[PRIVY COUNCIL.]
1915.   Present  : Lord Sumner, Lord Wrenbury, and Sir Edmund Barton.

PATE v. PATE.

D. C. Kandy, 16,307.

Partnership-Action for accounting by one partner against another- Capital over Rs. 1,000-Action not maintainable in the absence of written agreement-Ordinance No. 7 of 1840, s. 21.

Plaintiff, alleging a partnership between himself and defendant, brought this action for an accounting, and prayed for judgment for such sum as might be found due. There was no written agreement between plaintiff and defendant, though the capital exceeded one thousand rupees.

Held, that the action was not maintainable. owing to the provisions of section 21 of Ordinance No. 7 of 1840.

THE facts are set out in the judgment (see also 11 N. L. R. 254).

July 22, 1915. Delivered by LORD SUMNER:-

Prom the beginning of 1898 Arthur John Pate, now appellant, Charles Henry Pate, whose legal personal representatives are now respondents to this appeal, and George William White and Charles McClay, both now dead and strangers to these proceedings, traded together in a coaching business between Matale and Jaffna and between Dambulla and Trincomalee. They had no articles of partnership. There was no agreement in writing or written memorandum of the bargain subsisting between them. Their capital exceeded one hundred pounds. Disputes presently arose, and there has been much controversy about them. In one way or another their partnership-for such de facto it was-had come to an end before December, 1903, when Charles Henry Pate began the present suit, making Arthur John Pate the principal defendant.

The plaint alleged that there was an agreement of partnership, carried out by contributions of capital and by joint trading, and alleged also its ultimate dissolution. It stated that no account had been taken or settled, and prayed a decree for partnership accounts, with payment of such sums as might be found due, and other suitable relief.

The answer took the objection in limine that the partnership agreement was not proved by any writing in accordance with Ordinance No. 7 of 1840, section 21. The action went to trial. It was held to be maintainable, and the ruling was sustained on

appeal. This was in July, 1907. Inquiries were directed, and further proceedings and appeals took place till, in December, 1911, the Supreme Court disposed of the last of them, and judgment went against the now appellant for some Rs. 40,000.

The respondents' counsel drew their Lordships' attention to the fact that the Supreme Court of Ceylon disposed of the objection based on Ordinance No. 7 of 1840 as long ago as 1907, while leave to appeal to their Lordships' Board was only granted in 1912. It was suggested that after such an interval of time their Lordships might well decline to entertain what was called a mere technical objection. The point had been segued when the Supreme Court granted leave to appeal, and the Court, following prior decisions in Ceylon, held that the decree, which declared the existence of a partnership, was not appealable till the taking of accounts had shown whether or not an amount of Rs. 5,000 or more was involved, as provided in rule 1 (a) of the rules scheduled to Ordinance No. 31 of 1909. The appellant's case did not raise this point; and. as their Lordships are of opinion that it is not an objection of which their Lordships would take notice motu proprio, no further observation need be made upon it.

Ordinance No. 22 of 1866 enacted that English law is the law of partnership in Ceylon, but this in no way enlarged or diminished the prior Ordinance No. 7 of 1840. When that Ordinance has been construed, no Court can proceed to modify its effect or restrict its application.

It is described as an Ordinance to provide more effectually for the prevention of frauds and perjuries. Its object is effected by requiring certain kinds of transactions to be proved by writing, not by limit