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say, that was a length to which they should not go; the Court would not allow the rules applying to partnership concerns to be broken in upon by an agreement of that sort: that, supposing the plaintiff had a right to have the daily accounts delivered to him, it did not follow that the Court would interfere; that the Court was not bound to interfere upon every breach of adherence to the rules of a partnership

concern.

CONST

0.

HARRIS.

The LORD CHANCELLOR went through the facts of the case, and in so doing observed, that the concern was in the nature of a partnership, that, according to the principles of the Court, it would not interfere, on interlocutory motion, to regulate the concerns of any partnership, unless the objects of the bill were such, as would probably be carried into execution, when the cause came to a hearing: that it was not the business of the Court to manage or carry on, from time to time, a partnership of any kind, and that it was impracticable for the Court to do so; *that a bill might be filed, for the purpose of compelling partners to do certain things, according to the provisions of certain instruments, and that the Court would interfere for that purpose, and that when it did so interfere, it would take care that the decree, to be made at the hearing of the cause, should not be defeated by anything done in the meantime; but that a bill, merely seeking the interposition of the Court to carry on a partnership, could not be maintained: that, supposing nothing more to have taken place, than, that the deed of 1812 having been executed, Thomas Harris had, with the consent of all the parties, taken the entire management of the theatre, and Henry Harris, with the same consent, had succeeded to the same species of management, and that, disputes having then arisen, in consequence of the introduction of new partners, the bill had been filed, the Court must have taken upon itself the management; and that, if there had been nothing, beyond what he had stated, except a simple demise by Henry Harris to the other parties, it would have been impossible for the lessees to stand in any other situation, than the person by whom the demise was made,

1824. Feb. 6, 7.

[519]

CONST

v.

HARRIS

[*520]

clothed with all the rights, and subject to all the duties and obligations, created by the deed of 1812; that it would have been nothing more in effect than a substitution of the new parties as partners for ten years; that, unless the terms of the deed of 1812 were varied, by the consent of all the parties, bound by its obligations, and entitled to its benefits, the new partners would be entitled to all the rights, and subject to all the obligations, contained in that deed: with respect to the delivery of the daily accounts, his Lordship observed, that he thought it was competent to the proprietors of the theatre, meeting together, and deliberating upon the subject, to determine that such accounts should not be sent; that the delivery of these accounts could not be stopped, without all the *partners being consulted; but that, if all had been consulted, the practice had been properly discontinued. In commenting upon the agreement of 1822, his Lordship said, with reference to the covenants applying to the entirety of the premises, that, there being seven-eighths of the whole property vested in the lessees, and they standing, for ten years, in Harris's place, it was not improper on his part to require such covenants, leaving the lessees to deal with their partners as they could; but, referring to the clauses, as to debts which were to be considered as due from the proprietors, though incurred by the parties to the agreement only, and particularly to the clause as to the printing-press, his Lordship said, that the debts might properly be considered as debts due from the proprietors, including the plaintiff, provided they were debts which ought to be thrown upon the proprietors, and were incurred, after a proper communication with the plaintiff as to the propriety of their being incurred; but that, primâ facie, the plaintiff had an undoubted right to be consulted on that proposition; and that, as to the printing-press, the plaintiff had a right to be consulted upon the question, whether any should be set up; and that no debt in respect of it could ever be thrown on the general body of the proprietors, unless a decision, in favour of its being set up, was come to, on the proper principle on which all points, for the consideration of all the partners, were to be considered and decided upon; and he said, that, taking the

*

whole instrument together, it was an instrument, with respect to which, as to many parts of it, it was extremely difficult to say, that the partners of the seven-eighths could enter into it, without consulting the partner of the other eighth, but, that the instrument seemed to him to go to the utter destruction of the deed of 1812; that it provided, in many instances, for an application of the funds, different from the application directed by that deed, by which the application of the rents and profits, including those taken by Mr. Harris under the instrument in question, was irrevocably fixed; and that, therefore, if the question had arisen immediately after the execution of the instrument, whether it could be carried into execution, consistently with the deed of 1812, the instrument could never have been permitted by the Court to overrule the deed, unless upon some other ground, than that the parties to the instrument were ignorant of the deed: that, if the instrument was entered into in entire ignorance of the deed of 1812, it might be good ground for the lessees to say to Harris, that he should not hold them to the agreement, as he had not informed them of the nature of the property, or of the obligations to which he was subject by the deed of 1812; but that, it never could be said, that without the consent of all parties, the execution of the agreement could, upon the mere ground of ignorance, entirely destroy the obligations contracted by the deed of 1812: that the parties claiming under the agreement could take nothing more than Mr. Harris could give them; and that they therefore took, subject to all that Mr. Harris would have been subject to had the agreement not been made that a party, taking the interest of a partner in a concern, could not be let loose from the obligations the partner was under to the concern; and that, if he chose to ask no questions, he must take at his own risk with respect to those obligations. In noticing the fact, that arrangements had been made, and time given, for such of the debts secured by the deed of 1812 as remained unpaid, his Lordship said, that that would not do; that without the consent of all the parties, other securities could not be substituted for that, which was the primary security.

His Lordship then proceeded to the consideration of the case,

R.R.-VOL. XXIV.

K

CONST

v.

HARRIS.

[*521]

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as it stood in 1812, and as it was affected by what had subsequently happened.

I have never seen a deed, which more irrevocably fixed upon the parties, whose interests were to be bound, the trusts created by it, than the deed of the 9th of March, 1812; it expressly directs, that the funds shall be exclusively applied to the particular purposes there pointed out, and that the treasurer shall be irrevocably directed so to apply the funds: at the same time, great difficulties might have arisen upon that deed, from its not providing who should be the manager of the theatre: suppose a manager to have been appointed by some of the persons concerned in the theatre, without duly consulting the others, it would have been a much shorter way than filing a bill in equity, to have stated to that manager, that he had no right to manage, and to have stated to the treasurer, that he acted at his peril in applying any of the funds according to the orders of the manager: the same difficulty would then have presented itself as occurred in the case of the Opera House, that, when the treasurer came to pay the performers, a question would have arisen, whether the person who had made the bargain with them had any authority to make it: so, in the present state of things, a question may arise, whether, if the present management is a management, which has not been properly created originally, or properly sanctioned subsequently, Mr. Robertson will be justified in executing the very first trust of this deed, unless it can be shewn, that the contracts with the performers are contracts, which bind all the persons interested: however that may be, there can be no doubt whatever, that after the execution of the deed of 1812, unless the trusts of it were altered by some effectual means, it never could be competent to any of the proprietors of the theatre, without the consent of the others, to authorise Brandon, whilst he acted under the deed, to apply any part of the monies coming to his hands, to any other purposes than those expressed in the deed: considering the deed to have been an effectual deed, it has been the duty of the treasurer for the time being, to say, that, without the consent of all the parties interested, he could not allow any part of the monies coming to his hands, to be applied otherwise than according to the trusts

of the deed if all the parties interested, except one, came to him, and said, he should not apply the monies in the manner directed by the deed, he was authorised to say, that he should make that application of the monies, and that he could make no other application of them: thus the case stood in 1812.

In ordinary partnerships nothing is more clear than this, that although partners enter into a written agreement, stating the terms upon which the joint concern is to be carried on, yet, if there be a long course of dealing, or a course of dealing, not long, but still so long as to demonstrate, that they have all agreed to change the terms of the original written agreement, they may be held to have changed those terms by conduct. For instance, if in a common partnership, the parties agree, that no one of them shall draw or accept a bill of exchange in his own name, without the concurrence of all the others, yet, if they afterwards slide into a habit of permitting one of them to draw or accept bills, without the concurrence of the others, this Court will hold, that they have varied the terms of the original agreement in that respect; so, in this case, if it can be shewn, that in the administration of this property, the proprietors in general, after 1812, pursued a different course from that provided for by the deed of March, 1812, they must be taken to have altered the agreement, and to have substituted the terms, to which, in their conduct, they have adhered, instead of the terms contained in the original agreement; and, with respect to the present plaintiff, there can be no doubt, that if, after the deed of 1812 was *executed, his testatrix gave in to a course of administration of the property, different from the course provided for by the deed, if her acts, or the acts of others with her consent, afforded such evidence of departure from the terms of the written agreement, as to amount to the substitution of a new agreement, though evidenced only by parol, instead of the written agreement, he, claiming under her, must be bound by her acts, and cannot be at liberty to revert back from those acts, establishing a new agreement, to call into operation again the old agreement, and to insist, that the non-execution of the old agreement is, in such circumstances, a breach of trust. So again, it is a principle of this Court with respect to partnership concerns, that a partner, who complains

CONST

v.

HARRIS.

[ *524 ]

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