Straight, J.:— In this suit Francis Claud Burnett, by Samuel Black, and Charles William Ingleby Harrison, executor of the estate of James Williamson, deceased, are the plaintiffs, and John Bulkely Thelwall and the Delhi and London Bank, Limited, are the defendants. The relief prayed by the plaint is, that the accounts of a partnership, in which the said Francis Claud Burnett and James Williamson are alleged to have been jointly interested with the said John Bulkely Thelwall, may be taken; that a liquidator may be appointed to wind up the affairs of the said partnership, and after realization of the assets and satisfaction of the liabilities of the same by sale of the properties of the said partnership, the partners may severally be decreed in the proportion of one-third each of what remains. No written answer to the plaint was put in by the defendant Thelwall, but he appeared and gave evidence at the hearing of the cause, which may be found set out at length in the record. On behalf of the defendant Bank a lengthened statement was filed, the main contentions in which substantially came to this: (i) that no suit for an account can lie against the Bank; (ii) that the dissolution of the said partnership having occurred in the year 1870, and the present suit not having been instituted till the month of August, 1879, it was barred by limitation; (iii) that the defendant Thelwall was the sole proprietor of the Markham Grant Estate, and that the deeds of partnership set up by the plaintiffs, not having been registered, conveyed no interest in the land to the plaintiffs, and could have no priority in face of the registered mortgages held by the Bank; (iv) that at the time of the mortgage to the Bank the defendant Thelwall had by purchase, or by contract for purchase become sole owner of the whole of the properties mortgaged; (v) that even if the plaintiffs had an equitable interest in the properties mortgaged by Thelwall, it could not hold good against the defendant Bank, which parted with its money in good faith without notice of such equitable interest; (vi) that in the event of the defendant Bank being held liable to an account, allowance should be made for all the sums obtained from the Bank and expended by the defendant Thelwall upon the Markham Grant Estate, to the date when the Bank obtained possession under its decree, and subsequently for all sums of money expended by the Bank while in possession of the property for its maintenance and improvement.

Before proceeding to set out the issues, which were settled after hearing counsel on both sides, as raising all the questions in difference between the parties, it may be convenient to give a broad outline of some of the general and undisputed facts of the case in order to render those issues intelligible.

Somewhere about the year 1860 the defendant Thelwall, who was then a Major in the army, having rendered good service to Government during the Mutiny, preferred an application for a grant of land, which he asked to have made in the name of his son. The authorities, however, objected to conferring a grant in the manner proposed, though quite willing to do so to Thelwall in his own name, and ultimately upon the 27th November, 1862, a formal warrant was executed, by which a tract of waste land measuring 2,946 acres 3 roods, situate in the Dehra Dun, was allotted to Thelwall upon certain terms and conditions. These in substance were, that if in five years a specified portion of the land had not been cleared and brought into cultivation, so much of it as was not cultivated was to be at the disposal of Government. There was a like provision, that so much more was to be cleared and cultivated in ten years and in twenty years, otherwise a like proportionate forfeiture. If no commencement was made to clear the lands granted by the second year after such grant, they were to be resumable by Government. A certain yearly jama to be paid by the grantee was also fixed, and it was provided that the cultivated portion of the grant, whatever that might be from time to time, should be considered an estate paying revenue to Government. Prior to the date of this grant, Mrs. Thelwall, the wife of the defendant Thelwall, and a Mrs. Raikes, the wife of a gentleman whose name will presently be frequently mentioned, by a deed of the 2nd September, 1861, had acquired the half of the mahal situated in Dhera Dun and known as Lachiwala. By another deed of the 18th July, 1862, the plaintiff Burnett, Williamson, who was then alive, Raikes mentioned immediately above, and the defendant Thelwall, purchased another mahal in the Dun called Hanswala;and subsequently to the grant by Government of the 27th November, 1862, they also acquired by two deeds, both of the 13th May, 1863, two other mahals respectively called Ghisapuri and Duiwala. The second half of Lachiwala was conveyed to Raikes by a deed of 3rd November, 1861. The condition of things in the year 1863 therefore appears to have been this, that the defendant Thelwall was the owner under certain conditions of the property assigned to him by Government, and which for convenience sake may be called the Markham Grant proper, and he was part owner of three villages, Hanswala, Ghisapuri, and Duiwala, in conjunction with Burnett, Williamson, and Raikes. With regard to Lachiwala, that would seem to have belonged partly to Thelwall and partly to Raikes, though, as I have already shown, the second half of it was not acquired till November, 1861. Although the written grant was not actually given until November, 1862, it would appear that Thelwall was let into possession of the land to which it related as early as 1860. Shortly after the formal grant was made to him, being ordered away on active service, he left Raikes, a personal friend of his, who was at that time a Major in the Indian army, to look after the property, giving him a share in it as an inducement, on his (Raikes') undertaking to pay half the expenses of getting it into working order. This arrangement seems to have subsisted for only a short period, and then Burnett, the plaintiff, joined the enterprise under circumstances similar to these of Raikes. Still later, but not very long after this, Williamson, who was a Captain in the Staff Corps, communicated with Thelwall and invited him to give him a share in the grant, and reference having been made to Burnett and Raikes, it was agreed to let him in into the concern upon payment of a bonus of Rs. 3,000. This money was duly found by Williamson and was handed over to the defendant Thelwall. It may be taken that at the time of the purchases of the several mahals hereinbefore mentioned, all or some of these persons—Raikes, Burnett, and Williamson—were jointly interested in the Markham Grant with Thelwall and were recognized by him—to use the words of his subsequent mortgage to the defendant Bank—as “the proprietors of the said Markham Grant.” It will be observed that from 1861 until the commencement of 1863, no document had been drawn up to record the terms upon which the relations between the parties were subsisting, and accordingly on the 7th March, 1863, a deed of partnership was executed between Thelwall, Burnett, Raikes and Williamson, in which it was recited that the four persons above named “are joint proprietors in equal shares of the estate known as the Markham Grant, situate in the Dehra Dun, containing upwards of 5,000 acres, upon which two tea plantations have been formed, and which stands in the name of the said John Bulkely Thelwall, in trust for himself and the other parties hereto, in equal shares, as the said John Bulkely Thelwall both hereby acknowledge and declare.” It was further agreed by the said Thelwall, Burnett, Raikes, and Williamson, that they should be co-partners for the purpose of cultivating tea and other products upon the said estate upon terms, which in substance were as follows: first, that they should receive profits and incur liabilities in equal shares or proportion to the shares they might at any time hold, and should contribute money for the purposes of the Company in manner provided by the deed; second, that there should be a paid manager, to be chosen by the partners; third, that on request by such manager each partner should provide funds not exceeding Rs. 1,600 per mensem, unless otherwise agreed, the amount required, to be fixed by the manager and four months' notice of the call to be made; fourth, upon two months' default in payment of any call, interest to be payable at the rate of 24 per cent, per annum until call paid fifth, the shares of the partners to be liable for all money due by the partnership, and no sale of his share to be made by a partner while any debts remained due; sixth, no share of a defaulting partner to be sold at the instance of the Company until he has been in default for a period of twelve months after notice of the intention to bring his share to sale; seventh, the defaulting partner shall be liable for any balance remaining due after realization of the value of his share; eight, debts to the partnership by any partner to be deducted from any dividends that might become payable to him; ninth, proper accounts to be kept and to be open to the inspection of all the partners; tenth, half-yearly statements of accounts to be prepared by the manager and to be supplied to each partner. The three next provisions are not material, but clause fourteenth provides that if any of the partners shall the during the continuance of the partnership, such death shall not operate as a dissolution as regards remaining partners, and the executors or administrators of the partners so dying, or any person that may be appointed by the last will and testament of the parties so dying, to succeed to his share in the estate of the co-partnership, and shall have the option of carrying on the business and concern in co-partnership with the surviving partner or partners; fifteenth, partners to have the right of preemption to shares in the partnership; sixteenth, seta out the course to be adopted upon a resolution to dissolve the partnership; seventeenth, no partner to mortgage his share without the consent of the rest; eighteenth, any, pledge of his share by a partner to be intimated to the manager and registered, otherwise such pledge to be void. Such in substance were the terms of the deed of partnership of the 7th March, 1863, under which Thelwall, Raikes, Burnett, and Wiliamson respectively became interested in the partnership relating to the Markham Grant.

Subsequently to the execution of this instrument it was found impossible satisfactorily to work the property owing to want of capital, and it became necessary to look to other quarters for pecuniary assistance. Three gentlemen, named Theobald, Wheler, and Bishop, were ultimately found and induced to embark in the speculation. They made preliminary advances to the extent of Rs. 4,000, and subsequently, on the 9th April, 1864, a second deed of partnership, incorporating in terms the provisions of that of the 7th March, 1863, was executed between the former original partners Thewal, Raikes, Burnett, and Williamson, and Theobald, Wheler and Bishop, by which these three last mentioned persons were created partners to the extent of a moiety of the partnership property upon the undertaking to advance for the purpose of the outlay of the estate to the amount of Rs. 30,000 by monthly instatement, and after payment of this sum had been made they were to contribute, in conjunction with the other four partners, to the expenses of the partnership rateable in proportion to their shares. After the execution of this second deed a Mr. Palmer was appointed manager of the property, under the superintendence of Theobald; but in the year 1866, it having been found matter of great difficulty to work the grant, a lease was given to Palmer, as the defendant. The wall alleges without his knowledge or sanction, and by virtue of this Palmer entered into occupation of the property in the character of lessee, it does not appear that any visit was paid to the estate by Thelwall from 1862, when he left it in charge of Raikes, until 1869, when he found Palmer in occupation, though he asserts that he did not even then learn that the position of this person in regard to the property was that of a lessee. I may remark here, that at the time of this visit or thereabouts a very singular transaction, somewhat inconsistent with Thelwall's assertions, took place between him and Palmer, which in effect came to this that a portion of the grant was leased by Palmer to Thelwall at a nominal rent, in order that the latter might try some experiments in China grass growing. In 1870 Theobald died, and in the early part of 1871 Thelwall, who had obtained two years' leave, returned to the Markham Grant and proceeded at once to oust Palmer, taking possession of the entire property, buildings, stock-in-trade, in short of every thing, and assumed the sole control and management. In June of that year he obtained from the defendant Bank the first loan of Rs. 10,000, as is alleged, for the working of the grant, and from that date down to the end of April, 1875, in the course of a variety of transactions, he increased his indebtedness to the sum of Rs. 1,37,778. Upon the 31st May, 1875, a further loan of Rs. 3,275 having been added to this amount, Thelwall executed a mortgage to the defendant Bank of the Markham Grant, together with the four mahals hereinbefore enumerated. Upon the same date he also made another mortgage to the Bank for Rs. 20,000, charging his Colonel's allowances and the crops and produce thereafter to be derived from the above-mentioned properties. On the 20th September, 1876, the defendant Bank instituted a suit against the defendant Thelwall to recover Rs. 1,91,647-14-2 and to establish its right to bring to sale that estate known as the “Markham Grant,” situate in the Eastern Dun, consisting of the original grant and various mahals subsequently added to it, in execution of decree. It was objected by the Subordinate Judge that, as the mortgage-deed of the 31st May, 1875, showed that there were partners in the property with Thelwall, in the persons of Burnett and Williamson, they should have been joined as parties to the suit. To this the pleader for the Bank rejoined that he wholly denied that they were partners, and if they ever had teen, they had long before disposed of any interests they possessed to Thelwall. On the 28th September, 1876, the Subordinate Judge passed an order to the effect, that if the plaintiff would consent to a decree for the sale of the interest of Thelwall alone in the Markham Grant Estate, Burnett and Williamson need not be joined, otherwise he would have to make them parties. To this the counsel for the defendant Thelwall did not assent, maintaining that as the suit had been instituted with full knowledge that Burnett and Williamson were partners, the Bank ought not to be permitted to obtain a decree against Thelwall only, and its suit as brought should be dismissed. The pleader for the Bank, however, having assented to the suggestion of the Subordinate Judge; a simple money-decree was passed in favour of the Bank, and after one sale had taken place, which was set aside on the ground of some irregularity, the right, title and interest of Thelwall was disposed of by public auction on the 20th June, 1877, and bought by the defendant Bank for Rs. 5. On the 7th August following the defendant Bank obtained possession of the whole of the Markham Grant, together with the mahals pertaining thereto, which possession it still retains.

On the 11th August, 1879, the present suit was instituted in the Court of the Judge of Saharanpur, and the 24th September was fixed for the settlement of issues. On the 14th October, 1879, a proceeding is recorded by the Judge, from which it appears he was of opinion that the suit was not of the kind to which s. 265 of the Contract Act was applicable. He therefore remitted the case to the Subordinate Judge of Dehra for disposal. When the matter came before the Subordinate Judge on the 17th October, a question was raised as this jurisdiction to entertain the suit under the order of the Judge, who, it was argued, had no power under s. 25 of the Procedure Code to direct the transfer. Both the counsel for the plaintiff and the pleader for the Bank appear to have agreed that the case was not cognizable by the Subordinate Judge, and in this view the Subordinate Judge himself seems to have concurred. An adjournment was granted for the purpose of allowing an application to be made either to the District Judge to re-transfer the case to this own file, or to this Court to remove the suit and dispose of it in the exercise of its extraordinary original jurisdiction. The plaintiff elected to take the latter course, and on the 29th November, 1879, a petition was put in before me, sitting in single bench, to remove the cause to the original side of this Court. I granted a rule, and directed that notices should issue to the Bank and Thelwall to show-cause why it should not be made absolute. On the 19th February, 1880, counsel appeared on behalf of the Bank and opposed the transfer on various grounds, which at this moment need not be recapitulated. I, however, was of opinion that, as the suit was of considerable magnitude and involved and questions of law, it was a fit one to be tried by the High Court in the exercise of its extraordinary original jurisdiction, and I accordingly made the order prayed. Owing to the prolonged illness of the defendant Thelwall, which rendered it impossible for him to give evidence, and the length of time that was necessarily occupied by the counsel on either side in examining the multitudinous and voluminous letters and documents bearing on the case, settlement of issues could not be made until the 17th January, 1881. Upon that date counsel for all the parties attended, and after a lengthened discussion the following issues were fixed:—

1st.—Has this Court jurisdiction to entertain this suit?

2nd.—Having regard to the relations between the parties, can a suit for an account be maintained against the defendant Bank?

3rd.—Is the suit barred by limitation?

4th.—At the time of the execution of the two deeds of partnership of the 7th March, 1863, and the 9th April, 1864, did the Markham Grant Estate vest in the partnership, so as to create a joint and several proprietary interest in each member, with respect to such property?

5th.—What was the precise nature of the interest by acquired by the defendant Bank, in their purchase at the execution-sale of June, 1877, and what effect had such purchase upon their position as mortgagees under the deed of the 31st May, 1875?

6th.—At what date, and how, if at all, has the partnership been dissolved?

7th.—At the time of the execution of the deed of the 31st May, 1875, what was the precise nature and extent of the interest in the Markham Grant Estate possessed by the defendant Thelwall?

8th.—Was the defendant Thelwall, when he borrowed the money from the defendant Bank, actually or impliedly authorized to do so on behalf of the partnership, and did the other members of the partnership by their conduct allow him to appear, and so lead other persons to believe him, their responsible manager and authorized representative, to conduct all business on their behalf in respect of the Markham Grant Estate, and to contract for them?

9th.—If the last issue is answered in the affirmative, did the defendant Bank, in their transactions with him prior to 1875, act upon such belief?

10th.—Assuming that accounts should be taken, is the defendant Bank entitled to be allowed for the money advanced to the defendant Thelwall, and the various sums from time to time expended, either through him or by the Bank directly, in and about the Markham Grant Estate; and if yes, in what proportion should the plaintiffs contribute?

11th.—Upon the assumption that accounts should be taken, is the defendant Thelwall entitled to a contribution from the plaintiffs in respect of all moneys expended by him upon the Markham Grant Estate, and if so, to what extent and in what proportions should the plaintiffs contribute?

In reference to the point raised by the first of these issues, it was in substance objected by the counsel for the Bank, that at the time the application was made for the removal of the suit into this Court, it had been improperly transferred by the District Judge to the Court of the Subordinate Judge, and was therefore irregularly before a tribunal that had no jurisdiction to try it. He accordingly contended that there was no suit pending in the sense of s. 25 of the Procedure Code. I do not feel pressed by this argument. If the suit fell strictly within the terms of s. 265 of the Contract Act, as being an application to wind up the business of a partnership after its termination, it was properly cognizable by the District Judge and rightly instituted in his Court. If it did not, it was still something very much more than a mere claim for a declaration of partnership right, and might be considered as paying for the additional relief mentioned in s. 215 of the Procedure Code. Under any circumstances, it appears to me that there was a “suit being or falling within the jurisdiction” either of the Judge or the Subordinate Judge, and I therefore think it was competence for me under the 9th article of our Charter to remove such suit for trial and determination in this Court. But apart from, this view of the matter, an examination of the provisions of s. 265 of the Contract Act shows, that as a condition precedent to resort being had to them, a partnership must not only be admitted to have existed, but such partnership must also have terminated. Further than this, the proceeding apparently contemplated by that section is more in the nature of an application than a formal suit. In the present case, however, the allegation by the plaintiffs of a partnership between themselves and Thelwall, as regards the lands now in possession of the defendant Bank, is directly challenged and traversed, and though the relief asked is not so shaped in terms, I think it must be taken to be for a declaration, that Burnett and Williamson are or were partners with Thelwall in the Markham Grant Estate and its appurtenant mahals; that if such partnership is held to be still subsisting, it may be dissolved, or that if it has ceased to exist, the date of its termination may be fixed: and in either event, that a liquidator may be appointed to take an account, and after realizing assets and discharging liabilities, may he ordered to pay to the plaintiffs a proportion of one-third each from such balance as remains. Under these circumstances, I do not think that the suit was strictly of the kind contemplated by s. 265 of the Contract Act, so as to be exclusively entertain-able in the Court of the District Judge. On the contrary, I consider it was cognizable by the Subordinate Judge and might have proceeded to trial before him. The Judge's order remitting the case to the Subordinate Judge was perhaps somewhat irregular, and would have been more correctly passed under s. 57 of the Procedure Code. But I am altogether indisposed to pay serious attention to a matter of such pure technicality, or to throw out the suit upon any such ground as that raised in the first issue. I think the plea as to the jurisdiction accordingly fails, and that the case was rightly removed into, and has been properly heard by, this Court.

The point raised by the second issue is, whether, looking to the terms of the plaint and the relief specifically sought, the Bank can be properly joined as a defendant to the suit? That there was a partnership between Williamson, Burnett, and Thelwall is a point about which, it seems to me, there can be little doubt; indeed, so far as the latter is concerned, the fact is now conceded. The deeds of the 7th March, 1863, and the 9th April, 1864, both of which I hold to be good and admissible evidence, as also the recitals in the defendant Bank's mortgage of the 31st May, 1875, together with the letters and documents put in on the one side or the other, appear to place this matter beyond the region of controversy or contradiction. If there were not all this proof, it would be scarcely possible to suppose that any of the gentlemen if who associated themselves with Thelwall in 1863 and 1864 would have advanced substantial sums of money, as they undoubtedly did, by way of a speculation, on the chance of obtaining what they must have known would be long-deferred profits, without first assuring themselves, that they had some tangible security for the hard cash they were inventing in the shape of an interest in the lands, the improvement and development of which they were contributing towards. Looking at all the oral and documentary proof, I can come to no other conclusion than that there was a partnership in the land of the Markham Grant and the appurtenant mahals, in which, with the others, whose names it is not necessary to enumerate, Williamson, Burnett, and Thelwall were members, and I find accordingly. In considering the issue now more immediately before me, it is not necessary to stop and inquire into the precise nature of the loan transactions, which took place between Thelwall and the defendant Bank from 1871 down to 1875. Whether they were actually effected by Thelwall on behalf of the partnership, with the express or implied assent of Burnett and Williamson, or were purely personal transactions upon his own responsibility—questions which must hereafter be fully discussed—this is clear, that the Bank now being in possession of the whole of the property belonging to what was once, if it is not now, a subsisting partnership, must have a direct interest in the taking of any accounts between the plaintiffs and Thelwall. A part from the mere question of account, moreover, the Bank has, upon the face of its own statement of defence, a vital and direct interest in the suit, as it not only controverts the partnership in the land asserted by the plaintiffs, but— assuming such partnership to be established-asserts the right of Thelwall to mortgage the partnership estate. Whatever that may amount to, we know the Bank bought at the sale in execution of its decree on the 20th June, 1877, only the right, title, and interest of Thelwall in the Markham Grant and appurtenant mahals: and as I have already found that these lands were the property of the partnership, of which Williamson, Burnett, and Thelwall, mere members, the defendant Bank, standing as it does in the shoes of Thelwall, is under like liabilities and obligations, and may be called upon to account in the same manner as he might have been. I therefore think that, apart from the questions as to the partnership in the land, and the authority of Thelwall to mortgage, the suit, so far only as it prays an account, can be maintained against the Bank, which has rightly been made a party. The second issue must therefore be decided in favour of the plaintiffs.

With reference to the third issue, I do not consider that No. 106, sch. ii of Act XV of 1877 is applicable to the present form of the suit, the wider scope of which I have already considered and discussed at length, and need not again enter into. But even assuming it to be so, I think the plaintiffs are abundantly in time. In the first place I do not hold the death of Theobald to have put an end to the partnership. The terms of clause 14 of the partnership deed of 1863, which was incorporated in that of 1864, seem to me to preclude this contention, and what is still more significant is that none of the there parties ever regarded the decease of that gentleman as effecting a dissolution. Nor do Consider that the purchase by Thelwall of the shares of Theobald, Wheler, and Bishop in 1871, and of Raikes in 1873, was “de facto” productive of a like result. I find no clause in the partnership deed providing for any such contingency or making any such declaration, and while I think that, under clause 15, Williamson and Burnett should have been afforded an opportunity, if they so desired it, of joining in the purchase, which, by the way, Williamson evinced his willingness to do, it appears to me that the equitable basis upon which to regard such purchase will be to treat it as made by Thelwall, not for himself alone, but on behalf of Williamson and Burnett as well, they of course, in any accounting that may take place, being debited with a proportionate amount of the purchase-money. This, however, is somewhat by the way and not directly relevant to the issue under consideration. Reverting to that, it seems to me that the true date from which limitation should be computed is the month of August, 1877, when the Bank, by its purchase and possession under execution-sale, obtruded itself into the partnership property and so effected a dissolution. Whether it be regarded as falling within No. 106, sch. ii of the Limitation Law, which, as I have said, I do not think it does, or within No. 120, which appears to me to govern it, the suit was, in my judgment, in time, and the third issue must be decided in favour of the plaintiffs.

The fourth if the has been already answered by he distinct finding I have recorded in the second issue, that there was a partnership between Williamson, Burnett, and Thelwall in the Markhain Grant Estate and its appurtenant mahals. Each of these persons therefore had a joint and several proprietary interest in such property, and this issue must likewise be decided in favour of the plaintiffs.

As to the fifth issue, the title of the defendant. Bank is based upon the certificate of sale dated the 23rd July, 1877, which was granted under s. 256 of Act VIII of 1859. Objection was taken on the hearing of the case to the admissibility of this document by the counsel for the plaintiffs on the ground that it was unregistered, I was, however, of opinion, that it was not a compulsorily registrable instrument either under the old of the present registration law, and accordingly accepted it in evidence. It is obvious both from that decree and the sale-certificate, that the Bank's purchase extended only to the right, title, and interest of Thewall in the Markham Grant Estate and the appurtenant mahals, whatever that might turn out to be. In other words, the Bank bought neither more nor less than Thelwall could have transferred to it by a private sale. It dos not appear to me convenient at this stage to discuss bow this affected its position under its mortgage, for, assuming my antecedent finding that there was a partnership in the land to be correct, such mortgage could only be binding to the extent of Thelwall's share, unless made under the express or implied authority of his other partners, which question will have to be considered later on. As I have before remarked, Subject of course to this reservation, the defendant Bank is neither in a better nor worse position than Thelwall himself would have been, and upon an account being taken will have to contribute to the liabilities and partnership in the assets on the same basis as he would have had to do. It therefore comes to this, that in reference to the fifth issue, I find that, prima fade, all the Bank purchased and is entitled to is the “right, title, and interest of Thelwall but” the finding must be subject to, and governed by, the conclusions to be presently recorded with respect to the eighth and ninth issues.

The sixth issue has been already answered in my finding on the third, namely, that the Bank's purchase in August, 1877, de facto effected a dissolution of partnership.

With reference to the seventh issue, I have in an earlier portion of this judgment remarked that, dealing with the matter equitably, I think the purchases of the shares by Thelwall in 1871 and 1873 should be regarded and treated as made on behalf of the partnership. As their effect, if not impeached or set aside, was to release Thaobald's estate and Biahop, Wheler, and Raikes from all past and future liabilities of the partnership, in respect of which Burnett and Williamson still continued to all the world every whit as liable as Thelwall, and which they now will have to contribute to discharge, it appears to me only fair to hold that, as they incurred this largely increased responsibility from the purchase, they should have any counter benefit derivable therefrom. Consequently I am of opinion that at the time of execution of the mortgage of the 31st May, 1875, the three partners, William son, Barnett;, and Thelwall, were interested to the extent of one-third each in the Markham Grant Estate and the mahals attaching to it.

The eight and ninth issues may be conveniently considered and disposed of together, and in doing so it will be necessary to recall certain facts, from which may be gathered the history of the partnership and the nature of the relations between the partners. At the commencement of this judgment I have mentioned the circumstances under which the original deed of 1863 and the subsequent one of 1864 were entered into, as also that, under the second clause of the former document, one Palmer war appointed manager of the Estate, subject to the supervision of Theobald. Taking the matter up at this point, it appears that by 1866, though very substantial sums had been sunk in the Grant and in clearing the land for planting, it was still only in an embryo condition, and obviously demanded that a further and larger outlay should at once be made upon it. This the partners do not appear to have been at all willing to embark in, and after a meeting and discussion among some of them, at which Thelwall was not present, it was resolved that the best way out of immediate difficulties was to lease the Grant to Palmer temporarily, on the understanding that when the partnership was in funds sufficient to re-undertake the working, he would surrender it and resume his position as manager. Meanwhile the partnership was to be protected by him from any liabilities. In 1870 Theobald died, and soon afterwards Wheler and Bishop having expressed a wish to be rid of their interests in the concern, Thelwall intimated his readiness to purchase them, and ultimately he did so in September, 1871. I should have stated, however, that from the time when he was ordered on active service in or about 1864 down to 1867 Thelwall had never been, near the Grant, and it appears to me more than doubtful whether he paid any of the calls that were made upon him from time, to time during this period. However, in 1867, he did make a flying visit to the Grant, and there found Palmer in charge, who, to use his own words, complained to him, that he could get no money and that the place was going to the devil. He asked me to advance funds, but I refused, as I thought it was not safe to advance moneys on the Grant, as the conditions of the warrant had not been carried out. I told Palmer that if he would lease me a portion of the Grant, so that the money expended on that portion could not be seized or made away with, I would provide funds to commence China gross cultivation on such part as was leased to me. Subsequently he did lease me about 1,000 acres. I got into possession in 1867 and began to plant China gross. I have said that this lease proceeding was a somewhat extraordinary arrangement, and I repeat the observation now. What authority Thelwall could have supposed Palmer to possess to grant him a lease of so considerable a portion of the partnership estate for purposes of cultivation, altogether foreign to the scheme and objects with which the partnership was formed, it is difficult to imagine. The circumstance has this significance however, that it strongly suggests inference that Thelwall must then have learnt, if he did not know before, the precise nature of the position occupied by Palmer in reference to the property. It would appear that Thelwall also paid a visit to the Grant in 1868 and 1869. Subsequently in May, 1871, he again went there, and the following is his own description of what occurred: “When I got to the Grant I was served with a large number of summonses. I found there were no funds, and that the property was going to the devil. I found the place uncultivated and utterly neglected. 158 acres of tea land had disappeared, the asamis had bolted, the cattle had died, and the buildings were in a ruinous state, the canals blocked, up, in fact it was in estate of bankruptcy. At that time the property, to my mind, had seriously deteriorated in value. I found Palmer the manager there. He was the reverse of sober and steady. I told him to clear out, and I afterwards found he had taken a cartload of books and papers. I searched to find books and accounts that I had seen when I was there before in 1869, but I could not find any. Then I took possession of the place, From this point numerous letters are to be found addressed by Thelwall to Williamson (Q, R, S, O, V, X, and Y), all written in April, 1871; A1, 2, 3, 4, in May, A5, 7, in June, and A8, all in the same year, the sum and substance of them being that Thelwall proposed to Williamson that they should buy out all the other partners between them, and virtually embark in a joint new partnership for the working of the Estate. Williamson does not appear to have given any decided answer one way or the other to this proposal, though he expressed his disapproval of the action adopted by Thelwall in ejecting Palmer (A62), and on the 22nd October, 1871, he wrote to Thelwall (A9) offering to sell his share and stating at the same time that he had already advanced upwards of Rs. 10,000 to the concern, which must under any circumstances be recouped, and that he expected to be dealt with liberally. To this Thelwalll replied on the 31st October, 1871, in a letter (A 10) which he says he intended as “an acceptance of Williamson's offer to sell his share.” I do not, however, think that it can be so considered. On the contrary, all that subsequently transpired goes to show that no adequate offer was ever made by Thelwall to Williamson, nor was any cash forthcoming, and that the negotiations between them on this point produced no result. On the 6th February, 1872, Thelwall wrote to Williamson (All), and the position taken up by the latter is shown by his reply of the 15th of the same month (A12). To this in turn there is another letter from Thelwall to Williamson, dated the 15th April, 1872 (A13), enclosing a “Markham Grant balance sheet to 1st April, 1872,” by which it was made to appear that the expenditure to that date had amounted to Rs. 18,464-5-5 against receipts Rs. 1,103-15-6, leaving a debtor balance of Rs. 17,360-5-11. Another account was also sent with this, showing Williamson to be Indebted for current expenses and old liabilities in the sum of Rs. 6,375-9-6. In this letter Thelwall also makes the important statement that he had purchased Theobald, Wheler, and Bishop's shares for Rs. 12,000, and in passing it may be remarked that in his examination before me he stated that he borrowed the money from the Delhi Bank to pay these persons. With this letter of the 15th April, 1872, the correspondence directly between Thelwall and Willamson, as far as I am aware, comes, to an end. In July, 1873, Thelwall acquired Raikes' share by payment, so he asserts, of Rs. 3,000, and in November of the same year he received a letter from Burnett, dated the 29th October, 1873 (A14), which it put in on the part of the defendants as showing that at this time Burnett had contracted to sell, and Thelwall had undertaken to buy, the former's share in the Markham Grant, and that a power-of-attorney had been granted by Burnett, who was in England and had been since 1864, to Colonel Black to act for him in the matter and complete the transfer. Before this, however, could be carried out, Colonel Black would seem to have come in contact with Williamson, and it is pretty obvious that, in consequence of what took place between them, the sale of Burnett's share to Thelwall was not and never has been completed. In 1874, in consequence of a paragraph in the Pioneer of the 31st August, 1874, to which his attention had been called, relating to the Markham Grant, Williamson consulted his solicitors, Messrs Berners, Sanderson, and Upton, and instructed them to write to Thelwall demanding an explanation, which they did on the 9th September, 1874 (A21), receiving a reply (A96), in which Thelwall sets out his own position and that of Williamson and Burnett in reference to the property. When the contents of this letter were brought to the knowledge of Williamson he placed the whole matter in the hands of Messrs Berners and Co., and a member of that firm had an interview with Messrs Orr and Harris, who represented Thelwall, in the course of which “production of accounts, Thelwall's dealings with the estate,” and his “transactions in reference to the purchase” of the shares of Theobald, Wheler, Bishop, and Raikes were referred to as matters in respect of which full information was required by Witlismson. By way of reply to this demand Messrs Orr and Harris on the 13th November, 1874, addressed a Matter to Messrs Berners and Co., but as it proceeds upon many assumptions which extraneous facts show to be incorrect I do not think much stress can be laid upon it. Subsequently to this Williamson, owing to ill-health was obliged to go home to England, and he did not return until 1877. Shortly before his departure, namely, on the 22nd March, 1875, an offer was made by Thelwall, through his solicitors, to sell to Williamson his interest in the Markham Grant for Rs. 15,000 per anna share. This proposal naturally enough Williamson did not entertain, and he left instructions behind him that Thelwall was to be pressed to render an account, and that if he failed to do so, measures should be adopted to compel him. Ultimately, accounts were prepared, which are to be found in Book 3 and which purport to cover the period from 1867 to the end of May, 1875. It is sufficient to say that these were not considered satisfactory, and they appear to be little more than a copy of the books of the Markham Grant, showing receipts and expenditure, without striking any balance or affording any information as to the position of the partnership. In May, 1877, Williamson, who had then returned to India, heard for the first time of the mortgage executed by Thelwall on the 31st May, 1875, and he at once gave instructions to his solicitors to inform the defendant Bank, that it was made without his consent, which was immediately, done. Of the proceedings subsequently taken by the Bank I have already spoken, the result of which was that it obtained in August, 1877, under its sale certificate, and has ever since held, possession of the whole of the Markham Grant. I have gone at this length into the facts bearing on the relations of Burnett, Williamson, and Thelwall, because they appear to me inextricably mixed up with the questions involved in the eighth issue. As far as Burnett is concerned it is impossible not to feel that he was careless and negligent of his enterests in the partnership to an extraordinary and culpable degree, and was only too willing to let things take their own course so long as he was not called upon to contribute cash for the business. From 1864, when he left India, to October, 1873, when he was offering to sell his share to Thelwall, I am not able to find any thing, either in the shape of letters or in any other form, indicative of my demand or wish having been expressed by him for information, as to how the grant was being worked and what was being done in reference to its progress and development. For right that appears to the contrary he went to Sleep over his rights, and was content not to awake so long as no calls were made upon, or enforced against him. The whole history of this case from the beginning to the end discloses the most lamentable want of business-like habits on the part of each and all of the members of the partnership, and those of them who remain and are concerned in the preset suit have only themselves to thank for all the complications that have now arisen. It is obvious that from the outset all the persons interested were either unwilling or unable to find capital sufficient successfully to open out and work the expensive scheme of tea cultivation they had in contemplation and taking the whole amount of cash advanced prior to 1871, its absurd inadequacy to the requirements of the enterprise is abundantly manifest. The arrangement made with Palmer in 1871 only showed the hopeless predicament in which the concern was already placed, and from that year until 1871, when Thelwall ejected Palmer and took the whole control and management into his own hands there can be very little doubt that affairs were going on from bad to worse. No doubt Thelwall's action in the matter was irregular, but despite suggestions to the contrary I do not think that it was other than bona fide and taken with an honest and genuine desire to pull the estate out at its difficulties. The remarks I have made with regard to Burnett apply, though to a very much lesser extent, to Williamson, whose interest I am bound to say, upon a review of all the correspondence, it appears to me Thelwall had always under consideration and was anxious to protect. I confess that the insinuation and imputations to which Williamson appears to have given expression in reference to Thelwall subsequently are, to my mind, wholly without found action or justification, and I see no reason to conclude otherwise than that the latter was doing his best to keep things going. No doubt, before embarking in so large an expenditure on the Grant as he did from 1871 to 1875, Thelwall should have consulted both Burnett and Williamson, and if they had refused to provide him with funds he might at once have demanded the dissolution and winding-up of the partnership as it then stood. But this he did not do, and though he unquestionably did propose to Williamson that they should buy Burnett out and jointly carry on the concern, nothing ever came of the suggestion, and to the hour when the defendant Bank went in under its purchase the partnership between these three persons continued. It is noticeable that in 1871 and 1872, when the earlier of the advances were being obtained from the defendant Bank, and letters were passing directly between Thelwall and Williamson, the former does not mention a word of his having had to resort to the Bank for assistance, and, as far as I am able to form an opinion, neither Burnett nor Williamson had any intimation of these loan transactions until the latter first heard of the mortgage in May, 1877. Still I think it only reasonable to hold that they must have known that money was any an absolute essential, even if only to save the Grant from resumption by Government, and that Thelwall would either have to find it himself or obtain it from other sources. At any rate they allowed him to continue in possession of the Estate, and so far as his expenditure upon it was reasonable and proper, I think they are equitably bound to contribute towards it according to their shares. This, however, is a very different matter from holding that they directly or indirectly authorized Thelwall to mortgage the Grant to the defendant Bank. It is a proposition of law which I do not think will be controverted that one partner cannot alone create a charge upon partnership real estate without the consent of all his partners, for he by himself cannot give a valid title. According to English law, one person cannot execute a deed under seal for another, unless specifically and in terms authorized by power of attorney or by deed to do so. In India, however, we do not have deeds under seal, nor is written authority absolutely essential, and the questing becomes one of fact, namely, aye or no is express or implied authority established from the relations between the parties and the general circumstances of the case. A conclusion in the affirmative should not be drawn except upon cogent and clear evidence, and until so made out the presumption should be in the contrary direction. With regard to the matter before me, I find it impossible to hold that either Burnett or Williamson expressly or impliedly authorized Thelwall to create a charge upon the partnership real estate. If, however, the mortgage-debt in respect of which the mortgage was given, though unauthorized, was nevertheless one properly payable, by the partnership, in that the loans composing it were absolutely essential to and necessary for, the carrying on the partnership business, the defendant Bank is in my opinion, entitled in the accounting to be paid the amount due as any other ordinary creditor of the partnership. There is no direct evidence one way or the other as to the knowledge on the part of the Bank of the existence of a partnership in the Markham Grant prior to 1875. Mr. Beresford, who was examined before me, did not take charge of the Mussoorie branch till the spring of 1874, and then Thelwall's indebtedness to the Bank amounted to Rs. 1,32,000, against which he had given various securities, charging his interest in the Grant. It is, however, impossible to believe that the defendant Bank was unaware that other persons were interested in the property besides Thelwall; indeed, the circumstance that Palmer had been in possession and working it from 1866 to 1871 was in itself one which should have raised doubts and suggested inquiry; and it is, to say the least of it, remarkable that when the mortgage of May, 1875, was executed, though the names of all those who had formed the partnership were mentioned in it, no step was taken by the, Bank to ascertain from any of these persons if the assertions made by Thelwall, as to the extent of his interest in the Grant, which are embodied in the recitals, were accurate. I have no means of knowing, except from Thelwall himself, what statements and representations were made by him to Mr. Moss, the Manager of the Bank, at the time when the first loans were obtained. But the fact remains that between 1871 and 1874 Rs. 1,32,000 had been borrwed from the Bank, whose only security appears to have been a bond of the 22nd May, 1872, another of the 2nd October, 1873, and a letter of charge of the later date, which is unregistered. It is somewhat startling to observe the facility with which Thelwall was able to get this large some of money, and I cannot help feeling that the Bank was greatly wanting in care and caution during the period I have mentioned, in allowing his loan account to swell to such enormous proportions. It is obvious that when Mr. Beresford took charge, he viewed the matter as one of an exceedingly serious and anxious character, and as I have before remarked, it is very odd that when he came to be aware of Burnett and Williamson's connection with the Grant, he did not put himself into communication directly with them, and so ascertain from the best source the position they claimed to hold in reference to the Grant. Giving all the facts and circumstances the best consideration I can, I must answer the eighth issue by saying that I find that Thelwall was not authorized, either actually or impliedly, by Burnett and Williamson to mortgage the Grant; that they did allow him to conduct the business of the Grant in such a manner as to make it appear that the control and management of it rested with him; and that for all ordinary business purposes he was their representative. The effect of these findings is that, while I hold the mortgage to be ineffectual as regards Williamson and Burnett, I nevertheless consider that they are bound, in any accounting that may take place, to recoup the defendant Bank for such advances as were made to Thelwall for the necessary purposes of the estate in the same proportion as they must discharge debts due to other creditors.

The tenth issue is disposed of by the findings on the eighth and ninth.

The eleventh issue has also already been virtually determined, but it may be convenient to repeat that such moneys of his own, as Thelwall has expended within the legitimate scope and for the proper purposes of the partnership, as originally contemplated by the partners, he will be entitled to be proportionately reimbursed by Williamson and Burnett.

This brings me to the end of the case, and in conclusion it becomes necessary for me formally to declare that Williamson and Burnett were partners with Thelwall in the Markham Grant, and that such partnership was dissolved on the 7th day August, 1877, and I accordingly direct that———be the liquidator of the estate and effects of the said partnership, and that he proceed to wind up the same with all convenient despatch. For the purpose of doing so, he must first ascertain what are the assets of the partnership and what property there is available to satisfy its debts and liabilities. He will next find out what these debts and liabilities are. In doing so he will bear in mind the remarks I have made in the course of the judgment as to the partnership only being responsible for such moneys as were reasonably and properly used in and for the carrying on the, business of the partnership. For this purpose he will prepare an account showing the whole of Thelwall's transactions with the Bank, the moneys advanced to him, and the mode in which they were disposed of. He just also prepare an account of the moneys, if any, found by Thelwall, independent of the Bank, and trace out the purposes to which they were devoted. It will be for him also to say, whether the cultivation of China grass has been beneficial or otherwise to the Grant, and according as he determines this one way or the other, will Williamson and Burnett have or not have to contribute to discharge the loan obtained for that special purpose by Thelwall from the Bank. With regard to the amount expended by the, Bank since it has been in possession of the Grant a separate account must also be prepared, and towards so much of it as has been properly expended in preserving and working the property, the plaintiffs will have to contribute in the proportion of one-third each. The liquidator will throughout bear in mind that the Bank, occupy the position of Thelwall towards the plaintiffs, and that the accounting must be conducted upon this basis. When the above accounts have been taken and the liquidator has prepared his report, which I direct him to complete before the 30th of November next, he will return it into this Court, which will then proceed to dispose of the matter by a final decree.