MARCH, 1817. others V. Bolling. by the testimony of Wilder. There is no ambiguity, as is pretended, in the decretal order. It directs a specific perBirchett and formance of the agreement in all things; and the agreement so referred to is too plain to be misunderstood. It plainly means that they should pay, each of them, their two shares ; that is $1000. The Decree is in personam, as all Decrees were before the passage of the Act authorizing decrees in rem : but the power of decreeing in personam still subsists. Id certum est, quod certum reddi potest. If they did not know its meaning, that they were to pay $1000 each, they could have applied to the Court during the Term: they could have ob (a) 2 Eq. cases tained the requisite information by motion. (a) abr. 279, Ban This case was bury v. Bolton; open for the plaintiff, and consequently equally so for the de7 Viner's abr, fendants, if necessary for their interest. They could have 399 pl. 19; 2 Eq cases abr. obtained an explanation either during that Term, or after280, Vaughan v. Blake; Viner's wards: but they wanted none: it is a mere pretext, to evade abr 400. pl. 25; the real merits, and to throw, if possible, the costs on the ApSheppard's Ex. The v. Starke and pellee. Their subsequent conduct fully proves this. Wife 3 Munf notice, that a motion would be made to attach them for conp. 29. pl. 1. tempt, was accompanied with the copy of the Decree, and a statement of what they had to pay; the failure to do which was the ground of the motion. If they wanted information only, and were willing to obey the Decree, they could have paid, and shewn that performance in discharge of the motion. The order of the Chancellor to attach them was therefore correct. This principle of attaching for a contempt in not obeying a Decree is too well known to require authority to support it. The execution of the Decree was under the control of the Court, and could not be abused to the injury of the defend ants. But if the agreement were ambiguous, (instead of being plain as it is,) it could nevertheless be decreed to be carried (b) 2 Eq. cases into execution. (b) An agreement to build a House, though abr. 17. pl. 6. Allen v. Har uncertain as to the time, size and value, was decreed to be ding. specifically performed. But, admitting the release to be unsupported, the defendants insist, that this is like an unpromising mercantile specu lation, which they ought not to be compelled to join in. There is no similarity between this and such a mercantile pro ject; and therefore this case must be governed by the general law of the land. MARCH, 1817. Birchett and others V. Bolling. A Court of Equity will decree a specific performance of a Contract or Agreement to enter into a partnership, even though relating to personalty. (a) A fortiori, will it enforce such an agreement relating to real estate. (b) Such an agree- (a) Watson p.60. ment ought to be certain, fair and just in all its parts. This (b) Burlon v. Liston & Cooper, undoubtedly is so. There is no doubt as to the intention: it 3 Atk. 383. is fair, and for public utility as well, as private emolument; and it is equal, and therefore just. It does not resem ble the agreement, in the case of Hercy v. Birch, 2 Ves. 629, (c) of which the Court refused to decree specific performance, (c) Wats. 60. because the parties might dissolve the partnership immediately afterwards. This was a permanent partnership, and no party or number of parties could dissolve it, without the consent of all; for it respected real estate, and was not limited in point of time. (d) The property was to be held in fee simple; and 'd) Ibid. 72. all the partners are tenants in common. (e) In the case of (e) Ibid. 77. Lake v. Craddock, 3 P. Wms. 158, the Heir and Executor of a delinquent partner was decreed to pay the deficiency of what his father ought to have paid, with interest. If he had not come in, he would have lost what had been advanced. If a general partnership is entered into for an unlimited time, it may be put an end to at any time by any partner, but not if he acts mala fide; or does it with a sinister view, or after some particular business is begun. or at an unseasonable time, which might occasion loss or damage to the partnership." (f) This is the doctrine even in cases of partnerships relating (ƒ) Ibid. 379. not to real estate: the principle is stronger in cases of permanent partnerships like this. In Watson, p. 381., it is said that "a partnership for a term of years cannot be dissolved by the "will of one, or of any number of the partners short of the "whole of them :" a doctrine applying a fortiori to this case in which the partnership is permanent, requiring the possession of real estate in fee simple: it surely, therefore, cannot be terminated without the unanimous consent of all the partners; at least, until the object is attained by the completion of the building, MARCH, 1817. If the Decree be reversed, the hostile defendants will have the plaintiff's property, and be rewarded for their violation of Birchett and a solemn agreement. others V. Bolling. Leigh in reply. This Decree is not what it professes, and was doubtless meant to be a Decree for specific performance. A Decree for specific performance ought to ascertain and fix, or provide some method for ascertaining and fixing the precise act to be done, or sum of money to be paid, which, being done or paid, will amount to the performance, the Court means to decree. Otherwise, it must be left to the parties to agree between themselves what act or payment shall be a specific performance; or each party must be left to ascertain that point for himself; in either of which cases, the Decree would leave the parties and the controversy exactly in the same state, it found them: or it must be left to one of the parties to ascertain the act or payment to be done or made by the other as a specific performance; which would be in effect a substitution of that party in the place of the Chancellor; and such is the character and effect of the Decree in this case. It is so general, and on that so uncertain, that the defendants could not know from the Decree itself what payments they were to make, or what act to do, in order to perform it. The Decree directs that the defendants "shall in all things "execute and perform their agreement, from time to time, ac"cording to its true intent and meaning." But what was its true intent and meaning, and what should be done to fulfil it, were the very questions litigated between the parties. Mr. Bolling's own notice to the defendants, requiring performance of the Decree on their part, is a direct admission of the uncertainty of the Decree itself; for that notice proceeds to point out (what the Decree omits) what the defendants should pay, in order to perform the Decree: but, if he was competent to do this, he is in effect the Chancellor, who decides the cause. By the arrangements between the parties, the money was to be paid in quotas, as called for; but the suit was instituted before all had been so called for; and it no where appears how much was due on the requisitions, that had been made at the time of the rendition of the Decree; consequently, it is not ascertained by the Decree what precise sum MARCH, 1817. others V. Bolling. ought to be paid as a specific performance; the whole or part. Of the consenting partners, Harwood, Wilder and Walker say they have paid only part of the whole amount of their sub Birchett and scription: William and Henry Haxall say they have paid $540; and Holloway's Administrator says his Intestate paid $450, only. Yet Bolling requires the refractory parties to pay the whole $1000, on their subscriptions, with interest; and the Chancellor attaches them for not complying with this requisition, without any evidence that the consenting partners had paid the like sum, but Bolling's own statement to that effect. It is said this objection to the Decree was not made in the Court of Chancery: but it is unimportant whether it was there made, or not; and, besides, it plainly appears, from the Chancellor's Order, awarding the Attachment, that the objection was distinctly made. In the case of Allen v. Harding, cited from 2 Eq. Cases abr. 17, the Decree did provide a method for ascertaining precisely the act to be done, as the specific performance of the Contract. Upon the merits. This association was without doubt a partnership; for, although partnerships are most commonly of the mercantile kind, yet, to constitute a partnership, it is not necessary that the object of the association should be to carry on trade. "Contractus societatis est, quo duo pluresve inter se “pecuniam, res aut operas conferunt, eo fine ut quod inde redit lu“cri inter singulos pro rata dividatur:" Puff. lib. 5. c. 8.: which Mr. Watson translates, "the relation of persons agree"ing to join stock or labour, and divide the profits." Wats. p. 1. This association was precisely an unincorporated company of partners, such as is described in Wats. p. 3. I do not say that the agreement was not binding on the parties; I admit it was binding. I do not insist that the complaining parties ought to have been turned over to their remedy at Law; I admit their case was a proper one for relief in Equity. The parties should not have been driven to their legal remedy; because it is doubtful whether a Court of Law could entertain an action for one partner against another; and because, at all events, the case was proper for a Court of Chancery, to avoid multiplicity of actions at Law. The single question for the Chancellor to decide was, whether he should decree a specific performance? or decree compensation to MARCH, 1817. Birchett and others Bolling. the complaining partners against the refractory partners, ascertaining such compensation by an issue of quantum damnificatus? I insist that the latter was the proper, and the only proper, course. A specific performance was not the proper relief. The constant doctrine of the Court is, that it is in its discretion, whe(a) Per Ld. ther, in such a Bill, it will decree a specific performance. (a) Hardw inJoynes It is true that Ld. HARDWICKE said in Buxton v. Liston, 3 Atk. v. Stratham, 3 Atk. 388. 383, that specific performance of articles of co-partnership ought to be decreed; but that was an extra-judicial dictum, and that doctrine is expressly over-ruled, and justly exploded, in Hercy v. Birch, 2 Vesey jr. 629, where Lord ELDON says, “no "one ever heard of this Court executing an agreement for a "partnership, when the parties might dissolve it immediately "afterwards." The reason is obvious: it cannot be for the interest of any of the members of an association to be bound in a partnership with others, whose views, interests, wishes and feelings are hostile and conflicting. So, in the present case, what could be more absurd than to bind Bell in this partnership, when he had ceased to have any interest in promoting its prosperity, and had become very hostile; or Powell, who had a direct interest to disappoint the company from all profit from their Tavern; or Birchett, Taylor, Cumming, the representative of Potts, and Walker, who had all become averse to the farther prosecution of the project, for the reasons, they have assigned, and would therefore throw every obstacle in the way for the execution of it? Again, specific performance ought not to be decreed; because the parties had themselves suspended the execution of their plan so long, (nearly three years,) that it might well have happened, in the interim, that it would be inconvenient and disadvantageous to some of the partners to go on with the scheme at so late a period. The Bill says a majority wished the suspension, and Bolling acquiesced in it, to his own injury and that of the Company. It does not appear, but that the now refractory partners were in that minority, opposed to that injurious suspension, and the now consenting partners in that majority, which insisted on the suspension. Bell certainly was in the minority on that occasion, for he is described in the Bill, as being the most zealous and active of them all at first, |