and complaining of a breach of trust in respect of certain funds (which had been improperly invested by the trustees in the purchase of an annuity), to the interest of which funds she was entitled for her separate use for life. By the affidavits filed in support of the application, it was alleged that the next friend had formerly been a mercantile clerk, but had been for some time past out of employ; that, from the result of inquiries made, the next friend was not in circumstances to bear the expenses of any suit, and that the plaintiff and her husband were not in good circumstances, but dependent or partly dependent on Mrs. Weir, the mother of the plaintiff, for their daily support. The plaintiff's solicitor, by affidavit, stated his belief that the present application was made for the purpose of taking advantage of the helpless situation of the plaintiff, and to prevent her obtaining her just rights; and that the plaintiff's next friend was a person of education, and, in the opinion of the defendant, capable and competent to hold a situation or office of much trust and responsibility. The plaintiff also stated, that from a feeling of necessity she was compelled to ask and accept her brother-inlaw as her next friend, as she had no relatives or friends who were more respectable and influential, and who were willing to place themselves in the situation of next friend; the next friend stated, that he was perfectly solvent, and did not owe 5l. altogether to any person or persons, and that he had been expecting and promised a lucrative appointment, and had theretofore held most responsible situations, and they both stated that they were not dependent on their mother, Mrs. Weir, for their daily subsistence, but perfectly independent of her.

Mr. Prior, in support of the motion, contended, that under the circumstances appearing in the affidavits, the next friend of the plaintiff was not a person of substance, and that therefore the motion ought to be granted, the rule being that a next friend in the case of a married woman must be a person of substance and responsibility. The cases of

Pennington v. Alvin, 1 Sim. & Stu. 264;

s.c. 1 Law J. Rep. Chanc. 202; and— Drinan v. Mannix, 3 Dru. & War. 154. were cited in support of the motion.

Mr. Rolt, contrà, insisted that there was no such rule as that stated on the other side; that it was only necessary, according to Lord Hardwicke, that the next friend of a married woman should be in solvent circumstances; that no more proper person could be selected by a married woman for her next friend than a near relative, as in the present case; that if any such rule as that contended for existed, justice would he utterly denied in cases like the present; that if the plaintiff had happened to be unmarried, she might have filed her bill, as of course, however poor she might be; that it would be cruelty in the extreme to hold that she must provide a next friend in comparatively wealthy circumstances, before she should be allowed to proceed further in the suit; and that there existed very special circumstances in the cases of Pennington v. Alvin, on which the other case of Drinan v. Mannix was founded, which distinguished it from the present.

The MASTER OF THE ROLLS, after stating the nature of the motion and the effect of the affidavits as to the responsibility of the next friend, said, the application was supported by the case of Pennington v. Alvin, decided by Sir J. Leach, and Drinan v. Mannix. The latter case followed the former, which was deserving of respect, and could not be departed from without strong grounds being shewn for such a course of proceeding; in the former case it was decided that a next friend, the seducer of a married woman, and who had taken the benefit of the Insolvent Debtors Act, was not a proper person to represent the plaintiff. If the course contended for on behalf of the defendant were to be the rule, it would be very serious in its consequences to married women, and would frequently, though indirectly, amount to a denial of justice. Inquiry was made into the practice of the Court since the motion was made, and two cases had been found, in which a married woman had been allowed to sue in formá pauperis, viz., Collyer v. Young, Oct. 25, 1823, and Valentine v. Walker, May 19, 1834. In the latter case, decided eleven years subsequently to the former, the order had been pronounced on consideration by Sir J. Leach himself, following the former case; and it seemed singular that a mar

real estates, which, in January 1844, were sold to Joseph Latham under the decree of the Court, and he had paid his purchase-money into court under its order, which directed all proper parties to join in the conveyance to him of the premises, such conveyance to be settled by the Master in case the parties differed about the same. On the 28th of October 1843, a vesting order was made by the Insolvent Debtors Court, whereby the estates and effects of W. B. Hotham became vested in the provisional assignee of the Court, and on the 29th of April 1844, W. B. Hotham was discharged and took the

benefit of the Insolvent Debtors Act. On the 2nd of December 1842, a writ of summons was issued against W. B. Hotham, by the name of W. Hotham, by John Parrott, for the recovery of 65l. 11s. 7d., and on the same day W. B. Hotham, in the name and by the description of W. Hotham, executed to that party a warrant of attorney for 140l. as a security for that debt, and thereon judgment was signed on the 3rd of January 1843, and shortly afterwards a memorandum of such judgment was registered against W. Hotham, in pursuance of the provisions contained in the statute 1 & 2 Vict. c. 110. Similar proceedings were taken in December 1842 and January 1843, by other creditors against W. B. Hotham, described in like manner as W. Hotham. The Master, on satisfactory evidence being adduced that W. B. Hotham and W. Hotham were the same person, settled the draft conveyance to the purchaser, making the judgment creditors parties, for the purpose of releasing the purchased estates from their respective judgment debts. It was, for some of the parties, objected that the judgment creditors of W. B. Hotham were not necessary parties to the conveyance of the estates to the purchaser, inasmuch as the process taken in the actions, and in the obtaining of the judgment and registration thereof were against W. Hotham and not W. B. Hotham. The judgment creditors declined to join in the conveyance unless they were satisfied their principal monies, interest and costs respectively; and the present petition, on behalf of the plaintiff in the second cause, was filed, seeking an order, that on the judgment creditors discharging the pur

chased estates from their claims, the residue of the purchase-money, after payment of all prior incumbrances and the costs of the suits, might be applied in payment of the judgment creditors their principal monies, interest and costs, upon their respective judgments.

Mr. Turner, in support of the petition.

Mr. Follett, for the provisional assignee of W. B. Hotham, contended, first, that the judgment creditors were not necessary parties to the conveyance, inasmuch as the judgments were recovered, not against W. B. Hotham but W. Hotham; and secondly, that the judgment creditors came within the meaning of the 61st section of the statute 1 & 2 Vict. c. 110, which, connected with the 13th & 19th sections of that statute, restrained execution by seizure and sale of the prisoner's property, i. e. real estate as well as personalty. On the first point Reeves v. Slater (1) was cited.

Mr.F.T. White, for the judgment creditors, contended, that the provisional assignee was not in a situation to raise the objection sought to be taken, and that the identity of W. Hotham and W. B. Hotham was clearly proved, according to the practice pursued at common law, which was all that was necessary.

Mr. G.L. Russell, for the purchaser, contended, that the judgment creditors were necessary parties to the conveyance, and that the 61st section of the 1 & 2 Vict. c. 110. applied exclusively to personal property.

The MASTER OF THE ROLLS said, a party could not be allowed to adopt a name, and then escape the consequences of doing so; and expressed his opinion that the Master was right in determining that the judgment creditors were necessary parties to the conveyance of the estates to the purchaser, and that they were entitled to be satisfied what was due to them before they executed the conveyance.

(1) 7 B. & C. 486; s. c. 6 Law J. Rep. K.B. 77.

Receiver-Partnership-Construction of Partnership Deed.

On the death of one of three partners, one of the two surviving partners insisted that, under the articles of partnership, the partnership ought to be continued, and the assets of the deceased partner to remain as part of the capital of the firm. The Court was of opinion that the executor of the deceased partner was entitled to have a receiver appointed.

Partnership articles contained a provision, that, on the death of one of the partners, his son, or, in case the son should be a minor, the executor, should carry on the business together with the surviving partners, and transfer the deceased partner's share to such son on his attaining full age. Court was of opinion, on the true construction of the articles of partnership, that such a provision was optional and not obligatory on the executors.

The

In June 1839, W. Attwood, Nehemiah Wimble and Arthur Warner entered into partnership as ironmongers, for a term of seven years, and by the indenture of partnership, dated the 29th of that month, it was provided that each of the parties should be entitled to draw from the partnership fund, or on account of profits of the trade, a quarterly sum of 15l. per centum per annum upon his permanent capital; that Attwood, being incapacitated by illness from personal attention to the trade, should, during his continuance in the partnership, pay 100%., and that Wimble should pay 501. annually to Warner, by way of equivalent for personal attention as between them; that Attwood should be entitled to introduce his eldest son at or after the age of fourteen years, as an apprentice to the firm, and that at any time after the expiration of such apprenticeship, and during the continuance of.their intended or any other partnership, in pursuance of the said partnership deed, Attwood should be at liberty to transfer to such eldest son his own share and interest in the partnership, and in case Attwood

*This case was accidentally omitted in the Law Journal Reports of 1843.

should die during the continuance of any such partnership, leaving his eldest son qualified to take his father's share in the partnership concern, such son should be entitled to succeed thereto and to become a partner with the other or others; but if Attwood should die, leaving his eldest son surviving him, who should be disqualified for immediately taking his father's share by reason only of his minority, then the executors of Attwood should be entitled to hold the testator's share in the partnership during such minority, allowing to Warner 100l. per annum out of their shares of profits as an equivalent for personal attention, and to transfer the same share to such son on his attaining full age, provided always that such son of Attwood's should not be entitled to become a partner, unless he should be of good character and competent ability, and that any party thereto might object to his admission as such partner for want of such qualification, and might require a decision to be made thereon by arbitration, and in case Attwood should so die leaving a widow, but not such son entitled to succeed to his share of the co-partnership, or if any such son should become disqualified therefrom or should die in the lifetime of his mother, then such widow of Attwood should be entitled to receive, not only during the remainder of the seven years, but also during such further term as the trade should be carried on under the provisions of the co-partnership deed, an annuity of 100l., to be paid by quarterly payments by the party or parties carrying on the same trade in proportion to their respective shares of profit, and to commence from the time when Attwood, or his executors, or his son entitled as aforesaid, should cease to have any share in the profits of the said trade. Distinct provisions were inserted in the partnership deed, in case of the deaths of either Wimble or Warner during the term of years mentioned in the partnership deed, for the disposition of their interests; and by an indenture of even date with the partnership indenture, a lease was granted by Attwood of the premises on which the trade was carried on for the term of twenty-eight years, to three persons as trustees for the partnership. Attwood died in November 1841, and his widow, Rebecca Attwood, one of his executors, alone proved his will in February

1842; she died in May 1842, and very shortly afterwards the plaintiff proved the will, and on the 24th of that month, he, by letter, gave notices to the surviving partners, Wimble and Warner, that he declined to take the share of the testator for the purpose of carrying on the trade for the benefit of his estate, or the benefit of the testator's eldest son, according to the option given by the partnership deed to the representatives of Attwood, and that he was desirous of having the whole partnership concerns wound up. The testator's eldest son at the time of the testator's death was and still continued a minor. Wimble and Warner, notwithstanding the above notice, continued to carry on the trade of ironmongers in the same manner and under the same style in which it had been carried on previously to the death of Attwood, and on the 13th of March 1843, the plaintiff, W. Madgwick, as executor of Attwood, filed his bill against the surviving partners and the lessees of the partnership premises, seeking a declaration by the Court that, by the death of Attwood the partnership of Attwood, Wimble & Warner became determined, directions for winding up the partnership, the appointment of a receiver, and an injunction restraining the surviving partners from receiving any of the copartnership assets. Wimble, in his answer, stated, that he had understood that the share of Attwood was required for the payment of his debts, and insisted that the partnership of Attwood, Wimble & Warner became, on the death of Attwood, dissolved. Wimble admitted also, that the share of Attwood in the co-partnership effects had been used in carrying on the business of the firm ever since Attwood's death. Warner, in his answer, stated, that he knew not whether Attwood at the time of his death was greatly, or to any extent, indebted on his separate account, or to an extent amounting to insolvency, and admitted that he and Wimble had, since the death of Attwood, but during the lifetime of Rebecca Attwood, and together with her as the executrix of her late husband, continued to carry on in partnership together the business. of ironmongers, under the firm of Attwood, Wimble & Warner, and that he and Wimble had, on all occasions, since the decease of Attwood, but together with Rebecca

Attwood up to her death, continued to use the name of Attwood in the business, and that the plaintiff had never consented thereto; and he submitted that, by consenting to the continuance of the partnership, Rebecca Attwood did in fact give such consent and permission to use the name of Attwood and carry on the said business, and that the plaintiff was bound by such consent and permission. Warner further stated, in his answer, that Rebecca Attwood, after she had proved the testator's will, received sums of money, together with the defendant and Wimble, on account of the profits of permanent capital, and which were drawn by the partners in the shares and manner agreed upon by the partnership articles.

On the part of the plaintiff, it was now moved, that a receiver should be appointed to collect the outstanding credits and effects of the partnership and to sell the same, and that the defendants Wimble and Warner might be restrained from receiving or getting in any part thereof, and from using the style or firm of Attwood, Wimble & Warner, or the name of Attwood.

Mr. Pemberton Leigh and Mr. Renshaw, in support of the motion.-It is impracticable to carry on the concern, the son of Attwood being still a minor, and notice has been duly given by the plaintiff to the surviving partners to that effect. There would be no end in the present case to the liability to which the plaintiff would be exposed, were he to carry on the concern; but even if the testator had actually covenanted that the business should be carried on after his decease with the surviving partners, it would not be obligatory on his executors, or for the son against their wish, to comply therewith. The stipulation in the partnership deed is simply that the executor shall have the option of taking the share of Attwood, and, with the surviving partners, carrying on the business, if Attwood's son shall be a minor at the time of his father's decease. The case of Kershaw v. Matthews (1) decides that, in a case like the present, where the plaintiff, who is the party appointed to succeed to the deceased partner's share in the concern, declines to do so, the partnership is dissolved; and a receiver ought forthwith to be appointed in the present

(1) 2 Russ. 62; s. c. 4 Law J. Rep. Chanc. 155.