NERSHIP. Deed of Copartnership (Full Form.) Penalty or nomine pœnæ on default by either party. and their respective heirs, executors, and ad- COPARTministrators, shall and will perform and observe the determination, order, or decree, which shall be so made in all things, and the same, although between Traders. extra-judicially made or given, shall or may be made a rule of the court in which such action, suit, or proceeding, shall be depending. [AND each of the said parties hereto doth hereby bind himself, his heirs, executors, and administrators, unto the other [and others] of them, his [and their] executors, administrators, and assigns, in the penalty (1) of £ of lawful money of the United Kingdom of Great Britain and Ireland, of English value and currency, for the true and faithful observance and performance on his and their part and parts of all and every the covenants, agreements, articles, matters, and things herein contained, which by him or them, or his or their executors or administrators, respectively, ought to be performed or observed, but which said penalty shall be without prejudice to any right of action, or suit or bill in equity, to which either of the said parties would or might have been entitled for or by reason of any breach of action of debt. (1) The use of this penalty is to entitle the party injured by Penalty gives a breach of any of the covenants contained in the articles by the other party, to an action of debt for the penal sum, should circumstances render such an action preferable to an action of covenant on breach of the particular clause infringed upon. See Duke of St. Albans v. Shore, 1 Hen. Black. 270, and Ashley v. Weldon, 2 Bos. and Pul. 346; see also ante, Vol. I. p. 15, n. (30). COPART NERSHIP. of arbitration, to be equally borne. covenant or agreement hereinbefore contained, if no such or other penal sum had been reserved or Deed of given.] AND it is hereby lastly agreed, THAT all Copartnership between Traders. reasonable fees and monies which any such arbi(Full Form.) trator or umpire, as aforesaid, shall think proper to Expenses, &c. give to any counsel or others, for advice or directions in respect of the matters referred to him or them, and all other necessary expenses attending any such reference, arbitration, or award, shall (1) be borne and paid by each of the parties to these presents, or their respective representatives, in equal shares and proportions, and that all costs which shall be incurred relative thereto shall be reckoned as between attorney and client, and not as between party and party, in legal or equitable proceedings (2). IN WITNESS, &c. Costs to abide the event of award. Arbitrators cannot award costs. Costs to be as (1) If it be agreed that the costs shall abide the event of the award, (and that such an agreement will be good, see Wood v. O'Kelly, 9 Ves. jun. 436), say, "Shall abide the event of the said award, and be paid by the party or parties by whom the same shall, by such arbitrators or umpire, be directed to be paid." And unless some previous agreement be entered into respecting the costs of the reference, the arbitrators will have no authority to direct by whom they shall be borne, Candler v. Fuller, Willes, 62, and they must be paid by both parties equally, Grove v. Cox, 1 Taunt. 165. (2) Where a power to award costs is given to the referees, it between party should seem, that unless it be otherwise provided, such costs and party. must be reckoned as between party and party, and not as between attorney and client; see Marder v. Cox, Cowp. 127; Barker v. Timson, 2 Blac. Rep. 953; Whitehead v. Firth, 12 East, 165; in which case each party might have costs to pay beyond those allowed on a taxation. (A). See ante, p. 59. If the executors or devisees of either party are to succeed to the copartnership, say, years hereby "THAT in case either of the said parties shall depart this life during the said term of limited for the duration of the said copartnership, and shall by any writing under his hand and seal, to take effect upon his decease, or by his last will and testament in writing, nominate or appoint any person or persons to succeed him in the said copartnership, then the person or persons so to be appointed, and in default thereof, the executors or administrators of the party so dying, shall or lawfully may have and enjoy the part or share of the party so dying, of and in the said joint trade, and the monies, debts, and effects thereof, either for himself or themselves, or in trust for any other person or persons, as in such writing or will shall be directed concerning the same, and the other of the said parties shall, at the request and costs of such person or persons, sign, seal, and execute all such acts and deeds as shall be requisite or proper for the purpose of substituting and confirming him or them in the place of the party so dying, and of assigning and assuring to him or them the said part or share of the party deceased, of and in the said copartnership estate, in as beneficial a manner (but upon and according to the terms and directions of any such will or writing) as the party so dying would have been entitled to the same, if living; so that the person or persons so to be appointed as aforesaid do also, at his or their own proper expense, sign, seal, and execute all such acts and deeds as shall be requisite or proper to subject him or them to the same, or the like debts, demands, and other conditions, covenants, and agreements, as the party so dying would, if living, have been subject or liable to, under or in pursuance of these presents; and then and in such case, the name or names of the person or persons who shall be so appointed shall, if he or they require the same, be added to the stile of the copartnership firm, and the surviving COPART NERSHIP. Deed of But such executors, &c. not to interfere in the trade. party, his executors, administrators, and assigns, shall have and receive, during the residue of the term of the said copartnership, the yearly sum of £ out of the share Copartnership of the deceased party therein, for his or their trouble in between Traders. conducting the said business solely and alone (1). PRO(Full Form.) VIDED ALWAYS nevertheless, that such person or persons shall not have authority or be at liberty to enter into, or make any contract or agreement, for the sale or purchase of any goods, wares, or merchandises, on account of the said joint trade, without the consent of the other partner first had and obtained, either in writing or by parol in the presence of one or more witness or witnesses; and if the person or persons so succeeding to any party so dying shall make or enter into any such contract, without such consent as aforesaid, then, and in every such case, the other party shall have a free choice or option either to assent to, or reject any contract so made; and if he reject the same, the goods, wares, or merchandises, if purchased, shall be for the separate use and account only of the person or persons who shall have bought or contracted for the same, without the consent of the other partner, as aforesaid, and if sold, then the same shall be placed and debited solely to his or their account in the copartnership books, and the amount thereof deducted from his share in the profits thereof, if the same shall be sufficient for that purpose, and if not, then be paid for by him out of his own private estate. PROVIDED ALWAYS, that if such executors or administrators, or nominee or nominees of the party so dying, shall refuse or decline to become partner or partners in the said joint trade, or shall afterwards depart this life before the expiration of the said term of then and in either of such cases, the share of such deceased party, his executors, administrators, or appointees, of and in the said joint stock and trade, If executors of deceased copartner refuse to become partner, co partnership to cease. years, (1) A surviving copartner will not be allowed any compensation for his trouble in carrying on the business for the benefit of the representatives of a deceased party as well as of himself, unless it be otherwise previously stipulated by the articles; sec Burden v. Burden, 1 Ves. and Bea. 170. shall thereupon, as to profit and loss, cease and determine; calendar COPART Deed of Copartnership between Traders. (Full Form.) and his or their share or shares shall, as to so much thereof NERship. as shall not break in upon the said capital stock of £ or effects to that amount, be paid to the executors or administrators of the party deceased, within months next after such cesser or determination of his or their share or shares therein. AND that the share or shares of the said deceased party, his executors, administrators, or appointees, of and in the said partnership stock, which shall, as to profit and loss, so cease as aforesaid, or so much thereof as shall not have been already received, shall be valued and taken according to the last annual rest, made in the accounts of the said copartnership, and paid in the manner following, that is to say," &c. as above, (ante, p. 60, margin *). Sometimes it is agreed that the executors or administrators of a deceased partner shall become copartners for a limited time, to enable them the better to ascertain and wind up the affairs of their testator or intestate, in which case say, cutors shall be "PROVIDED ALWAYS nevertheless, and it is hereby Either party dying before covenanted and agreed, by and between the said parties to the end of the these presents, that in case of the decease of either of them term, his exvbefore the expiration of the said term of seven years herein- come copartners before limited for the duration of the said copartnership, for one year. the executors or administrators of the party so dying shall and may, during the term of one year, to be computed from the day of the decease of the party so dying, have, hold, possess, and enjoy, in copartnership with the party so surviving, all and every the part, share, right, and interest, which the party deceased had and enjoyed whilst living, of and in the said joint stock and trade, and the profits, gains, and produce thereof, and of and in all and singular the monies, goods, chattels, credits, wares, commodities, articles of merchandise, and other matters and things whatsoever, which at the time of such decease shall be in or belonging to, and together with such surviving party, and direct and carry on the same, and all matters, things, and concerns, incident or belonging to the said joint trade, in as full, absolute, ample, and beneficial a manner, to all intents and |