effect that the plaintiff and defendant frequently gave contrary orders respecting the management of the works.

Mr. BACON, Q. C. and Mr. J. B. PRIOR, for the motion.

Mr. ROLT, Q. C. and Mr. CAIRNS, contra.

Vice-Chancellor SIR W. PAGE WOOD.

The principles involved in this case are of great importance, although perhaps the course that I ought to take on the present motion may not, strictly speaking, require the application, to the full extent, of the doctrine which was laid down by Lord Eldon in Jefferys v. Smith, 1 J. & W. 298; for there are circumstances here which seem to me to make this materially different from that case before Lord Eldon. Knowing the extreme caution with which Lord Eldon laid down any general principle, I am inclined to attribute more weight to any general principle enunciated by him than to the dieta in more recent decisions, which, though apparently general, must always be considered with special reference to the case immediately before the court.

In Jefferys v. Smith, Lord Eldon made several observations which did not apply to the case immediately before him, for that was a case of partnership and the bill prayed for a dissolution; but, during the argunent, the counsel for the defendant were driven to say, "We can not contend that the defendant has a right to continue manager of the whole mine against the consent of the other owners; they may act for themselves, but they have no right to oust him of his own share because they can not agree with him. Persons who are tenants in common of land can not ask that a manager should be put in possession for all parties."

In answer to that remark Lord Eldon said, "The question is, whether mines have not been always considered, not altogether, but in some sort, as a species of trade. How it may be in Wales I do not know; but in my country, where there are frequently twenty owners of the same mine, if each is to have a set of miners going down the shaft to work his twentieth part, it would be impossible to continue working the

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mine. Must not a contract be implied that it was to be carried on in a practicable and feasible way? I believe I have a note of a case before Lord Hardwicke which confirms me in the idea that where there are part owners of a mine, and they ein not, by contract, agree to appoint a manager, this court will manage it for them." And on a subsequent day he said, "Lord Hardwicke in that case says, that a colliery is to be considered in the nature of a trade; and where persons have different interests in it, it is to be regarded as a partnership; and that the difficulty of knowing what is to be paid for wages and the expenses of management gives the court a jurisdiction as to the mesne profits which it would not assume with respect to other lands." Then he said, "On this ground, and on account of the peculiarity of this species of produce, the court gives an injunction against trespass, and allows a party to maintain a suit for the profits, which in other cases it would not do. Here there are twenty shares, and if each owner may employ a manager and a set of workmen you destroy the subject altogether. It renders it impossible to carry it on. It appears to me, therefore, upon general principles, and without reference to the particular circumstances of any case," (that is, he was not applying the remark only to the case before him,) "that where persons are concerned in such an interest in lands as a mining concern is, this court will appoint a receiver, although they are tenants in common of it." And that, no doubt, is the strongest part of the expressions in the judgment with reference to the general principle to be applied to the case now before the court. I do not find any case in which the court has proceeded to appoint a receiver of mining works in which the parties had not been working the mines together in partnership, nor where a partnership existed for the purpose of working the mine, if that were the extent of the partnership, without having before the court a suit for the dissolution of the partnership, except it may be that case of Wynget v. Heathcote, which was cited not from any report but from the recollection of counsel in the case of Bentley v. Bates (4 Y. & C. Exch. 182). The case of Bentley v. Bates itself certainly involves something of the same kind. In that case a demurrer to a bill, not praying for a dissolution, either as to the mines, which were the subject, or as to the

working partnership, for obtaining the profit to be derived from the property, was overruled; and it is certainly not the ordinary practice of this court to direct an account between partners, except upon a bill for the dissolution of the partnership concern. (See Forman v. Homfrey, 2 V. & B. 329; and Russell v. Loscombe, 4 Sim. S.) It is true that it is not now necessary to ask for a dissolution in every case in which relief is sought respecting partnership affairs; but I apprehend that where a bill seeks for an account that is one of the cases in which a dissolution must be prayed. Unless some special ground is raised the general accounts can not be taken without asking for a dissolution of the firm; and yet in Bentley v. Bates, Lord Abinger held, in the case of a mining concern, that these accounts might be taken, although the bill did not pray for a dissolution of the partnership in the working of the mines. Therefore, that case must be considered an authority, that, without breaking up the partnership in a mining concern, a plaintiff might have the intermediate relief of a decree for an account, not general, but from year to year, and seems to furnish an analogy for an application for a receiver, although the bill does not ask to terminate the concern. On principle, that course would create enormous difficulty in the case of property held in fee simple, like a colliery, if the court is to be called upon, because of the owners' disputes, during the continuance of their holding the property in fee, to put in its own manager, and have a person appointed to manage it. If that be the proper course, the court, as Lord Eldon expresses it in Goodman v. Whitcomb, 1 J. & W. 592, might have to manage all the mining concerns in the kingdom. That can not be the true principle of the court.

What is the true principle, is, I think, pointed to in Crawshay v. Maule, 1 Swanst. 495; Jefferys v. Smith, 1 J. & W. 298; 3 Russ. 158, and Waters v. Taylor, 15 Ves. 10. The true principle must be this: In the case of a mining concern like this there may be two modes in which it may be viewed: it may be a mining concern really held as property by parties who never acquired it for the purposes of trade, as in a case where an estate containing mines has descended from the owner to two co-heirs; and such joint owners, though they did not acquire it for mining purposes, may nevertheless agree to

work the mines together with their joint property, and buy steam engines and pay workmen during that working. That would be working the mine in partnership. There would be a partnership in the working, though not in the land; and either of the joint owners might at any time change his mind, and say to the other, "I do not feel inclined to work jointly any longer, and all the accounts may be taken, and I will leave you to deal with your share as you please." One might then continue to work but he could not force the other to go on, and the one who continued to work might have to render an account. That was what happened in Sir Francis Shuckburgh's Case, (Denys v. Shuckburgh,) 4 Y. & C. Exch. 42, in the exchequer, and a discussion there arose, in consequence of one tenant in common having worked mines alone, from what period such account was to be rendered. The other case would be one in which, as in Crawshay v. Maule, the circumstances afforded evidence—as it is impossible to say that they may not ultimately do here, that the whole property was intended to be used as a partnership concern; and, therefore, when any disagreement arose, any of the partners would have a right to come to this court to determine the partnership, and have the whole thing sold, as in Crawshay v. Maule. In either case it would be proper to ask for a dissolution and winding up of the concern, and then for a receiver to be appointed to manage the concern in the meantime, if the partners could not agree. This bill does not present distinctly either of those phases. I am not informed in which way the plaintiff regards it: whether, that he is working in partnership a mining property of which he is a tenant in common in fee; or that the estate was all acquired for the purposes of the partnership, and the plaintiff has therefore a right to have a sale of the whole. It is said that I may now assume that at the hearing the plaintiff will have a right to have a sale, and that the partnership will be clearly determined, and that therefore I may now appoint a receiver seeing what must be the result of the litigation. But I can not at present see that in this case. I do not foresee whether I am to dissolve the working partnership, or to sell the whole fee simple in the property.

In that state of things there is a great difficulty, as the law stands, in saying that the plaintiff is now entitled to have a

receiver appointed, who would only be brought in really for the purpose of continuing the business, as appears from the 27th paragraph of the bill; and still more strongly from the 26th, where the language points to a continuance of the working. Therefore, upon the statements in the bill, I think there would be great difficulty in appointing a receiver. I think also, upon the facts which are in evidence, there would be great difficulty, even if the bill had asked for a dissolution upon the ground of incompatibility in the mode in which the partners were working the mine; for am I not, as Lord Eldon says, to imply a contract for carrying on the business in a feasible way? I think that Mr. Bacon well described the result of the evidence when he said that there was a want of co-operation between these partners, but that, and interference are altogether distinct. The right to have a receiver would not arise on the part of a partner who, as the plaintiff appears here to be, was the managing partner, and had practically the sole direction of the business; he would have no case for coming here for the assistance of the court, only because the other partner would not co-operate with him. It is alleged that the copartner has refused to buy a steam engine. Suppose I ap pointed a receiver; could I compel him to buy it? The only mode of doing so would be this: the receiver might purchase it if there were assets for that purpose, and might, by the direction of the court, recoup the expense of it out of the profits of the concern when realized. But the managing partner, while the concern continues, can do exactly the same thing. Until his copartner interferes to prevent him, I apprehend he might incur any expense in the management that was beneficial for the purposes of the business. Just as a brewer might set up half a dozen vats at a large expense, so here the managing partner might set up a steam engine and work it as he thought proper. There is nothing done by his copartner to interfere with his doing so. So, again, as to the prices of coal. All that has happened at present is that one partner has said, "I will not sell at such a price," and the other has said, "I will." Each has a perfect right to sell at what price he chooses. That is not the case of Jefferys v. Smith. But it is not even alleged that Eberhardt has attempted to sell to any one at these particular prices. All that he has done is that he has gone to

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