COURT OF CHANCERY.
CLEGG v. FISHWICK.-Nov. 6 and 7.
Partnership-Equity to Renewal of Partnership-Lease
obtained by Individual Partners-Laches-Pleading
-Parties.

Plaintiff wrs Widow and Administratrix of C., a joint
Lessee and Copartner with Others in working a Col-
liery, of which he was entitled to One-sixth. C.
died in 1836. In 1839, Plaintiff assigned all In-
testate's "Shares in Collieries" to her Children, in
Satisfaction of their Claims under the Statute of
Distributions, but without Notice to the other Part-
ners, until 1849; meanwhile Plaintiff joined in cer-
tain Undertakings of additional Property by the Part-
nership, and continued to receive the Profits of the
One-sixth up to 1849, when, the old Colliery Lease hav-
ing expired, Defendants determined the Partnership,
by Notice. In 1845 some of the Partners privately
renewed the Colliery Lease, of which Renewal Plaintiff
had Notice in April, 1846. In June, 1849, she filed a
Partnership Dissolution Bill, which also prayed spe-
cifically that the new Lease might be administered as
Partnership Property, and for a Receiver:-Held,
upon Motion to discharge an Order of the Court below,
appointing a Receiver of the Plaintiff's One-sixth of
the Profits,

First, that the Plaintiff's Equity was sufficiently probable to entitle her to the Protection of the Fund until the hearing.

Secondly, that she was the proper Party to sue in Respect of the One-sixth, and that her Children were not necessary Parties.

Objection on the Ground of Laches also overruled.

two of the parties interested, (Fishwick and Massey), without the privity of their copartners, obtained a reversionary lease to themselves individually, of the mines comprised in the lease of 1828, for a term, to run from the expiration of that lease, and, upon this becoming known to the other partners in April, 1846, Fishwick and Massey expressly stated that they had taken this renewal on their own private account. In May, 1849, the lease of 1828 having terminated, Fishwick and Massey, by written notice, dissolved the partnership, and called upon the other partners to join in an appointment of valuers, with a view to their themselves purchasing the partnership stock. The plaintiff refused to concur, and Fishwick and Massey having now obtained exclusive possession of all the partnership property, she, on the 5th June, 1849, in her character of administratrix, filed her bill against them and the other partners, praying a dissolution, and the consequential partnership accounts and administration of the property, with a declaration that the renewed lease ought to be applied as partnership property, and for a receiver and manager. A notice of motion was immediately given for the receiver. By the affidavits subsequently filed, it appeared, (although it did not appear upon the bill), that, by indentures of the 19th and 20th February, 1839, certain arbitrators were appointed by the plaintiff and her children to make a partition among them of the freehold and copyhold estates of Henry Clegg, and a distribution of his residuary personal estate; and that, by the same deeds, the widow and children, as doweress and coheiresses respectively, conveyed and surrendered the freehold and copyhold estates, and, as administratrix and next of kin respectively, assigned the "shares in collieries, and all other the personal estate and effects of Henry Clegg then remaining undisposed of," to the arbitrators, for the purposes of their appointment; and who, by an award dated the 19th June, 1839, allotted and assigned the intestate's "shares in collieries," together with other property, to the children in equal shares absolutely, and allotted certain other property unconnected with the colliery or the partnership to the plaintiff, by way of partition among the parties. The defendants never received notice of these deeds until after the dissolution. Upon the hearing of the motion, Vice-Chancellor Wigram made an order, whereby, the defendants, Fishwick and Massey, refusing to undertake to pay into court to the credit of the cause one-sixth of the profits of the partnership undertakings, including the renewed lease, he referred it to the Master to appoint a receiver of such one-sixth of the profits, including such renewed lease. The defendants, Fishwick and Massey, now moved that this order might be discharged or varied.

In 1807 a colliery copartnership, called "The Altham Coal Company," was formed, of which Clegg, Livesey, Beauland, Holgate, and nine others were the original partners. There were no written articles, but the partners contributed to the capital and shared the profit and loss equally. They obtained a lease, dated the 1st June, 1807, of mines in Altham, which would expire on the 14th January, 1828. Previously to 1825, Livesey, Beauland, and Holgate died, but their several executors continued their shares. Changes also Occurred in the ownership of some other shares. In 1825 a proposal was made to the lessor by Clegg, on behalf of himself and the other parties then interested, except the executors of Livesey, Beauland, and Holgate, for a further lease, to commence on the expiration of the then current lease; and this proposal was accepted. In January, 1828, the original lease having expired, valuers of the partnership property were appointed by the executors of Livesey, Beauland, and Holgate on the one part, and Clegg and the other in- Wood and Elmsley, for the appellants.-First, if the tended new lessees on the other part, and in April, plaintiff were a proper party to sue, there is no equity. 1828, the shares of the executors, as valued, were The claim is to an equity for the partnership upon the paid off out of the partnership funds. The interest in new lease; but what claim is there? There was no the partnership had now centred in Clegg and five agreement for a partnership, and nothing binding the other persons, in equal sixth shares, and on the 4th parties together beyond the old lease. They were all June, 1828, a renewed lease of the mines was granted free to make future arrangements, as was done upon to these six parties for twenty-one years, as from the the renewal in 1828. The defendants, in excluding 15th January previously. In November, 1836, Clegg the plaintiff, did no more than Clegg himself did in died. The plaintiff, his widow, administered, and con- 1828, in excluding the executors of Livesey, Beauland, tinued his share in the concern. In January, 1839, and Holgate. [Solicitor-General.-They were not exshe and the other five parties interested obtained a cluded; they were bought out, by the partnership, lease of some additional property in Altham, and, in before the new lease was granted.] But the contract the month of December following, the same parties ob- for renewal was in 1825, and they were excluded from tained a lease, and also a conveyance in fee, of certain that contract. [Lord Chancellor.-Did they ever claim other property in Read. The rents under all the the benefit of it? No. The original lease contained leases, and the purchase-money paid for the convey-power for the lessor to take the machinery at a valuaance in fee, were provided out of the partnership funds, and the profits accruing from all the properties were equally divided between the plaintiff and the five other interested parties, up to January, 1849, when the lease of 1828 expired. On the 31st December, 1845, VOL. XIII.

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tion, under which power the new lessees, as representing the lessor, took it, paying off those excluded. The alleged equity is founded upon concealment; but there was no concealment; the lessor was informed of the names of all the parties interested, and also that the

renewing lessees would not treat if the lease was to be for the benefit of the others. Secondly, if there were any equity the plaintiff could not assert it. She has parted with all her interest. She sues as administratrix; but whatever interest she formerly had, as administratrix, passed by the assignment. The lease and conveyance of December, 1839, raise no interest in her. As to the lease, but a few days remained when the bill was filed, and they expired before this order was made; and whatever interest she did possess, either, under that lease or the conveyance, she held merely as a dry trustee. Such an interest would not entitle her to file a bill like this. Thirdly, at all events the children are necessary parties, and this order is clearly wrong in appointing a receiver in their absence. Fourthly, the plaintiff is too late; she knew in April, 1846, of her rights, if any. After such delay, and in a mining case, can she come here for relief?-more especially upon an interlocutory application. [Lord Chancellor. The old lease was running until January, 1849. It was not until after this that you dissolved the partnership and excluded her; and she filed her bill in June.]

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profits thereby made; but this does not constitute a
new partnership. Then it is said that the plaintiff is
under liabilities. But the question is, what interest she
possesses. She has assigned away all her husband's
"shares in collieries." She may be under liabilities.
So is any other personal representative who pays away
the assets while there are liabilities unsatisfied. The
bill is incurable. The objection is, that the plaintiff
has no interest whatever. You cannot add the chil
dren as co-plaintiffs, for this would be misjoinder; and
to add them as defendants would amount to nothing,
unless there were a proper plaintiff.at Sand sent
LORD CHANCELLOR It appears to me, that the only
difficulty in this case is with regard to the position in
which the plaintiff stands, as a representing the pro-
perty. If nothing had taken place, the case would
have been a very simple one. It appears, that, the
plaintiff's husband being engaged in a partnership
with other persons, they took a lease, in 1828, oficer-
tain coal-mines, for the purposes of the partnership.
He died in 1836. There was no provision made for
the continuing of the partnership with his representa-
tives; but it was, in fact, carried on between the other
partners and the plaintiff up to the year 1849, the same
partnership property being used for the purposes of
the partnership. In that year, 1849, the old lease
having expired, and a new lease having been taken by
some of the other partners, without the privity of the
plaintiff, they assumed to themselves the right of taking
the exclusive benefit of that newblease. Now, when
the contract for it was made, and the new lease was
taken, the plaintiff had an equal interest with them,
according to the share her husband was entitled to in
the firm. The old lease was the foundation of the new
lease. The tenant right of renewal, arising out of the
old lease, gave the partners the benefit of this new lease.
That is so at least, so the laws assumes. Without
saying at all what circumstances there may be to inter-
fere with that ordinary right, we know that the rule of
equity is, that parties interested jointly with others in
a lease cannot take to themselves the benefit of a re-

The Solicitor-General and Little, for the respondents. [The Lord Chancellor directed them to confine their observations to the question, whether the plaintiff was the proper party to assert the equity alleged.] The ViceChancellor's view was, that the plaintiff was the proper party, and that the children were unnecessary. He intimated, during the argument, that, if he considered the children necessary, he would direct the motion to stand over, to enable their being added. This case is governed by Browny. De Tastet, (Jac. 284). The partnership contract, qua the company, is between the plaintiff and the other partners only; as between the plaintiff and her children, the deed of assignment creates a sub-contract. [Lord Chancellor,-In Brown v. De Tastet the assignment was only of a part of the share. Here the assignment is of the whloe share.] But, we conceive, the same principle applies. There are two separate contracts one relating to the entire partnership, and the other relating to Clegg's one-sixth. The test is, who is the legal partner in respect of this one-sixth? The plain-newal, to the exclusion of the other parties interested tiff became so at Clegg's death, and nothing has since with them. At all events, for the present purpose, altered it. Notwithstanding the assignment, she still there is enough, in that prima facie case, to give the continued in exactly the same position respecting the plaintiff a right to say, f? I, having a right to assert partnership. She received the share of profits, and she that title, and to prove and establish it at the hearing, joined in the new leases. Against whom, so far as re- ask the Court to protect the property which may be spects this share, must a creditor of this company bring forthcoming for my benefit, if I am able at the hearing his action? Clearly against the plaintiff. In whose to establish that right." If the right ebe clearly one name must the company sue their debtors? Clearly in that can never be enforced, of course the Court will not the plaintiff's. The children could not be joined in an interfere; but if it appears to be a right, which is, at action for either of these purposes. The evidence all events, as probable as it is represented in that statę shews that there are still large outstanding claims and of circumstances the Court does interfere, and protects liabilities arising out of the partnership. The rent ac- the property in the mean time. Then that is met by count, under the lease of 1828, is unsettled. The saying, You, the plaintiff, have no right to interfere plaintiff is directly liable for it, as administratrix, upon at all; because, although you were the representative her husband's covenant. Then, as between the part of one of the lessees one of the partners and although ners, the plaintiff has continued receiving her share of you yourself have carried on the business from 1836 to profits since the assignment, and is she not the account-1849 as a partner, and therefore must be srecognised able party to them? How can the children be made accountable? If the children had filed this bill, the answer would have been, "We have never recognised you as our partners. We admit that the children can only get at the renewal indirectly, and through the accounts between the partners. The renewal is clearly partnership assets. Sir William Grant's observations in Featherstonehaugh. Fenwick (17 Ves. 310, 311) are conclusive on this point; consequently the children can have no independent right to claim it, but only the plaintiff, who is the partner. The bill so treats the

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Elmsley, in reply.-Properly speaking, the plaintiff never was a partner at all. She was a personal representative, allowing the assets to remain in the hands of the surviving partners, who become accountable for the

with the other partners, as having a similar interest in the lease to that which your husband had before, yet you, in the year 1839, assigned all your husband's interest in the lease; that is to say, you executed an assignment, by way of division of the property amongst those entitled under the Statute of Distributions, by which you gave to the children, who were entitled to two-thirds as against your one-third, the entire interest in the intestate's share in the mines, and which, no doubt, in one sense, would comprehend the property in question, taking to yourself an equivalent for your onethird, but not connected with the property in question. Having so parted with your interest, you have no right whatever to come here, as against the partners, to claim this as part of the partnership property." Now, that at first raised a difficulty in my mind, which I was

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anxious to have considered before I disposed of the case This was a motion by Samuel Charles Marsh, an upon that point. But upon consideration, and after alleged contributory to the liabilities of the above hearing what has been argued on the other side, I am Company, to discharge the order made in this matter very clearly of opinion that the plaintiff has not lost by his Honor Vice-Chancellor Knight Bruce, bearing her right, nor can she be able to denude herself of the date the 3rd August, 1849, whereby it was ordered, duty, of realising the partnership property. She is the that that application should stand over until the furonly person who can do it. Those to whom she as-ther order of the Court, without prejudice to any signed this interest cannot do it; they are under no question, and that any of the parties interested might obligation; they have no privity whatever with the be at liberty to apply to this Court as they might be defendants. If, indeed, it had been a simple case of a advised; and that so much of the order made by the part owner of property not the subject of partner- Master to whom this matter stood referred, bearing date ship, there being no intervening duty to be performed, the 9th July, 1849, whereby it was ordered, that the and the share of the deceased part owner had been costs of the alleged contributories, who appeared before assigned, it might be said, that the right to the be- him, and who had entered their appearances as thereinnefit of the new lease would accrue to those who before mentioned, when taxed as thereinafter directed, could shew title to the assigned share; but there there should be paid to such alleged contributories out of the would be no intervening interest to be provided for no general estate of the said Company, might be varied, duty to be performed. But the assignment of 1839 either by directing that the costs of the said alleged cannot take effect in this way.There is no interest to contributories, or of the said Samuel Charles Marsh, deal with, except what arises upon winding up the when taxed in pursuance of the said order, might be partnership estate. It was property which was part of paid to them, or to the said Samuel Charles Marsh, by the partnership interest part, therefore, of the pro- William Cook Spiller, the official manager in this matperty to be realised, and made applicable to the settle- ter, or by directing that the said costs of the said ment of the partnership affairs, before any matter could alleged contributories, or of the said Samuel Charles arise which could be the subject of assignment. That Marsh, when taxed as aforesaid, might be paid to them, she could not part with; it was a duty which she or to the said Samuel Charles Marsh, by the said Wilowed, a liability to which she was subject, as between liam Cook Spiller, the official manager in this matter, herself and the other partners, and this property. The and that such costs, when paid, might be allowed to beneficial interest arising from it may become part of him out of the general estate of the said Company, or the husband's undisposed of estate, but it would be otherwise, as might be just. It appeared by the affidaonly that which remained after the prior application of vits in support of the motion, that the official manager it, according to the rules of partnership in settling had been guilty of an irregularity in the preparation of partnership estates. Now, that has not been done the list of contributories, and that, the alleged contrinever has been done; and therefore she, as between butories having attended before the Master according to herself and the defendants, is now seeking to have the notice, the Master was obliged, in consequence of the partnership transactions settled of course, the part- irregularity, then for the first time ascertained, to adnership debts paid, and of course the partnership pro- journ the proceedings, in order to enable the official perty realised, for the purpose of meeting the obliga-manager to correct the irregularity; and the Master tions. She has not parted with that interest she has provided for the costs of the alleged contributories who it not in her power to part with it. To say that she had attended, in the manner above stated. Marsh, one assigned it to her children is to say she did more than of such alleged contributories, objected to that order, the law permitted her to do. She could only assign to on the ground that the general estate of the Company her children that which belonged to her husband as his ought not to bear the costs of the official manager's property. Nothing belonged to the husband as his negligence; but, upon his motion before Vice-Chancelproperty, except subject to the prior obligations of the lor Knight Bruce, his Honor did not think proper to partnership, which obligations are to be performed by vary the order. her, and which interests, so far as they are connected R. Palmer, in support of the motion, referred to with the partnership, are to be represented by her; and sects. 95, 96, 103, 104, 105, and 106 of the Joint-stock those interests she could not part with, and has not Companies Winding-up Act, 1848, and contended, that, parted with. Therefore I am of opinion she has still although no clearly-expressed power was given by the left in her such interest, growing out of her duty of act to the Master to order the official manager personpersonal représentative, as gives her a right to realise ally to pay the costs of contributories, incurred through the partnership property. This property is part of the his own default and negligence, yet that such jurisdicpartnership estate; therefore it gives her a right to tion was to be collected from those sections; and he assert a title to the new lease as part of the partnership referred also to sects. 59 and 64 of the same act, as property. That is the view of the Vice-Chancellor, shewing that the act contemplated that there might be and it is the correct view, though, at first sight, it costs to be paid by the official manager, which ought struck me the rule might be otherwise that there not to have been incurred, and which he was not to be might be a difficulty from want of interest. Consider-reimbursed out of the assets of the Company. ing the nature of the interest which she has, and the duties she has to perform, I am satisfied that she had an interest, which she has not, and could not have, parted with. Therefore I think the Vice-Chancellor's order is right, and that this motion must be refused, with costs.

In re THE JOINT-STOCK COMPANIES WINDING-UP ACT,
1848, and of THE CAMBRIDGE and Colchester RAIL-
WAY COMPANY, ex parte MARSH.-Nov. 7.
Official Manager-Master's Jurisdiction as to Costs.
Under the above Act, the Master has no Authority to
order Costs incurred by an alleged Contributory, in
13 Consequence of the Irregularity of the Official Mana-
Eger, to be paid by the Official Manager personally.

James Russell and Roxburgh, for the official manager. Palmer, in reply. If the Master has not the jurisdiction for which I contend, then is there no power to make the official manager pay costs which through his negligence have been improperly incurred; for all original jurisdiction in these matters has been taken away from this Court, and this Court can only do that on appeal which the Master ought to have done.

LORD CHANCELLOR.This question entirely depends upon the wording of the act of Parliament, which, it is alleged, gives this power to the Master. Several sections of the act have been referred to, to shew that the Master has the jurisdiction contended for, of making the official manager pay the costs of persons who have been improperly summoned. The present question does not affect the point, how far the official manager might