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![handle is hein.slavery/ssactsengr0774 and id is 1 raw text is: KEKEWICH V. MANNING
tion of the partnership, and to the terms for the payment of the lunatic's share of the
profits of the partnership.
THE LORD CHANCELLOR [Truro]. The Court is here asked, under its ordinary
jurisdiction, to decree the dissolution of a partnership, on the ground that one of the
members is, by reason of his lunacy, incapacitated from any longer carrying on the
affairs of the partnership. It must be understood that it is not every temporary
illness or incapacity that should warrant an application for a dissolution of a partner-
ship. Where, however, as in the present case, the incapacity has continued for a
period of eighteen months, and the evidence shews a reasonable ground for supposing
a recovery to be hopeless, or, at least, very improbable, during the remainder of the
time for which the partnership contract is to endure, I think the application for a
dissolution very proper. It is founded upon the incapacity of the Defendant to
perform that portion of his contract for which he has engaged. The -sale by auction
of the partnership effects, which, according to the partnership deed, must take place
irr less than a month, would be productive of no advantage to the Defendant, while it
might be attended with much detriment to the Plaintiffs; and this sufficiently
accounts for the unusual course of applying for a dissolution of a partnership, which,
by the provisions of its deed, would expire so shortly by effiuxion of time. As then
it appears to me that the right to a dissolution is established, the only [175J thing
which remains to be considered is, as to the terms upon which it should be carried
out. It is quite clear that, in the absence of the lunacy, all the parties might, by
arrangement among themselves, have altered any article in their deed of partnership;
and that this Court might also have modified the terms of the partnership deed where
the justice of the case required it, for, generally speaking, the administration of
partnership affairs is within the special province of Courts of Equity. Here, however,
the receiver and guardian of the lunatic is a consenting party to the decree, and,
being a merchant, is more competent than the Court to form an estimate as to the
fairness of the proposal; and he is also greatly interested, from the fact of his being
presumptively entitled to the property of the lunatic.
The net profits of the year 1850 exceed those of 1849, in which year, as appears
by the evidence, the Defendant signed and approved the accounts for himself ; and the
proposed amount of profits for this year, being the same as that realized in 1850,
exceeds the yearly average of profits for the six years preceding; but even assuming
that it should eventually turn out that the profits of the current year should exceed
that of 1850, still it is obvious that no small sacrifice should reasonably be made in
order to arrive at a short end; and thus to avoid the delay and expense of taking the
account in the Master's office. It seems to me, therefore, that I shall only be doing
what is right and fair towards all parties in making the decree which is asked.
(1) This cause was heard by special leave before the Lord Chancellor in the first
instance, together with the petition.
[176] KEKEWICH v. MANNING. Before the Lords Justices. Nov. 6, Dec. 15, 1851.
[S. C. 21 L. J. Ch. 577; 16 Jur. 625. Distinguished, Bridge v. Bridge, 1852, 16 Beav.
324; Beech v. Keep, 1854, 18 Beav. 291. See Voyle v. Hughes, 1854, 2 Sm. & G.
26 ; Richardson v. Richardson, 1867, L. R. 3 Eq. 692 ; Penfold v. Mould, 1867, L. R.
4 Eq. 564; Glegg v. Rees, 1871, L. R. 7 Ch. 74; Warriner v. Rogers, 1873, L. R.
16 Eq. 349; Price v. Jenkins, 1876, 4 Ch. D. 490; In re King, 1879, 14 Ch. D. 187.
Distinguished, Paul v. Paul, 1880, 15 Ch. D. 589. See In re Flavell, 1883, 25 Ch.
D. 93; In re Walhampton, 1884, 26 Ch. D. 395; In re Earl of Lucan, 1890, 45 Ch.
D. 474; In re Patrick (1891], 1 Ch. 87. Considered, In re Ellenborough [1903], 1 Ch.
697. See In re Spark's Trusts [1904], 1 Ch. 454.]
Residuary estate, consisting of money in the funds, was bequeathed to a mother and
daughter in trust for the mother for life, and afterwards for the daughter absolutely.
By a settlement made in contemplation of the daughter's marriage, the daughter
assigned her interest under the will to trustees, upon trust for the issue of the
intended marriage, and for a niece of the daughter and the issue of the niece. The
daughter's husband died soon after the marriage, of which there was no issue. The
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