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The law of Rome has been described as a system of written reason; the Code Napoleon is probably unrivalled for simplicity, precision, and homogeneity; the laws of England appear to me to possess the proud distinction of insensibly but surely educating the people for the exercise and maintenance of their political rights, by familiarizing them, through the medium of the ordinary administration of justice, with those great principles of constitutional law, of which the British form of government is the most perfect embodiment which the world has yet seen. The English common law may be characterized as the application of the principles of the British constitution to the affairs of men in every-day life; or, as it may be otherwise expressed, the principles of the British constitution are those of the common law seen at a great angle. It is from considerations such as these that the laws of England, so little understood or appreciated by foreign jurists, receive their highest and most complete vindication.
In the preparation of this work I have received very great benefit from the labours of others who have treated of the same or of similar branches of law. In Scottish law, the Commentaries of Professor Bell, Mr Stark's work on Partnership, and the late Mr Henderson's Notes on Joint-stock Companies, have proved valuable aids. In the law of England, I must specially refer to the treatise of Mr Lindley,—a work which, I believe, stands unequalled for industry, erudition, and legal acumen, and whose sterling qualities can perhaps only be fully appreciated by one who has laboured in a similar field. The work of Sir William Hodge on Railway Law has been of great use to me in treating of that branch of the subject. Besides these, there are many other writers on English and American law, by whose labours I have greatly benefited. They are mentioned in the List of Authorities.
To my brethren of the Bar, and also to many gentlemen in other branches of the profession, I must return my grateful thanks for the valuable assistance they have at all times given, and for the many useful suggestions they have made during the progress of the work. To Mr William Guthrie, Advocate, I am under great obligations. He carefully revised all the references, pointed out several oversights, and made many important suggestions, particularly in reference to foreign and international law.
In the citation of authorities and decided cases, the following general principles have been adopted. I have endeavoured to cite all the Scottish cases which bear directly on the matter immediately under consideration, and reference is often made to many others which may be found useful as illustrative of the principles involved. The embarras de richesse presented by the English authorities rendered it necessary to make a selection. In doing this, I have endeavoured to choose, in the first place, the more leading cases; and where, as often happened, even these appeared too numerous for reference, I gave the preference to such as were of most recent date, contained the greatest number of references to other cases, and were least liable to the objection of proceeding on principles or technical rules peculiar to the English system. When the matter under consideration is regulated by a British Act, or by enactments substantially the same in both countries—e.g. the Registration Act of 1862, or the Consolidation Acts of 1845—the English authorities have been quoted with great fulness, and without any effort at selection.
In dealing with the English authorities, I have endeavoured to avoid the use of technical expressions, and have generally succeeded in expressing their import in ordinary language. Sometimes, however, the employment of phrases peculiar to that system was unavoidable. In such cases, the explanation will generally be found in the immediate context; but to provide against any oversight which may have occurred in this matter, the Index of Subjects will be found to contain the Scotch equivalents, or a brief explanation of such English words or phrases as are of most common occurrence in partnership law. It is hoped that this may also be found useful, if the reader (as I have to request he may) will consult the English authorities and reported cases to which throughout the Treatise he will find a continual reference.
Appended to the Index of Cases, there will be found a Table of all the Authorities and Collections of Reports to which reference is made throughout the work, or which I have had occasion to consult in the course of its preparation. To each is prefixed the customary abbreviation, unfamiliarity with which, when perusing English law works, sometimes creates considerable embarrassment. I have endeavoured to make this table as comprehensive as possible, so that it may be found useful not only to those who consult the present Treatise, but to such as may be induced to extend their acquaintance with the subject by the perusal of the works of English and American jurists.
In conclusion, I must observe, that though the present Treatise has been the work of many years, and has been more than once almost entirely re-written, it is still very far from doing justice to the subject, and may easily be made the object of adverse criticism. When, indeed, I contrast the design with the performance, I am painfully conscious of how much the latter falls short of the former; nor can I doubt that, with all the industry I have had it in my power to bestow, several Scottish decisions of importance may have escaped my notice, that numerous valuable dicta to be found in cases not having an ex facie bearing on partnership law have been overlooked, and that the text itself may be chargeable with misstatements of law. Such considerations strongly suggest the propriety of soliciting the indulgent consideration of the profession, when the result of my labours is now finally submitted to their scrutiny.
FRAS. W. CLARK.
EDINBURGH, 5 FORTH STREET,
the Companies Clauses Act, 1845,
Appointment of Directors,
Powers of Directors,
Proceedings of Directors,
V. Capital of Companies, and its Division into Shares,
Sec. 1. Shares in Partnerships,
Shares in Companies,
SEC. 2. Transfer of Shares,
Sec. 3. Retirement and Surrender of Shares,
SEC. 4. Expulsion of Members and Forfeiture of Shares,
Sec. 1. Mode of making Calls,
Sec. 2. Liability for Calls,