PARTNERSHIP-continued. & G. 137). A partner is not entitled to interest on the capital which he brings in (Hill v. King, 1 N. R. (L.C.) 161), but he is entitled to interest on advances made in excess of his share of capital (Ex parte Chippendale, 4 De G. M. & G. 36), five per cent. being the customary rate. Ex parte Bignold, 22 Beav. 167. The true criterion of a partnership is, that each member of it stands in the relation of a principal to the other members, who in that regard are his agents (Cox v. Hickman, 8 H. C. 268); consequently a person may share profits without being a partner, as well by the Common Law, as under the Act 28 & 29 Vict. c 86, and may in that manner escape all liability for losses. On the other hand, a person who is not a partner may by holding himself out as one, become liable for losses, although not entitled to share in profits (Ex parte Watson, 19 Ves. 461); but merely continuing the name of a deceased partner in the style, does not charge the executor with liability on contracts made since the death of his testator by the surviving partners. Devaynes v. Noble (Houlton's Case), 1 Mer. 616. The liability of a partner extends to all acts of his co-partners reasonably within the scope of the partnership business, (Sandiland v. Marsh, 2 B. & Ald. 672) although beyond the agreed powers of the co-partners, (Hawken v. Bourne, 8 M. & W. 710); and such liability commences with the de facto commencement of the partnership, notwithstanding the partnership articles may not be signed till afterwards (Battley v. Lewis, 1 Man. & G. 155), but it does not commence sooner as to third parties, notwithstanding by special agreement it commences sooner as between the copartners (Vere v. Ashby, 10 B. & C. 288). However, no contract of one or more partners will bind the other or others if it be in a matter wholly unconnected with the partnership (Ex parte Agace, 2 Cox, 312); and no partner can bind the partnership by executing a deed (Harrison v. Jackson, 7 T. R. 207), unless he have been authorized by deed to execute it (Horsley v. Rush, 7 T. R. 209), or, unless the deed be one of release as distinguished from one of grant (Aspinall v. London and NorthWestern Ry. Co., 11 Hare, 325), the transaction being, of course, one within the scope of the partnership (Ex parte Bosanquet, 1 De G. 432). Also, ordinarily, one partner cannot bind the firm by a guarantee for collateral purposes (Brettel v. Williams, 4 Ex. 623), unless the other partners are proved to have sanctioned it (Sandilands v. Marsh, 2 B. & Ald. 672); also, one partner's part payment of the principal or PARTNERSHIP-continued. interest of a debt does not save the Statute of Limitations, as against the other partners, M. L. A. Act, 1856 (19 & 20 Vict. c. 97), s. 14, altering the former law (Whitcomb v. Whiting, Doug. 651); also, one partner cannot bind the firm by a submission to arbitration (Stead v. Salt, 10 Moo. 389). Neither can a partner in a non-mercantile firm ordinarily draw or accept bills or notes, or give a receipt for money so as to bind the firm (Harman v. Johnson, 2 El. & Bl. 61; Dickinson v. Valpy, 10 B. & C. 128); and a partner in a mercantile firm even cannot borrow money for the purpose of increasing the fixed capital of the firm. Fisher v. Tayler, 2 Hare, 218. And with reference to the duration of the liability of partners, the liability of a retiring or deceased partner ceases with the cessation of the partnership as to him, provided notice by circular letter and in the Gazette has been given (Kirwan v. Kirwan, 2 C. & M. 617; Newsome v. Coles, 2 Camp. 617), but only as to contracts subsequent to the date of his interest ceasing (Wood v. Braddick. 1 Taunt. 104; Pinder v. Wilks, 5 Taunt. 612); a dormant partner does not require to give such notice, excepting to the customers who knew his connection with the firm (Evans v. Drummond, 4 Esp. 89). And it is competent for the creditors (although not also for the continuing partners, unless with the consent of the creditors) to accept the liability of the continuing partner and to discharge the ceasing partner. Lyth v. Ault, 7 Ex. 669, overruling Lodge v. Dicas, 3 B. & Ald. 611. on Partnerships are usually carried under agreements in writing (whether under hand and seal or under hand only), but a mere parol agreement suffices, and may even be substituted at any time for the written one (England v. Curling, 8 Beav. 129); and where a partnership is continued after the term specified in the writing, it is a partnership at will upon the old footing, so far as applicable (Clark v. Leach, 1 De G. J. & S. 490); and the same is the case when a new partner is taken in without any fresh writing. Austen v. Boys, 24 Beav. 598. One partner cannot sue another at Law in respect of a partnership matter, and therefore can have no account there (Bovill v. Hammond, 6 B. & C. 1499), unless upon a special covenant for breach thereof (Brown v. Tapscott, 6 M. & W. 119), or for a balance of account upon an implied promise to pay (Wray v. Milestone, 5 M. & W. 21). But even at Law one partner may sue another for a matter dehors the partnership (French v. Styring, 2 C. B. (N.S.) 357), for example, for money ad PARTNERSHIP-continued. vanced or work done before the partnership, although towards the formation of the partnership (Venning v. Leckie, 13 East, 7). But in Equity the partner has the following remedies against his copartner: I. Specific performance,— (a.) Of contract for partnership for a term of years, when there have been acts of part performance (Scott v. Rayment, L. R. 7 Eq. 112); but not (b.) Of agreement for reference (Street v. Rigby, 6 Ves. 818. II. Injunction,— (a.) Against wilfully excluding a copartner's name from the style, contrary to agreement (Marshall v. Colman, 2 Jac. & W. 266); (b.) Against one partner engaging in another business, contrary to agreement (Somerville v. Mackay, 16 Ves. 382); (c.) Against wilfully excluding a copartner from the exercise of his rights as such (Dietrichsen v. Cabburn, 2 Ph. 59); (d.) Against a sudden dissolution working irreparable damage. 1 Lindl. Partnership, 232, 3rd ed. III. Decree for dissolution, including the taking of the accounts and the appointment of a receiver, with a view to the dissolution; (a.) Where the co-partnership originated in fraud (Rawlins v. Wickham, 1 Giff. 355); (b.) Where a co-partner is guilty of gross misconduct in partnership matters (Smith v. Jeyes, 4 Beav. 503); (c.) Where a co-partner is continually breaking the partnership agreement (Waters v. Taylor, 2 V. & B. 299); (d.) Where the incompatibility of tempers is extreme (Baxter v. West, 1 Dr. & Sm. 173); (e.) Where a co-partner whose personal skill was indispensable to the partnership becomes insane. Jones v. Noy, My. & K. 125. IV. Receiver.-towards dissolution. Hall v. Hall, 3 Mac. & G. 79. V. Accounts, without dissolution; (a.) Where a partner has been excluded; (b.) Where the partner complaining would be entitled to ask for a dissolution. Fairthorne v. Weston, 3 Hare, 387. VI. Discovery,-in aid of an action at law, and even of a compulsory PARTNERSHIP-continued. reference to arbitration (British E. I. Co. v. Somes, 5 W. R. 813). Moreover, the jurisdiction in Equity is, in general, much more available, and also more advantageous than that at Law, as will be seen from the following instances:(1.) Upon the decease of a co-partner the creditors can only proceed against the survivors, but in Equity they may proceed against the estate of the deceased (Vulliamy v. Noble, 3 Mer. 593); (2.) In the case of two firms having a (4.) The lands of a co-partnership are at Law liable only as lands, but in Equity they are liable as personal estate (Baring v. Noble, 2 Ry. & M. 495); and (5.) Generally, a co-partner cannot obtain either specific performance, an injunction, a decree for dissolution, the appointment of a receiver, or an order to account at Law, although he may (as above is mentioned) have all of these in Equity. A partnership depending for its commencement upon the consent of the partners, depends upon the same consent for its continuance; and therefore the dissolution of a partnership may be brought about by any sufficient dissent of the partners to its continuance, namely, in the following variety of ways: I. Dissolution by act of the partners themselves, (1.) Consent of all to dissolve (Hall v. Hall, 12 Beav. 414); (2.) Dissent of one, where partnership is at will (Master v. Kirton, 3 Ves. 74; Charany v. Van Sommer, 3 Wood. Lect. 416, n.); (3.) Efflux of term of co-partnership. Featherstonhaugh v. Fenwick, 17 Ves. 278. II. Dissolution by operation of law,(1.) By conviction of a partner for felony; (2.) By the marriage of a partner, being a female (Nerot v. Burnand, 4 Russ. 247); PARTNERSHIP-continued. (3.) By one partner's general assignment (Heath v. Sanson, 4 B. & Ad. 172); (4.) By execution creditor of a partner seizing his share or part thereof (Fox v. Hanbury, Cowp. 445); (5.) By bankruptcy of a partner (Crawshay v. Collins, 15 Ves. 218), the dissolution taking effect upon adjudication, but dating backwards to act of bankruptcy (Dutton v. Morrison, 17 Ves. 193); (6.) By hostilities between two countries of co-partners, where they are foreigners to each other (Griswold v. Waddington, 16 Johns. (Am.) 438); (7.) By death of a partner (Gillespie v. Hamilton, 3 Madd. 254); III. Dissolution by decree of Court of Equity, for the reasons enumer ated above. Immediately upon a dissolution being made, the power of the partners, either together or individually, to enter into any new engagements ceases (Ex parte Williams, 11 Ves. 5); nevertheless each partner may actively assist in the winding-up of the business, and therefore may give a valid receipt for any debt of the partnership received by him (Fox v. Hanbury, Cowp. 445), and may even compound debts provided the composition be fair and honourable (Beak v. Beak, Ca. t. Finch, 190). And in case of a dissolution by death or bankruptcy, the surviving or solvent partners cannot insist upon taking the partnership effects at a valuation (Cook v. Collingridge, Jac. 607), but all the property of the firm as well real as personal must be sold (Crawshay v. Maule, 1 Sw. 495), although at the sale the partners may bid (Chambers v. Howell, 11 Beav. 6), having first obtained the leave of the Court, where the sale is by direction of the Court. Rowland v. Evans, 30 Beav. 302. The creditors of the partnership, not being execution creditors, have no direct lien on the partnership effects, but Lave an indirect lien through the direct lien of the partners themselves thereon (Ex parte Ruffin, 6 Ves. 119); consequently the partnership (or, as they are called, joint) creditors have the first claim on the partnership (i.e., joint) property for the payment of their debts, the partners themselves having that right, in exoneration pro tem. or pro tanto of their respective private (i.e., separate) estates, and on the other hand the separate creditors of each partner have the first claim on the separate estate of that partner; then, if the partnership is solvent and the individual partners also solvent, PARTNERSHIP-continued. there is an end of the rights of creditors, their debts being paid. But if, on the one hand, the partnership is insolvent, the joint creditors may thereafter come down on the respective separate estates of the individual partners whether living or dead; and if, on the other hand, any one or more of the individual partners are insolvent, his or their respective separate creditors may thereafter come down upon the partnership estate to the extent of his or their respective shares therein; and it makes no difference whether the estate is administered out of Court or in Court, and if in Court whether in a Court of Equity or in a Court of Bankruptcy (Ridgway v. Clare, 19 Beav. 111). But although the order above described is the natural order of payment, yet any joint creditor may in the absence of a bankruptcy proceed in the first instance against the separate estate, and any separate creditor against the joint estate, occasioning a certain amount of disorder thereby, which disorder, however, is afterwards removed in the general settlement of the accounts (Wilkinson v. Henderson, 1 My. & K. 582), the principle of settlement being the principle of marshalling derived from the natural order of payment mentioned above, and the whole doctrine resting upon the principle of Equity, that every partnership debt is not only a joint but also a several debt (Burn v. Burn, 3 Ves. 573), unless it be the result of some arbitrary joint convention of the partners. Sumner v. Powell, 2 Mer. 30. By the Bankruptcy Act, 1869, s. 37, if any bankrupt is at the date of the order of adjudication liable in respect of distinct contracts as member of two or more distinct firms, or as a sole contractor and also as member of a firm, the circumstance that such firms are in whole or part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of such contracts against the properties respectively liable upon such contracts; and by the Rules in Bankruptcy made in pursuance of the Bankruptcy.Act, 1869, G. R. 76, any separate creditor of any bankrupt is at liberty to prove his debt under any adjudication of bankruptcy made against such bankrupt jointly with any other person or persons; and under every such adjudication distinct accounts are to be kept of the joint estate and also of the separate estate or estates of each bankrupt, and the separate estate is to be applied in the first place in the satisfaction of the debts of the separate creditors; and in case there is an overplus of the separate estate, such overplus is to be carried to the account of the joint estate. And in case PARTNERSHIP-continued. there is an overplus of the joint estate, such overplus is to be carried to the accounts of the separate estates of cach bankrupt in proportion to the right and interest of each bankrupt in the joint estate. So that the principles of the Common Law as evolved from the decisions have been followed simpliciter in the provisions of the Bankruptcy Act, 1869. But where a retiring partner, upon the dissolution of a partnership, assigns all his interest in the partnership property to the remaining partner, and the assignment is bona fide, that assignment converts the joint property of the partnership into the separate property of the remaining partner, so as that so much of the then partnership property as remains in specie upon the subsequent bankruptcy of the surviving partner vests in the trustee in bankruptcy of the latter as his separate estate, and is liable accordingly (Ex parte Ruffin, 6 Ves. 119). But the assignment must be complete (Ex parte Williams, 11 Ves. 3), for if anything remains still to be done to render it complete, the conversion of joint into separate property does not take effect (Ex parte Wheeler, Buck. 25); moreover, the property must not be suffered to remain in the order and disposition of the old partnership (Ex parte Burton, 1 Glyn & J. 207). The effect of the conversion is of course to give the separate creditors a prior claim upon the property (Ex parte Freeman, Buck. 473); it does not deprive the joint creditors of their right to be paid somehow (Ex parte Peake, 1 Madd. 358). Moreover, the assignment requiring to be bonâ fulde, the insolvency of the partners, either collectively or individually, at the date of the assignment would render it fraudulent (Ex parte Mayen, In re Edwards, Woods. & Greenwood, 34 L. J. (Bkey.) 25), unless the bona fides of it is otherwise proved. Ex parte Peake, In re Lightoller, 1 Madd. 316. PARTY AND PARTY, BETWEEN. This phrase signifies between the contending parties in an action, i.e., the plaintiff and defendant, as distinguished from the attorney and his client. These phrases are commonly used in connection with the subject of costs; and in order to give a precise idea of their scope and meaning, it will be necessary to consider briefly the nature of costs. Such of these charges and expenses as are necessarily incurred in the prosecuting and defending the action, and which arise as it were out of the proceedings themselves, are denominated costs in the cause, the payment of which usually devolves upon the defeated or unsuccessful party. In addition to these, there are others which, though not arising directly PARTY AND PARTY, BETWEEN-cont. out of the proceedings themselves, are usually paid by cach party to his own attorney, whatever may have been the result of the cause, and these are commonly called costs as between attorney and client, as distinguished from the costs in the cause, or, as the latter are sometimes called, costs as between party and party. The scale upon which costs as between solicitor and client are calculated is more liberal than that upon which costs as between party and party are calculated; and the Court in a proper case will direct all the costs of a proceeding to be paid out of the estate as between solicitor and client, but more often the direction for payment is as between party and party only. See Morgan and Davey on Costs. PARTY-WALL. Is a partition wall; i.e., a wall dividing two messuages. Puculiar provisions exist under statute regarding party walls within the metropolis. See title METROPOLITAN BUILDINGS and statutes there cited. PASS, TO. To go, to be transferred, to be conveyed, e.g., by a conveyance of a house do the fixtures pass? i.e., do they go, or are they conveyed as part and parcel of the house? Again, does the fee pass under the word "estate?" i.e., does the fee simple in land become transferred or pass away under the term "estate?" PASSING ACCOUNTS. When an auditor appointed to examine into any accounts certifies to their correctness, he is said to "pass" them; i.e., they pass through the examination without being detained or sent back for inaccuracy or imperfection. PASSING RECORD. When the proceedings are entered upon the nisi prius record, it used to be taken to the master's office and there examined by the proper officer, who then signed it; and the record was then said to be "passed." But by the C. L. P. Act, 1852, s. 102, the record of nisi prius shall not be sealed or passed, but may be delivered to the proper officer of the Court in which the cause is to be tried, to be by him entered as at present and remain until disposed of. See title ENTRY FOR TRIAL. PATENT AMBIGUITY. This is an ambiguity which arises upon the words of the will, deed, or other instrument, as looked at in themselves, and before they are attempted to be applied to the object or to the subject which they describe. The term is opposed to the phrase Latent Ambiguity (which title see). The rule of law is, that extrinsic or parol evidence, PATENT AMBIGUITY-continued. although admissible in all cases to remove a latent ambiguity, is admissible in no case to remove a patent one. See title EXTRINSIC EVIDENCE. PATENTS. In consequence of the abuse of the prerogative in granting monopolies (see that title), the statute 21 Jac. 1, c. 3, was passed, which, after declaring that the letters patent theretofore granted were contrary to the laws of this realm, and therefore utterly void and of none effect, went on to provide and enact that any declaration in the Act before mentioned should not extend to any letters patent for the term of one and twenty years or under theretofore made, or thereafter to be made, of the sole working or making of any manner of new manufacture within this realm to the first and true inventor or inventors of such manufactures, which others at the time of the granting of such letters patent did not use, so they be not contrary to the law nor mischievous to the state by raising of the prices of commodities at home, or hurt of trade, or generally inconvenient. Upon this statute the whole patent law is to the present day substantially founded; but it is competent upon petition to the Crown to obtain an extension of this patent right after the expitation of the fourteen years allowed by the statute of James for such further period as the Privy Council shall think is fit or proper for the due remuneration of the inventor. This extension is permitted under the statutes 5 & 6 Will. 4, c. 83, and the Patent Law Amendment Act, 1852 (15 & 16 Vict. c. 83). See also titles NOTICE OF OBJECTIONS; and SPECIFICATION. PATRON (patronus). He who has the right, title, power, or privilege of presenting to an ecclesiastical benefice. See title ADVOWSON. PAUPERIS FORMA: See title FORMA PAUPERIS. PAWNBROKERS. Are a species of paid bailees, and their liabilities in respect of negligence are determined accordingly (see title NEGLIGENCE). If left to the Common Law, the rights of pawnbrokers would be the rights of ordinary pawnees or pledges (see title PLEDGE); but owing to certain abuses to which the trade of pawnbroking is exposed, the Legislature has thought fit to control it by statutory provision. The Acts upon the subject in force until recently were the 39 & 40 Geo. 3, c. 93, and 23 & 24 Vict. c. 21; but both these statutes, together with many minor ones, have been repealed, and the whole law of pawnbrokers consolidated PAWNBROKERS-continued. and amended by the Pawnbrokers Act, 1872 (35 & 36 Viet. c. 93). That Act divides loans into two classes :— (1.) Loans above 10s. and not above 40s., on which class of loans a charge of one penny is allowed for the ticket, and one halfpenny per two shillings per calendar month by way of profit, all fractions of two shillings or calendar months (unless under a fortnight) being chargeable at the same rate; and (2.) Loans above 40s. and not above £10, on which class of loans a charge of one penny is allowed for the ticket, and one halfpenny per half-crown per calendar month by way of profit, all fractions of half-crowns or calendar months being chargeable at the same rate. The statute (s. 16) directs that every pledge shall be redeemable within twelve months from the day of pawning, exclusive of that day, with seven days of grace. And by s. 17, a pledge pawned for 108. or under, if not redeemed within that time becomes the absolute property of the pawnbroker; but by s. 18, a pledge for above 108. continues redeemable beyond that time until the actual sale thereof. The sale shall be only by public auction (s. 19), and the pawnbroker is to account for the surplus (if any), allowing for costs of sale and any set-off. The Act does not prohibit special contracts between the pawnbroker and his customer (s. 24). Upon production of the ticket and payment of all sums owing on the pledge within the period for redemption, the pawnbroker is bound to deliver up the same; and by s. 27, he is made liable for all damage or destruction occasioned by fire. Section 29 makes provisions for cases in which the ticket has been lost. By the Common Law (Morley v. Attenborough, 3 Ex. 500), a pawnbroker could not retain goods illegally pawned, e.g., stolen goods, nor could the purchaser from him retain same, as against the true owner; but under s. 30 of the Act of 1872, upon conviction of the thief, the Court may (in its discretion) either allow the pawnbroker to retain the goods as a security for the money advanced or order the restitution thereof to the true owner. |