Page:EB1911 - Volume 20.djvu/934

Rh freeholds, whether in possession or in reversion, by means of the writ of partition. In the reign of Elizabeth the court of chancery began to assume jurisdiction in partition, and the writ of partition, after gradually becoming obsolete, was finally abolished by the Real Property Limitation Act 1833. The court of chancery could not decree partition of copy holds untU the passing of the Copyholds Act 1841. This act was repealed by the Copyholds Act 1894, which empowers the alienation of ancient tenements with the hcence of the lord. By the Judicature Act 1873, § 34, partition is one of the matters specially assigned to the chancery division. An order for partition is a matter of right, subject to the discretion vested in the court by the Partition Act 1868 (amended by the Partition Act 1876). By § 3 of the act of 1868 the court may, on the request of a party interested, direct a sale instead of a partition, if a sale would be more beneficial than a partition. By § 12 a county court has jurisdiction in partition where the property does not exceed £500 in value. Under the powers of the Inclosure Act 1845, and the acts amending it, the in closure commissioners have power of enforcing compulsory partition among the joint owners of any inclosed lands. An order of the in closure commissioners or a private act vests the legal estate, as did also the old writ of partition. But an order of the chancery division only declares the rights, and requires to be perfected by mutual conveyances so as to pass the legal estate. Where, however, all the parties are not sui juris, the court may make a vesting order under the powers of the Trustee Act 1850, § 30.

Partition is not a technical term of Scots law. In Scotland division of common property is effected either extra-judicially, or by action of declaratory and division or division and sale in the court of session, or (to a limited extent) in the sheriff courts. Rights of common are not divisible in English law without an act of parliament or a decree of the in closure commissioners, but in Scotland the act of 1695, c. 38, made all common ties, except those belonging to the king or royal burghs, divisible, on the application of any having interest, by action in the court of session. By the Sheriff Courts (Scotland) Act 1877, § 8, the action for division of common property or commonly is competent in the sheriff court, when the subject in dispute does not exceed in value £50 by the year, or £1000 value. Runrig lands, except when belonging to corporations, were made divisible by the act of 1695, c. 23. A decree of division of commonty, common property, or runrig lands has the effect of a conveyance by the joint proprietors to the several participants (Conveyancing [Scotland] Act 1874, § 35).

In the United States, "it is presumed," says Chancellor Kent, (4 Comm., lect. lxiv.), "that the English statutes of 31 & 32 Henry VIII. have been generally re-enacted and adopted, and probably with increased facilities for partition." In a large majority of the states, partition may be made by a summary method of petition to the courts of common law. In the other states the courts of equity have exclusive jurisdiction. As between heirs and devisees the probate courts may in some states award partition. The various state laws with regard to partition will be found in Washburn, Real Property, bk. i. ch. xiii., § 7.

PARTNERSHIP (earlier forms, partener, parcener, from Late Lat. partionarius for partitionarius, from partitio, sharing, pars, part), in general, the voluntary association of two or more persons for the purpose of gain, or sharing in the work and profits of any enterprise. This general definition, however, requires to be further restricted, in law, according to the account given below.

The partnership of modern legal systems is based upon the societas of Roman law. Societas was either universorum bonorum, a complete communion of property; negotiations alicujus, for the purpose of a single transaction; vectigalis, for the collection of taxes; or rei unius, joint ownership of a particular thing. The prevailing form was societas universorum quae ex quaestu veniunt, or trade partnership, from which all that did not come under the head of trade profit (quaesius) was excluded. This kind of societas was presumed to be contemplated in the absence of proof that any other kind was intended. Societas was a consensual contract, and rested nominally on the consent of the parties—really, no doubt (though this was not in terms acknowledged by the Roman jurists), on the fact of valuable consideration moving from each partner. No formalities were necessary for the constitution of a societas. Either property or labour must be contributed by the socius; if one

party contributed neither property nor labour, or if one partner was to share in the loss but not in the profit (leonina societas), there was no true societas. Societas was dissolved on grounds substantially the same as those of English law (see below). The only ground pecuHar to Roman law was change of status {capitis dcminutio). Most of the Roman law on the subject of societas is contained in Dig. xvii. tit. 2, Pro socio.

Though the English law of partnership is based upon Roman law, there are several matters in which the two systems differ, (i) There was no limit to the number of partners in Roman law. (2) In societas one partner could generally bind another only by express mandatum; one partner was not regarded as the implied agent of the others. (3) The debts of a societas were apparently joint, and not joint and several. (4) The heres of a deceased partner could not succeed to the rights of the deceased, even by express stipulation. There is no such disability in England. (5) In actions between partners in Roman law, the bencficiitm compctentiae applied — that is, the privilege of being condemned only in such an amount as the partner could pay without being reduced to destitution. (6) The Roman partner was in some respects more strictly bound by his fiduciary position than is the English partner. For instance, a Roman partner could not retire in order to enjoy alone a gain which he knew was awaiting him. (7) There was no special tribunal to which matters arising out of societas were referred.

Previous to the Partnership Act 1890 the English law of partnership was to be found only in legal decisions and in textbooks. It was mostly the result of judge-made law, and as distinguished from the law of joint stock companies was affected by comparatively few acts of parhament.

In 1890 the Partnership Act of that year was passed to declare and amend the law of partnership; the act came into operation on the 1st of January 1891. With one important exception (§ 23), it appUes to the whole United Kingdom. It is not a complete code of partnership law; it contains no provisions regulating the administration of partnership assets in the event of death or bankruptcy, and is silent on the subject of goodwill. The existing rules of equity and common law continue in force, except so far as they are inconsistent with the express provisions of the act. Indeed, the act of 1890 has to be read in the light of the decisions which have built up these rules. On all points specifically dealt with by the act it is now the one binding authority. The act has made no important changes in the law, except in respect of the mode of making a partner's share of the partnership assets available for payment of his separate debts. This change does not affect Scotland. The act is divided into the four main divisions mentioned below.

I. Nature of Partnership.—Partnership is defined to be the " relation which subsists between persons carrying on a business in common with a view of profit." From this definition corporations and companies, such as joint-stock companies and cost-book mining companies, which differ from ordinary partnerships in many important respects, are expressly excluded. The act also contains several subsidiary rules for determining the existence of a partnership. These rules are of a fragmentary nature, and for the most part are expressed in a negative form; they have not introduced any change in the law. Co-ownership of property does not of itself create a partnership, nor does the sharing of gross returns. The sharing of profits, though not of itself sufficient to create a partnership, is prima facie evidence of one. This means that if all that is known is that two persons are sharing profits, the inference is that such persons are partners; but if the participation in profits is only one amongst other circumstances, all the circumstances must be considered, and the participation in profits must not be treated as raising a presumption of partnership, which has to be rebutted. To illustrate the rule that persons may share profits without being partners, the act gives statutory expression to the decision in Cox V. Hickman (1860, 8 H.L.C., 268), viz. that the receipt