OBS. Leighton v. Wales, 3 M. & W. 545; Barker v. Allan, 5 H. & N. 61 ; Greenham v. Gray, Ir. Com. Law Rep. 501;] or on any other agreement or transaction, so separated from the partnership affairs as not to involve any general account; Coffee v. Brian, Bing. 54; Jackson v. Stopherd, 2 C. & M. 361; Lomas v. Bradshaw, 9 C. B. 620; [Gibson v. Moore, 6 N. H. 547; Sawyer v. Proctor, 2 Vt. 480; Lawrence v. Clark, 9 Dana, 257; Gridley v. Dole, 4 Comst. 486; Gulick v. Gulick, 2 Green, 578; Clark v. Dibble, 16 Wend. 601; McColl r. Oliver, 1 Stewart, 510;] thus an action lies for money received by one partner to the separate use of the other, but wrongfully carried to the partnership account; Smith v. Barrow, 2 T. R. 746; or money which one partner has been compelled to pay in satisfaction of a promissory note wrongfully made by his copartner in the name of the firm, and given for his own debt; Cross v. Cheshire, 7 Ex. 43; ante, 28; or a copartner's share of money paid by plaintiff his partner, in taking up a promissory note made and negotiated by them for raising money for the partner. ship; Sedgwick v. Daniell, 2 H. & N. 319; or money advanced by one partner for his copartner, as his share of the capital of the firm. French r. Styring, 2 C. B. N. S. 357; ante, 28. And if upon winding up of the business and striking a final balance of all partnership accounts, money be found due from one partner to another, it may be recovered at law; Bovill v. Hammond, 6 B. & C. 149; Coffee v. Brian, 3 Bing. 54; Foster v. Allanson, 2 T. R. 482; without any express promise to pay the same. Wray v. Milestone, 5 M. & W. 21; Middleditch v. Ellis, 2 Ex. 623-627; Sedgwick v. Daniell, 2 H. & N. 319, per Bramwell B.; [1 Chitty Contr. (11th Am. ed.) 342, and note (b); Fanning r. Chadwick, 3 Pick. 423; Williams v. Henshaw, 11 Pick. 82; S. C. 12 Pick. 378; Collyer Partn. § 281, in notes.] Subscribing creditors to a deed of assignment are not partners as to third persons. Hickman v. Cox, [8 H. L. Cas. 268; S. C. 3 C. B. N. S. 522,] Dom. Proc. A partner in a private partnership as in a mining company conducted on the cost-book principle, cannot be sued for calls due to the partnership, either by any other partner in the firm, or by the purser, though, by the rules of the company, calls in arrear shall be considered to be debts due from defaulting shareholders to the purser, one partner not being liable to be sued at law by his copartner, and there being no privity or consideration between the defendant and purser. Hybart v. Parker, 4 C. B. N. S. 209. It is no answer to an action on an agreement to enter into a partnership with A., that A. had been guilty of fraud and dishonesty towards a former partner, which was unknown to the defendant at the time of entering into the agreement. Andrewes v. Garstin, [10 C. B. N. S. 444.] See, further, as to the law of partners, Waugh v. Carver, 1 S. L. Ca.; Smith's Mercantile Law, tit. Partners; Story's Equity Jurisprudence; Seton on Decrees, sub voce.; Lindley on Partnership; [Collyer on Partn.; Bullen v. Sharp, L. R. 1 C. P. 86; st. 28 & 29 Vict. c. 86.] 1. By a surviving Partner for Goods sold, &c. by the late Firm, and Account stated with the Survivor. (y) Commencement in the ordinary form, not noticing the deceased. See forms of commencement where the death occurs after the writ, ante, 15.] (y) See form on a bill of exchange by surviving drawer against acceptor, ante, 84, Form 27. The executor of the deceased partner cannot be added as a plaintiff. 1 Chit. Plead. 7th ed. 22; ante, 119, 120. In geueral all the partners, when living, must join, or the plaintiff may be nonsuited. See Pleas, "Partners," post; C. L. P. Act, 1852, ss. 34, 35. And now by C. L. P. Act, 1860, s. 19, all persons supposed to be legally entitled may be joined. But it seems that a dormant partner may be omitted. See Le For money veck v. Shaftoe, 1 Esp. R. 468; Lloyd . Archbowle, Taunt. 324; and that even a nominal or ostensible partner, having no interest, and not in fact contracting, need not be joined as a plaintiff; Kell e. Nainby, 10 B. & C. 20; [Spurr v. Cass, L. R. 5 Q. B. 656; 1 Lindley Partn. (3d Eng. ed.) 490, 491]; but a partner really interested may be joined as plaintiff, though not a contracting partner. Garrett v. Handley, 4 B. & C. 664; Cooke v. Seeley, 2 Ex. 746; and a surviving partner must sue specially as payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff and one E. F., since deceased, to the defendant, and for [stating any other debt, as ante, 33, Form 1, writing the words "plaintiff and the said E. F.” for "plaintiff," and proceed thus:] and for money found to be due from the defendant to the plaintiff and the said E. F. on accounts stated between them, and for money found to be due from the defendant to the plaintiff on accounts stated between them. (z) Against a Surviving Partner. OBS. — It is never necessary to declare against a surviving partner as such; he may be sued as having solely contracted, and in such form debts due from him individually and from the late firm may be recovered. Richards v. Heather, 1 B. & Ald. 29; ante, 15. If the cause of action were joint, and not joint and several, the executor of the deceased is not liable at law. 1 Chit. Plead. 58, 7th ed.; ante, 119. A dormant partner may be sued, but need not if no party to the contract. See Ib. 49; Chit. jr. Contr. tit. "Partners; Farrer v. Duflinne, 1 Car. & K. 580; De Mautort v. Saunders, B. & Ad. 398; Beckham v. Knight, 1 M. & G. 738. Form against three partners on an agreement signed by two only, Beckham v. Drake, 9 M. & W. 79. BY ONE PARTNER AGAINST HIS COPARTNER. [1. By one Partner against his Copartner on a Stipulation to render an Account and divide Profits. Owston v. Ogle, 13 East, 538.] 2. On a Deed of Dissolution of Partnership between Plaintiff and Defendant, by which Defendant covenanted not to carry on Business within Certain Limits during a period of Seven Years, or to pay £1,000 as Liquidated Damages. Galsworthy v. Strutt, 1 Ex. 659. 3. By a Partner against his Copartner, for improperly closing the Business Premises, in Breach of the Covenant of the latter. Hodges v. Gray, 4 Dowl. 733. 4. Against Surviving Partner on a Contract to Employ, for not continuing to Employ. Tasker v. Shepherd, 6 H. & N. 577. 5. For Breach of an Agreement to enter into Partnership. such for a debt due to the firm. Jell v. date of the contract. Boyd v. Moyle, 2 (. B. 644. (2) A count may also be added on a cause of action accruing entirely to the plaintiff only. Hancock v. Haywood, 3 T. R. 433; Slipper v. Slidstone, 5 T. R. 493; Jell v. Douglas, 4 B. & Ald. 374. PARTY WALLS. OBS. The common use of a wall separating adjoining lands belonging to different owners is primâ facie evidence that the wall and the land on which it stands belongs to the owners of those adjoining lands in equal moieties as tenants in common. Cubitt. Porter, 8 B. & C. 257, and note, 259; [3 Kent, 437, 438, and note (a).] But this presumption will be rebutted if it can be shown that part of the wall stands upon the land of each. Matts v. Hawkins, 5 Taunt. 20. If one tenant in common pull down the common party wall in order to rebuild it the other cannot maintain trespass. Per Crompton J. Stedman v. Smith, 8 El. & Bl. 1. See, further, as to the general law relating to party walls, Gale on Easements by Willes, 411; Woodfall's Landlord and Tenant, Murley v. McDermott, 8 Ad. & E. 138; Stedman v. Smith, ubi supra. But where party walls are situated within the metropolis and its neighborhood, many questions relating to them are regulated by "The Metropolitan Building Act, 1859,” 18 & 19 Vict. c. 122, and "The Metropolitan Building Act (amendment), 1860," 23 & 24 Vict. c. 52. The rights of the building and adjoining owner respectively with regard to repairing or rebuilding party walls in the metropolis and its neighborhood are defined by 18 & 19 Vict. c. 122, ss. 83, 84. Section 88 lays down rules as to the expenses of party structures to be borne by the building and adjoining owners respectively. By section 89 the building owner is to deliver to the adjoining owner an account in writing of the expense to be borne in whole or in part by him. By section 90, within one month after the delivery of such account, the adjoining owner may object to such account, and in such case the dispute is to be referred as directed by s. 85. But if he do not object within one month then he shall be deemed to have accepted the same, and if he fail to pay it on demand, it may be recovered as a debt. As to payment of expenses by the owners, vide s. 97. The plaintiff may recover in the cases provided for by the act on a count for money paid. Peck v. Wood, 5 T. R. 130; Barrett v. Duke of Bedford, 8 T. R. 602. A contract for the erection of a building in contravention of the building acts, cannot be enforced. Stevens v. Gourley, 7 C. B. N. S. 99. In many provincial towns local acts regulate the structure of party walls; they must, of course, be looked into before framing a declaration in an action arising thereon, see forms, 2 Chit. on Pleading, 7 ed.; and see post, "Torts." PATENT. 1. Indebitatus Count for Remuneration for License to Use. (a) For money payable by the defendant to the plaintiff for the license and (a) See similar forms in Chanter v. Hopkins, 4 M. & W. 399; Chanter v. Deedhurst, 12 M. & W. 823; Chanter v. Johnson, 14 M. & W. 408; Lawes v. Purser, 6 El. & Bl. 930; and see forms of special counts, Chanter v. Lees, 4 M. & W. 295; 5 Ib. 698; Hall v. Bainbridge, 5 Q. B. 233; [Oxley v. Holden, 8 C. B. N. S. 666; Smith v. Scott, 6 C. B. N. S. 771.] The license to use a patented invention need not be under seal; Chanter v. Deedhurst, 12 M. & W. 823; if under seal, semble, it does not require a stamp; Chanter v. Johnson, 14 M. & W. 408; where the plaintiff's invention has been actually used under license from him, a plea that the plaintiff' patent was void is bad, the action being on an executed consideration. Lawes v. Purser, 9 El. & Bl. 930, and see Smith v. Neale, 2 C. B. N. S. 67; [Warner v. Willington, 3 Drew. 523; Reuss v. Picksley, 2 R. I. Ex. 342.] If the license be by deed, the deed is an estoppel to the defendant's disputing the validity of the patent. Smith v. Scott, 6 C. B. N. S. 771; 28 L. J. C. P. 325. As to warranting that the patent is valid, see Hall v. Conder, 2 C. B. N. S. 22; Smith v. Scott, 6 C. B. N. S. 771. The assignor of a patent, who has sold it as valid, cannot, as between himself and the assignee to whom he has sold it, raise any question as to the patent being void for want of novelty. Walton . Lavater, 29 L. J. C. P. 272; 8 C. B. N. S. 163; [nor can the assignee dispute the validity of the patent as against the assignor. Hills v. Laming, 9 Ex. 256; Smith v. Neale, 2 C. B. N. S. 67; Lawes v. Purser, 6 El. & Bl. 930; Crossley v. Dixon, 10 H. L. Cas. 293.] permission of the plaintiff, by him granted to the defendant at his request, to use a certain patent invention, of which the plaintiff was the owner and proprietor, and for the defendant's use thereof under such license and permission. 2. On a Deed by which Plaintiff licensed the Defendant to use the Plaintiff's Patented Invention for making Wire Rope, Defendant covenanting to pay £1 per Ton for all Rope manufactured by him, to render periodically an Account of the Quantity of Rope manufactured, and to allow the Plaintiff to inspect Defendant's Books, assigning Breaches of each of the Covenants. Smith v. Scott, 6 C. B. N. S. 771. 3. On a Deed of Covenant to pay a Royalty for every Ton of Articles manufactured under a License granted to Use a Patent, and to render Accounts. Bower v. Hodges, 13 C. B. 765. 4. By Patentee of Improvements in Slubbing Machines, against Licensee on his Covenant, not to Make or Sell any Machines without applying Plaintiff's Patented Improvements. Jones v. Lees, 1 H. & N. 189. 5. On a Covenant by a Public Company to pay a Sum of Money to the Plaintiff out of the first Calls on Shares of the Company, in consideration of Plaintiff covenanting to convey his Patent to the Defend ant. Pilbrow v. Pilbrow's Atmospheric Railway Company, 5 C. B. 440. 6. For Breach of an Agreement to do all that was necessary for obtaining and perfecting a Patent about to be taken out by the Plaintiff, on the occasion of the Assignment to the Defendant of a Share therein. Hill v. Mount, 18 C. B. 72. 7. On an Agreement for the Sale by the Plaintiff to the Defendant, of a Moiety of the Plaintiff's Interest in a Patent which he had obtained, assigning Breaches for Non-payment of the Purchase-money, &c. Hall v. Conder, 2 C. B. N. S. 22. 8. On an Agreement by which Plaintiff's Patent was to be assigned to and worked by the Defendant, the Plaintiff receiving Percentages upon all Goods sold to which the Patent applied, and the Defendant agreeing to make the necessary Periodical Payments for Stamp Duty, to keep the Patent alive, for not making such Payments, whereby Plaintiff's Patent ceased. Smith v. Neale, 2 C. B. N. S. 67. PENAL STATUTES. See "Statutes." PENALTY. See "Liquidated Damages." PHYSICIAN. OBS. -The rule that a physician shall not recover his charges in an action, is founded on the general custom of the profession not to charge. [But see American law upon this subject, ante, 48, 49.] There is nothing to prevent his making a special contract that he shall be paid for his services, and recovering under such contract. The Attorney General v. The Royal College of Physicians, 30 L. J. Ch. 757. Now by 21 & 22 Vict. c. 90, s. 31, every person registered under that act may recover his reasonable charges, but it is also provided that any college of physicians may pass a by-law to the effect that no one of their fellows or members shall be entitled to sue, and such by-law may be pleaded in bar, and see ante, "Apothecaries," Obs. 47-49. POUNDAGE. See "Sheriff," post, 244. PRINCIPAL AND SURETY. See "Guaranties," ante, 136, 187. PROMISSORY NOTES IN ORDINARY CASES. 1. Payee against Maker. (b) day of A. D. For that the defendant, (c) on the (d) by his promissory note, (e) now overdue, promised to pay to the plaintiff (ƒ) £ (b) This form is the one given by the C. L. P. Act, 1852, sch. B, 15. (c) Although the note be made by many persons jointly and severally, yet if one only be sued, it may be stated that "he" (only) made the note, without noticing the other makers. Mountstephen v. Brook, 1 B. & Ald. 224; Bulbeck v. Jones, 5 Jur. N. S. 1317; Beecham v. Smith, El., Bl. & El. 442. If a note be made by several persons jointly, if one only be sued, by which the risk of a plea in abatement will be incurred, unless the others be dead or out of the jurisdiction of the court, it should be stated that the defendant only made the note. On a promissory note in the ordinary form "we promise to pay," signed by the members describing themselves as directors or trustees of a building society, the makers are personally liable. Healey v. Story, 3 Ex. 3; Price v. Taylor, 5 H. & N. 540; Mare v. Charles, 5 El. & Bl. 978; ante, 73, note (k); when otherwise, Aggs v. Nicholson, 1 H. & N. 165; Lindus v. Melrose, 3 H. & N. 167. A promissory note signed by directors of a company, may be binding on a company though not drawn strictly in pursuance of the provisions of the deed of settlement, so as to be binding on the shareholders. Allen v. The Sea Fire & Assurance Company, 9 C. B. 574; Gordon v. The Sea Fire & Life Assurance Society, 1 H. & N. 599; Enthoven v. Hoyle, 13 C. B. 373. (d) As to the date, ante, 73, note (g). The date of the bill should be inserted here as being presumptively the day on which it was accepted. Morgan v. Whitmore, 6 Ex. 716. If the defendant really accepted on a day different from the date, that would be immaterial; Smith v. Lord, 2 D. & L. 759 ; or amendable at the trial. Bentying v. Scott, 4 C. & P. 24. (e) As to ambiguity in the nature of the instrument, see ante, 73, note (ƒ), and see Arinfield v. Allport, 27 L. J. Ex. 42. A note, "I promise to pay or cause to be paid," may be declared on as a note in the common form. Lovell v. Hill, 6 C. & P. 238. There must be a delivery of the note to the plaintiff with an intention to give him a title to it; Gough v. Findon, 7 Ex. 48; Marston v. Allen, 8 M. & W. 494; but such delivery need not be averred. Brind v. Hampshire, 1 M. & W. 371. (f) A promissory note is not a negotiable instrument, within the 3 & 4 Ann. c. 9, s. 1; |