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licences, it was in the year 1694 agreed between them and one Reynolds, that they should become partners together in the joint trade of selling wines with equal profit and loss; and for which purpose they were to advance £700 a-piece as a joint stock. But, it being thought proper to conceal this partnership from the university, it was agreed, that Works should be the only manager thereof; and that certain articles which had been prepared for ascertaining the terms of the partnership should not be executed.

The respondent and Reynolds accordingly advanced their £700 a-piece, for which Worts gave them receipts; and the trade was carried on by him only, the respondent no farther interfering than to recommend customers, and put in a servant to keep the books and cash.

On the 6th of April 1696, an account was made up and signed by all the three partners, of the receipts and disbursements from Lady-day 1695, when the partnership commenced; but no notice was therein taken of the stock or outstanding debts, nor was any division then made between them, because they were resolved to continue the trade; which was accordingly carried on by Worts in the usual manner, who, from time to time, paid the respondent several sums of money on account of the trade, amounting to £875.

In 1704 Worts died; when it for the first time appeared, that in 1698 he had privately bought out Reynolds, who was then under some difficulty for money, and obtained a release from him.

The trade having been carried on successfully, the respondent, soon after the death of Worts, applied to the appellant as his son [549] and executor, for a general account; but the appellant delaying to make out this account, the respondent, in Hilary term 1705, exhibited his bill in Chancery against him, in order to compel an account. To this bill the defendant put in his answer, and thereby disowned any partnership between the plaintiff and his late father; and insisted, that the £700 advanced by the plaintiff, was money lent, and had been repaid with interest.

On the 2d of May 1707, the cause came on before the Lord Chancellor Cowper, who, upon reading the draft of the intended articles, the stated account, and many letters and papers proved in the cause, declared, that there appeared to be a partnership between the plaintiff and the defender's father, and that there was no proof or circumstance to shew that it was ever determined; and therefore decreed an account to be taken of the partnership stock and dealings, from the time when it commenced to Worts's death, and also of such stock as was left at his death; which account was to be taken according to the terms in the draft of the articles, so far as the same were reduced to a certainty; and if it should appear that the plaintiff had received out of the stock, beyond his share of the produce, he was to be considered as a debtor for so much, and to answer interest for it; and that what should appear on such account to be due to the plaintiff for his third part, was to be paid by the defendant, who had admitted assets sufficient, and the consideration of costs was reserved.

From this decree the defendant appealed; insisting (J. Jekyll, N. Lechmere), that there was no agreement for the continuance of the partnership for any certain time; that the respondent never had, or demanded any account of the partnership, after the first year, nor was any account, during all that time, demanded by, or given to Reynolds; but that, on the contrary, the respondent had disclaimed any partnership, and Reynolds had received his £700 with interest, and given a receipt for the same accordingly. That it appeared by the testator's books, that no disbursements on account of the trade were entered after the first year; and therefore it was not reasonable to decree the appellant to account after so great a length of time; when, from the want of entries in the books, it was impossible for him to have such allowances as he ought to have.

On the other side it was contended (R. Raymond), that there was no colour to alter or vary this decree; because there was plain proof of the partnership by many credible witnesses, as well as by the draft of the articles, the stated account, and the testator's own letters; but there was no proof of the partnership having been ever waived by the respondent; on the contrary, the several payments made to him by the testator in the years 1699, 1700, and 1701, made it manifest, that the partnership was then subsisting. As to the objection, that both Worts and the respondent had, in discourse, denied any partnership; no inference ought to be drawn from thence against the partnership, [550] because it was all along the intention of the parties, to keep that matter a secret. And as to the supposed impossibility of taking the account, for want of regular entries