RELEASE OF POWER. Death of settlor's wife. That there are That settlor is desirous to of revocation. Witnessing part. whereby lands were conveyed by A. B. to use of A. B. for life, with remainder to C. B. his wife for life, with remainder to use of the children of A. B. and C. B. as tenants in common in fee simple, with power to A. B. to revoke the use and appoint the property to other uses) AND WHEREAS the said C. B. died on the -day of : AND WHEREAS there have been two children of the two children. said A. B. and C. his wife, namely, D. B. and E. B., both of whom have attained the age of twenty-one years: AND WHEREAS release power the said A. B. has not exercised the power of revocation and new appointment reserved to him by the said indenture of settlement, and he has now agreed to release the same in the manner hereinafter expressed: NOW THESE PRESENTS WITNESS, that the said A. B. hereby releases unto the said D. B. and E. B., and all other persons interested in the hereditaments comprised in the said indenture of settlement, the said power of revocation and new appointment reserved to the said A. B. in and by the said indenture as aforesaid, To the end and intent that the same hereditaments shall absolutely remain and be to the uses declared by the said indenture, freed and discharged from the said power of revocation and new appointment. Release of power. IN WITNESS, &c. in gross, as powers given to a person who had an interest in the estate at the execution of the deed creating the power, or to whom an estate is given by the deed, but which enable him to create such estate only as will not attach on the interest limited to him; and a power simply collateral, as a power to a person not having any interest in the land, and to whom no estate is given, to dispose of or charge the estate in favour of some other person. A power appendant or in gross could always be released, but not so, until the recent Acts, a power simply collateral. Sug. Pow. 7th ed. Powers simply pp. 39-45. It is now provided by the Conveyancing Act, 1881, s. 52, collateral may that a person to whom any power, whether coupled with an interest or not, is given, may by deed release or contract not to exercise the same; and by the Conveyancing Act, 1882, s. 6, that a person to whom any power, whether coupled with an interest or not, is given, may by deed disclaim the power, in which case the power may be exercised by the other or others or the survivors or survivor of the others of the persons to whom it is given; and these enactments apply to powers created by instruments coming into operation either before or after the commencement of the Act. now be re leased. No. XIV. RELEASE of ACTIONS on PAYMENT of COSTS. RELEASE OF ACTIONS ON PAYMENT OF COSTS. Recite that been com actions had libels. in satisfaction occasioned by the libels. TO ALL TO WHOM THESE PRESENTS SHALL COME, A. B., of, &c. (releasor), SENDS GREETING: WHEREAS two several actions have lately been commenced by the said A. B. in the High Court of Justice (Queen's Bench Division) against menced by C. D., of, &c., and E. F., of, &c., for the printing and publica- account of tion of certain libels against him the said A. B.: AND WHEREAS Agreement to it hath been agreed between the parties to these presents, that accept a sum the said C. D. and E. F. should pay to the said A. B. the sum of damage of £ for and in full satisfaction of all damages and costs suffered and incurred by the said A. B. on account of the said libels, and in and about the prosecution of the said actions, and that upon payment of the said sum of £, the said actions and all further proceedings therein shall be wholly stayed and discontinued: NOW THEREFORE KNOW YE, and these Release of actions, &c., presents witness, that in consideration of the said sum of £ on account of so paid to the said A. B. by the said C. D. and E. F. in full. libels; satisfaction as aforesaid, the receipt whereof is hereby acknowledged, the said A. B. doth hereby release, and quit claim unto the said C. D. and E. F., and each of them, ALL and all manner of actions, causes of action, claims and demands whatsowhich he the said A. B. now hath, or at any time hereafter can or may have, or, but for the execution of these presents, could or might have had against the said C. D. and E. F., or either of them, for or by reason or in respect of any matter or thing contained in the said libels as aforesaid, or for or by reason of any other matter or thing in anywise relating thereto : AND the said A. B. doth hereby consent and agree that the said and agreement actions shall henceforth cease and be determined. ever, IN WITNESS, &c. to determine actions PARTNERSHIP DEEDS. What is a partnership. Participation in profits a prima facie test of partnership, but not conclusive, 28 & 29 Vict. c. 86. Lender of money on terms that interest shall vary with profits, not a partner. PARTNERSHIP is a contract whereby two or more persons engage together in some business or undertaking, bringing for this purpose into community capital or labour or both, and sharing the profits (a). The prin (a) Although participation in profits is a prima facie test of partnership, it is not conclusive, as there may be circumstances to rebut the inference of partnership, as where under a deed of arrangement between an insolvent firm and its creditors, trustees were directed to carry on the business under a new title for the benefit of the creditors until their debts were paid, it was held that the creditors were not partners, and the test was stated to be whether the trustees were carrying on the business as their agents; and the fact that they were not entitled to the profits to an indefinite extent, but only until their debts were paid, was relied on as rebutting the presumption that they were the owners of the business, standing in the relation of principals to the persons ostensibly carrying on the trade. Cox v. Hickman, S H. L. C. 268. By the 28 & 29 Vict. c. 86, it is provided (sects. 1 and 2) 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 provision 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 persons carrying on such trade or undertaking, or render him responsible as such; and that no Nor a servan contract for the remuneration of who receives 3 a servant or agent of any person as remunera. share of pro engaged in any trade or under- tion. taking 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; and the 3rd section provides Nor a widow that no person being the widow or or child of deceased child of a deceased partner of a partner, whe trader, and receiving by way of receives share annuity a portion of the profits of profits by made by such trader in his business, way of shall by reason only of such receipt annuity. be deemed to be a partner of or to be subject to any liabilities incurred by such trader; and the 4th section Nor a vendor declares that no person receiving by of business who receives way of annuity or otherwise a pora share of tion of the profits of any business profits as in consideration of the sale by him consideration. 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. By the 5th section it is provided that in the event of the trader being made a bankrupt, or entering into an arrangement to pay his creditors less than 20s. in the pound, or dying insolvent, the lender shall not re authority of cipal legal consequence of the contract is that, as Implied regards third persons, each partner has authority to each partner to bind the firm in all matters coming within the ordi- bind the firm. nary scope of the business, and that the contracts and engagements of the firm may be enforced against every member of it. And where a person retires by Notice to be agreement from a firm which continues to carry on retirement of business, his liability continues until the fact of his partner. retirement is notified. A notice in the London Gazette is sufficient as against all persons who had no dealing with the old firm, but it is necessary to give express notice to old customers. given on partnership The rights and liabilities of the partners as between Usual prothemselves are usually regulated by express contracts. visin A well drawn partnership deed defines the nature of deeds. the business, the duration of the partnership, and the name of the firm. It also states the amount of capital, and by whom and in what shares it is to be brought in, and the proportions in which profits and losses are to be divided. It also provides for a yearly or other periodical balancing of accounts, and for the arrangements to be made on the determination of the partnership, whether by effluxion of time, the death or bankruptcy of a partner, or otherwise. to capital, pro The provisions relating to capital and the division Provisions as of profits and losses often require special attention. fits and loss. Where the capital is brought in by the partners equally, and they share equally in the profits, there cover any part of his principal or of the profits or interest payable in respect of such loan, and that the vendor of such goodwill as aforesaid shall not recover any such profits until the claims of the other creditors of the trader for valuable consideration in money or money's worth have been satisfied. The above enactment has been criticised as being founded to some extent on a misapprehension of the law as it stood when the Act passed, there being no rule (as is supposed in the Act) that a loan of money on an agreement that interest should be paid varying with the profits. would constitute the lender a part ner. And it has been held that the Provision of Act does not apply to any contract Act as to unless the advance of money would lender not independently of the Act have being a created the relation of debtor and not apply if partner does creditor as distinguished from the the result of relation of partners; and a de- the arrangeclaration in the deed that the lender ment is to shall not be a partner will be nugatory if the result of the agreement, as a whole, is to give him the rights and impose on him the obligations of a partner. Pooley v. Driver, 5 Ch. D. 458; Ex parte Delhasse, 7 Ch. D. 511; Badeley v. Consolidated Bank, 38 C. D. 238. confer on him the rights and obligations of a partner. When more capital is one partner than by the other, provision should be made for its return, and for is no difficulty; but if this is not the case, the respective rights of the partners as regards capital and profits and losses should be carefully defined. Supbrought in by pose, for instance, that A. and B. are partners on the terms of an equal division of profits, but A. brings in all the capital. In the absence of express stipulation, the capital will be considered as thrown into the common fund, and will, like the profits, belong to the interest in the partners equally. This is not generally intended, and provision should therefore be made in such a case for securing to A. the return of his capital out of the partnership assets on the winding up of the business, and the payment to him of interest thereon in the meantime. meantime. Participation in losses. Partnership determines by ruptcy. If the business is conducted at a loss, or if the net returns are less than the capital employed in producing them, the capital is of course diminished to this extent, and the share of each partner is diminished in proportion. If the whole of the capital is lost, and the firm has moreover incurred liabilities beyond what the capital will satisfy, such liabilities will, in the absence of special agreement, have to be borne by the partners in the same proportions in which they would have been entitled to profits (if any). A partnership is determined by the death or bankdeath or bankruptcy of a partner, and when there are three or more partners, the death or bankruptcy of one is a dissolution as to all, unless the contract provides to the contrary. Lunacy does not of itself determine the partnership, but under the Act 16 & 17 Vict. c. 70 (b), the Lord Chancellor may, on the application of the other partners, decree a dissolution. Effect of lunacy. Execution against one partner, is a dissolution, Misconduct of a partner A judgment obtained against one member of a firm for his private debt may be put in execution against his share of the partnership effects, and such an execution operates as a dissolution of the partnership (c). It is not unusual to provide that in the event of cerwhen a ground tain breaches of duty by a partner, the other partner for dissolution. or partners shall have the power of expelling him. In |