company must fundamentally determine how and by whom its affairs shall be conducted.1 In other respects joint-stock companies imitate corporations, both as to their organization and the methods of conducting their business. They have a common name (though not, apparently, a common seal), and by-laws of their own; and they issue certificates, or scrip, which are to be transferred and registered like certificates of stock. In short, the "English companies acts" are very much like our general statutes relative to corporations; and even where the two systems differ, it is rather because local legislation provides for the one what it has failed to provide for the other. It is probable that in England, under the statutes which regulate this subject, a partner in a joint company which had adopted certain rules would not be liable to third persons acquainted with those rules beyond the limits so defined. But in this country joint-stock companies must assimilate more closely to the ordinary partnership; and such companies cannot ordinarily be supposed capable of taking to themselves the privileges of a diminished personal liability, any more than those who associate together for the purposes of a general partnership. It is the law-making power which must grant immunities of the kind. This we assert as founded upon reason and principle, even if precedents are wanting.4

§ 203. Joint-Stock Company and Partnership compared as to Dissolution. There is, however, one decided advantage

11 Lind. Partn. 556 et seq. See Dow v. Moore, 47 N. H. 419; 118 Penn. St. 355; 48 Ohio St. 513.

2 See ib.; Pars. Partn. § 432; Regina v. Registrar, 10 Q. B. 839; Wordsw. Joint-Stock Companies, c. 1; Lethbridge v. Adams, L. R. 13 Eq. 547.

8 Blundell v. Winsor, 8 Sim. 601; Walburn v. Ingilby, 1 Myl. & K. 51.

4 See Hess v. Werts, 4 S. & R. 366; Bright. Fed. Dig. Joint-Stock Company; Pars. Partn. § 432 et seq.

Where joint-stock associates fail to become properly and legally con

stituted as a company from some informality or the want of legislative sanction, they constitute general partnerships. See Pars. Partn. § 431; Whipple v. Parker, 29 Mich. 370; Manning v. Gasharie, 27 Ind. 399; National Bank v. Landon, 45 N. Y. 419; Taft v. Ward, 106 Mass. 518; Logan v. McNaugher, 88 Penn. St. 103. See 111 Mass. 45, 518. But as to an organized corporation, while merely in its inchoate state, cf. 119 Mass. 476. A joint-stock company has been held legal at common law. Phillips v. Blatchford, 137 Mass. 510.

which a joint-stock company may be said to have over an ordinary partnership. It is not so readily dissolved at the choice or by the death of a member. For, as it was observed in a recent case: "A joint-stock company is not an agreement between a great many persons that they will be copartners, but is an agreement between the owners of shares, or the owners of stock, that they or their duly recognized assigns, the owners of the shares for the time being, whoever they may be, shall be and continue an association together, sharing profits and bearing losses."1 Hence it is that the stock is transmissible and transferable; and even when a shareholder dies, the presumption is that his executors, in their representative capacity, succeed to his full liability as well as his rights.2 Thus the partnership, if such it be, goes on without the strict choice of personal association which prevails in a partnership proper.

§ 204. Joint-Stock Company compared with Corporation; American Decision. · To courts of this country, accustomed to deal with partners and corporations simply, the jointstock company must present itself as a somewhat anomalous. institution. And in the highest tribunal of this land, as lately as 1871, where the question for decision was, whether "an insurance company, incorporated or associated under the laws of any government or State other than one of the United States," could be made to pay a tax, under a Massachusetts statute, for the privilege of conducting its corporate business within the State, the characteristics of an English joint-stock company under its "deed of settlement" or "articles of association" received considerable attention. The tax was held to be lawful; and this, as the court viewed the statute, because the insurance company was, under the laws and policy of the United States, no more and no less than a corporation.3 1 Baird's Case, L. R. 5 Ch. 725, 734.

2 Ib. See Pars. Partn. § 435, and cases cited. But Mr. Parsons points out several particulars in which the transfer of shares would subject the parties concerned to the law of ordinary partnership.

3 It was a corporation, because it had (1st) a distinctive artificial name by which it could make contracts; (2d) a statutory authority to sue and be sued in the name of its officers as representing the association, though not in the artificial name; (3d) a statutory recognition of the

In truth a joint-stock company may readily resemble a corporation in one phase, and a partnership in another; and partaking more or less, as may happen, of the incidents of either of those two distinct relations, American law refuses to recognize it as a separate and independent relation.

§ 205. Part-Ownership in Ships or Vessels; Its Nature. III. Before passing to the subject of corporations, we may properly notice the peculiar manner in which a ship or vessel is owned. A chattel so costly, exposed to so many risks, and requiring such expensive repairs, necessarily requires two or more persons, in most instances, to join in its purchase; and those who own a ship together hold it neither as joint or common owners, nor as partners, but as part-owners, a species of relation peculiar to the property. And the rights and duties of part-owners, whether among themselves or as to third persons, are to be determined by the law of shipping, which is founded on commercial usage, and may be considered older, when viewed from our standpoint, than the law of partnership itself. Such persons are, in general, found to be tenants in common as to the ship, but copartners concerning the maritime enterprise in which the ship engages. Let us consider, then, the nature of this interest of

association as an entity distinct from its members, by allowing it to sue the shareholders and be sued by them; (4th) a provision for perpetual succession by transfers of its shares, so that new members are introduced in place of those who die or sell out. Nor did the court deem that the association was any the less a corporation because its members were liable individually for the debts of the company; since the principle of personal liability is applied by express statute to no small proportion of the corporations of this country. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, per Miller, J. Mr. Justice Bradley dissented from these views.

In California there is a species of qualified partnership, known as а

mining partnership, and recognized in numerous instances where persons associate for the purpose of working a mine together and dividing, but not for trading together on its products. Combinations of this character unite some of the incidents of ordinary partnerships with those of tenancies in common. Settembre v. Putnam, 30 Cal. 490. Such partnerships, where there are no partnership articles, are subject to the ordinary law. of partnership, except for differences sanctioned by local usage; the only general difference being that in such partnerships there is no delectus persona. 42 Cal. 180, 367. And see Quinn v. Quinn, 81 Cal. 314; Bissell v. Foss, 114 U. S. 252; 102 U. S. 641 ; 129 U. S. 512.

1 See supra, c. 8; Abb. Shipping,

part-owners, first with relation to one another, and second with relation to third persons.

§ 206. Part-Owners, with Relation to one another; General Principle of Ownership. First, as to part-owners of ships with relation to one another. We have seen that mere tenants in common of chattels exercise little control over the common property, and fail to possess certain powers and rights essential to the conduct of business with it as capital; that owners in severalty must form a partnership, if they wish to go into active business with their respective means. Now, as to ships, "which are built to plough the sea, and not to lie by the walls," commercial nations find that it is beneficial to government no less than the individual to keep them in active employment; and hence they long since contrived a system which should meet the case. As to the vessel, therefore, the owners are tenants in common, each having a distinct though an undivided interest; and thus do they stand towards one another. The different part-owners may have acquired their respective interests in different ways: they may have built it together at their common expense, or they may have purchased it together; or one or more of the part-owners may have purchased his share from a former whole or part owner. But however acquired, the parties, in the absence of positive stipulations to the contrary, hold the property as " part-owners;" in the present aspect, like tenants in common, and not, of course, as joint-tenants.1 And if property is given to two or more as owners of a ship, it belongs to them as tenants in common, and not as partners; nor would the principle of survivorship apply.2

But while part-owners are not necessarily partners, it is well established that they may be partners; that is to say, that persons united in a general partnership may own a ship, or some interest in a ship, as part of the partnership prop

Perk. ed. 98; Pars. Partn. 3d ed. c. 19; Bright. Fed. Dig. 782.

1 Ib.; Story Partn. § 417; 3 Kent Com. 151; Mitchell v. Chambers, 43 Mich. 150; Mumford v. Nicoll, 20 Johns. 611; Merrill v. Bartlett, 6

Pick. 46. The cases are quite nu

merous.

2 Thorndike v. De Wolf, 6 Pick. 120; Harding v. Foxcroft, 6 Greenl. 78.

erty. And, more than this, part-owners of a ship, who own nothing else in common, may agree to become partners of that ship.2 Whether a person is to be considered a partner or a part-owner must depend upon the special circumstances of each case; but the usual relation of those owning ships and vessels is that of part-owners, and not partners; and such is the strong presumption whenever a controversy arises, since the partnership relation applied to such property would present some decided disadvantages with scarcely a mutual advantage to balance them.3

The ownership of a vessel may be proved in the same manner as that of any other chattel, in the absence of controlling statutes to the contrary. But registry laws are an important feature of our commercial system; and the names and respective shares of part-owners ought, under our latest statutes, to appear inserted in the register. Where this is not done, and no distinct shares are otherwise clearly shown, the parties would be presumed, as in the case of a partnership, to be equal owners of the property.4

When those interested in a ship or vessel are part-owners, holding the property after the manner of tenants or owners in common, their rights and duties correspond to the nature of their interest. Thus, if one dies, his share goes to his representatives, and not to the surviving part-owners, as would have been the case in a joint-tenancy.5

1 Abb. Shipping, Perk. ed. 98; Mumford v. Nicoll, 20 Johns. 611; Patterson v. Chalmers, 7 B. Monr. 497. See Merritt v. Walsh, 32 N. Y. 685.

2 Ib.; Harding v. Foxcroft, 6 Greenl. 77; Thorndike v. De Wolf, 6 Pick. 120.

3 Holderness v. Shackels, 8 B. & C. 612; 3 Kent Com. 154.

4 Bright. Fed. Dig. 780; Pars. Partn. 552; 9 U. S. Stats. at Large, 441; Alexander v. Dowie, 1 H. & N. 152; Abb. Shipping, 97, 98; 1 Pars. Shipping (1869), 90. See Moore v. Simonds, 100 U. S. Supr. 145; 5 Saw

yer C. C. 83; Bowen v. Warren, 71 Me. 470.

See U. S. Revised Statutes, §§ 4192, 4193, invalidating bills of sale, mortgages, &c., of United States vessels, unless recorded, construed in Moore v. Simonds, 100 U. S. Supr. 145, not to make an unrecorded mortgage invalid as against the parties, and such as have actual notice thereof. And see chapter post, as to Ships and Vessels; 5 Sawyer C. C. 83.

5 See Abb. Shipping, 97, 100, Perkins's n.; Pars. Shipping, 90; Rex v. Collector, 2 M. & S. 223; Bulkley v. Barber, 6 Ex. 164.