articles. An account was made out, dated the 6th January following. At this period, one of the partners who survived Harrison was abroad, and in February he died, without ever having interfered in the transaction. His representative then filed a bill, impeaching the account so delivered, and praying for a general account of the partnership. But the Master of the Rolls held, that the account delivered to the administratrix of Harrison should stand as a stated account, with liberty to the representatives of any of the partners to surcharge and falsify. Upon appeal to Lord Somers, and afterwards to the House of Lords, this decision was affirmed.

The Statute of Limitations (a) bars only legal remedies; but Courts of equity, by their own rules, independently of any statutes of limitation, give great effect to length of time, and they refer frequently to the statutes of limitation as furnishing a convenient measure for the length of time that ought to operate as a bar in equity of any particular demand (b). They have therefore thought proper to adopt the limit of six years, in analogy to the statute (c). And accordingly, the Statute of Limitations is a good plea in bar of a bill for an account. Where, therefore, a bill prayed an account against the representatives of a surviving partner, alleging the partnership to have commenced in 1788, and to have continued to 1798, without any account settled, and the partner died in 1806, and the bill was filed in 1808, the case was held to be within the statute (d). On the same principle, the Statute of Limitations is a good plea in bar of a suit against the representatives of a deceased partner for an account, if there have been no dealings. within six years before the filing of the bill, and no admission on the part of the testator or the representatives, which can take the case out of the statute (e).

(a) 21 Jac. 1, c. 16, s. 3. By which it is enacted that "all actions of account and upon the case, other than such accounts as concern the trade of merchandize between merchants, their factors or servants, and all actions of debt grounded upon any lending or contract without specialty, shall be commenced and sued within six years next after the cause of such action or suit, and not after." The exception as to mer

chants applies only to running accounts, and not to any case where the account is closed and concluded between the parties. Welford v. Liddell, 2 Vez. 400.

(b) Per Lord Eldon, 17 Ves, 96, (c) 1 Sim. 398.

(d) Barber v. Barber, 18 Ves. 286.

(e) Ault v. Goodrich, 4 Russ. 434.

But as pleas of the Statute of Limitations are admitted in Courts of equity by analogy only, it follows, that where the circumstances of a case are such as to make it against conscience to apply the rule founded upon this analogy, the Court will not enforce it (a). Therefore, if a partner devises his estate for payment of his debts, and dies, the Court will not permit his representatives to set up the statute in bar of demands, which had legal existence at the time of his death; and on a bill filed for that purpose, the partnership accounts must be taken (b). So, other cases might be stated in which the Court would relax the general rule. On the other hand, if there have been that delay or forbearance on the part of the plaintiff, that makes it not illegal but inequitable to demand payment, the Court will not sanction that indulgence of time which the statute gives him, but will leave him to his action at law (c).

In a Court of equity, the exception in the statute relative to merchants' accounts extends to all accounts current (d); and where accounts have remained unsettled through several succeeding partnerships, they will be considered, with reference to the statute, as one unsettled account against any person who was a member of all the partnerships. In Robinson v. Field (e), it appeared that three persons, A., B., and C., entered into partnership as attornies. In 1808, A. died, leaving B. his executor and residuary legatee, and thereupon B. and C. continued the partnership upon the same terms as before, as nearly as circumstances would permit, until the 31st of December, 1825, when their partnership was dissolved by consent. In 1827, B. became bankrupt, and no settlement of accounts having taken place between any of the parties, B.'s assignees in July, 1831, filed their bill for an account of the dealings and transactions in both partnerships, from the commencement of the original partnership until the 31st December, 1825, alleging, that joint and separate advances had been made by A. and B. to C., during A.'s lifetime, and that advances had likewise been made by B. to C. since A.'s decease. C. then pleaded the Statute of Limitations to so much of the bill as related to the advances, but Sir L. Shad

(a) Per Sir A. Hart, Sterndale v. Hankinson, 1 Sim. 398.

(b) Ault v. Goodrich, supra.

(c) Bridges v. Mitchell, Gilb.257.
(d) Anon. 19 Ves. 185, cited.
(e) 5 Sim. 14.

well overruled the plea, on the ground that the partnership accounts could not be taken without having regard to the joint advances made by A. and B., and the advances made by B. after A.'s death, and, therefore, that the plea covered too much, though possibly it might have been good as to the separate advances made by A. and B. in A.'s lifetime.

A release or an award may likewise be pleaded in bar to a bill for an account (a); but if a release be pleaded to a bill for an account, it must be under seal, otherwise it must be pleaded as a stated account only (b). But in all cases, if there be any equitable objection to the release, or to the award charged by the bill, the defendant must meet those charges in the same manner as has been alluded to in the case of other pleas; namely, by averments in contradiction of such charges, both by the plea itself, and by an answer in support of the plea (c).

The bankruptcy of one of the plaintiffs is a good plea in bar to a bill for an account; for a bill cannot be sustained unless every plaintiff has some interest, legal or equitable, in the matters of the suit (d).

We have seen, that a covenant to refer to arbitration is not a valid defence by way of plea (e).

IV. 2. What is a good defence by plea is also good by demurrer, if the facts appear sufficiently by bill (f). Thus, where the plaintiff sought an account of partnership transactions, but it appeared by the bill that all accounts between the parties had ceased for more than six years, and no demand had been made during that time, a general demurrer was allowed (g). So, if a person be joined as co-plaintiff, who has no interest, the bill is demurrable, if that fact appear on the bill (h). Where the bill is clearly demurrable, the defendant ought in prudence to demur, with a view to costs. For, in two cases where the defendants

might have demurred, and the bill was dismissed, Sir John Leach refused the defendants their costs (a).

V. If the defendant submit to answer, he must, according to modern decisions, answer fully. Therefore, if he mean to deny the partnership, he must do so by plea, though formerly he might have used the same defence by answer, refusing at the same time to set forth any account (b). However, the defendant may by his answer decline to admit the copartnership, if the admission would subject him to penalties (c).

If the defendant by his answer suggests a settled account, which he is not able to prove, the Court will direct an account, with liberty to the plaintiff to surcharge and falsify, if the Master should find any settled account (d).

If one of the defendants reside abroad, and the plaintiff consent to take his answer without oath, it ought likewise to be taken without signature, though put in by his agent having a power of attorney to appear and defend suits for him (e). If he be a foreigner, he ought to put in an answer in his own language (f), together with a sworn translation (g).

Every defendant is entitled to put in a separate answer, although all should have but one common defence (h).

Where the bill calls for a discovery which the defendant cannot make completely without seeing the partnership books and accounts, which are not in his possession, but which he believes to be in the hands of the plaintiff, he must put in an answer

(a) Hill v. Reardon, 2 Sim. & Stu. 431; Jones v. Davids, 4 Russ. 277.

(b) v. Harrison, 4 Madd. 252; Somerville v. Mackie, 16 Ves. 328; Ewing v. Osbaldiston, 6 Sim. 608. But see as to the practice in the Exchequer, John v. Dacie, 13 Price, 632; Corbett v. Hawkins, 1 Younge & Jerv. 425; Desborough v. Curlewis, 3 You. & Coll. 175.

(c) Nelme v. Newton, 2 Younge & Jerv. 186.

(d) Kinsman v. Barker, 14 Ves. 579. But generally, if the bill seek to impeach an account which is proved or admitted, liberty will not

be given to surcharge and falsify, unless specific errors be alleged. Ibid. And see 2 Bro. 62; 3 Bro. 266.

(e) Bayley v. De Walkiers, 10 Ves. 441; 2 Hov. Supp. 232.

(f) Hayes v. Leguin, Hogan, 274, to which, of course, and not to the translation, he ought to be sworn, if

sworn.

(g) Simmonds v. Du Barre, 3 Bro.

263.

(h) Van Sandau v. Moore, 1 Russ. 441. But as to the costs of separate proceedings by defendants, who appear by the same solicitor, see Orders, April, 1828, No. 27.

stating to that effect, and then move that the Court would stay proceedings against him for not putting in his full answer, until he has been assisted with that inspection. In such circumstances, a motion by the defendant for the production of the books and accounts, before answer, will be refused (a).

VI. It may be observed, in conclusion of this section, that where a partnership is disputed, a Court of equity will sometimes direct an issue to ascertain the truth (b); and will even direct the parties to be examined at the trial of such issue (c). So, where it is uncertain whether a partnership was real or nominal, an issue may be directed to try the fact (d). However, unless the point is very doubtful, an issue will be refused (e).

SECTION VIII.

Of Tort between Partners.

As wrongs unconnected with fraud in the settlement of contracts or accounts, are in their nature personal, partners will have the same remedies between themselves in respect to these matters, as other persons have. Thus, if one tenant in common destroy the thing in common, the other may bring trover, for this amounts to a wrongful conversion (f). Hence, where one tenant in common of a ship took it away and sent it to the West Indies, where it was lost in a storm, Lord King left it to the jury whether this were not a destruction by the defendant; and they found it so accordingly (g). It has likewise been laid