8. On December 15, 1872, D.'s will was proved.

9. There were ten children of D. living at his decease, some of whom have since died.

10. Whiteacre consists of a mansion house, and grounds.

11. A sale of the property and a division of the proceeds will be more beneficial than a division of the property.

The plaintiff claims a sale of Whiteacre, and distribution of the proceeds among the parties interested.

Claim for Partition or Sale in an Action by Persons entitled to more than one Moiety of the Property.

1. By indentures of marriage settlement dated the 1st of December, 1860, and made between A. of the first part, B. of the second part, and C. and D. of the third part, the Langley estate in the county of Kent was conveyed to C. and D. in trust for A. for life, and after his decease subject to a jointure for B. in trust for all the children of the marriage of A. and B. in equal shares.

2. B. died in A.'s lifetime.

3. A died on May 17, 1882.

4. There were seven children of the marriage, namely, the plaintiffs E., F., and G., and the defendants, H., J., K., and L. K. and L. are infants.

5. By an indenture dated August 1, 1883, the defendant H. for value conveyed two equal third parts of his share in the estate to the plaintiff E.

6. The Langley estate consists of a mansion, park, grounds, several farms, and the manor of Langley.

7. A sale of the property and a division of the proceeds will be more beneficial than a division of the property.

The plaintiff claims a sale of the Langley estate and distribution of the proceeds among the parties interested.

Partnership (a).

Action by Executor of deceased Partner for an Account and
Winding-up of Partnership Business.

1. On June 1, 1880, A., B., and C. entered into partnership as wholesale druggists for ten years.

2. On July 31, 1882, A. died, having by his will dated July 27, 1882, appointed the plaintiff his sole executor.

(a) By the Judicature Act, 1873, s. 34, partnership actions involving the taking of accounts or a dissolution of the partnership, are to be brought in the Chancery Division.

When Court

As a general rule, the Court will not decree specific performance of an agreement for a partnership, damages being a more appropriate remedy (Scott v. Rayment, L. R. 7 Eq. 112); but it may do so if the contract has been partly performed, and the contract is for a partnership for a definite time (Crawshay v. Maule, 1 Swan. 510). But the Court will restrain a breach of partnership articles by injunction. A partnership may come to an end by the agreement of the partners, or by effluxion of time, or by any partner dying, becoming bankrupt, or being convicted of felony, or assigning all his property. The Court will also decree a dissolution if the partnership contract is tainted with fraud, or if either party grossly will decree violates the partnership articles. If the relations of the partners are dissolution. such that the Court sees that they cannot carry on business together, it will decree a dissolution; but it will not interfere in cases of trifling breaches, or where there is a mere partnership squabble. A dissolution would be decreed against a partner who wrongfully and habitually neglected the business, or who should become permanently unfit to do his duty, as by becoming insane. See Jauncey v. Knowles, 29 L. J. Ch. 95 a case of fraud and quarrels. Cf. Snell's Principles of Equity, pp. 499, et seq.

The Court may appoint a receiver and manager of the business, but this is not done unless the suit is for a dissolution.

If the action is not for a dissolution, but merely for an account, the account will only be directed at the suit of the party complaining up to the commencement of the action. As to the principle upon which the accounts are taken, see Browne v. Collins, L. R. 12 Eq. 586; Ibbotson v. Elam, L. R. 1 Eq. 188; and Dean v. Macdowell, 8 Ch. Div. 345.

A co-partnership in profits is a co-partnership in the assets by which they are made. (Syers v. Syers, 1 App. Cas. 174, per Cairns, L. C.)

By the Partnership Act, 1865 (28 & 29 Vict. c. 86), it is provided that: -The advance of money by way of loan to a person engaged or about to engage in any trade or undertaking upon a contract in writing with such person, that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on such trade or undertaking, shall not, of itself, constitute the lender a partner with the person or the persons carrying on such trade or undertaking, or render him responsible as such.

No contract for the remuneration of a servant or agent of any person engaged in any trade or undertaking, by a share of the profits of such trade or undertaking, shall, of itself, render such servant or agent responsible as a partner therein, nor give him the rights of a partner.

No person being the widow or child of the deceased partner of a trader, and receiving by way of annuity a portion of the profits made by

The Part nership

Act, 1865.

3. On Aug. 17, 1882, the plaintiff proved the will.

4. The assets of the partnership and the debts due by the partnership on July 31, 1882, have not been got in and paid.

Provisions such trader in his business, shall, by reason only of such receipt, be
of the deemed to be a partner of or to be subject to any liabilities incurred by
Partnership such trader.
Act, 1865.

Decisions on the Act.

Partners cannot generally sue each other at law.

No person receiving by way of annuity or otherwise a portion of the profits of any business in consideration of the sale by him of the goodwill of such business, shall, by reason only of such receipt, be deemed to be a partner of, or be subject to the liabilities of the person carrying on such business.

In the event of any such trader as aforesaid being adjudged a bankrupt, or taking the benefit of any Act for the relief of Insolvent Debtors, or entering into an arrangement to pay his creditors less than 20s. in the pound, or dying in insolvent circumstances, the lender of any such loan as aforesaid shall not be entitled to recover any portion of his principal, or of the profits or interest payable in respect of such loan, nor shall any such vendor of a goodwill as aforesaid be entitled to recover any such profits as aforesaid, until the claims of the other creditors of the said trader for valuable consideration in money or money's worth have been satisfied.

In order to bring a case within the statute, where the transaction is alleged to have been one of loan merely, there must be a contract in writing, and the document must show on the face of it that the transaction is one of loan, and parol testimony to vary it is inadmissible. (Syers v. Syers, 1 App. Cas. 174.) The statute has not received a very liberal construction (Pooley v. Driver, 5 Ch. Div. 458), and great care is necessary on the part of persons who wish to take advantage of its provisions. (Cf. Holme v. Hammond, 7 Ex. 218; Ex parte Mills, re Tees, L. R. 8 Ch. 569.) The Act applies to a loan made upon the personal responsibility of the trader or traders to whom it is made, and not to a loan made on the security of the business. (Ex parte Delhasse, 7 Ch. Div. 511.)

Actions between partners.]—As a general rule one partner could not before the Judicature Acts came into force sue another member of his firm in a Court of law. There were a few exceptions to this rule, as for instance, where a partner sued another for breach of an agreement to enter into a partnership (Gale v. Leckie, 2 Stark. 107); or if one partner was turned out by the other or others (Greenham v. Gray, 4 Ir. Ch. 501). Again, if no matter of account was involved, and if the damages sought to be obtained would not belong to the firm, or would not have to be paid out of the funds of the firm, an action at law was maintainable, irrespective of the state of the accounts between the partners. Thus an action for not rendering an account (Owston v. Ogle, 13 East, 538); an action for a penalty stipulated to be paid for breach of agreement (Radenhurst v. Bates, 3 Bing. 463); an action for not indemnifying the plaintiff against a debt (Want v. Reece, 1 Bing. 18); an action for not putting the plaintiff in funds to enable him to defray expenses as agreed (Brown v. When they Tapscot, 6 M. & W. 119); have all been held to be maintainable by one partner against his co-partner or co-partners.

can.

The concluding words of R. S. C. 1883, Order XVI. rule 14, do not seem altogether to settle the doubt raised by Ex parte Young, 19 Ch. Div. 124, whether the corresponding rule applied to a partnership dissolved before the issue of the writ. But judgment in such an action would not per se bind a partner who had retired, and who was neither served as partner nor had admitted in the pleadings that he was or had been adjudged to be a partner. (Ibid.)

The plaintiff claims:

(1) An account of the partnership debts, assets, and transactions, and all necessary inquiries.

(2) Payment of A.'s share of the net assets of the partnership.

(3) If necessary, a receiver.

Action against Partner for Breach of the Partnership Articles.

1. The plaintiff has suffered damage by the defendant's breach of contract to enter into partnership with the plaintiff for ten years from June 24, 1883. The contract is contained in an indenture dated the 22nd of June, 1883, and made between the plaintiff and the defendant.

2. On June 24, 1883, the defendant refused to fulfil the said contract, and refused to admit the plaintiff to the partnership

Where the writ in an action is issued against a partnership firm in the name of the firm, the judgment must be against the firm, and it cannot be entered separately against an individual and member of the firm who has made default in appearing to the action. (Jackson v. Litchfield, 8 Q. B. D. 474.)

The form of the proceedings is most material. Thus in the very recent Procedure case of Munster v. Railton, 11 Q. B. D. 435, the plaintiff issued a writ in actions against the firm of R. & Co. R. only appeared to the writ, and the against plaintiff delivered statement of claim against R., sued as “R. & Co.” Issue firms. having been joined, the case proceeded to trial, when a verdict for the plaintiff was taken by consent, and judgment signed against “R. sued as R. & Co." The plaintiff having subsequently discovered that C. had been a member of the firm of R. & Co., applied for an order to amend the judgment by making it in accordance with the writ, a judgment against the firm of R. & Co. Held that the amendment ought not to be allowed, for the plaintiff, although he acted in ignorance of the facts, must be taken to have elected to sue R. alone, and was concluded by the form of the proceedings subsequent to the appearance.

Where a change takes place in the constitution of a firm, creditors of the old firm may so deal with the new firm as to be held to have elected to discharge the old firm and to accept the new firm as their debtors.

In regard to another class of cases in which it is sought to make a Liability of retiring partner liable for debts of the firm incurred after his retirement, retiring on the ground of a continuous holding out, the retirement not having partner. been published, it is to be remembered that the retiring partner is liable on the ground of estoppel only. It was so held in the late case of Scarf v. Jardine, 7 App. Cas. 345; 51 L. J. C. P. 613.

An action and a judgment against two persons who had borrowed money from the plaintiffs (although the judgment is unsatisfied) constitute a bar to another action brought by the same plaintiffs against a third person, who is afterwards discovered to have been really interested, as a partner, with the two debtors in the business for the purpose of which the money had been borrowed. (Kendall v. Hamilton, 4 App. Cas. 504.) This result does not depend on the doctrine of election.

premises, or to carry on the partnership business with the plaintiff.

The plaintiff claims £500 damages.

Defence.

The defendant says that :

1. He did not refuse to fulfil the contract or to admit the plaintiff to the partnership premises or to carry on the partnership business with the plaintiff.

2. It was a condition precedent to the partnership and the execution of the contract that the plaintiff should pay a premium of £1000 to the defendant, which he has not done.

Action for Dissolution of Partnership.

1. The plaintiff on December 20, 1875, entered into partnership articles with the defendant for ten years.

2. The defendant has broken the partnership articles as follows:

(1) He has become surety for A. B. in a bail bond for £500 without the plaintiff's consent.

(2) He has sold and delivered partnership effects to C. D. after being forbidden by the plaintiff so to do.

(3) He has pawned the partnership effects to E. F. (4) He has accepted bills of exchange in the partnership name, and applied the proceeds to his private purposes.

(5) He has habitually neglected to attend at the partnership place of business, and to perform the ordinary work of a partner.

The plaintiff claims :

(1) Dissolution.

(2) Accounts and inquiries.

(3) A receiver and manager.

Action by incoming Partner for Dissolution and return of
Premium and other Relief.

The plaintiff was induced by the fraud of the defendant to enter into partnership with the defendant in the business of