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MOOT POINTS.

No. 34.-Husband and Wife-Forcible Possession-Remedy.-In consequence of the irregularities and misconduct of a husband, the wife is living apart from him, and intends taking proceedings in the Divorce Court as soon as possible. The husband in the meantime

avows his determination to obtain possession of his wife's person, and threatens to accomplish his purpose by force. What steps should the wife take to defeat the husband's purpose ?-HENRY CADMAN, jun., Gomersal, near Leeds.

No. 35.-Construction of Act.-Some boys having stolen a quantity of lead, sold it to B., a dealer in old metals, who acknowledged having bought it, but denied all knowledge of it having been unlawfully obtained. B. afterwards sold the lead, among other articles, to C. After C. had removed it to his own premises, and put it where it could not be identified, the theft was discovered, and B. was summoned and convicted by the magistrates here under the 2nd section of "The Old Metal Dealers' Act, 1861." Can the conviction be sustained, considering that the lead was not found in B.'s "house, shop, room, or place?" E. H. HASWELL, West Sunniside, Sunderland.

MOOT POINT CORRESPONDENCE.

SIR,-I am about to ask the opinion of your correspondents on a Moot Point, but I must really apologise for the length of it, and the space it will consequently occupy in your paper; still from the many curious points it embraces, and the novelty of the case, it will, I think, repay the trouble of a perusal.

A. was a wealthy cotton manufacturer, and had a confidential clerk, B. After twenty-five years service, A. agreed to take his clerk into partnership with him. The articles of co-partnership contained the usual covenants and restrictions. Amongst the clauses was an agreement that it should be lawful for either of the co-partners to discontinue the partnership on giving to the other of them thirty days' notice of his intention so to do, which notice was to be in writing; the profits arising from the business were to be divided as follows:-A. was to take three-fourths of the profits, and the remaining one-fourth to the clerk B. No notice was taken in the articles of partnership of the proportion in which the losses were to be borne (if there were any). After A. and B. had been in partnership one month, B. (the clerk) married a lady possessed of a fortune of £20,000; half of it was settled on himself, and the remaining half on his wife. B. then gave notice to his partner of his intention to discontinue the partnership at the expiration of thirty days. As B. was going abroad, A. consented to waive this necessary notice of thirty days, and declared the partnership entirely

dissolved at the end of ten days. This agreement on the part of A. to accept ten days' notice as sufficient to dissolve the partnership was not reduced to writing, but was uttered before several witnesses. Neither was the dissolution of partnership advertised in the Gazette. Ten days after this verbal agreement the whole of the manufacturing premises were accidentally burnt down and all the stock-in-trade destroyed. By a negligence on the part of one of the clerks, the premiums for the insurance of the premises had not been paid at the proper time. Two days had elapsed since they had become due, and the policy was, therefore, void. At the same time two firms in America, who were largely indebted to the co-partners, became insolvent. In consequence of these losses, A. and B. were obliged to make themselves bankrupts. On this case the following questions arise; and I, acting as the solicitor of B., require your advice as to what course I should advise my client to adopt :

1st. Is B. really to be considered as one of the co-partners? Was the verbal acceptance of ten days' notice taken by A. sufficient to dissolve the partnership? If not, as the whole of the thirty days required by the articles have not yet expired, the partnership continues, and these losses happening during the continuance of the partnership, B. must be liable to them, for a verbal agreement to take ten days' notice of intention to dissolve partnership will not invalidate the written ageeement under seal that thirty days' notice must be given.

2nd. What proportion of the losses must B. bear? The articles of partnership stated that B. should have one-fourth of the profits, but made no mention of what proportion of the losses he was to share? Will B. be liable to one-half of the losses, or only onefourth of them?

3rd. As B. has not derived any profit from the business, will the private property of B., namely, the £10,000 that was settled on him by his wife, be liable to the losses or not?

Would there be grounds for a suit in equity to compel A. to pay all the losses? since it is not just that B. should be obliged to pay his private money of £10,000 towards the loss of a partnership which has only existed one month, and from which he has derived no benefit. Again, the insurance of the building so destroyed by fire was £500 per annum; that insurance had been regularly paid for forty years, making a total sum of £20,000 that had been paid for insurance is there ground for instituting a suit to recover part of the insurance money as the day for payment of the premium had only expired forty-eight hours?

Another point in favour of my client B. is that £8,000 owing by the American firms were debts contracted before the commencement of the partnership. Is B. liable to them?

JOEL EMANUEL (Southampton).

EXAMINATION STUDIES.

TRINITY TERM, 1862.

(Continued from p. 203.)

No. X. (p. 140), with respect to the doctrine of contribution, requires that it should be known that there is in regard thereto a distinction between actions arising out of contract, and those arising out of torts. In Selw. N. P. 79, 80, 11th ed., it is said: "If A. recover in an action founded on tort against B. and C., and levy the whole damages on B., B. cannot maintain an action against C. upon an implied assumpsit for a reimbursement of a moiety, for a contribution cannot be claimed as between joint wrong-doers." A different rule holds in the case of a joint judgment against several defendants in an action of assumpsit. In Adamson v. Jarvis (4 Bing. 73), Best, C. J., in delivering judgment, said: "From the inclination of the Court in Phillips v. Biggs (Hardr. 164), and from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixon (in which he says that decision would not affect cases of indemnity where one man employed another to do acts, not lawful in themselves, for the purpose of asserting a right), and from reason, justice, and sound policy, the rule that wrong-doers cannot have contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act." And in Pearson v. Skelton (1 M. & W. 504) the rule as to non-contribution in the cases of tort was held not to apply to an action for contribution towards damages and costs recovered for an accident caused by the negligent driving of the servant of the parties. With respect to the non-liability of partners to contribution, there is a distinction between general partners and partners in a particular transaction as Mr. Gow (Partn. 79, 3rd ed.) says: "The remedy by an action for contribution cannot be extended to general partners without infringing on the principle which denies to a partner legal redress against his co-partners in the case of an unsettled account. If, therefore, one partner in a general partnership has any claim for contribution. against his co-partners, it seems to be the proper subject of a bill in equity. [And this is so though a partner pays the money on account of his co-partners not voluntarily but by compulsion of law Sadler v. Nixon, 5 B. & Ad. 936]. But where persons are partners in a single transaction [or, rather, are jointly interested, for

in such a case there is, strictly speaking, no partnership, for as Tindal, C. J., said (7 Bing., 709), [part owners of a ship are not necessarily partners] one of them may, in an action of assumpsit for money paid to his use, enforce from the other contribution towards a debt which he may have discharged, but to which they were jointly liable." We may remark that at a previous examination (see 1 Exam. Chron. p. 22) a question was put which was intended to illustrate the distinction above pointed out between actions on contract and those for torts, respecting which question we made some remarks at p. 45 of the same volume, and to which readers are referred. It may, in conclusion, be remarked that the subject of contribution is one of more extensive application than the question put by the examiners would appear to imply, as may be seen by Law Dict. p. 159, tit. "Contribution," and that the most efficient remedy is, where there are complicated accounts, in Courts of equity. No. XII. (p. 140) by its terms relates to an express warranty; it will be seen that the purchaser may avail himself of the breach of the warranty either as a partial defence to the plaintiff's claim, or by a substantive action for the breach. The latter part of the answer requires attention, as it is a very common notion that a purchaser has always an option to return warranted commodities which do not come up to the warranty, and recover back the price there must have been, unless there has been a fraud or mutual consent to rescind, an express condition in the contract authorising such return. The case of Dawson v. Collis, referred to at p. 141, also reported 10 C. B. 523, is thus stated in the marginal note of the latter report: Upon the sale of specific goods, with a warranty that they are equal to sample, the vendee cannot, it seems, refuse to receive them on the ground that they do not correspond with the sample, unless there be an express condition to that effect, but must resort to a cross action, or rely on the noncorrespondence with sample as a ground for reduction of damages." In Roscoe's Evid. p. 318, 9th ed., it is laid down in more direct terms that "where there is a breach of warranty and no condition for rescinding the sale, in such case the vendee must receive the article and rely upon a cross action, or prove the breach in reduction of damages." However, at p. 352 it is said "there is a distinction made in the books between the sale of a specific article with a warranty and an executory contract for the supply of goods of a particular quality. In the last case the goods may be refused or returned if not of the kind, contracted for; but in the former case the remedy is either an action by the buyer on the warranty, or proof by him in reduction of damages in an action by the vendor, unless there be not merely misrepresentation or breach of warranty, but fraud, or unless there be a condition in the contract

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providing for the return of the goods in such case." As to No. XIII. (p. 141), we may observe that the fraudulent gifts and conveyances of lands or chattels there referred to are usually by post-nuptial settlement; and the learning thereon, and on the effect thereof, as against not only creditors but subsequent purchasers for value (even with notice), is usually to be found under the head of "Settlements." Mr. Prideaux (Prec: Convey. 532, 2nd ed.) has given the following summary statement, which may be useful to our readers :-" If the settlement is post-nuptial, and not made in pursuance of articles entered into before marriage, or if the settlement is not made with reference to marriage, and is not supported by a bona fide valuable consideration, or if in other respects it should be voluntary, then under the 13 Eliz. c. 5, and the 27 Eliz. c. 4. such a settlement is void with respect to the real estate settled, including chattels real, as against a subsequent purchaser for value or mortgagee from the settlor, although the purchaser or mortgagee might be attached with notice, and would be void with respect to every kind of property as to the settlor's creditors if he was indebted, at the date of the settlement, to such an extent as to raise a presumption of fraud” (Lush v. Wilkinson, 5 Ves. 384; Townsend v. Westacott, 2 Beav. 340; Norcut v. Dodd, 1 Cr. and Phil. 100; Scarf v. Soulby, 16 Sim. 481). As to No. XIV. (p. 141), as we have referred to the case of Duke v. Ashby (10 W. R. 273), we should state that the point really decided there was that, in ejectment by a landlord against his tenant, on a proviso for re-entry contained in the lease, reciting and "subject to a former lease to another party, the tenant cannot dispute the landlord's title. C. B. Pollock is reported to have said that the doctrine of estoppel, properly so called, does not apply to cases of landlord and tenant. Estoppel precludes a party from showing the truth or disputing the fact solemnly admitted. But here it is the truth which precludes the party from raising the question. And Martin, B., said: "Estoppel between landlord and tenant is quite different from that which arises by reason merely of the recitals in a deed." And Pollock, C. B., added: "It is not estoppel at all in its true legal sense. It is a principle of law that a tenant shall not be allowed to dispute his landlord's title." The case is not satisfactorily reported, and we should think the L. C. Baron is misrepresented when saying, "Then, in the common case of mortgagor letting land, the lease reciting the mortgage, the tenant could [that is, counsel asserted he could] dispute the landlord's title. That cannot be." Now in a lease by a mortgagor only it is not likely there would be a recital of the mortgage (see 1 Exam. Chron. 132, 133, 166, 167). As to estoppel by the acts of the party, see Cave v. Mills, 10 W. R. 471, where some of the previous cases are noticed. With reference to No. XV. (p. 141), it is to be remembered that the disabilities preventing the

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