Barnardiston smith and the duke OF chandos April in the patentee of the  aulnage duty make a lease thereof to sir John smith hay and Arthur more in  trust for the lessee and mary Stephens and Benjamin Hoskins style render the  rend of pound per Ann on the day follow this lease the lessee enter into  article with mary Stephens and Benjamin Hoskins style wherein among other  thing the agreement be to the follow effect one of the article be that book be  fair and just keep of all the receipt and payment and other matter relate to  the say farm and that the say account be yearly make up and adjust within  three month after ladyday and that the profit arise by the say farm the  aforesaid rend and other necessary charge be first deduct shall be then or  often divide among the several person interest therein accord to their several  share and in case of a loss the same shall be pay and bear by the party their  executor administrator and assign accord to their respective share that a  treasurer shall be appoint within one month after the commencement of the  lease that he shall receive all sum of money arise by the farm and that he  shall pay the same accord to the direction of the lessee or the major part of  they or the major part of those that shall act as manager in pursuance of  their article black be appoint treasurer in Arthur more assign his interest in  this lease to Walcot in trust for the duke of chandos by black book of account  he have make a entry that on ladyday there be due to sir John smith d to mary  Stephens pound S d to hay pound S d in November the lease expire after the  expiration of this lease black make a entry in his book to the follow effect  in the ledger Nov wherein the debtor Barnardiston side of walcot account be  enter there be these word the that of September to ditto pay James black for  eleven year pound and a entry in the same book under the Title of cash of the  partnership be in these word by Burgundy Walcot Esq if these entry have be  true Walcot and consequent the duke as he be the beneficiary and trust must  have be over pay pound in sir John smith die and appoint his son who be the  present sir John smith his executor hay die likewise and make black his  executor in the patentee bring a bill against the present sir John smith as  executor of the late sir John against black as executor of hay against Arthur  more the duke of chandos Walcot mary Stephens and Benjamin Hoskins style in  order to be pay pound S which be in arrear for rend in Arthur more die leave  meese and Robert more his executor in the Cause be hear at the roll and a  decree be make that sir John smith and black shall pay to the patentee the  pound S and that in case either sir John or black shall pay to the patentee  more than their proportion of the money they shall be at liberty to prosecute  the decree against the other defendant in a appeal be have from this decree  but it be affirm with this addition namely without prejudice nevertheless to  any remedy that any of the defendant may have against each other or the  representative of Arthur more for their contribution towards what shall be pay  pursuant to the say decree Benjamin Hoskins style die and Francis Hoskins  eyles style become his Representative in black die insolvent and Handford  become his administrator on the death of black Barnardiston Lord doneraile  take out Administration de good non with the will annex of hay the present sir  John smith pay the pound S accord to the former decree and thereupon in July  in the same year he bring his bill against the duke of chandos Walcot Lord  doneraile mary Stephens Francis Hoskins eyles style Handford and against the  representative of Arthur more pray among other thing that the defendant may  contribute their proportion towards the money that he have pay in pursuance of  the former decree in this Cause come to be hear before Lord chancellor the  decree among other thing direct that it shall be refer to the master to take a  account between the plaintiff and all the defendant except the representative  of Arthur Barnardiston er p of all the deal and transaction between they and  the person they represent upon the foot of the article of and that the master  shall likewise take a account between the Representative of black and all the  other party except the representative of Arthur of what come to his hand as  treasurer in mary Stephens file her bill against all the party beforementioned  set forth a prior lease of the aulnage duty date in December make to sir John  smith hay and Arthur more in trust for the lessee and Anthony Stephens who be  the husband of mary and Benjamin Hoskins style that in pursuance of this lease  article be enter into on the that of march between the several party interest  in that lease and thereupon among other thing pray that a account may be take  of what be due to her this Cause come to be hear before Lord chancellor in the  decree among other thing provide that in the account direct to be take by the  decree of each of the party to that account shall respective stand charge with  any balance or sum of money which remain in their hand or in the hand of any  of Barnardiston the partner they represent more than their own share of the  profit of the partnership under the article of the that of march which be or  be carry over into the book of the partnership which commence under the  article of the that of may and if any of such partner shall appear to have be  creditor for any sum or sum of money under the article of the that of march  which be carry over into the book of the new partnership they be to have a  allowance of such sum in the account in the master make his report and thereby  the master charge the duke of chandos with the item of pound beforementioned  and likewise the master among other thing certify that there be annual place  to the credit of each partner respective a equal dividend of profit arise from  the partnership and that at the death of black there remain due on account of  the dividend of profit which have be allot to ladyday and for management the  follow sum namely pound S to the late sir John smith pound d to mary Stephens  pound S d to hay pound sd for all which sum the master be of opinion that  these respective party shall be consider as creditor of black and not of the  partnership to this report exception come now on to be argue one of they be  that the master ought not to have charge the duke with the item of the pound  beforementioned another of they be that the master be not warrant in be of  opinion that Mr Stephens and the other party last mention ought to be consider  as creditor of black and not of the partnership with regard to both these  exception his lordship opinion be they ought to be allow as to the first of  they he say it be very true that there be some obscurity which arise from the  manner of make the decree in for if this question in relation to the pound  have then be attend to the decree will have be make in another Barnardiston  manner and if it have be mention that Walcot be bare a trustee the account may  have be direct to have be take mere between the duke and the other party  interest in that account and Walcot not involve in that account whereas accord  to the decree as it now stand Walcot be order to account as well as the other  party the consequence of which have be that the duke have be deprive of the  testimony of Walcot if his deposition have be allow to be read it will have  put a end to the question easy in favour of the duke and show that he can not  with any colour have be charge with this money but as the decree stand his  lordship say he have give his opinion that Walcot be not a competent witness  and that it be which have occasion the present difficulty however this decree  must now be take as it be and the court must give such a opinion as arise from  the evidence of the entry in the book of black and the other circumstance of  the case now his lordship say that this question in relation to the pound come  only to be material by reason of the insolvency of black for if black have be  solvent so that a satisfaction for this money can have be have out of his  estate there will have be no occasion to have make this question whether black  have a right to retain this money to himself or not consider then how the case  stand black be a treasurer of the partner for which reason undoubted as  between the partner the entry in the book be proper evidence but in the  present case the entry in question have no immediate regard to the partner  they do not import a actual payment of the money to Walcot for the entry be in  this manner in the ledger Nov wherein Barnardiston er p the debtor side of  walcot account be enter there be these word the that of septemb to ditto pay  James black for eleven year pound and a entry in the same book under the Title  cash of the partnership be in these word by Burgundy Walcot Esq pound so that  these entry imply no more than a retainer of so much money Barnardiston to  himself as against Walcot consider then the nature of the objection it have be  say on the part of the plaintiff that these book be general evidence and it be  indeed true that if these entry have import a payment to any of the party the  objection may have be of some sort of weight but here the great difficulty be  that the entry mere import a retainer to the treasurer himself and his  lordship say be know no case wherein the court have go so far as to allow a  entry in a treasurer book to be evidence for such a purpose as that the  objection to allow the entry in these book to be evidence for such a purpose  as this be great strengthen from the consideration that the entry be make at  so considerable a distance of time after the partnership determine and beside  this treasurer think fit in a lump article to make a charge for himself of  eleven year salary together at the rate of pound per Ann but then it have be  say that in case this article shall be strike off there be a considerable sum  of money due from black to the duke of chandos that black live till the year  and that it be very extraordinary that from the time wherein the partnership  determine to the death of black neither the duke nor Walcot do ever appear to  have make one demand upon black but then on the other hand it be very  observable that if this entry be true Walcot must have be overpay pound black  must have be entitle to that money and as he be a insolvent man it be more  extraordinary that not one demand be make upon the duke or Walcot in order to  have that money refund it have be say that Walcot reside in the country and  therefore that there be a reasonable presumption to imagine that Walcot may  undertake that black be allow a reasonable recompense for take care of the  interest belong to the duke and it be indeed true that that be a circumstance  which do deserve some regard to be pay to it but then how can black attend and  do the business for Walcot his lordship say he can not see what this allowance  can be make for it have be Barnardiston urge that black have the like  allowance from hay but whatever may have be the inducement for that the  argument be not conclusive that such a allowance ought to be as against the  duke upon the whole matter with regard to this exception his lordship say that  he do not think that there be sufficient evidence lie before he from which he  can charge the duke with this sum of money he say the proper thing to have be  do will have be to have direct a issue to have try this matter in case the  direct such issue will any way have answer the expense of it but as it be not  likely to do so the right way be to disallow this Chargeat once and so his  lordship disallow it accord with regard to the second exception his lordship  say that the master have not pursue the meaning of the article of under which  the partnership be find the six clause in the article direct that book be fair  and just keep of all the receipt and payment and other matter relate to the  say farm and that the say account be yearly make up and adjust within three  month after ladyday and that the profit arise by the say farm the aforesaid  rend and other necessary charge be first deduct shall be then or often divide  among the several person interest therein accord to their several share and in  case of a loss the same shall be pay and bear by the party their executor  administrator and assign accord to their respective share the seven clause  show this more express for that direct that a treasurer shall be appoint  within a month after the commencement of the lease for the receipt of all sum  of money arise by the say farm or any way relate thereunto and for payment of  the same by direction of the say party or the major part of they or the major  part of the manager so that the six article direct that account shall annual  be make up within three month after ladyday and the seven article direct that  the treasurer shall pay the money that shall be due to the partner not ad it  pleases but accord Barnardiston to the direction of the partner or the major  part of they or the major part of the manager so that it have be true say that  the majority of the partner or of the manager must direct the dividend before  any thing can be pay out but contrary to the intent of these article here have  never be a account make up in any one year nor have the majority of the  partner or of the manager ever give a direction concern the dividend  Barnardiston er p all of they from time to time have only receive of the  treasurer money upon account it have be urge that this general practice of the  partner amount to a evidence of their agree to wave this clause in the article  but no such conclusion can be draw but then it have be urge that by the  transaction that have be in the present case there be a reasonable evidence to  think that by what be do the particular partner who be make creditor for the  sum which have be mention give a new credit for they to black and therefore  they can it now resort to the partnership estate in order to enforce this  objection several case have be put one of those case be this commissioner of  bankruptcy appoint a dividend to be make of the bankrupt estate a creditor  under the Commission neglect to receive of the assignee his proportion of that  dividend the assignee afterward break and run away with the dividend that be  in their hand the creditor shall not be allow to come upon the bankrupt estate  for that money but must take his remedy against the assignee as well as be can  but that case material differ from the present one for there there be a sum  ascertain by the dividend but here there be no sum liquidate by any account at  all that case whole depend upon the deed of distribution make by the  commissioner ascertain the dividend for if no such deed of distribution ad be  make the creditor will have be allow to have come upon the bankrupt estate and  will not have be Barnardiston confine to have take his remedy against the  assignee another case have be cite of partowner of ship that case be suppose  there be several partowner of ship and they make up a account with the master  of the vessel the master afterward fail and run away with the money which be  in his hand one of the partowner shall not be allow to come against the other  to have a contribution in the loss which have happen to he and must resort to  his remedy against the master but the reason of that case depend mere upon  there be a account make up with the master for if no such account have be make  up it will have be otherwise and so his lordship be please to order accord