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 (a), might have to manage all the mining concerns in the kingdom. That cannot be the true principle of the Court.

What is the true principle is, I think, pointed to in Crawshay v. Maule (b), Jefferys v. Smith (c), and Waters v. Taylor (d). 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 coheirs; 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 (e), in the Exchequer, and a discussion there arose,

(a) 1 J. & W. 592.

(b) 1 Swanst. 495.

(c) 1 J. & W. 298; 3 Russ. 158.

(d) 15 Ves. 10.

(e) Denys v. Shuckburgh, 4 Y. & C., Exch., 42.

1853.

ROBERTS

v.

EBERHARDTt.

Judgment.

1853.

ROBERTS

V.

EBERHARDT.

Judgment.

in consequence of one tenant in common having work-
ed mines alone, from what period such account was to
be rendered. The other case would be one in which,
as in Crawshay v. Maule (a), the circumstances afforded
evidence, as it is impossible to say that they may not
ultimately do here,—that the whole property was intend-
ed 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 part-
nership, and have the whole thing sold, as in Crawshay v.
Maule (a). 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 es-
tate was all acquired for the purposes of the partner-
ship, 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 cannot
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

(a) 1 Swanst. 495.

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 cooperate with him. It is alleged, that the co-partner has refused to buy a steam engine. Suppose I appointed 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 realised. But the managing partner, while the concern continues, can do exactly the same thing. Until his co-partner 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-adozen 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 co-partner 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

1853.

ROBERTS

v.

EBERHARDT.

Judgment.

1853.

ROBERTS

v.

EBERHARDT.

Judgment.

he chooses. That is not the case of Jefferys v. Smith (a But it is not even alleged that Eberhardt has attempted t sell to any one at these particular prices. All that he ha done is, that he has gone to the agent, and told him to sel at such prices. The next thing is the alleged interferenc with the butties. That is the nearest approach to inter ference in this case. There was a disagreement, and the Defendant took the side of the butties, and said they wer right in what they did; but I think that is not such an interference as would authorise me to appoint a receiver at the instance of a partner who really seems to have the whole thing in his own hands. He at this moment is appointing and discharging workmen, and has not been interfered with in any of those proceedings by the Defendant Eberhardt.

It is further said, that the mine will be drowned, because Eberhardt will not co-operate to prevent it; but the Plaintiff may do what he likes to prevent that: he cannot get money for that purpose from Eberhardt, but neither would the receiver be able; though I do not think that any one would advise Eberhardt, if it were done bonâ fide, in due exercise of the Plaintiff's powers of management, that he could resist payment of the expenses out of the profits arising from the sale of the coals. In Jefferys v. Smith (a), the case was really this: one part owner said, "I am owner, and I will manage the concern;" the other said, "I will manage it:" and there was there a direct interference. And Lord Eldon said, “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 mine. Must not a contract be implied, that it was to be carried on in a practicable and feasible way? ... Where there are part owners of a mine, and

(a) 1 J. & W. 298.

they cannot by contract agree to appoint a manager, this Court will manage it for them." If Eberhardt had said, I will send my people to work my part of the mine, this case would have been like Jefferys v. Smith (a) in that respect, and I should then have struggled hard to have fund some mode of relieving the Plaintiff; but I am of pinion, that no case has been made for such relief. Nonco-operation, which leads one partner to act upon his own responsibility until interfered with, is not a ground for appointing a receiver of the property; and I think that this is not a case in which I should struggle to get over the difficulty; and therefore there must be no order on this motion.

1853.

ROBERTS

v.

EBERHARDT.

Judgment.

FRY v. CAPPER.

Dec. 16th.

Bra settlement, dated the 14th of August, 1792, and Power of Ap

among Children

of appointment among children,

of a trust fund

in the usual

made one month after the marriage of John Fry and Honnor pointment his wife, John Fry covenanted to pay to the trustees there--Restraint upon Anticipa of a sum of 2000l., to be held by them upon the trusts tion. (therein declared) of a sum of 1000l., which was covenant- Under a power ed to be paid to them by the mother of his wife, and which were as follows: "In trust to pay or permit the said John Fry (the husband), and his assigns, to have, ceive, and take the dividends, interest, and annual produce of the said 1000l., for and during the term of his natural life; and from and immediately after the decease of the said John Fry, in trust to pay or permit and suffer tees and sufficiently authorise and empower the said Honnor for her separate Fry his wife, and her assigns, to have, receive, and take without power

re

form, the share

of a married

daughter, who was unborn at

the creation of

the power, was

limited to trustees, upon trust

use, for life,

of anticipation, and, after her

decease, to her general appointees by deed or will, and in default, to her executors or administrators.

Held, that such an appointment was not void as fettering the property beyond the legal limits, but that the restraint upon anticipation might be rejected, and the rest of the appointment sustained.

(a) 1 J. & W. 298.