In a suit for partition, it appeared that the estate was vested, as to one moiety, in A. in fee. and, as to the other moiety, in B. in fee, in trust for infants. Held, that a conveyance from B. and the decree of the court would give A. a good title to the tenements allotted to him; and, therefore, that it was not necessary to order the infants to convey when they came of age. Cole v. Sewell, 17 Sim. 40.

In a partition suit to which minors are parties, they may be declared trustees of the portions not allotted to them, and their proportion of the costs declared a charge upon the estate of the minors in the land. St. Leger v. Ferguson, 10 Ir. Ch. R. 488.

Where infants are parties to a suit for a partition, the form of the decree since the statute 13 & 14 Vict. c. 60, is to declare that, after partition, the infant is a trustee of the parts allotted in severalty to the other parties. Bowra v. Wright or Whight, 4 De G. & Sm. 265; 20 L. J.,

Ch. 216; 15 Jur. 981.

Lunatics.]-Where a decree had been made by a vice-chancellor for a partition of lands of which a lunatic was entitled to an undivided share as tenant in tail in possession, the court, on the committee appearing and expressing his opinion that the partition would be for the benefit of the lunatic, made an order, intituled in the Trustee Act, 1850, the Lunacy Regulation Act, 16 & 17 Vict. c. 70, the matter of the lunacy, and the suit in which the decree had been made, directing the partition to be carried out, and a conveyance to be executed by the committee. Singleton v. Hopkins, Blomar or Bloomar, In re, 2 De G. & J. 88: 27 L. J., Ch. 173 4 Jur. (N.S.) 546; 6 W. R. 178.

Where, in a suit for partition of lands to which a lunatic was entitled to an undivided share, a

partition had been made, and the lunatic had been declared a trustee within the Trustee Act, 1850-Held, on a petition by the owner of the other undivided moiety, that the court had jurisdiction to carry out the petition by a vesting order under the Trustee Act, 1850, notwithstanding the doubt attributed to the court in Bloomar, In re (supra). Molyneux, In re, 4 De G. F. & J. 465; 10 W. R. 512.

A decree having been made for partition of lands, an undivided share in which was vested in a lunatic as tenant in tail, an order was made in lunacy and in chancery, directing the committee to execute all necessary assurances for giving effect to the partition. Sherard, In re, Lowther v. Cuffe, 1 De G. J. & S. 421.

It is irregular for a bill to be filed by a person of unsound mind not so found by inquisition, by his next friend, for the purpose of dealing with the real estate of the person of unsound mind. Halfhide v. Robinson, 43 L. J., Ch. 398; L. R. 9 Ch. 373; 30 L. T. 216; 22 W. R. 448. But see Porter v. Porter, supra, col. 331.

A bill was filed by a person of unsound mind not so found, by his next friend, for a partition or sale of real estate, and a decree for sale was made. A petition was afterwards presented under the Trustee Act, 1852, for an order vesting the estate of the plaintiff in the purchaser. The court refused to make the order, considering that the suit was irregular, but as the plaintiff's share was only 2007., and she had no other property,

The court, under its lunacy jurisdiction, has power to bar the estate tail of a lunatic tenant in tail; but it is the duty of the court so to exercise it as not to affect the rights of the persons entitled in remainder to the estate. Where a lunatic was tenant in tail of an undivided share of an estate, and an action was brought for the partition of the estate, the court, under s. 6 of the Partition Act, 1868, authorised the committee of the lunatic to request a sale and to join in conveying the estate to the purchaser, but directed that the proceeds of the sale should be subject to the same uses as the lunatic's estate was subject to before the sale. Pares, In re, Lillingston v. Pares, 12 Ch. D. 333; 41 L. T. 574; 28 W. R. 193.

8. CUSTODY OF DEEDS.

There is no general rule as to which of the coPartition Deed directed to be Enrolled.]parceners is entitled to the custody of a partition deed. The custody was given to three of the co-parceners to whom one-fourth of the estate had been allotted, upon their entering into joint and several covenants for production, and with a direction that the deed should be enrolled

chancery. Bayly v. Elton, 27 Beav. 632; 6 Jur. (N.S.) 136.

Where the parties are equally interested, the practice is to give the custody of the deeds to the plaintiff; but where they are not, then they are usually given to the person having the greatest interest. Ib.

Many persons being interested in a partition deed, it was directed to be enrolled, with liberty to any party to have a duplicate at his own expense. Ib.

Form of Decree.]-The plaintiff in a partition suit was entitled to six-sevenths of the estate, and had the title deeds :-Held, that the proper form of decree as to the documents of title was for the delivery to the defendant of such of them as related exclusively to the land which should be allotted to him, and for the retainer by the plaintiff of the rest, he undertaking to abide by any order which the court might make as to the same, with liberty for either party to apply. Jones v. Robinson, 3 De G. M. & G. 910.

9. COSTS.

a. Previous to the Partition Acts.

General Rule.]-The general rule as to costs of partition seems to be, that as the party comes into equity for his own convenience instead of going to law, the rule of law should be adopted, and, therefore, no costs should be given until the commission; that the costs of issuing, executing, and confirming the commission should be borne by the parties in proportion to the value of their respective interests; and there should be no costs of subsequent proceeding. Agar v. Fairfax, 17 Ves. 533, 558.

If a bill be brought in equity for a partition, there can be no costs given on either side, because it is an amicable suit. Anon., 6 Vin. Abr. 332, pl. 31; it being for the benefit of both parties to have their shares in severalty. Metcalfe v. Beckwith, 2 P. Wms. 377.

On a bill to settle the boundaries of a manor, it was decreed that each party should give to the other a note of their boundaries, and that it should be tried in a feigned issue; and, the issue being found for the defendant on the first, second, and third trials, the defendant was not only allowed the costs of all the trials at law but also the costs in equity, in regard the defendant had no bill, and the plaintiff might have tried it at law without coming into equity: on a bill of partition no costs on either side, because it is for the benefit of both parties. Ib.

In Nevis v. Lerene (Amb. 237), it is said that partition was to be at the expense of both parties; but Mr. Beames (Costs, 48, n.) suggests that this may be the same case with Norris v. Le Nere, 3 Atk. 82, and that, though stated by Amb. as a case of partition, it was a case respecting settling boundaries.

Though the interest of one party is more inconsiderable than that of the other, yet they shall equally bear the expense of a commission for settling boundaries, and separating freehold from copyhold. Norris v. Le Nere, 3 Atk. 83.

Costs of Executing Commission.]-On a bill for partition, the costs of executing the commission, and of all necessary proceedings in the cause, must be defrayed by the parties in proportion to their interests. Calmady v. Calmady, 2 Ves. 568; S. P. Elton v. Elton, 27 Beav.

632.

Tenant.]-The question was as to the costs of one of the parties, and it was held that they must be paid by his landlord, who was the occasion of his being brought before the court. Cornish v. Gest, 2 Cox, 27.

It is perfectly settled that each party pays his own costs on a bill of partition, and that without reference to the quantity of interest that each has in the estate. Ib.

One tenant in common leased his undivided share subject to partition being made. The lessee was made a party to a bill for partition :Held, he was not entitled to his costs, as against his lessor. Cornish v. Gest (2 Cox 27) observed on. Herbert v. Eyre, 2 Jones, 803.

Parties Entitled Unequally.] In cases of partition where the parties are entitle l unequally, if the plaintiff be entitled to the smaller share, the costs shall be borne equally. Sed quære if the plaintiff be entitled to the larger share. Hyde v. Hindley, 2 Cox, 408.

The master of the rolls said, that if a party entitled to forty-nine fiftieths of an estate were to bring the party entitled to the other fiftieth into court for a partition, he should hesitate much before he made such a defendant pay half

the costs.

Ib.

Costs at Law.]-In a partition suit costs at law are not given on either side at the hearing; but where a defendant set up an agreement in bar of the right of the plaintiff to a partition, he was directed to pay so much of the costs as were occasioned by that part of the defence. Morris v. Timmins, 1 Beav. 411.

Costs up to Commission.]—In a partition suit, the parties must contribute to the costs of enrolling the first decree, though it be a proceeling before the issuing of a commission. Brunker v. Stein, 1 Hay & J. 410.

In partition suits in future, all parties are to abide their own costs until the issuing of the commission; but the costs of issuing and executing same, and of the final hearing and decree, are to be borne by the parties in proportion to their respective interests. Bride v. Malcomson, 2 Dr. & Wal. 700.

In partition suits the costs up to and including the costs of the first hearing are borne by the parties to the suit respectively, and the costs of all parties properly and necessarily incurred after the first hearing and up to and including the second hearing, should be taxed, and the total amount of such costs should be borne ratably by the parties, according to their respective interests. Leslie v. Dungannon (Lord), 12 Ir. Ch. R. 205.

The rule of the court of chancery in regard to costs in suits of partition adopted by the exchequer. 4 Y. & C. 134.

Held, the habit of court is not to give costs to hearing; and to divide expense of conveyance, and partition in proportion to interests. Baring v. Nash, 1 V. & B. 554.

Tenant for Life and Tenant in Tail.]-A moiety of an estate was devised, subject to legacies, to A. for life, remainder to his first and other sons in tail:-Held, that the tenant for life, tenant in tail, and legatees were to bear their own costs of a partition suit, and that the tenant for life had no equity to call on the tenant in tail to contribute to the costs of the suit. Greer v. Mercer, Ir. R. 4 Eq. 705.

Purchaser of Undivided Moiety.]-Where, a bill being filed for a partition, a purchaser of an undivided moiety of the defendant is made a party by amendment, he is entitled to have his costs paid by the plaintiff. Williams v. Williams, 10 W. R. 609.

Some Parties Entitled under Disability.]Where an order has been made in a suit for

partition, and the costs of the suit are to be paid, some of the parties entitled being under disability, the court will order an inquiry whether it is for their benefit that the estate, or any and what part of it, should be sold before partition. Capewell v. Lawrence, 8 L. T. 603.

To a suit for partition of property one undivided share of which was vested in a lunatic tenant in tail in possession, with remainder to an infant tenant in tail, with remainder to a married woman in tail, with remainders over, the persons interested in remainder after the lunatic and infant tenants in tail were made defendants, and they, by their answers, claimed

such interest in the undivided share of the property as they were alleged to have by the bill:-Held, that the persons so named as defendants were not unnecessary parties to the suit; and that, having regard to the remoteness and uncertainty of their interest in the property, their costs up to the decree on the hearing should be a charge on the property, which should be allotted in severalty in respect of the undivided share in which they were so interested. Singleton v. Hopkins, 25 L. J. Ch. 50; 1 Jur. (N.S.) 1199; 4 W. R. 107.

Plaintiff Claiming as Heir of One Tenant in Common.]-In a suit for partition the plaintiff

for six years prior to the issue of the writ. By the decree the plaintiffs were declared entitled to one-third part of the hereditaments, and to an account and payment by the defendants of onethird of the said rents and profits, and the premises were ordered to be sold, and the plaintiffs' costs up to and including the hearing were ordered to be costs in the action. The account was not completed and the property was not sold when the plaintiffs threatened to change their solicitors and to compromise the action. The share of the plaintiffs in the property and rents was insufficient to pay the plaintiffs' costs. On a petition by the plaintiffs' solicitors asking for a declaration that they were entitled to a charge on the whole property in respect of the plaintiffs' costs, as such costs had been made costs in the action :-Held, that no order having been made for payment of the costs of the action out of the proceeds of sale, the court could not anticipate such order, and that the solicitors could only be treated as having a lien on the plaintiffs' share recovered by them in the action. An injunction was granted to prevent the plaintiffs from receiving any money in the action, or by way of compromise, without notice to the solicitors. Lloyd v. Jones, 40 L. T. 514; 27 W. R. 655.

Cost of Charging Order and Stop Order.] A wife and her husband had severed in their defence, and the wife's solicitors had obtained a charging order and stop order on the fund in court for the costs due to them in the suit, and appeared on the present hearing on further consideration:-Held, that they must bear their own costs of appearance by counsel as well as of the stop order. Mildmay v. Quicke, 46 L. J., Ch. 667; L. R. 20 Eq. 357.

Adverse Claimants.]-The plaintiff, the defendant, and G. were entitled to thirds of property, the subject of a partition action. After judgment, but before certificate, G. died, leaving three wills, each making a different disposition of his share. The certificate found that the plaintiff and defendant were each entitled to one-third, and that A. or B. or C. (the persons claiming under G.) was entitled to G.'s share. Before further consideration, the will under which C. claimed was established by proceedings in the probate court. C. applied in the partition action that the certificate might be amended by finding her entitled to G.'s share. The certificate was amended, and C. was ordered to pay to A. and B. their costs of the application. On further consideration-Held, that C. should have her costs of the partition action, including her costs of the application to amend the certificate, but not the costs which she had paid to A. and B. Hawkes v. Hawkes, 63 L. T. 488.

Encumbered Shares-Discretion of Court.]-In partition actions, though the court has an absolute discretion as to costs, it will, as a general rule, allow only one set of costs out of the entire proceeds of sale in respect of each share of the property. Where a share is encumbered the first mortgagee receives the full benefit of the costs allowed in respect of his share. Belcher v. Williams (45 Ch. D. 510), not followed. Catton v. Banks, 62 L. J., Ch. 600; [1893] 2 Ch. 221; 3 R. 413; 68 L. T. 245; 41 W. R. 429.

Under s. 10 of the Partition Act, 1868, the court has an absolute discretion as to the costs of

a partition action up to the trial; but as a general rule it will order those costs to be borne by the whole estate-that is, by each share in proportion to its value, the shares for this purpose being ascertained at the date of the chief clerk's certificate. The plaintiffs in a partition action were entitled to a moiety of the estate, subject to some mortgages. The defendants were entitled to the other moiety, upon which there was no mortgage. The estate having been sold :-Held, that the costs of all parties, including those of the mortgagees, must be paid first out of the proceeds of sale. Belcher v. Williams, 45 Ch. D. 510; 63 L. T. 673; 39 W. R. 266.

There is no fixed rule in partition actions (as there is in administration actions) that only one set of costs will be allowed in respect of each share of the property. Ib.

c. Infants Interested.

Before the Partition Acts.]-In a suit for partition, costs of infants, including as well the costs incurred for the issuing of the commission as those incurred subsequently thereto, charged upon and ordered to be raised out of the shares allotted to such infants respectively in severalty. Cox v. Cox, 3 K. & J. 554.

In a suit for partition of property in which an infant was interested, the estate was sold :Held, that the costs subsequently to the first decree ought to be borne by the aggregate amount of the purchase-moneys. Coventry v. Coventry, 34 Beav. 572.

In a partition suit, where some of the partiesinterested were under disability, the court declared the costs of each party to be a charge upon their respective shares; and it appearing to be for the benefit of the infants, the court ordered a sale of the entirety, without partition, for the purpose of raising and paying costs. Davies v. Turrey, 2 N. R. 151; 9 Jur. (N.s.) 954; 8 L. T. 378; 11 W. R. 679.

Where some of the parties to a suit for partition are under disability, and it appears to be for their benefit that the costs of the suit be raised out of the estate before partition, the shares of all parties being properly chargeable with their costs, the court will direct a sale of the entirety of the estate for the purpose of paying costs. Thackeray v. Parker, 1 N. R. 567 ; 8 L. T. 602. S. P., Capewell v. Lawrence, 8. L. T. 603, supra, col. 358.

When a partition suit was instituted by the owners of three undivided sevenths of freehold premises for a sale of the whole, and such sale was not opposed by the guardian ad litem of three minors, who, under the will of their father (which directed that no sale should take place until the youngest attained twenty-one), were owners of the remaining four-sevenths, and one of whom had come of age before the hearing of the suit, and also desired a sale; the court made a decree as prayed, directing an inquiry as to whether the acceptance of a certain offer for the premises would be for the benefit of the minors, and ordered the costs of all parties to be paid rateably out of the purchase-money, according to their respective interests. Thompson v. Richardson, Ir. R. 6 Eq. 596.

Where part of an estate held in undivided shares (one share belonging to an infant) is contracted to be sold, and a bill is filed to carry out that contract and incidentally asks a partition: the court will direct a sale of

the whole by consent the infant's costs being a charge on his share. Smith v. Birch, 18 L. T.

174.

Under the Partition Acts.]-Where the defendants were infants, the court, on making a decree for sale under the act, ordered the costs of all parties to be paid out of the estate. Osborn v. Osborn, 37 L. J., Ch. 656; L. R. 6 Eq. 338 : 18 L. T. 678.

On a bill filed by infants against an infant for partition or sale of land, an order was made for sale, and the infants' costs were charged on the respective shares. France v. France, 41 L. J., Ch. 150; L. R. 13 Eq. 173; 25 L. T. 785; 20 W. R. 230.

When infants prayed for a declaration that premises were divisible amongst them and a defendant, and that the costs of the suit might be taxed, and the plaintiffs' costs declared to be a charge on their shares; for a partition, or sale, and, after payment of the costs, for a division of the proceeds; the court made a declaration as to the rights of the parties, and directed a sale, but declined to make any order as to the costs until the further consideration of the cause. Davey v. Wietlisbach, L. R. 15 Eq. 269.

Form of decree in Young v. Young (L. R. 13 Eq. 175, n.), and France v. France (L. R. 13 Eq. 173), not adopted. Ib.

Surplus Proceeds of Sale.]-When real estate of an infant is ordered to be sold for payment of costs or any other special purpose, and more is sold than is required, the surplus proceeds of sale are converted into personal estate, and on the death of the infant go to his personal representatives. Steed v. Preece, 43 L. J., Ch. 687; L. R. 18 Eq. 192; 22 W. R. 432. W. A. G. W.

PARTNERSHIP.

[BY E. MANSON.]

I. THE CONTRACT OF PARTNERSHIP.

1. What Constitutes.

a. General Principles, 366.

b. Joint Adventures, 368.

c. Participation in Profit and Loss, 372.
a. Loans Repayable out of Profits, 378.
e. Remuneration of Servants or Agents
out of Profits, 388.

f. Receipt of Annuities Payable out of
Profits, 395.

g. Receipt of Profits from Sale of Goodwill, 396.

2. Statute of Frauds, 397.

3. Commencement of Partnership, 398.

4. Duration of Partnership, 410.

5. Contracts induced by Misrepresentation and Fraud, 399.

6. Illegal Partnerships, 402.

7. Specific Performance, 403.

8. Action for Breach, 406.

II. RIGHTS AND OBLIGATIONS OF PARTNERS

INTER SE.

1. The Articles of Partnership.

a. Generally, 407.

b. Variation of, 421.

2. Authority of Partner-Liability of Firm. a. Generally, 423.

b. Execution of Deeds, 425.

c. Conduct of Legal Proceedings, 427. d. Guarantees, 429.

3. Powers of Majority of Partners, 429. 4. Expulsion of Partner, 430.

5. Introduction of New Partner, 432. 6. Infant Partner, 435.

7. Managing Partner.

a. Allowance for Services, 435.
b. Personal Liability, 436.

8. Rights of Partner against his Co-partner. a. Generally, 437.

b. For Money Paid and other Matters, 439.

9. Rights of Firm against Partner. u. Generally, 445,

10. Firms with Common Members, 447. 11. Transmission of Shares.