public companies, the number of commanditaires or partners with limited liability might very properly be confined to six

or seven.

Many examples are given in the minutes of evidence before the Select Committee on the Law of Partnership, in which partnerships en commandite would be of great use. For instance, cases in which clerks in whom their former employers have confidence (p. 18.), or where young tradesmen (pp. 30-39.), or skilled mechanics (p. 29.) desiring to start in business, have relatives and friends with small capitals, which they are willing to intrust to them. So again, the retiring partner of a firm would often be willing to leave a part of his capital with his old partners, which he is now unwilling to do, when the result of his participating in the profits by leaving part of his capital in the concern, although he took no part in it, and his name was not held out to the world as a partner, would be to render him liable to "his last shilling and his last acre" (pp. 19-38.).

Another instance is mentioned in which partnership en commandite would be of very material assistance to a very deserving, but often a very unfortunate class of men, viz. inventors, the fruits of whose labours and genius too often go to enrich the money-lender or capitalist. Mr. Fane (a great authority upon such a subject) says in his evidence, "In the course of my professional life, as a Commissioner of a Court of Bankruptcy, I have learned that the most unfortunate man in the world is an inventor. The difficulty which an inventor finds in getting at capital involves him in all sorts of embarrassments, and he ultimately is, for the most part, a ruined man, and somebody else gets possession of his invention." (P. 82.).

Of course it is necessary, in case partnerships en commandite are introduced into this country, to provide by due registration and publicity of the contract of partnership, and other regulations, to prevent either the withdrawal of the partners en commandite or their capital from the concern, in case it be unsuccessful, or their intermeddling with the affairs of the partnership so as to gain undue credit for the partnership. These ends appear to be well attained by the statute relating

to limited partnerships of the State of New York (see Appendix to the Report on the Law of Partnership, 1838, p. 73.), taken in a great measure from the regulations of the French Commercial Code. There it is declared, that a limited partnership for the transaction of any mercantile, mechanical, or manufacturing business within the State, may consist of one or more persons jointly and severally responsible, according to the existing laws, who are called general partners, and one or more persons who furnish certain funds to the common stock, and whose liability shall extend no further than the fund furnished, and who are called special partners. The names of the special partners are not to be used in the firm, which shall contain the names of the general partners only, without the addition of the word company, or any other general term; nor are they to transact any business on account of the partnership, or be employed for that purpose as agents, attornies, or otherwise; but they may, nevertheless, advise as to the management of the partnership concern. Before such a partnership can act, a registry thereof must be made in the Clerk's Office of the County, with an accompanying certificate signed by the parties, and duly acknowledged, and containing the title of the firm, the general nature of the business, the names of the partners, the amount of capital furnished by the special partners, and the period of the partnership. The capital advanced by the special partners must be in cash, and an affidavit filed stating the fact. Publication must likewise be made for at least six weeks of the terms of the partnership, and due publication for four weeks of the dissolution of the partnership by act of the parties prior to the time specified in the certificate. No such partnership can make assignments or transfers, or create any lien, with the intent to give preference to creditors. The special partners may receive an annual interest on the capital invested, provided there be no reduction of the original capital; but they cannot be permitted to claim as creditors, in case of the insolvency of the partnership (3 Kent. Comm. 34.).

To these safeguards others might be added; for instance, one as suggested by Mr. James Stewart in his evidence before the Select Committee (p. 46.), that, if the comman

ditaire or special partner did not pay up the whole of his capital, he should be liable to the whole extent of his property.

The same result should follow if the partnership went on trading after a certain amount of the capital was lost.

Altogether, we consider this subject as ripe for useful legislation; and we shall be indeed surprised if in the important law reform session about to open, a bill is not brought in, fully discussed and probably carried, establishing, with due precautions, the principle of limited liability in partnership.

ART. IX.-DISSERTATIONS IN CONVEYANCING. A PURCHASER'S REMEDY AGAINST INCUMBRANCES INDEPENDENT OF COVENANTS FOR TITLE.

IF a contract, entered into by a vendor, amounts to an agreement to sell and convey a clear and absolute fee simple, and that is implied unless the contrary appears1, he must of course free the estate from all known incumbrances before he can compel payment of the purchase-money: and in such case it matters not whether the incumbrances be or be not contingent, or whether the covenants for title, to be entered into by the vendor, will extend to them or not. The right of a purchaser to have only a qualified warranty for the future enjoyment of the estate, such as the ordinary covenants for title entered into by a vendor, cannot affect his right to have a clear fee simple conveyed to him in the first instance so far as regards titles, charges, and incumbrances that are known. Indeed, it is apprehended that a vendor may in general be required to covenant that he is not privy to any adverse title, charge, or incumbrance that does not appear.

Hence, although a purchaser has paid his money and entered into possession, yet if he is evicted before the conveyance is complete, he may recover the purchase-money in an action for money had and received, although the intended covenants for title do not extend to the title under which the

1 8 Mee. & Wels. 244.

estate is recovered, and although the vendor was not aware of the adverse title when the contract was entered into.1

Sir Edward Sugden says if a purchaser, before executing the articles, has notice of an incumbrance which is contingent, and it is by the articles agreed that the vendor shall covenant against incumbrances, the purchaser has entered into them with his eyes open, has chosen his own remedy, and equity will not assist him; and he cannot, therefore, detain any part of the purchase-money. It seems difficult to assent to this as a general rule, and the case of Vane v. Lord Barnard, upon which it is in part founded, is open to much observation. There Lord Barnard, upon the marriage of his son, covenanted to settle an estate, and that the settlement should contain covenants that he was seized in fee, good right to convey, and that the trustees should enjoy free from incumbrances. It appears that the estate was subject to a contingent charge of 65001. for such of the children of Lord Barnard as should survive him; but this charge was not mentioned in the articles, but the parties to them had notice of it aliunde. A bill was filed to have a specific performance of the articles, and that Lord Barnard should pay off or give collateral security against this contingent charge of 65007. But it was decided that it was not necessary for Lord Barnard either to pay off or give security for the contingent portion on the ground that the covenant to be entered into by him that the trustees should enjoy free from incumbrances did not require it. This reason may be allowed, but it does not seem to have occurred either to the Bar or the Court that the existence of such a charge was quite incompatible with the covenant that Lord Barnard had good right to convey. Although a purchaser, before entering into a contract, has notice of an incumbrance, he may surely require it to be discharged if it is inconsistent with what the vendor contracts to sell. But if a conveyance has been executed by all the necessary parties, and the purchase

Cripps v. Reade, 6 T. R. 606.; Johnson v. Johnson, 3 Bos. Pul. 162.; Jones v. Ryde, 5 Taunt. 488. See and consider Vane v. Lord Barnard, Gilb. Eq. Rep. 6.

2 2 V. & P. 418,

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Gilb. Eq. Rep. 6.

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money paid, and the purchaser is evicted by a title to which the covenants do not extend, and of which the vendor had not notice, the purchaser cannot recover the purchase-money either at law or in equity.'

And even in such a case, if a purchaser is evicted by a title which appears on the face of the abstract, and was consequently patent both to him and the vendor, but which was overlooked by the purchaser's counsel, the purchaser cannot recover his purchase-money.2 For the rule is, that as equity suffers no man to overreach another, so it helps no man who hath overreached himself without any practice or contrivance of his adversary. So, if a purchaser neglect to look into the title, it will be considered as his own folly, and he can have no relief. The rule is the same, though the conveyance by the vendor in fact passes nothing.1

It seems that, if the conveyance be actually executed, the purchaser can obtain no relief, though the purchase-money be only secured.5

But if a vendor is aware of a defect of title to the whole or a material part of the estate, and conceals it, he, having suggested that he had a title, is guilty of fraud; and the purchaser may bring an action, or he may file his bill in equity to be relieved from the purchase, though he has not been evicted. And in such a case the vendor was decreed to repay the purchase-money, with costs, and likewise all expenses incurred in relation to the sale and for repairs, which was all the purchaser asked by his bill."

So in Schneider v. Heath', where a ship was sold "to be taken with all faults," it was held that the vendor could not avail himself of that stipulation, if he knew of secret defects in her and used means for preventing the purchaser from

1 Serjeant Maynard's Case, 3 Swanst. 651.; 2 Freem. 1.; Early v. Garrett; 9 Barn. & Cr. 928. (in this case there was a conveyance); 4 Mann, & Ry. 687. 2 Urmston v. Pate, 4 Cru. Dig. 90. s. 64.

Roswell v. Vaughan, 2 Cro. 196. ; 2 Sug. V. & P. 426.

4 Bree v. Holbeck, Ding. 654.

52 Sug. V. & P. 426.

Edwards v. M'Leay, Coop. 308. S. C.; 2 Swanst. 287.; Gibson v. D'Este ;

2 You. & Coll., N. C. 542.

7 3 Camp. 508.