tenants in common in possession against another of his co-tenants claiming a partition or sale. Statement of claim is delivered, and then, if the plaintiff's title is not disputed, he, with or without a statement of defence being delivered, delivers notice of motion for judgment, which is set down as "a short cause." If, however, the plaintiff's title is in dispute, pleadings are completed and notice of trial is given instead of notice of motion for judgment. Whichever mode is adopted the Court makes an order for partition or sale, and refers the matter to chambers. In case of an actual partition, the rights of the several parties are ascertained in chambers, unless it is a very simple case, when partition will be made at the hearing if desired. If the matter is referred to chambers the parties have liberty to carry in a scheme, and a summons is taken out to proceed thereon, and at the hearing directions are given as to the further prosecution of the matter. The rights of the parties, when ascertained, are embodied in the chief clerk's certificate. The partition is carried out by means of mutual conveyances, with or without a vesting order being obtained, under the Trustees Act, 1850 and 1852. If the parties differ, or if any of them are under disability, the conveyances will be settled by the judge in chambers. The matter is completed and costs directed to be taxed by an order made on further consideration. (Haynes's Chancery Practice, 225.)

For the recent statutes, see next answer.

163. Describe briefly the principal provisions of the Partition Act, 1868, as to sales. Can parties interested in the property to one-fourth, compel a sale of the whole, contrary to the wishes of their co-owners?

The chief provisions of the Act are as follows:

Sec. 3. In a suit for partition where, if this Act had not been passed, a decree for partition might have been made, if it appears to the Court that by reason of the nature of the property, or the number of the parties interested, or presumptively interested therein, or of the absence or disability of some of those parties, or any other circumstance, a sale of the property and distribution of proceeds would be more beneficial for the parties interested than a division

ofthe property, the Court may, on the request of any of the parties interested, notwithstanding the dissent of others, direct a sale, and give necessary directions.

Sec. 4. In a like suit, if a party or parties interested individually or collectively, to the extent of one moiety or upwards in the property, request the Court to direct a sale and distribution of proceeds, instead of a division of the property, the Court shall, unless it sees good reason to the contrary, direct a sale, and give necessary directions.

Sec. 5. In a like suit, if any party interested requests the Court to direct a sale instead of a division of the property, the Court may, unless the other parties, or some of them, undertake to purchase the share of the party requesting the sale, direct a sale, and give necessary directions; and in case such undertaking shall be given, may order a valuation of the share, and give necessary directions.

Sec. 6. On any sale under this Act, the Court may allow any of the parties interested to bid on such terms as to non-payment of deposit, or as to setting off or accounting for the purchase-money, or any part thereof, instead of paying the same, or as to any other matters, as to the Court shall seem reasonable. (Haynes's Student's Statutes, 2nd ed., 160, 161.)

Parties interested in the property to the extent of one-fourth can compel a sale of the whole property, practically, if the whole property is from its nature not capable of actual partition, owing to the decision of the House of Lords in Pitt v. Jones, 49 L. J. Ch. 795; L. R. 5 App. 651, upon the construction of the above sections of the Partition Act, 1868. The Act, the Court said, was passed to give parties a sale instead of their partition, and not a purchase of one person's share at a valuation by a co-tenant against that person's will. It therefore followed that where the land was incapable of actual partition, as was the case there, the Court had no other alternative but to decree that the property should be sold, although the owners of thirteen sixteenth parts objected to a sale, and the owners of three sixteenth parts only required a sale.

164. State briefly the provisions of the Partition Act, 1868, as to sale, and point out under what circumstances (if any) one party is enabled to prevent a sale by undertaking to purchase the other shares at a valuation.

For provisions of the Partition Act, 1868, see the preceding answer. It has been recently decided in the House of Lords that where land was incapable of actual partition, and the owners of three sixteenth parts thereof requested a sale, and the owners of the remaining thirteen sixteenth parts thereof objected to a sale, and offered to undertake to purchase the share of the owners of the three sixteenth parts at a valuation, which they refused to accept, the latter could insist on a sale, by auction, of the whole land, and were not bound to take a sale of their share at a valuation. (Pitt v. Jones, 49 L. J. Ch. 795.)

165. Three co-heiresses, entitled to freehold and copyhold hereditaments, and also, as next of kin, to certain leasehold premises, have agreed to effect a partition. One co-heiress is a married woman, upon whose marriage no settlement was made, and it is desired that her share shall be conveyed to her separate use. Give an outline of the instrument or instruments required to carry out the partition.

The only instruments required will be the deed of partition (which in this case should be engrossed and executed in triplicate) and the different surrenders of the copyhold. The deed of partition will contain date, parties (i.e., three: heiress, husband and grantee to uses), recitals of the title of the ancestor to the properties, his death, with names and description of the three heiresses and of the marriage of the one who is married, and name and description of her husband, and lastly, the terms of the agreement for partition and the sum (if any) to be paid for equality of partition. 1st. Testatum and conveyance of freeholds as beneficial owner to the grantee to such uses as may have been agreed upon. 2nd. Testatum and covenant also as beneficial owner to surrender the copyholds to the lord of the manor to the uses agreed on. 3rd. Testatum assignment of the leaseholds also as beneficial owner in the manner agreed upon, special covenants (if any), and such special powers of distress, entry, &c., as may be deemed expedient. The husband of the married daughter will join in the conveyance, which will have to be acknowledged, and declare the separate use. (1 Prid., 11th ed., 388.) If the property is vested in the married woman since 1st January, 1883, then the husband's concurrence and the acknowledgment will be dispensed with owing to 45 & 46 Vict. c. 75.

PARTNERSHIP.

166. Give a definition of the term Partnership as used in this country as distinguished from corporations and companies, and explain shortly the salient points in your definition.

A partnership may be defined to be "a voluntary unincorporated association of individuals standing to one another in the relation of principals for carrying out a joint undertaking for the purpose of a joint profit." It is voluntary, not created by the Crown or by an Act of Parliament. It is unincorporated, i.e., the members do not form a collective whole, distinct from the individuals composing it. The rights and liabilities of a partnership are the rights and liabilities of the partners, and enforceable by and against them individually. A partnership is generally constituted for profit; a corporation may be constituted without any reference to profit. Moreover, an important distinction between partnerships and companies is, that a partnership consists of a few persons known to each other; a company of many individuals not necessarily acquainted with each other. (Mozeley's Law Exam. Journal, No. 54, pp. 325, 326, citing Lindley on Partnership, 1—5.)

167. What principle as to partnerships was laid down in Cox v. Hickman? The policy-holders in an assurance society are entitled to be paid as bonuses a share of profits, such profits to be ascertained by an actuary appointed, not by them, but by the shareholders. Are the policy-holders liable as partners, either inter se or to outside creditors?

The House of Lords in Cox v. Hickman, L. R. 8 H. L. Cases, 268 (Haynes's Student's Leading Cases, 113), decided that the mere concurrence of creditors in an arrangement under which they permit their debtor, or trustees for their debtor, to continue his trade, applying the profits in discharge of their demands, does not make them partners with their debtor or their trustees; or, in other words, in order to ascertain whether two or more persons are liable as partners, it is not sufficient to constitute the relation of partners that there is a mere sharing of the profits, or receipt of a payment varying with the profits of a business.

The result of the cases (says H. A. Smith in his Principles of Equity) and true test of a partnership amounts to this, that the

real intention of the parties must be ascertained by a consideration of the facts of each particular case, and that that intention determines the nature of the relationship between them. On the one hand, a sharing of profits does not alone constitute a partnership. On the other hand, if it appears that a partnership in effect was contemplated by the parties, its natural consequences cannot be evaded by procuring an advance of capital under the outward and pretended form of a loan. (H. A. Smith's Equity, 538.)

Such policy-holders are certainly not liable as partners inter se where there are shareholders in the assurance society; but as to their liability or non-liability with regard to outside creditors, that is another question. This depends in each case upon the constitution of the assurance society, because every such society or company, whatever it may be called, always consists of more than twenty persons, and in accordance with sect. 4 of the Companies Act, 1862, 25 & 26 Vict. c. 89, s. 4 (Haynes's Student's Statutes, 2nd ed., 57), must be either

(1.) Registered under the Companies Acts, 1862 to 1880; (2.) Formed pursuant to some other Act, special or otherwise; (3.) Formed under letters patent from the Crown; or,

(4.) A company engaged in working mines within and subject to the jurisdiction of the Stannaries;

and in every such case full provision is made with regard to the liability to the debts of the company; and consequently it is only in the absence of any such provision that the general common law of partnerships affects such companies. Such a case might arise where the special Act by which the company is incorporated does not make any declaration or other provision as to the liability of policy-holders, participating and non-participating; but no such case has ever yet arisen before the Courts, and, as far as we are aware, is unlikely to arise, simply because in the case of every company incorporated by special Act of Parliament, an express declaration is made in the Act to the effect that neither participating nor non. participating policy-holders shall be liable as partners by being such, and such companies are seldom, if ever, formed under letters patent; and there therefore only remains companies registered under the Companies Acts, 1862 to 1880.

Now on this point it has been decided that in the case of an unlimited assurance company registered under the Companies Acts,