Partition. writing. 2 B. C. C. 220. 1 Vern. 472. 2 Cru. Dig. 513. So a parol agreement for equality of partition, put in execution and long acquiesced in, if entered into by parties having a right to contract, will be established in equity. Ireland v. Rittle, 1 Atk. 542. But a partition under an agreement made by the husbands of two jointtenants will not bind the inheritance of the wives, unless they be parties thereto. Ireland v. Rittle, 1 Atk. 542. 2 Cru. Dig. 513. A parol agreement, to make partition by the guardian of an infant tenant in common, will be binding if confirmed by the infant after his coming of age, by granting leases or otherwise. Whaley v. Dawson, 2 Sch, & Lef. 367. Also a parol partition between tenants in tail will be binding on the issue. 2 Vern. 233. But it appears, that an agreement to make partition of copyhold lands, cannot be enforced in a court of equity, if it be made without the privity of the lord. Oakley v. Smith, Ambl. 368. S. C. Eden. 261. 3. Although joint-tenants and tenants in common are compel lable, by the 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, to make partition, yet this will not obviate the necessity for an agreement, particularly where delay is likely to arise in executing the partition. Stipulations 4. It was formerly held, that in the absence of all stipulation, as to costs. the expense was to be borne equally by all the parties, however unequal their interest. Norris v. Le Neve, 3 Atk. 83, Cornish v. Gest, 2 Cox Cas. 27. This doctrine appears, however, to have been since overruled, Calmady v. Calmady, 2 Ves. Jun. 568; an express provision on this point ought therefore to be inserted in the agreement. Agreements sometimes necessary. Partics. Recital of seisin. Agreement between two Joint Tenants of Freeholds or Articles, &c. (see p. 15) Betn A B of, &c. of the one pt and C D of, &c. of the or. pt Whereas under or by virtue of the last will &c. (or as the case may be) the sd A B and C D are seised to them and their hrs in equal shares and proportions as joint-tenants in possession of certain messes Ids and heredts situate at, &c. Agreement And whereas the sd A B and C D are desirous of making such partition thof as is hinaftr parlarly expssd Now these presents witness and each of them the sd A B and CD doth for himself resply by and for his respive hrs exs and ads agree with the or. of them his hrs, &c. in manner following that is to say (a) That the messes, &c. situate at, &c. shall henceforth become the sole property of the sd A B his hrs and ass and the, &c. of the sd C D, &c. And that it shall to make partition. Testatum. Part of the premises to belong to the one and Partition made by commis sioners or their um pire. (a) If the partition is to be made by commissioners, instead of this and the subsequent clause, say, That a partition and division of all and singular the sd messes lds and heredts into two separate allotments as nearly as may be shall be made by (one commis sioner) of, &c. a cominr nominated by and on behalf of the sd A B and (other commissioner) of, &c. a commr nominated by aud on behalf of the sd C D or by the umpire to be chosen by them And that the sd (C) or their umpire shall apportion each of the allotments in severalty to the sd A B and C D and decide what sum of money shall be pd for equality of partition, &c. And also that each of them the sd A B and C D shall and will join,' &c. (See above.) be referred to (arbitrator) of, &c. to settle the equi- exps Agreement between two Joint Tenants to hold in severalty. Partition. part to the other. Arbitrator to determine equality of par tition. Parties to execute mutual convey ances. Costs. Articles, &c. (see p. 15) Betn I D of, &c. of the one pt and C D of, &c. of the or. pt Whas the sd ID Recital of and CD have for many yrs exercised and carried on in copartnership. coptnshp the trade of and as such ptnrs have at different times purchased and acquired the sevl freehd and leasehd estes mentd or referred to in the sd schedule hereunder written or hereunto annexed marked with the letters A B and the same have been purchased and acquired by and out of the capital or stock in trade on acct of the sd coptnshp or jt trade and they are beneficially entitled to the same estes in equal shares and proportions And whas the sd ptnrs are desirous of making an equal division of the sd freehd and leasehd preses betn themselves and for that purpe have proceeded to make a valuation thof and having fully considered the nature and tenure of the different estes comprised in the two schedules and the value thof have mutually and finally determined and agrd that the estes mentd and referred to in the sd schedule marked with the letter A shall from the day of now next en suing be considered as the sole and exclusive este and property of and shall henceforth be held in sevlty by the sd ID and that the estes mentd in the schedule (a) If the lands be copyhold, say, By the license of the lord or lady for the time being of the sd manor.' See Obs. 2. (b) As to the costs, see Obs. 4. That the parties have made a divi sion. ID covenants to assure to CD his share; and in the Partition. marked with the letter B shall be considered as the sole and exclusive este and property of and be held in sevlty Testatum. by the sd CD Now these presents witness That in pursuance of the sd agrt and for giving effect to the same and in conson of the agrt hinaftr contd on the pt of the sd CD He the sd ID doth hereby for himself his hrs exs and ads agree with the sd C D and his hrs exs ads, &c. in manner following that is to say That convey and he the sd I D and evy person claiming and to claim by from through or under him or them shall and will from time to time and at all times hraftr at the rease request and at the costs and chas of the sd C D his hrs exs or ads make do and exte all such acts matters and things assignts conveys and assurs in the law as shall be requisite and necessary for assigning conveying and assuring the sevl freehd and leasehd heredts referred to in the schedule marked with the letter B and all the este right title and int of him the sd I D into and out of the same unto and to the use of the sd C D his hrs exs and ass according to the respive nature and tenure thof as he or they shall direct or appt so that for the making or doing such assurances the sd ID be not compelled or compellable to go or travel from the place of his usual residence or abode And furr That in the meantime and until such conveys assigts and assurs shall be made or exted as afd it shall be Iful for the sd CD his hrs exs ads and ass from time to time and at all times hereafter according to the respive tenures thof peaceably and quietly to have hold occupy possess and enjoy the sevl freehd and leasehd estes specified in schedule B and to rece and take the rents issues and 18 for his and their own exclusive use and bent without any let hinderance or interruption of from or by the sd I D his hrs exs ads and ass or any or. psn or psns claiming or to claim by from through or under him them or any of them And these prsts furr witness That in conson of the agrt hinbefe contd on the pt of the sd ID he the sd CD cove- C D doth hby for himself, &c. covt, &c. with and to the sd I D, &c. in manner, &c. that he the sd C D and evy psn, &c. at the rease request and at the cost and chas of the sd ID, &c. make do, &c. for conveying assigning and assuring the sevl freehd and leasehd heredts mentd and referred to in schedule A And all the este, &c. of him the sd C D into, &c. unto and to the use of the sd I D, &c. so that for the making, &c. the sd C D, &c. And furr, &c. it shall be lful for the sd I D, &c. without any let, &c. of or from the sd C D &c. In Witness, &c. meantime for quiet enjoyment. Further testatum ; nants to convey to ID. profts thof from the day of Agreements between a Principal and an Agent. Obs. 1. By the Statute of Frauds, 29 Car. 2, c. 1, s. 1, an agent must be authorised by writing to sign an agreement for the sale or purchase of an estate; but by the fourth section an agent may be authorized by parol to treat for or buy an estate. Sugd. V. and P. 8th edit. 96; and by the 17th section he may be authorized in the same manner for the sale of goods. But in every case, as well of special as general agencies, it is highly expedient that the limits and extent of the agent's authority should be defined by some writing. Mortlock v. Buller, 10 Ves. 310. Daniel v. Adams, Ambl. 495. Formerly, every delegation of authority must be by deed, Co. Litt. 48, b. 1 Salk. 96; but since the statute, agreements in writing, though not sealed, are said to have had some better countenance, Wheeler v. Newton, Prec. Cha. 16 Sugd. V. and P. 8th ed. 93; but a power to make or to take livery of seisin, or to do any matter which concerns the freehold, must be by deed. Co. Litt. 48, b. Streiglitz v. Egginton, 1 Holt, 141. So an authority to execute a deed. Harrison v. Jackson, 7 T. R. 209. 2. Generally speaking, an agent or attorney, who has authority to do an act, must do it in the name of his principal: thus the execution and delivery of a deed, must be in the name of the prinIcipal; if it be the execution of the agent only, it is void as to the principal, Moor, 70; but the form of words used in the execution is not material. Wilks v. Bucks, 2 E. 144. (See further, Appointment. Power of Attorney.) In mercantile transactions there is this difference between a broker and a factor, that the latter is authorized to sell in his own name, but the former is not. 3. The principal is bound by the acts of the agent in every thing which falls within the scope of his authority. Webster v. Seekamp, 4 B. and A. 352. Care ought therefore to be taken, in the penning such instruments, that they should not give an authority beyond what was in the contemplation of the principal. Thus, when a broker who is not authorized to sell in his own name, sells without disclosing the name of his principal, he acts beyond the scope of his authority, and his principal is not bound by the contract. Karing v. Corrie, 2 B. and A. 137. 4. A factor who is the agent in a foreign country of a merchant residing at home, or e contra, is mostly authorized by a letter of attorney, and must pursue his commission strictly. Mal. Lex. Mercat, 81. 5. Where power is given to the factor in express words, as is usually done, to dispose of the goods as if they were his own, the acts of the factor will be excused, although they occasion loss to the principal. Beawes' Lex Mer. 47. If the goods which come to his hands receive damage, but not through his negligence, the principal shall bear the loss. 4 Co. 84. So likewise, if the factor be robbed, he shall be discharged in account brought against him by his principal. Ibid. 6. A bare commission to sell is not sufficient power for the factor to give credit, Brown v. Staton, 2 Chit. Rep. 353; and by the general power of doing as if it were his own, he may not give credit for an unreasonable time. 2 Cha. Ca. 57. 7. A factor cannot bind in effect the property or the goods of his principal, by pledging them as a security for his own debt, though there is a formality of a bill of parcels and a receipt. Stra. 1178. Now by the 6 G. IV. c. 94, agents fraudulently pledging the goods of their principals, are deemed guilty of a misdemeanour punishable by fourteen years' transportation. Credit when to be given by agent. Agent cannot bind principal for his own debt. Duration of 8. An agreement with an agent to manage a concern during his life, for a stipulated salary, gives him a right to the advantages contract. Principal of it, although he be afterwards discharged. & Agent. Compound interest allowed. Agents not partners. Clerk agrees to serve for a terin. 1 B. P. C. 140. Ball v. Coggs, 9. An agent is not to employ himself in the affairs of another during the subsistence of the appointment. Thompson v. Havelock, 1 Campb. 527. 10. Where an agent advances money for a principal, interest may, contrary to the general rule of law, be computed upon interest. Bruce v. Hunter, 3 Campb. 467. il. Although, generally speaking, a perception of the profits will constitute a partnership, yet a remuneration made to a traveller, clerk, or agent, out of the sums received by or for his master or principal, does not subject him to the liabilities of a partner. Benjamin v. Porteus, 2 H. Blackst. 590. Dry v. Boswell, 1 Campb. 329. Cheap v. Cramond, 4 B. & A. 663. Agreement between a Brewer and a Managing Clerk. Obs. Where such agreement must be in writing, see Obs. 1. As to stamp, see Agreement, § 10. Articles, &c. (see p. 15) Betn (principal) of, &c. of the one pt and (clerk) of, &c. of the or. pt Witness That for the consons hnaftr contd on the pt of the sd (P) he the sd (C) for himself his exs, &c. doth hby covt promise and agree with and to the sd (P) that he the sd (C) shall and will henceforth for and during the term of yrs (a) to be computed from the day of the date of these prsts if both of them the sd (P) and (C) shall so long live become be and continue the clerk of him the sd (P) in his trade or business of a common brewer and shall and will during the term afd give up his whole time and attention to the same in managing conducting superintending and improving the same to the utmost of his power and ability And also shall and will during the sd term do and perform all such acts matters or things in about or relating to the sd trade or business as he the sd (P) shall from time to time order direct or appt And shall not nor will at any time hraftr without the consent in writing of him the sd (P) his, &c. divulge or make known any trusts secrets or dealings of or relating to the sd trade or business of him the sd (P) And also that he the sd (C) shall and will during the sd term be just and faithful to the sd (P) in all his business dealings and transfaithful; actions whatsr And shall and will provide and keep keep books so many bks of acct as shall be necessary wherein of account. he shall fairly write and enter all mos reed and pd And all goods in the sd trade which shall be bought or received sold or delivered out upon credit or orwise and the price and prices at which the same shall be bought or sold and all or. matters and To execute the orders of the principal; to keep his secrets; be just and (a) As to the duration of the contract, see Obs. 7. |