Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/39

 CHAP, in.] ANALYSIS OF A CORPORATION. [§24. to whom certain mutually related conditions of fact may be affirmed. 1 For instance, the rules of law which manifest them- selves in legal relations when a person has agreed to answer for the debt, default, or miscarriage of another, constitute, in their manifestation, the legal institution of suretyship. The facts that one person has made a promise to another, which some third per- son has promised the promisee that the original promisor shall (Inst, of Nat. Law, bk. 1, ch. 13, §9) or a relation ; and finally Rutherford gives the following lucid definition: " When two or more persons join money, or goods, or labor, or all of these together, and agree to give each other a common claim upon such joint stock, this [?] is partnership.' 1 On the other hand the term " sure- tyship" has but a single meaning, t. e., the legal relations arising upon an agreement to answer for the debt, default, or miscarriage of another. It never means the individuals be- tween whom these relations subsist. 1 The writer has looked in vain for a definition of this term. His de- finition is but an attempt to deter- mine a meaning in which he may use the term consistently. The mental process by which this definition was arrived at is somewhat as follows: A right is the power of an individual with the aid of the state to compel another to do or refrain from doing something, and a liability means the liability of being obliged, by the state acting at the instance of the indi- vidual possessing the right, to do or refrain; though the term liability usually denotes a positive duty to do, rather than a negative duty to re- frain. Every right implies a cor- responding liability, and, together with this liability, constitutes a legal relation between two or more per- sons. See, also, § 442. Rights and liabilities are called the creatures of law, but, in truth, they are rather manifestations of law than its creatures. Consider any ordinary rule of law: "The lessee shall pay the lessor the rent agreed on in the lease.' 1 This general proposition, as stated here, is not accurate, for there is no absolute command from the state to lessees to pay rent (as there is a command from the state to all men to refrain from murder). The correct legal proposition is this: " At the instance of the lessor, the state will compel the lessee to pay the rent," which means that lessors have the right to compel lessees to pay the rent. This, then, is the general rule. Now where certain conditions of fact may be affirmed of A., that is, when A. becomes the lessor of certain premises, and when certain related conditions of fact may be af- firmed of B., that is, when B. be- comes the lessee of those premises, a legal relation arises, to wit, a man- ifestation of law, i. e., a concrete in- stance of law in operation, which may be expressed in the following proposition: "A. has the right to compel B. to pay the rent as agreed on in the lease." But there are other legal relations between A. and B. in respect of the demised premises, which further legal relations are the manifestations of other rules of law, and the sum total of all these legal relations, existing in respect to some definite subject-matter, is what the writer intends by the term legal in- stitution as the manifestation of a group of legal rules in operation. See § 444. IS