Solicitor General [Sir John Mitford], Mr. Stanley, and Mr. Thomson, for the Plaintiffs. The codicil makes no alteration except by farther postponing the payment.

Lord CHANCELLOR [LOUGHBOROUGH]. The testator has clearly expressed his intention to postpone the payment. He reasons distinctly by his will; taking notice of the inconvenience, that would arise in the life of his mother-in-law; and revokes what? That direction, by which it became payable in the life-time of his motherin-law. In no event it shall be payable, while she is living. He refers back to the contingency in the will; and puts a new term upon it. There is a little ambiguity in it. Declare, that the legacy is payable with interest from the 11th of the present month of March to the trustees of the settlement. The costs must come out of the estate.

WHEN the substantive, direct object of a codicil is not to revoke, but such revocation is intended merely as an incidental and necessary part of the testator's ultimate object; it is only by reference to such final purpose that the codicil can be rightly understood. Ex parte The Earl of Ilchester, 7 Ves. 377.

MASTER v. KIRTON.

[1796, MARCH 14.]

BILL by a partner under a parol agreement charging misconduct in the other partner, and praying a dissolution, account and injunction from executing securities in the name of the firm: demurrer to the prayer for a dissolution, because there was no writing between them, overruled, (a)

THE bill stated the following case. The Plaintiff and Defendant were bankers in partnership: but no agreement in writing had been entered into. The Defendant introduced Newnham, a friend of his, to keep cash with them; and contrary to the opinion and desire and without the consent of the other partner permitted him to draw upon the partnership; and directed his bills to be paid out of the joint property; by which he became considerably indebted to the partnership. Newnham executed bonds to the Defendant only. A balance of above 5000l. remains due from Newnham, with respect to which he referred the Plaintiff to the Defendant; who said, the bank had no demand against Newnham.

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The bill prayed, that the partnership between the Plaintiff and the Defendant might be dissolved, an account, and division of the partnership effects, and payment of the balance, if any should be

(a) There seems to be no reason why the right of a partner to the protection of a Court of Equity should depend upon the existence of written articles of co-partnership. See Story, Partnership, § 187, 227, 269.

due, to the Plaintiff upon the account; and that the Defendant might be restrained from executing bonds, notes, or any other securities in the name of the firm, without the consent of the Plaintiff.

The Defendant demurred to so much of the bill, as prayed the dissolution of the partnership.

Mr. Grant, for the Demurrer. This partnership existing only by the fact of their acting together, the prayer, that the Court may do what they have a right to do for themselves, is idle and nugatory. In the case of a tenant by sufferance a demurrer will lie; for notice to quit may be given.

Lord CHANCELLOR [LOUGHBOROUGH]. There is no color for this demurrer. How is the Plaintiff to have the account taken? How is he to restrain the Defendant from using the partnership name and receiving the partnership debts? Over-rule the demurrer.

On the 22d of March, 1797, the MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN] sitting for the Lord Chancellor, decreed a dissolution of the partnership; though the Counsel for the Defendant contended against such a decree upon the same ground as was taken on the argument of the demurrer (1).

1. THE rule, that a tenancy at will may be terminated at any time, does not imply that matters, which during the tenancy remained a common interest between the parties, are not to be wound up after their relation has ceased in other respects. So, in the absence of express contract, a partnership may be determined whenever either party thinks proper; but not in this sense, that there is an end of the whole concern. All the subsisting engagements must be duly closed; for that purpose they remain with a joint interest, though they cannot enter into new engagements. Peacock v. Peacock, 16 Ves. 57; Crawshay v. Collins, 15 Ves. 227; Wilson v. Greenwood, 1 Swanst. 480.

2. Equity does not interfere, where one partner has violated a particular covenant, but the other does not choose to dissolve the partnership; for if that jurisdiction were entertained, there might be a separate suit and injunction in respect of each covenant; and the Court might have to see, from time to time, that the partnership was properly conducted. Marshall v. Colman, 2 Jac. & Walk. 268. A Court of Equity, no doubt, has power to restrain and injoin partners, and that for the very purpose of preventing repeated actions of covenant: Waters v. Taylor, 2 V. & B. 302: and one partner may file a bill against his co-partner for an account, without praying a dissolution of the partnership; Harrison v. Armitage, 4 Mad. 143; but if he proceeds to ask not merely an account, but an injunction, and an interim regulation of the management of the concern, even by payment of the moneys into Court, yet, desiring the partnership to be continued, his application will not succeed. Forman v. Homfray, 2 V. & B. 329. Where the Court is asked to take the management of a partnership concern into its own hands, and to appoint a receiver, this will only be done for the purpose of winding up the concern conclusively: Waters v. Taylor, 15 Ves. 25; Crawshay v. Maule, 1 Swanst. 507: in order to obtain which decisive interference, breach of contract, or abuse of trust, must be fully established. Carlen v. Drury, 1 V. & B. 158. A receiver will not be appointed because ground may, possibly, be shown to authorize that appointment: when a partner has acted improperly, a Court of Equity may think fit to restrain him from doing certain acts in future; but where the other party does not desire a dissolution of the partnership, the Court will not appoint a receiver; or it might in such a way, make itself the manager of every trade in the kingdom. Goodman v. Whitcombe, 1 Jac. & Walk. 592, 594. See, post, the note to Hartz v. Schrader, 8 V. 317.

(1) See Watson on Partnership, 380, 1.

FRANCO v. FRANCO.

[1796, MARCH 15.]

BILL by one trustee of stock against the other to compel him to replace it or give security according to his engagement, when the Plaintiff joined in transferring the stock into his name: demurrer, because the cestuis que trust were not parties, overruled with costs. (a)

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THE bill stated the following case. Jacob De Moses Franco by his will gave to his son Raphael 1000l. in trust for Jacob, son of Raphael, and as many other sums of 500l. each, as he should have other children at the testator's decease except Jacob, to be paid to them respectively at the age of twenty-five or marriage, with benefit of survivorship in case of the death of any before the time of payment. The testator appointed his said son Raphael and his grandson Jacob, son of his eldest son Moses, executors, and in case of the death of either of them he appointed Francis Franco, the Plaintiff, to be one of his executors in the place of him dying. At the death of the testator Raphael had ten children. The executors invested 5500l. in 5 per cent. Bank annuities in their joint names upon the trusts of the will for the children of Raphael. Both of the executors died: Jacob in 1782: Raphael in 1784. Raphael appointed the Plaintiff Francis Franco, the Defendant Jacob Franco, and two other persons, his executors. All the remainder of the fund was transferred into the names of the Plaintiff and Defendant upon the trust of the will of Jacob De Moses Franco; of which will the Plaintiff upon the death of the surviving executor obtained probate. Seven of the children of Raphael having attained the age of twenty-five, their shares were transferred to them. In September, 1793, 3000l. 5 per cent. Bank Annuities remained for the three remaining children, who had not attained the age of twenty-five. At that time the Defendant prevailed upon the Plaintiff to permit the fund to be transferred from their joint names into the name of the Defendant only; in order that he might sell the same; assuring him, it was only for a temporary accommodation, and he would very soon replace it; and he also proposed for absolutely securing the repayment, to surrender a copyhold, and to procure the Plaintiff to be admitted, and also to convey other estates; upon which the transfer was made; and the Defendant sold the stock, received the produce, and never replaced it.

The bill prayed a discovery and account; that the Defendant

(a) In the present case the cestuis que trust could found no right on the engagement between the two trustees, as they had no privity with it. Story, Eq. Pl. § 213; Calvert on Parties, ch. 1, § 1, 7, 8. If a trustee has fraudulently or improperly parted with trust property, the cestui que trust may proceed against the trustee alone, to compel satisfaction for the breach of trust, or he may at his election join the assignee also, if he were a party to the fraud, or if he seeks redress against him. Bailey v. Ingles, 2 Paige, 278; West v. Randall, 2 Mason,

should be decreed to replace the fund, or to surrender the copyhold estate, and that the Plaintiff might sell the same, and that the Defendant should be decreed to make good the deficiency.

The Defendant demurred on the ground, that the three children of Raphael, the cestuis que trust, were not parties.

For the Demurrer. The rule, that all persons interested must be parties, is invariable, except in the case of creditors and legatees; who by particular indulgence are permitted to go on before the Master. These children have the very same equity as the trustees. They might file a bill for the same purpose, and pray the same specific relief. The rule is, that the Court will not entertain a suit on behalf of a trustee without having the cestui que trust before the Court. Hanne v. Stevens, 1 Vern. 110.

Lord CHANCELLOR [LOUGHBOROUGH]. That was a suit for the execution of the trust. This is no bill for execution of the trust. Whatever demand the cestuis que trust would have, they [*77] could never found themselves upon the case the present Plaintiff makes against the Defendant. The demurrer ought to be over-ruled, and with costs; and I cannot help marking in strong terms my disapprobation of such a demurrer : which can be put in only for delay, and to cover a person guilty of a breach of trust, and to defer the time, at which he ought to answer.

WHEN a bill is brought by a trustee for specific performance of an agreement in which the trust originates, no doubt, the cestui que trust ought to be a party to the suit; otherwise he would not be at all bound by the dismissal of that bill, and the defendant might be vexatiously harassed by another suit on the very same grounds which had previously been declared untenable. Kirk v. Clark, Prec. in Cha. 275. But this reason was obviously inapplicable to the principal case, in which the bill was brought by the trustee, not to carry the trust into execution, but solely to relieve himself from that responsibility which he had incurred by imprudently accommodating his co-trustee; as to that liability, see, ante, the notes to Balchen v. Scott, 2 V. 678.

ATTORNEY GENERAL v. THE MARQUIS OF STAFFORD.

[1795, Nov. 16, 17; 1796, MARCH 16, 18.]

UNDER a commission of charitable uses it was agreed, that copyhold lands, formerly surrendered for maintenance of a minister in W. chapel, should be let, and the rents employed towards maintenance of the minister, to be chosen and appointed by the inhabitants, and presented and allowed by the lord of the manor; who upon complaint might give the minister half a year's warning, and if he had not reformed by that time, might remove him: the information prayed, that the lord might be decreed to allow and approve the candidate, who had the majority of votes; which was refused on the ground of misconduct; and, the evidence clearly proving it, a new election was directed; upon which the same candidate being returned, and producing strong affidavits of good conduct, for the last six years, the decree, stating the affidavits, declared, that in consequence of them the relator deserved the approbation of the trustees. Qualities of a donative, [p. 80.]

BEFORE the 43d year of the reign of Queen Elizabeth, certain copyhold lands and premises holden of the manor of Stowheath were surrendered to trustees upon trust, that the yearly profits should be employed for the hire, stipend, and wages, of a priest, minister or curate, to say divine service in the chapel of Willenhall from time to time for ever. About the sixth year of the reign of King James I. a memorandum was entered on the rolls of the said manor reciting, that by a consideration awarded upon the statute 43 Eliz. under a commission of charitable uses the inhabitants and men of Willenhall in the county of Stafford have made profert, that certain copyhold lands in the town of Willenhall, holden by copy of court roll of the manor of Stowheath, were formerly surrendered upon trust, that the yearly profits should be employed in the hire, stipend, and wages, of a priest, minister or curate, to say divine service in the chapel of Willenhall from time to time for ever, for the ease of the inhabitants there dwelling, being two miles from Wolverhampton, their parish church, and towards repairing the said chapel; and the said yearly profits were so employed for many years; upon consideration of which cause, ambiguity and doubtings arising, whether the said lands were originally given to the maintenance of a chantery priest, or otherwise to the maintenance of a curate or priest to say divine service, the said inhabitants are contented to refer themselves therein to the consideration of Sir John Leveson, Knt. and John Giffard, Esq. lords of the manor of Stowheath, within which manor the said town of Willenhall lieth; which employment of the rents and profits the said Sir John Leveson and John Giffard accepting, the rather for that their ancestors have formerly given allowance out of the same lands to the same purpose, agree, that the said lands shall forever hereafter be let by the consent of four of the inhabitants of the said town of Willenhall, to be chosen by the greater part of the sufficient householders of the same town, and that the rents to be reserved shall be employed half yearly, sub

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