Partnership. Qualification of rule. duced for the benefit of the party to whom such notice must be given, it may, in accordance with the above maxim, be waived by that party (m). But though a party may thus waive the consequences of laches in respect of himself, he cannot do so in respect of antecedent parties; for, as to them, the principle of the rule is clearly inapplicable (n). Again, persons sharing in the profits of an adventure may, by express agreement, exclude the relation of partnership from arising as between themselves, though they cannot thereby affect the rights of third persons; for the rights of partners inter se have been created by the law for their own. convenience, and may, therefore, by express stipulation, be renounced (o). Thus, it is a rule, that all property, of what nature soever, bought with the cash, and for the purposes of a trading partnership concern, must, in equity, be looked upon as personal; and that, as there can be no survivorship in it, a partner's share will, on his death, pass to his personal representatives, for whose benefit the surviving partners or their trustees will hold it; but partners may stipulate between themselves, that freehold lands purchased by them shall not be subject to the application of this equitable doctrine, but shall follow the ordinary rules respecting property of that description; and, in such a case, the rule of equity yields to the ordinary course of law, coupled with the express intention of the parties (p). It will be observed from some of the preceding instances, that the rule which enables a man to renounce a right which he might have otherwise enforced, must be applied with this qualification, that, in general, a private compact or agreement cannot be permitted to derogate from the rights of (m) 1 Selw. N. P., 10th ed., 358. See Burgh v. Legge, 5 M. & W. 418. (n) Byles on Bills of Exchange, 4th ed., 229. (0) 1 Smith, L. C. 506; Waugh v. Carver, 2 H. Bla. 235. (p) Smith, M. L., 3rd ed., 150, 151, and the cases there cited. third parties (q). One case may, however, be mentioned to which the rule applies, without the qualification, that, viz., of a release by one of several joint creditors, which, in the absence of fraud and collusion, will operate as a release of the claims of the other creditors, and may be pleaded accordingly. On the other hand, the debtee's discharge of one joint or joint and several debtor is a discharge of all (r). QUI SENTIT COMMODUM SENTIRE DEBET ET ONUS. (2 Inst. 489). He who derives the advantage ought to sustain the burden. running with the land. The above rule applies in every case where an implied Covenant covenant runs with the land, and whenever the present owner or occupier of land is bound by the express covenant of a prior occupant; whenever, in fact, the ancient maxim, transit terra cum onere, holds true (s). Thus, the burden of repairs has been always thrown as much as possible, by the spirit of the common law, upon the occupier or tenant, not only on the principle contained in the above maxim, but also because it would be contrary to all justice, that the expense of accumulated dilapidation should, at the end of the period of tenancy, fall upon the landlord, when a small outlay of money on the part of the tenant in the first instance would have prevented any such expense becoming necessary; to which may be added, that, generally, the tenant alone has the opportunity of observing from time (g) 7 Rep. 23; ante, p. 308. (r) Nicholson v. Revill, 4 A. & E. 675, 683, recognising Cheetham v. Ward, 1 B. & P. 630; Co. Litt. 232. a.: Clayton v. Kynaston, 2 Salk. 573; 2 Roll. Abr. 410, D. 1; 412, G., pl. 4. See Craib v. D'Aeth, 7 T. R. 670, n. (b); Bain v. Cooper, 9 M. & W. 701. (s) Co. Litt. 231. a. See per Holroyd, J., Burnett v. Lynch, 5 B. & C. 607, cited and explained 7 M. & W. 530; per Best, J., 3 B. & Ald. 587. to time when repairs become necessary (t). In one of the leading cases on this subject the facts were, that a man demised a house by indenture for years, and the lessee, for him and his executors, covenanted with the lessor to repair the house at all times necessary; the lessee afterwards assigned it over to another party, who suffered it to decay: it was adjudged that covenant lay at suit of the lessor against the assignee, although the lessee had not covenanted for him and his assigns; for the covenant to repair, which extends to the support of the thing demised, is quodammodo appurtenant to it, and goes with it; and, inasmuch as the lessee had taken upon himself to bear the charges of the reparations, the yearly rent was the less, which was to the benefit of the assignee, and qui sentit commodum sentire debet et onus (u). The following case will also serve to illustrate the same principle-A company was empowered under a local act to make the river Medway navigable, to take tolls, and "to amend or alter such bridges or highways as might hinder the passage or navigation, leaving them, or others, as convenient, in their room." The company, in prosecuting the work, destroyed a ford across the river, in the common highway, by deepening its bed, and built a bridge over the river at the same place. It was held, on an indictment brought against the company, forty years afterwards, that they were bound to keep the bridge in repair, as under a continuing condition to preserve a new passage in lieu of the old one, which they had destroyed for their own benefit (x). So, the undertakers of the Aire and Calder Navigation, who were empowered by act of Parliament to make certain drains in lieu of those previously existing, were held (t) Woodf. L. and T., 5th ed, 411. (u) Dean and Chapter of Windsor's case, 5 Rep. 25, cited per Tindal, C. J., Tremeere v. Morison, 1 B. N. C. 98. (x) Rex v. Inhabitants of Kent, 13 East, 220. bound to cleanse the drains substituted by them in pursuance of the act, the power to make such substitution having been conferred on them for their own benefit (y). In both the preceding cases, as well as in others of a like character, the maxim under consideration applies (z). transactions. On the same principle depends the general rule respect- Mercantile ing the constitution of a partnership with regard to third persons; viz. that an agreement to share, in equal or unequal proportions, the profits of a concern, decisively fixes the joint responsibility of all the participators as partners, though some were not known to be such at the time by persons dealing with the firm; for he who enjoys a part of the profits ought to be liable, as he lessens that fund on which the creditor relied for payment (a). So, a further important illustration of the rule occurs, where a party adopts a contract which was entered into without his authority, in which case he must adopt it altogether. He cannot ratify that part which is beneficial to himself, and reject the remainder; he must take the benefit to be derived from the transaction cum onere (b). And where the real principal, who was undisclosed at the time of contracting, subsequently interferes and sues upon the contract, justice requires, that, if the defendant has credited and acquired a set-off against the agent before the principal interposed, the latter should be bound by the set-off, in the same way that the agent would have been had he been the plaintiff on the record (c); and that the defendant should be placed in the same situation at the time of the disclosure of the real principal, (y) Priestley v. Foulds, 2 Scott, N. R., 205. (z) Per Tindal, C. J., 2 Scott, N. R., 225. (a) Chit. Contr., 3rd ed., 240; per Eyre, C. J., Waugh v. Carver, 2 H. Bla. 246, 247. (b) Smith's Mercantile Law, 3rd (c) George v. Clagett, 7 T. R. 359; Other in stances. the agent had been in truth the principal (d). This right of set-off, however, could not be maintained, if the purchaser had either express notice, or the means of knowing that the vendor was a mere agent in effecting the sale before the completion of the contract (e). The preceding instances have been selected from the law of contracts, but the rule in question applies very generally in ' other cases. An innkeeper, for instance, was requested by his guest to allow him the use of a private room for the purpose of shewing his goods in; and to this request the innkeeper acceded, at the same time telling the guest that there was a key, and that he might lock the door, which, however, the guest neglected to do: it was held, that the jury were justified in determining that plaintiff received the favour cum onere, that is, that he accepted the chamber to shew his goods in upon condition of taking the goods under his own care (f). The above maxim may also be applied (g) in support and explanation of that principle of the law of estoppel, in accordance with which the record of a verdict, followed by a judgment in a suit inter partes, will estop, not only the original parties, but likewise those claiming under them. A man will be bound by that which would have bound those under whom he claims quoad the subject-matter of the claim; for, qui sentit commodum sentire debet et onus; and no man can, except in certain cases, which are regulated by the statute law and the law merchant, transfer to another a (d) Judgment in Sims v. Bond, 5 B. & Ad. 393; and in Bonzi v. Stewart, 5 Scott, N. R., 1. See Bastable v. Poole, 1 C., M. & R. 410, 413. (e) Moore v. Clementson, 2 Camp. 22; Maans v. Henderson, 1 East, 335; Estcott v. Milward, cited, 7 T. R. 361; Warner v. M'Kay, 1 M. & W. (g) 2 Smith, L. C. 440, 441. |