PAROL-continued.

next title). Parol evidence is also the phrase commonly used to denote extrinsic evidence, i. e., evidence outside of the written document which it is used to explain.

See title EXTRINSIC EVIDENCE. PAROL DEMURRER. A plea to stop or stay the pleadings in an action. In many real actions brought by or against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the non-age of the infant, and pray that the proceedings may be deferred till his full age or (in our legal phrase) that the infant may have his age, and that "the parol may demur," that is, that the pleadings may be stayed; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby. This plea of parol demurrer was abolished by the stat. 11 Geo. 4 & 1 Will. 4, c, 47, as to proceedings under that statute, being chiefly decrees for the sale of real estate to pay debts. But since the Trustee Act, 1850, and Trustee Extension Act, 1852, a resort to the last-mentioned statute is seldom necessary.

PARSON (persona), in its legal acceptation, signifies the rector of a parochial church. He is called parson, persona, because, by his person, the church, which is an invisible body, is represented. Co. Litt. 300 a, s. 528.

PARSON IMPARSONEE. When a clerk is not only presented, but instituted and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law persona impersonata, or parson impersonée. Co. Litt. 300.

PARTAGE. This is, in French Law, the partition of English Law, and is demandable as of right.

PARTICULAR ESTATE. A limited legal interest or property in lands or tenements, as distinguished from the absolute property or fee simple therein, is usually so termed; and he who holds or enjoys such a limited interest therein is thence sometimes called the particular tenant. Thus, if A. has the absolute property or feesimple in certain lands, and he demises them to B. for a term of seven years, or life, the legal interest which B. would thus acquire therein would be called the particular estate with reference to A.'s estate in fee-simple; i. e., it would be a particle or portion carved or cut out of A.'s feesimple.

See also titles REMAINDER; REVERSION.

PARTICULARS OF DEMAND: See title BILL OF PARTICULARS.

PARTICULARS OF OBJECTIONS: See title NOTICE OF OBJECTIONS.

PARTIES, or PRIVIES. "Parties" to a deed or contract are those with whom the deed or contract is actually made or entered into. By the term "privies," as applied to contracts, is frequently meant those between whom the contract is mutually binding, although both are not literally parties to such contract. Thus, in the case of a lease, the lessor and lessee are both parties and privies, the contract being literally made between the two, and also being mutually binding; but if the lessee assign his interest to a third party, then a privity arises between the assignee and the original lessor, although such assignee is not literally a party to the original lease.

See also title PRIVIES.

PARTITION (partitio). The dividing of lands held by joint tenants, coparceners, or tenants in common, into distinct portions, so that they may hold them in severalty; and the instrument by which this partition or division is effected is called a deed of partition (4 Cruise, 83). A partition is usually effected upon bill filed in the Court of Chancery, after the decree on which the parties execute to each other the requisite mutual conveyances of each other's shares (see title CONVEYANCES). But if the parties can agree among themselves to make a partition, there is no occasion to resort to the Court at all. Since the Partition Act, 1868 (31 & 32 Vict. c. 40), the Court may in certain cases specified in the Act decree a sale in lieu of partition.

PARTNERSHIP. This is a voluntary contract, whereby two or more persons agree to put their money and labour, or either, together in some lawful business, and to divide the profits arising from the business. No third party can be introduced into the partnership without the consent of all; but he may be taken as a sub-partner of one or more of the partners (Ex parte Barrow, 2 Rose 255). Upon the death of a partner, he may not by his will introduce a successor to his share (Pearce v. Chamberlain, 2 Ves. 33), unless the partnership agreement authorizes him to do so. Stuart v. Bute (Earl), 3 Ves. 212; 11 Ves. 657.

In the absence of stipulation, the shares of the partners, both in the capital and in the profits, are presumed to be equal, and the losses to be similarly divisible (Peacock v. Peacock, 16 Ves. 49); but the presumption is rebuttable (Stewart v. Forbes, 1 Mac.

PARTNERSHIP-continued.

vanced or work done before the partnership, although towards the formation of the partnership (Venning v. Leckie, 13 East, 7). But in Equity the partner has the following remedies against his copartner:

I. Specific performance,

(a.) Of contract for partnership for a term of years, when there have been acts of part performance (Scott v. Rayment, L. R. 7 Eq. 112); but not

(b.) Of agreement for reference (Street v. Rigby, 6 Ves. 818.

II. Injunction,

(a.) Against wilfully excluding a copartner's name from the style, contrary to agreement (Marshall v. Colman, 2 Jac. & W. 266): (b.) Against one partner engaging in another business, contrary to agreement (Somerville v. Mackay, 16 Ves. 382);

(c.) Against wilfully excluding a copartner from the exercise of his

rights as such (Dietrichsen v. Cabburn, 2 Ph. 59);

(d.) Against a sudden dissolution work. ing irreparable damage. 1 Lindl. Partnership, 232, 3rd ed.

III. Decree for dissolution, including the taking of the accounts and the appointment of a receiver, with a view to the dissolution;

(a.) Where the co-partnership originated in fraud (Rawlins v. Wickham, 1 Giff. 355); (b.) Where a co-partner is guilty of gross misconduct in partnership matters (Smith v. Jeyes, 4 Beav. 503);

(c.) Where a co-partner is continually breaking the partnership agreement (Waters v. Taylor, 2 V. & B. 299);

(d.) Where the incompatibility of tempers is extreme (Baxter v. West, 1 Dr. & Sm. 173); (e.) Where a co-partner whose personal skill was indispensable to the partnership becomes insane. Jones v. Noy, 2 My. &

K. 125.

IV. Receiver,-towards dissolution. Hall v. Hall, 3 Mac. & G. 79.

V. Accounts,-without dissolution; (a.) Where a partner has been excluded;

(b.) Where the partner complaining would be entitled to ask for a dissolution. Fairthorne v. Weston, 3 Hare, 387. VI. Discovery,-in aid of an action at law, and even of a compulsory

PARTNERSHIP-continued.

reference to arbitration (British E. I. Co. v. Somes, 5 W. R. 813). Moreover, the jurisdiction in Equity is, in general, much more available, and also more advantageous than that at Law, as will be seen from the following instances:

(1.) Upon the decease of a co-partner
the creditors can only proceed
against the survivors, but in
Equity they may proceed
against the estate of the de-
ceased (Vulliamy v. Noble, 3
Mer. 593);

(2.) In the case of two firms having a
common partner, neither firm
can sue the other at Law,
(Bosanquet v. Wray, 6 Taunt.
597), but in Equity each may
sue the other (Mainwaring v.
Newman, 2 B. & P. 120);
(3.) In the case of a co-partner pur-
chasing a share in the partner-
ship, he cannot at Law sue his
co-partners to recover it, but
in Equity he may (Wright v.
Hunter, 5 Ves. 792);

(4.) The lands of a co-partnership are at Law liable only as lands, but in Equity they are liable as personal estate (Baring v. Noble, 2 Ry. & M. 495); and (5.) Generally, a co-partner cannot obtain either specific performance, an injunction, a decree for dissolution, the appointment of a receiver, or an order to account at Law, although he may (as above is mentioned) have all of these in Equity. A partnership depending for its commencement upon the consent of the partners, depends upon the same consent for its continuance; and therefore the dissolution of a partnership may be brought about by any sufficient dissent of the partners to its continuance, namely, in the following variety of ways:

I. Dissolution by act of the partners
themselves,-

(1.) Consent of all to dissolve (Hall v.
Hall, 12 Beav. 414);
(2.) Dissent of one, where partnership
is at will (Master v. Kirton, 3
Ves. 74; Chavany v. Van
Sommer, 3 Wood. Lect. 416, n.);
(3.) Efflux of term of co-partnership.
Featherstonhaugh v. Fenwick,
17 Ves. 278.

II. Dissolution by operation of law,—
(1.) By conviction of a partner for
felony;

(2.) By the marriage of a partner,
being a female (Nerot v. Bur-
nand, 4 Russ. 247);

PARTNERSHIP-continued.

(3.) By one partner's general assignment (Heath v. Sanson, 4 B. & Ad. 172);

(4.) By execution creditor of a partner seizing his share or part thereof (Fox v. Hanbury, Cowp. 445); (5.) By bankruptcy of a partner (Crawshay v. Collins, 15 Ves. 218), the dissolution taking effect upon adjudication, but dating backwards to act of bankruptcy (Dutton v. Morrison, 17 Ves. 193);

(6.) By hostilities between two countries of co-partners, where they are foreigners to each other (Griswold v. Waddington, 16 Johns. (Am.) 438);

(7.) By death of a partner (Gillespie v. Hamilton, 3 Madd. 254); III. Dissolution by decree of Court of Equity, for the reasons enumer

ated above,

Immediately upon a dissolution being made, the power of the partners, either together or individually, to enter into any new engagements ceases (Ex parte Williams, 11 Ves. 5); nevertheless each partner may actively assist in the winding-up of the business, and therefore may give a valid receipt for any debt of the partnership received by him (Fox v. Hanbury, Cowp. 445), and may even compound debts provided the composition be fair and honourable (Beak v. Beak, Ca. t. Finch, 190). And in case of a dissolution by death or bankruptcy, the surviving or solvent partners cannot insist upon taking the partnership effects at a valuation (Cook v. Collingridge, Jac. 607), but all the property of the firm as well real as personal must be sold (Crawshay v. Maule, 1 Sw. 495), although at the sale the partners may bid (Chambers v. Howell, 11 Beav. 6), having first obtained the leave of the Court, where the sale is by direction of the Court. Rowland v. Evans, 30 Beav. 302.

The creditors of the partnership, not being execution creditors, have no direct lien on the partnership effects, but have an indirect lien through the direct lien of the partners themselves thereon (Ex parte Ruffin, 6 Ves. 119); consequently the partnership (or, as they are called, joint) creditors have the first claim on the partnership (i.e., joint) property for the payment of their debts, the partners themselves having that right, in exoneration pro tem. or pro tanto of their respective private (i.e., separate) estates, and on the other hand the separate creditors of each partner have the first claim on the separate estate of tlat partner; then, if the partnership is solvent and the individual partners also solvent,

PARTNERSHIP-continued.

there is an end of the rights of creditors, their debts being paid. But if, on the one hand, the partnership is insolvent, the joint creditors may thereafter come down on the respective separate estates of the individual partners whether living or dead; and if, on the other hand, any one or more of the individual partners are insolvent, his or their respective separate creditors may thereafter come down upon the partnership estate to the extent of his or their respective shares therein; and it makes no difference whether the estate is administered out of Court or in Court, and if in Court whether in a Court of Equity or in a Court of Bankruptcy (Ridgway v. Clare, 19 Beav. 111). But although the order above described is the natural order of payment, yet any joint creditor may in the absence of a bankruptcy proceed in the first instance against the separate estate, and any separate creditor against the joint estate, occasioning a certain amount of disorder thereby, which disorder, however, is afterwards removed in the general settlement of the accounts (Wilkinson v. Henderson, 1 My. & K. 582), the principle of settlement being the principle of marshalling derived from the natural order of payment mentioned above, and the whole doctrine resting upon the principle of Equity, that every partnership debt is not only a joint but also a several debt (Burn v. Burn, 3 Ves. 573), unless it be the result of some arbitrary joint convention of the partners. Sumner v. Powell, 2 Mer. 30.

By the Bankruptcy Act, 1869, s. 37, if any bankrupt is at the date of the order of adjudication liable in respect of distinct contracts as member of two or more distinct firms, or as a sole contractor and also as member of a firm, the circumstance that such firms are in whole or part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of such contracts against the properties respectively liable upon such contracts; and by the Rules in Bankruptcy made in pursuance of the Bankruptcy Act, 1869, G. R. 76, any separate creditor of any bankrupt is at liberty to prove his debt under any adjudication of bankruptcy made against such bankrupt jointly with any other person or persons; and under every such adjudication distinct accounts are to be kept of the joint estate and also of the separate estate or estates of each bankrupt, and the separate estate is to be applied in the first place in the satisfaction of the debts of the separate creditors; and in case there is an overplus of the separate estate, such overplus is to be carried to the account of the joint estate. And in case

PARTNERSHIP-continued.

there is an overplus of the joint estate, such overplus is to be carried to the accounts of the separate estates of each bankrupt in proportion to the right and interest of each bankrupt in the joint estate. So that the principles of the Common Law as evolved from the decisions have been followed simpliciter in the provisions of the Bankruptcy Act, 1869.

But where a retiring partner, upon the dissolution of a partnership, assigns all his interest in the partnership property to the remaining partner, and the assignment is bona fide, that assignment converts the joint property of the partnership into the separate property of the remaining partner, so as that so much of the then partnership property as remains in specie upon the subsequent bankruptcy of the surviving partner vests in the trustee in bankruptcy of the latter as his separate estate, and is liable accordingly (Ex parte Ruffin, 6 Ves. 119). But the assignment must be complete (Ex parte Williams, 11 Ves. 3), for if anything remains still to be done to render it complete, the conversion of joint into separate property does not take effect (Ex parte Wheeler, Buck. 25); moreover, the property must not be suffered to remain in the order and disposition of the old partnership (Ex parte Burton, 1 Glyn & J. 207). The effect of the conversion is of course to give the separate creditors a prior claim upon the property (Ex parte Freeman, Buck. 473); it does not deprive the joint creditors of their right to be paid somehow (Ex parte Peake, 1 Madd. 358). Moreover, the assignment requiring to be bonâ fide, the insolvency of the partners, either collectively or individually, at the date of the assignment would render it fraudulent (Ex parte Mayen, In re Edwards, Woods & Greenwood, 34 L. J. (Bkcy.) 25), unless the bona fides of it is otherwise proved. Ex parte Peake, In re Lightoller, 1 Madd. 316.

PARTY AND PARTY, BETWEEN. This phrase signifies between the contending parties in an action, i.e., the plaintiff and defendant, as distinguished from the attorney and his client. These phrases are commonly used in connection with the subject of costs; and in order to give a precise idea of their scope and meaning, it will be necessary to consider briefly the nature of costs. Such of these charges and expenses as are necessarily incurred in the prosecuting and defending the action, and which arise as it were out of the proceedings themselves, are denominated costs in the cause, the payment of which usually devolves upon the defeated or unsuccessful party. In addition to these, there are others which, though not arising directly

PARTY AND PARTY, BETWEEN-cont. out of the proceedings themselves, are usually paid by each party to his own attorney, whatever may have been the result of the cause, and these are commonly called costs as between attorney and client, as distinguished from the costs in the cause, or, as the latter are sometimes called, costs as between party and party.

The scale upon which costs as between solicitor and client are calculated is more liberal than that upon which costs as between party and party are calculated; and the Court in a proper case will direct all the costs of a proceeding to be paid out of the estate as between solicitor and client, but more often the direction for payment is as between party and party only. See Morgan and Davey on Costs.

PARTY-WALL. Is a partition wall; i.e., a wall dividing two messuages. Poculiar provisions exist under statute regarding party walls within the metropolis. See title METROPOLITAN BUILDINGS and statutes there cited.

PASS, TO. To go, 'to be transferred, to be conveyed, e.g., by a conveyance of a house do the fixtures pass i.e., do they go, or are they conveyed as part and parcel of the house? Again, does the fee pass under the word "estate?" i.e., does the fee simple in land become transferred or pass away under the term "estate?"

PASSING ACCOUNTS. When an auditor appointed to examine into any accounts certifies to their correctness, he is said to "pass" them; i.e., they pass through the examination without being detained or sent back for inaccuracy or imperfection.

PASSING RECORD. When the proceedings are entered upon the nisi prius record, it used to be taken to the master's office and there examined by the proper officer, who then signed it; and the record was then said to be "passed." But by the C. L. P. Act, 1852, s. 102, the record of nisi prius shall not be sealed or passed, but may be delivered to the proper officer of the Court in which the cause is to be tried, to be by him entered as at present and remain until disposed of.

See title ENTRY FOR TRIAL.

PATENT AMBIGUITY. This is an ambiguity which arises upon the words of the will, deed, or other instrument, as looked at in themselves, and before they are attempted to be applied to the object or to the subject which they describe. The term is opposed to the phrase Latent Ambiguity (which title see). The rule of law is, that extrinsic or parol evidence,