TATAM v. WILLIAMS. [*356 ] in partnership with the owners of the other portions of the colliery after Foster's death; and, secondly, whether, if that were excluded, the plaintiffs could now claim an account of the partnership transactions prior to Foster's death in 1822. The argument in support of the affirmative of the first question. depended wholly, as I understand, upon the effect to be given to the agreement of the 12th of January, 1819. For, it was not contended, nor could it with reason have been contended, that, in the absence of that agreement, there was any thing in the relation of the parties which could have entitled the part-owners of the colliery, who survived Foster, to insist that his executors should continue to work the colliery, on joint account with them, after Foster's death. The agreement of the 2nd of December, 1816, between Bowser, Foster, Bonner, and Gaunt, had only the effect of providing that the entire mine should be worked for the benefit of the beneficial owners, by agents appointed by all,-the only way in which a coal mine, belonging to several persons, can practically be worked: Jeffreys v. Smith (1). Then, as to the effect of the agreement of the 12th of January, 1819, was that an absolute contract on the part of Foster, that he and his personal representatives should continue partners with the survivors, so as to be bound to work the colliery on joint account, and to contribute accordingly? Or was it not simply an agreement that the dissolution of the partnership, *by the death of any one of the three parties, should not entitle any one to call for a sale of more than his own interest? I think the latter was all that was meant, and that it is all that is expressed, and, consequently, that the onus is upon the plaintiffs to show that the executors of Foster, at his death, made themselves liable to contribute to the expenses of working the collieries. It is positively denied in these pleadings by the executors, that they ever did so; and no evidence is given to raise an inference that they ever interfered after Foster's death; and, if they did not, however, they might be precluded from establishing, as plaintiffs in this Court, an interest in the past working of the mines, the plaintiffs in these causes cannot obtain relief against them in the case supposed : Norway v. Roe (2). And, even if the construction of that agreement were otherwise, yet, adverting to the facts that it was not referred to in either of the subsequent agreements entered into on the admission of Calthrop and Pulvertoft, and that it was not brought forward or insisted upon until thirteen years afterwards, it may be (1) 21 R. R. 175 (1 Jac. & W. 298). (2) 2 R. R. 157 (19 Ves. 144). doubtful whether this Court would not presume that the agreement The answer of Foster's executors to this demand is founded wholly on the time which elapsed between Foster's death and the filing of the bill; viz. from the 10th of May, 1822, until the 30th of June, 1835. I must, upon these pleadings and on the evidence, assume that Foster's executors have not, by any act of theirs, since his death, made themselves, or the estate of Foster, liable to this part of the plaintiffs' demand. The estate of Foster was, undoubtedly, liable to this account at his death, and as clearly continued so for some period of time. The question is, how long it continued to be so liable by force of the original contract, and whether that liability existed at the time of filing the bill. The question how long the estate of a deceased partner continues liable to the demands of surviving partners, is not, I apprehend, the subject of any positive statutory enactment (1), except so far as this Court may found its rules upon analogous cases at law. The cases at law which appear to have been commonly argued upon in this Court, as affording an analogy in questions between partner and partner after a dissolution of partnership, are those which fall within the exception as to merchants' accounts in the Statute of Limitations (2). Now, notwithstanding the doubts which appear for a long time to have hung over the construction of that exception in the statute, I understand the rule at law now to be settled, that, if all dealings have ceased for more than six years, the statute (even between merchant and merchant, their factors and agents) is a bar to the whole demand, except where the proceeding is an action of account, or perhaps an action upon the case, for not accounting. [His Honour then referred to the cases on this subject, which have now been practically superseded by the express provision in the Partnership Act, 1890, s. 43, and continued as follows:] In this case it is unnecessary that I should rely upon the (1) But see now the Partnership Act, 1890, s. 43, referred to in the note, ante, p. 325.-O..A. S. (2) But merchants' accounts are no longer an exception; see 19 & 20 Vict. c. 97, s. 9. ТАТАМ v. WILLIAMS. [ *357 ] [ 358 ] *cases which have decided that this Court will not give relief after Six years of delay wholly unaccounted for, inasmuch as in this case it was not six years, but a clear period of thirteen years which elapsed between the death of Foster and the filing of the bill, and no excuse is given for that delay. In addition to the delay which has occurred, it appears that in 1822 a bill was filed for the administration of the estate of Foster, a decree in the cause was made in 1824, and in 1831 there was a report of debts. In that suit, Bonner, one of the executors, who was also a surviving partner in the colliery, was a defendant. No claim in respect of the matters now in question appears to have been made in the suit in which the assets of Foster were in course of administration, and those assets have been distributed. It was said, however, that, although the estate of Foster may not be liable in respect of any new transaction entered into after Foster's death, the contracts and other transactions of the partnership depending between them and third parties,—that is, contracts and other transactions of the partnership to which Foster was liable with his co-partners to strangers dealing with the firm,-may be shown by the plaintiffs not to have been wound up until a very recent time before filing the bill. But on this point it is sufficient to say that the bill makes no such case. Bill dismissed with costs as against the executors of Foster. It was admitted that the only object of the suit was the 4,000l. charged to have been retained by Foster. decree in respect of any other matter. No party desired a 1844. March 5. 6. April 19. May 29. WIGRAM, TAYLOR v. EARL OF HAREWOOD (1). (3 Hare, 372—386; S. C. 13 L. J. Ch. 345; 8 Jur. 419.) A testator bequeathed his residuary estate upon trust for his son for life, and after his decease for the children of his said son; and he directed, that, in case his said son should at any time thereafter come into the actual possession of an estate entailed upon him (the testator) and his issue by his late uncle R. D., of B., then and in such case the provision which he had therein before made for his said son, and all and every the trusts thereof, should cease, determine, and be void, and the trustees should thenceforth stand possessed of the said trust monies for the benefit of his other children, exclusive of his said son. R. D., of B., the late uncle of the testator, had settled three estates to uses, which included, after several estates for life (1) Meyrick v. Laws (1874) L. R. 9 Ch. 237. and in tail, a limitation in remainder to his nephew (the testator) for his life, with remainder to trustees upon trust to preserve contingent remainders, with remainder to the first and other son and sons of the body of his said nephew severally and successively in tail male, with divers remainders over. Before the date of the will, a tenant in tail, who had the then first expectant estate tail, joined with the first tenant for life in a recovery, whereby the tenant in tail had acquired the fee as to one of the three estates; but whether that fact was known to the testator, did not appear. After the death of the testator the same tenant in tail came into possession of the property, and suffered recoveries, whereby the entail as to the two remaining estates was barred; and he then devised the three estates to the son of the testator in fee, subject to certain charges, under which devise the son afterwards entered into possession of the same three estates: Held, that the possession thus acquired was not an actual possession of the estate entailed upon the testator and his issue within the meaning of the will. By a settlement made in 1765 on the marriage of Robert Davison with Ann Chetwode, the manor or lordship of Brand, and the messuage called Brand Hall, and the demesne lands thereto belonging, situated in Norton-in-Hales, in the county of Salop (described in the cause as "the Brand estate "), a messuage and lands in the township of Betton (called "the Betton estate "), and a messuage and lands in the parish of Malpas and county of Flint (called "the Maes-y-Groes estate"), were settled to the use of Robert Davison, the husband and settlor, for life, with remainder, as to "the Brand estate," to Ann his wife, for her life, as part of her jointure; and as to all the other hereditaments, subject to an annuity of 300l., to the wife; and as to the whole, subject to the said uses and annuity, to the use of the first and other sons of the marriage and their issues successively in tail male, with remainder to the use of the husband, his heirs and assigns for ever. Robert Davison, the husband and settlor, by his will, dated in 1769, in case of his own death without issue, as therein-mentioned, gave all his estate, both real and personal, subject to his debts and legacies, to his wife for life, with remainder to trustees *to preserve contingent remainders; and after the decease of his wife, to a trustee. therein named, upon trust to raise 1,2001. for certain persons. therein named; and subject thereto, he gave the same estates unto his brother William for his life, remainder to trustees to preserve &c., with remainder to his nephew William Holt Davison, the son of his brother William, during his life, remainder to trustees to preserve &c., with remainder to the first and other son and sons of William Holt Davison successively in tail male, with remainder to his brother Samuel for life, remainder to trustees to preserve, &c. with remainder to the first and other son and sons of Samuel successively TAYLOR v. EARL OF HAREWOOD. [ *373 ] TAYLOR v. EARL OF HAREWOOD. [ *374] in tail male, with remainder to his nephew Robert Davison (the testator, the construction of whose will was the subject of this cause) for life, remainder to trustees to preserve &c., with remainder to the first and other sons of his said nephew Robert Davison successively in tail male, with divers remainders over. Robert Davison, the husband and settlor, died in 1772, without issue, leaving his wife Ann (afterwards the wife of Edward Mainwaring) surviving. William Holt Davison, the nephew, died in 1791, leaving two sons, one of whom, William Holt Davison the younger, attained the age of twenty-one years. Samuel, the brother, died without issue male in 1770. In March, 1806, Ann, then the wife of Edward Mainwaring, joined with William Holt Davison the younger in suffering a recovery of the Betton estate, and in declaring the uses thereof to Ann Mainwaring for life, remainder as William Holt Davison the younger should appoint, and subject to such appointment to the use of William Holt Davison the younger for his life, remainder to uses to bar dower, remainder to William Holt Davison the younger, his heirs and assigns for ever. In this situation of the uses and possession of the estates, *Robert Davison, the nephew, the testator in the cause, by his will, dated in 1810, devised and bequeathed his real and personal estate to trustees for sale, and to convert into money such parts as did not consist of money, and after payment of his debts, funeral and testamentary expenses, and a legacy, to invest the residue, and pay the interest and dividends to his wife for her life, and after her decease, upon trust, as to a certain part of the said trust monies, for the children of his son-in-law Henry Jones, and Ann his wife; and as to 2,000l., other part of the trust monies, for his daughter Diana for life, with remainder to her children; and in case of her death without issue, as therein mentioned, then upon trust to pay and apply the interest of the 2,000l. equally unto and among such of the children of the testator as should be then living, and the survivors and survivor of them, until none of his said children should be living without having issue of his, her, or their body or bodies, or children of such issue, and then to divide the said 2,000l. equally among the issue of his children, and the children of such issue per capita. And as to such part of the trust monies as should be sufficient for that purpose, upon trust to pay an annuity of 130l. to his daughter Mary for her life, if she continued unmarried, but, upon her marriage, 301. thereof to cease, and the principal to sink into the residue; and after the decease |