less positive or less precise, contained in the affidavits of the plaintiff, and neither of the parties has told us what actually passed at the time when the agreement for the partnership was entered into. We have here, therefore, nothing more than positive assertion on the one side and positive denial on the other, and looking at the case with reference to its position, if a cross-bill had been filed, of course the assertion could not prevail against the denial. (His lordship then adverted to some parts of the evidence tending to show that the parties had not proceeded on the footing of the partnership being one co-extensive with the duration of the lease.) I entirely agree with the vicechancellor, therefore, that this partnership was dissoluble by the plaintiff, and that it has been well dissolved, and the parties have agreed that the dissolution shall take effect as from the date of the decree. I think that the declaration to that effect is correct. There follows then the declaration that the defendant is not entitled to any interest in the seams, and I think that this declaration is correct also; there being, as it seems to me, no foundation for any claim on the part of the defendant to any such interest other than by virtue of the partnership agreement as alleged by him, but which agreement he has failed to prove. The case of Jackson v. Jackson, 9 Ves. 591, was referred to on the part of the defendant in support of his claim to a share of the colliery, but it does not seem to me to apply to the present case. The property in that case had originally belonged to both sons in joint tenancy, but here the defendant had originally no interest in the property.

The partnership accounts then follow as of course, and there remain to be considered only the special inquiries directed by the decree. (His lordship then disposed of an inquiry as to a tentale rent which turned on special circumstances.)

The next inquiry to be considered is the inquiry as to the valuation of the stock and plant, which is objected to on both sides; by the defendant as importing that the stock is to be valued, by the plaintiff as importing that it may be valued as the stock of a going concern. I think that both of these objections are well grounded. There was no agreement between these parties for the stock and plant being taken by either party at a valuation on the termination of the partnership, and in the absence of such an agreement a partner can not, as

I conceive, be compelled to take, nor can he compel his copartner to take the partnership stock at a valuation. Each is entitled to have the value ascertained by sale, and as to the defendant's claim to have the stock dealt with as the stock of a going concern, I do not see how it can be maintained, for the plaintiff is certainly not bound to continue the concern. I think, therefore, this inquiry should be struck out of the decree.

The remaining inquiry is objected to by the plaintiff to whom the appeal has, of course, opened the objection. The inquiry is in these terms: An inquiry whether, having regard to the terms of the partnership and to the purposes for which the works at the pit, called the Meadow Pit, were erected, made and formed, and are now used and capable of being used, and the circumstances under which the expenses of the said works were discharged and defrayed, any and what sum ought to be allowed in respect of such expenses.

This inquiry seems to me to involve considerations of great importance. It has indeed, from the first, struck my mind as opening the most difficult question in the cause. It arises thus: The coal in work being exhausted, or nearly exhausted, the defendant, having the management of the concern, proceeded to sink the Meadow Pit for the purpose of reaching other coal. Moneys were borrowed for the purpose of sinking this pit, and profits of the colliery, both before and since the pit was sunk, had been applied in sinking it or in payment of the moneys borrowed for that purpose. The plaintiff was fully aware of the pit being in the course of being sunk, and constantly saw the work during its progress, and it does not appear that he made any objection to it. Upon the evidence before us he must, too, as I think, be taken to have been cognizant of moneys having been borrowed for the work; for it is sworn on the part of the defendant that he saw the passbook, and he goes no further than to say that he has no recollection of having seen it. He must be taken, therefore, to have concurred in the sinking of this pit, and in profits of the concern being applied for that purpose. Then when the pit is completed, or nearly completed, he gives notice to dissolve the partnership, and the effect of the dissolution is that all the benefit to be derived from the pit will belong to him, and the

defendant will lose all his share of the profit which has been expended in making the pit. It is to meet this manifest injustice the inquiry we are now considering has been directed, and in my opinion has been rightly directed. This is not the case of a mere tenant at will laying out money on the land which he occupies; it is not even the case of an ordinary partnership carried on upon property belonging to one of the partners, and of the partnership profits being laid out upon the property. In such cases the expenditure is not necessary, but is voluntary, and the party who makes or concurs in the expenditure, knowing the limit of his interest, may well be said to do so at his own peril. But this is a case of a partnership for working a mine, in which case, if the partnership is to continue at all, the expenditure is necessary and not voluntary; and it can hardly be that where money is necessarily expended for the benefit of a partnership, the partner expending it is not entitled to be repaid out of the partnership assets. It is true that, expenditure being out of the partner-hip profits, it falls upon the plaintiff no less than upon the defendant, and if, therefore, no profit can result to the defendant, it may not be just that he should be charged with it; but the inquiry leaves this question open. According to the Roman law, the state of circumstances which here exists might, and probably would, have prevented the dissolution of the partnership; but our law certainly has not gone to that length. It leaves either partner at liberty to dissolve where the partnership is not for a definite period, but in giving effect to the dissolution it dea's with the case according to what is just and equitable between the parties. It has indeed refused to interfere with the legal rights of the parties where there has been no fraud, as in Akhurst v. Ja kson, 1 Sw. 85, but it has exercised a wide discretion in these cases at all events as to what shall be considered as fraud. In Bury v. Allen, 1 Coll. 589, where there was an agreement for a partnership for a term in consideration of a premium, of which part was paid and part to be paid upon the execution of the partnership deed, and the partnership had been commenced although the deed had not been executed, the partnership having been dissolved in consequence of a quarrel between the parties, the court held the partner who in part paid the premium and had afterward been excluded from

the business to be entitled in the partnership accounts to credit for so much of the premium as had not been compensated by the period for which the partnership had lasted. And in Featherstonhaugh v. Turner, 25 Beav. 382, it was held by the present master of the rolls that a person selling a share in his business and becoming a partner with the purchaser for an indefinite period, would not be permitted by this court to dissolve the partnership immediately and retain the premium; that he might indeed dissolve the partnership, but that he would be compelled to repay the consideration. The principle of these cases seems to me to reach this case, more especially having regard to what was referred to in the argument -the general doctrine of this court with reference to parties standing by and encouraging expenditure. I think, therefore, that this inquiry is in substance right, but as the details of it were not discussed in the argument we ought, I think, to hear the parties upon them if they desire it. The Lord Justice Knight BRUCE concurred.

1

MCKNIGHT v. RATCLIFF ET AL.

(44 Pennsylvania State, 156. Supreme Court, 1863.)

Instructions correct in principle but not pertinent. Where propositions embodied in points propounded to the court are true as general principles, they should not be negatived without qualification; but if deemed inapplicable to the circumstances of the case, the court should refuse on that ground to charge as requested.

1 Liability of general partners for trespass of employes. Partners are lia. ble for a trespass by themselves or their agents, employes or servants in the legitimate conduct of the partnership business; or if the trespass be done by their agents or workmen acting within the scope of their authority, or while in the employment of the firm.

A special partner is not so liable (under limited partnership act); facts considered not sufficient to change a special into a general partner.

2 Flooding one mine to save another. Where defendants, operating a coal vein, permitted plaintiffs, working on the same vein at a lower water level, to use a gangway belonging to defendants, which gangway connected the two workings, and where, upon the case of a freshet, defendants constructed a dam which diverted the water which threatened to come into their own workings, so as to necessarily enter the plaint

1 Tucker v. Cole, 54 Wis. 539; Ashworth v. 2 Wolf v. St. Louis Water Co., 10 M. R. 653.

Stanwix, 9 M. R. 674.

iffs' workings through this gangway: Held, that the act was one of willfulness, and not of negligence; that evidence of counter negligence was inadmissible, and that the user of the gangway did not affect the relations of the parties.

Idem The measure of damages was the actual injury sustained in delay, loss of time, damage to machinery, etc., and if the mine was irreclaimable, then the value of the estate and property; but merely speculative profits, supposed to have been lost, can not be included; it was, therefore, error to instruct the jury that "if the mine was rendered entirely useless then the profits that might have been made out of the coal would be a fair basis for estimating damages."

Defendant misled by plaintiff's opinions. Where a point was presented by defendants, to the effect that if the plaintiffs had notified and informed the defendants that the water would escape before it could damage them, then any damages resulted from their own misrepresentations, for which they could not recover-it should have been affirmed, referring the special circumstances of the case to the jury.

Error to the Common Pleas of Carbon County.

This was an action of trespass on the case by Robert Ratcliff, John Johnson and George Johnson against John McClintock, John W. McKnight and John L. McKnight.

The plaintiffs averred in their declaration that they were lessees of certain collieries in Banks township, Carbon county, with the right to enjoy and work the same without any interruption thereof by the damming or obstruction in the flow of a stream called Beaver creek, etc. But that defendants, well knowing, etc., but continuing, etc., did wrongfully and injuriously dam, fill up, obstruct, and impede by stones, t mbers, and other materials, the channel of said stream-divert and change its course in and upon the said collieries, coal mines, works, and premises, by reason whereof they were filled up inundated, destroyed, and rendered useless for the space of four months, causing plaintiffs great labor and expense in removing the water, and depriving them of the use of said mines and the profits thereof, etc.

To this John McClintock and John W. McKnight jointly pleaded not guilty; which plea was also subsequently pleaded by John L. McKnight, who appeared by other counsel.

John McClintock died after suit brought and before the trial.

The plaintiffs below, who were partners, were lessees and