by a servant placed there to look after the light in consideration of a salary, is the occupation of his master, who is rateable. Bertie v. Beaumont (1812), 16 East, 33. A servant from week to week put by his master into possession of a cottage divided into two parts, one occupied by the servant, the other occupied by Mrs. D., who paid rent. The servant paid no rent, but his wages were less by £5 in the year on account of this circumstance. R. v. Cheshunt (1818), 1 B. & Ald. 473. A labourer employed by the Board of Ordnance. He previously occupied a house at a rent of £7. The house was purchased by the Board. He continued to reside in part of the house at a weekly rent of 28., which was deducted from his wages. No occupation as tenant. R. v. Bardwell (1823), 2 B. & C. 161, and 2 D. & R. M. C. 53. Pauper hired for a year as a shepherd. He was to receive a house and a garden rent free, 78. as wages a week, and the goings of thirty sheep with his TENANT. may be considered as so much of salary and emolument annexed to the office." R. v. Minster (1814), 3 M. & S. 276. A master found his bailiff, a servant in receipt of weekly wages, a house and pasturage for two cows on the master's land, not connected with the service or necessary for the convenient performance of it; the servant had a distinct interest in the pasturage of the two cows. Doe dem. Nicholl v. McKaeg (1830), 10 B. & C. 721. Defendant, minister of a dissenting congregation. He was put in possession of a chapel and dwelling-house by lessors, in whom the legal estate was vested in trust to permit the chapel to be used for the purpose of religious worship. Being a tenant at will after demand for possession, he was not entitled to a reasonable term for the purpose of removing his goods. "If the tenant," Lord Tenterden observed, "after the determination of his tenancy in this case, by a demand of possession, had entered on the premises for the sole purpose of removing his goods, and had continued there no longer than was necessary for that purpose, and did not exclude the landlord, perhaps he might not have been a trespasser." See Doe dem. Jones v. Jones (1830), 10 B. & C. 718, and Lake v. Campbell (1862), 5 L. T. N. S. 582. R. v. Wall Lynn (1838), 8 A. & E. 379. R., a brewer, engaged L., as his clerk, at a yearly salary, and agreed to permit him to occupy a certain house as residence, free of rent, rates, and taxes. Another clerk was to be lodged in the same house. L. rateable; L. being an" independent holder," and having absolute dominion, and the house not being the master's. R. v. Bishopton (1839), 9 A. & E. 824. Pauper resided in a Hunt v. Colson (1833), 3 Moore & Scott, 790. Servant, employed by Highgate Archway Company to collect tolls. He lived in the tollhouse, and one shilling a week was deducted from his wages by way of rent. The company having contracted to sell the land on which the cottage stood, discharged the plaintiff from their employment and gave him notice to quit, to which he assented. Held, not a tenancy, and plaintiff could not maintain trespass for pulling down the toll-house. At Nisi Prius, Tindal, C.J., ruled that there was a tenancy, and the Court appears to have assumed that there was a tenancy before the determination of service. Dobson v. Jones (1844), 5 M. & G. 112. Surgeon in Greenwich hospital, who was required to occupy rooms in the hospital; not entitled to vote as tenant. The Court observed that "the relation of landlord and tenant could not be created by the appropriation of a particular house to an officer or servant as his residence where such appropriation was made with a view not to the remuneration of the occupier, but to the interest of the employer, and to the more effectual performance of the service required from such officer or servant." Mayhew v. Suttle (1854), 4 E. & B. 347; 23 L. J. Q. B. 372; Exch. Chamber, 4 E. & B. 357. Defendant, who was in possession of a certain messuage, where the sale of beer was carried on by one George Utting for defendant, agreed, in consideration of a bondsman becoming answerable for the amount of £50 |