Mr. SELWYN and Mr. ROXBURGH for. Edmondson, Barrowclough, and James Haigh.-We admit that a right to an account of the dealings and property of the old partnership once existed, but we say that it is barred by lapse of time. As to the renewed lease, we say that the plaintiff's never had any right to it, and that if they had they have lost it by delay. This was a partnership at will, which could be dissolved at any time by any partner, and we contend that it was effectually dissolved as against the plaintiffs in 1846. It is alleged against us that before 1846 we executed works which could not pay unless we obtained a new lease, and that we left large masses of coal in order that the new partnership might have unfair facilities in working. Now Mr. Towneley, so far as regards the copyhold mines, was only a termor, whose term expired in 1846, the freehold being in the Duke of Buccleugh; and it is absurd to suppose that we expended capital in the expectation of obtaining a new lease from the Duke of Buccleugh, with whom we had no connection. We had a right to dissolve the partnership in 1846, and to discharge for our protection all the liabilities which the partnership was under to Mr. Towneley. Notice was given to the plaintiff's of what we intended to do, and they had the same opportu nities as we. The argument of the plaintiffs proceeds on a series of fallacies. They say that this case is on all fours with Featherstonhaugh v. Fenwick, 17 Ves. 298, and the other cases of that class; but in those cases there was unfair dealing, and there is no rule to prevent a partner from dissolving a partnership and taking a fresh lease to himself if his mode of proceeding is fair.

[The Lord Justice Knight BRUCE.-Does not the application of the rule depend upon this-who were entitled to the interests the existence of which gave facilities for obtaining a new lease?]

[The Lord Justice TURNER.-Do you say that a trustee could renew for his own benefit?]

We admit that a trustee could not renew for his own benefit, but here there was no trust. The parties were similarly interested, all was open and above board, and the plaintiffs might have applied for the renewed lease themselves. In most cases it can not be known what the result of an applica

tion by the party who complains of exclusion would have been. Here the evidence shows plainly that the landlord would not have granted a renewal to the plaintiffs. We had told the plaintiffs long before the renewal that we would rather abandon the mine than go on in partnership with them. Under these circumstances, we being unwilling to continue the partnership and the landlord being willing to grant a new lease to us but not to them, and they having notice of our intention to renew for our own benefit, are we, because we took a renewal, to be treated as having entered on a fresh term of partnership?

[The Lord Justice TURNER.-Can a partner renew for his own sole benefit before the expiration of the term which was partnership property?]

We say that he may, in circumstances like those of the present case. If the plaintiffs meant to claim the benefit of the renewal, they ought to have given a counter-notice that they should insist upon a share in the benefit of the renewal. If we had actually agreed at the time to give the plaintiffs what they are now asking, they could not have had it now. It would have been a case of specific performance, and they would have been barred by delay. As to the continual claim it makes against the plaintiffs, it shows that they were fully aware of their rights, and knew that their title was disputed; yet they took no active step: Heaply v. Hill, 2 S. & S. 29; Chesterman v. Mann, 9 Hare, 206, 214. The delay to 1852 is not sufficiently accounted for, since we never gave the plaintiffs to understand that we would be bound by the result of Clegg v. Fishwick, and the delay from 1852 to 1855 is not accounted for at all. In all the cases relied upon by the plaintiffs, there was mala fides. In Featherstonhaugh v. Fenwick, 17 Ves. 299, 300, stress is laid on the circumstance that the lease was applied for without notice to the other parties. In Blissett v. Daniel, 10 Hare, 493, there was an unfair settlement of accounts. Cases as to trustees and executors have no real bearing on the question; this disposes of Edwards v. Lewis, 3 Atk. 538, and Griffin v. Griffin, 1 Sch. & Lef. 352. Supposing, however, that this point is decided against us, the doctrine of Prendergast v. Turton, 1 Y. & C. C. C. 98, S. C., on appeal, 13 L. J. (N. S.) Ch. 268, applies. The decision

in that case was founded on the risks inseparable from all mining property, and time runs from the commencement of expenditure. The claimants knew that we were incurring great expenses and risks; that there was a profit does not prevent time from running. They knew nothing about that, and if they had known of it, still a loss might have occurred any day, which would more than absorb all the previous profits, and we should have had no right to call upon them for contribution. The rule is, that a person who means to claim an interest in these hazardous undertakings must take to them for better or worse within a reasonable time: Hart v. Clarke, 6 DeG., M. & G. 232. 6 H. L. Cas. 633, was taken out of the application of the rule by the fact that the plaintiff had a legal estate. Here the bill was not filed for eight years after the alleged right arose, and not until more than two years after the decision in Clegg v. Fishwick.

Mr. CAIRNS and Mr. GIFFORD, for James Green and other defendants. The right of partners to the benefit of a renewed lease must depend upon circumstances. Here the landlord

was equally accessible to all, the negotiations for a new lease began with him, and he wished to get rid of a number of useless lessees and have only a small body to look to. The plaintiffs were aware at the time of what was going on, and had distinct notice that those who were managing the mine intended to acquire a new lease for themselves, not for themselves and the plaintiffs. James Green can not be regarded as a trustee even by implication. We contend, then, that Featherstonhaugh v. Fenwick does not apply, and that, even if a bill had been filed within a reasonable time after the renewal, it must have failed. Then after the renewal the plaintiffs lie by to see how the concern will turn out. There is no pretense that the defendants practiced any concealment, and every argument which the plaintiffs use in support of their original right tends to make their case worse on the point of delay. Up to the time of the filing of the bill in Clegg v. Fishwick, nothing was done beyond making parol claims. It would be unjust to attach any weight to such claims (Attorney-General v. Sheffield Gas Consumer's Company, 3 De G., M. & G. 304), as it would be allowing the claimant to keep up a one-sided state of things; for such a

claim would not entitle the other party to call on him for contribution. Time must run from the time when the parties were first aware of their rights. In the case of the Altham mines it could not begin to run till 1849; here in 1846. Moreover, the renewal in the former case was clandestine; here it was not. The pendency of that suit is not an excuse for delay; we had not agreed to be bound by the result of it. The decree, if any decree is made at all, should give an account only from the filing of the bill. A receiver and manager to carry on the mines ought not to be appointed, for we decline partnership with the plaintiffs; and a receiver should only be appointed with a view to a sale: Roberts v. Eberhardt, Kay, 148; Crawshay v. Maule, 1 Swanst. 495, 523. If a bill had been filed in 1846, all that the court could have done for the plaintiffs would have been to give them a decrec for dissolution with a sale, and they ought not to have any more now. To give them more would be to give them the benefit of our labor and of the risk which we have run by taking a new lease with burdensome covenants: Townshend v. Warren, 1 Jones & Lat. 221, n.; Hardman v. Johnson, 3 Mer. 347; Randall v. Russell, 3 Mer. 190; Aitcheson v. Fair, 3 Dru. & War. 524.

Mr. ELMSLEY and Mr. G. LAKE RUSSELL, for the executor of James Collinge.-The plaintiffs never had any title except in conscience. It is a constructive trust, and their title has no analogy to a legal title: Bond v. Hopkins, 1 Sch. & Lef. 413; Smith v. Clay, 3 B. C. C. 640. Such a right can not. be kept alive by mere assertion of it. Acquiescence is not needed to bar it; mere delay will have that effect, as in cases of specific performance; and here, not to dwell on other periods, there is delay from 1852 to 1855 wholly unaccounted for.

Mr. HAMILTON HUMPHREYS and Mr. POLE appeared for other defendants in the same interest.

Mr. PALMER, in reply.-In suits in equity time has to be considered in two different ways: as to its effect in barring a right to property, and as to its effect in barring an equity enforceable against property. The defendants confound these two

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operations. Here we claim a proprietary right. There is the identical plant, and the mine, which, though not identically the same, is the fruit of the property in which we had a share. This proprietary right, if legal, would not have been barred till the expiration of twenty years, and, by analogy, a less period will not have that effect in equity. To shorten this period, acquiescence amounting to an assent to the retainer of the property by others must be established; condnet which leads other parties to believe and to act on the belief that the title will not be enforced; and this makes it a breach of faith afterward to enforce it: Hawker v. Hallewell, 2 Jur. (N. S.) 537, 794; Prendergast v. Turton, 1 Y. & C. C. C. 98; 13 L. J. (N. S.), Ch. 268; Hart v. Clarke, 6 De G., M. & G. 232; 6 H. L. Cas. 633, all recognize this as the principle. Here there was nothing approaching to acquiescence. Our delay did not induce the defendants to alter their position. Whatever they may now say, it is absurd to suppose that our claiming to be partners in 1846 would have induced them to abandon the concern; it was too profitable for them to take such a step. The undertaking was not an "adventure,” for the mine had been proved and was a known profitable concern. The defendants acted with full notice of our claim, and were in no way misled. We have left nothing undone which we should have had to do if we had been acknowledged all along as partners, no contribution to expenses having been required. If the defendants intended to insist on time as a bar, they ought to have given us notice to enforce our claim within a reasonable time. They have not done so, and having been aware all along that we insisted on our right, they can not insist upon so short a period as a bar: Penny v. Pickwick, 16 Beav. 246.

March 17.

Judgment reversed.

The Lord Justice TURNER, after stating the facts to the effect of the above statement, proceeded as follows: It will be convenient, first to consider the case as it stands upon the lease of 1846. The onus of this case rests, as I think, upon the defendants, the managing partners. Having stood in a confidential relation, both as partners and as managers, the consequences which, according to the ordinary rules of this