Page:Encyclopædia Britannica, Ninth Edition, v. 18.djvu/351

 P A R P A R 329 8 &amp;lt;fe 9 Viet. c. 118, and the Acts amending it, the inclosure commissioners have power of enforcing compulsory parti tion among the joint owners of any inclosed lands. An order of the inclosure 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, 13 & 14 Viet, c. 60, 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 declarator 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 inclosure commissioners, but in Scotland the Act of 1695, c. 38, made all commonties, 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 40 & 41 Viet. c. 50, 8, the action for division of common property or commonty 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. 2. A decree of division of commonty, common property, or run rig lands has the effect of a conveyance by the joint proprietors to the several participants (37 & 38 Viet. c. 94, 35). In the United States, &quot;it is presumed,&quot; says Chancellor Kent, (4 Comm., lect. Ixiv.), &quot;that the English statutes of 31 & 32 Henry VIII. have been generally re-enacted and adopted, and probably with increased facilities for partition.&quot; 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, Heal Property, bk. i. ch. xiii., 7. PARTNERSHIP, in law, is a voluntary association of two or more persons for the purpose of gain. This is of course not an exhaustive definition, but will serve to include most of the definitions of partnership which have been attempted. 1 The word partner is a contracted form of partitioner. The partnership of modern legal systems is based upon the societas of Roman law. Societas is not defined by any of the Roman jurists. But the Roman view is no doubt sufficiently expressed in the definition by Voet : societas est contractus juris gentium, bonsefidei, consensu constans, semper re honesta, de lucri et damni communione. Societas was either universorum bonontm, a complete communion of property ; negotiationis alicujus, for the purpose of a single transaction ; vectigalis, for the collection of taxes ; or rei unius, joint ownership of a particular thing. The prevail ing form was societas universorum quse ex qusestu veniunt, or trade partnership, from which all that did not come under the head of trade profit (qusestus) 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 con tributed 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 substan tially the same as those of English law (see below). The only ground peculiar to Roman law was change of status (capitis deminutid). Most of the Roman law on the subject of societas is contained in Dig. xvii. tit. 2, Pro Socio. The 1 The difficulties of definition are pointed out by Sir N. Lindley, Cn Partnership, i., Introd. main points of difference between the Roman and English law will be treated below. There is no statutory or judicial definition of partnership in English law. It is defined by the Indian Contract Act, 239, 2 as &quot; the relation which subsists between persons who have agreed to share the profits of a business carried on by all or any of them on behalf of all of them.&quot; Sir 1ST. Lindley declines to pledge himself to any definition, but lays down the following principles : (1) partnership is the result of an agreement to share profits and losses; (2) partnership is prima facie the result of an agreement to share profits, although nothing may be said about losses, and although there may be no common stock ; (3) partner ship is prima facie the result of an agreement to share profits, although community of loss is stipulated against ; (4) partnership is not the result of an agreement to share gross returns ; (5) partnership is not the result of an agreement which is not concluded ; (6) partnership is not the result of an agreement to share profits so long as anything remains to be done before the right to share them accrues (1 Lindley, bk. i. ch. i., 1). It was held in 1793, in the case of Waugh v. Carver, (2 H. Blackstone, 235), that sharing in profits constituted partnership, though no partnership was in fact contemplated by the parties. But in 1860 the House of Lords in Cox v. Hickman (8 House of Lords Cases, 268), established the principle that persons who share the profits of a business do not incur the liabilities of partners unless the business is carried on by themselves or their real or ostensible agents. In 1865 the Act 28 & 29 Viet. c. 86 (which applies to the United Kingdom, and is commonly called BovilPs Act) was passed in order to remove certain difficulties arising from Cox v. Hickman. It enacts that the advance by way of loan to a person engaged or about to engage in any trade or undertaking, upon a contract in writing that the lender is to receive a rate of interest varying with the profits, or a share of the profits, is not of itself to constitute the lender a partner ( 1) ; that no contract for the remuneration of a servant or agent by a share of the profits is of itself to render such servant or agent responsible as a partner or give him the rights of a partner ( 2) ; that no widow or child of a partner of a trader receiving by way of annuity a portion of the profits is, by reason only of such receipt, to be deemed to be a partner ( 3) ; that no person receiving by way of annuity or otherwise a portion of the profits in consideration of the sale of the goodwill is, by reason only of such receipt, to be deemed to be a partner ( 4) ; that in the event of any such trader being adjudged bankrupt, etc., the lender of any such loan is not to be entitled to recover his principal or profits and interest, or the vendor of a goodwill his profits, until the claims of .the other creditors for valuable consideration have been satisfied. Participation in profits has thus ceased to be an absolute test of partnership. Another test that has been proposed is the existence of such a participation as to constitute the relation of principal and agent. But this has been objected to on the ground that agency is deducible from partnership and not partner ship from agency (see Holme v. Hammond, Law Rep. 7 Exch. 218). The principles laid down by Sir N. Lindley above no doubt form the best means of deciding the matter, but every case must depend to a large extent upon its own particular circumstances. Though participation in profits is of itself no evidence of partnership, on the other hand societies and clubs, the object of which is not to share profits, are not partnerships. The liability of clubs or provisional committee men depends entirely upon 2 The definition was adopted in the Partnership Bill which was introduced into parliament in 1880 ; see Appendix to Pollock s Digest of the Law of Partnership. XVTIT. --42