1. This is an originating summons for reliefs usual in a partnership action. The defendant denies the partnership, and it is contended on his behalf that the question as to the existence of the partnership is not one that can he disposed of on an originating summons. The correspondence annexed to the written statement shows that the plaintiff was aware at the date at the institution of the suit that the defendant had denied the partnership. For the plaintiff it is contended that the amendment of the rule as to originating summons in partnership oases indicates an intention that such a question can now be determined by originating summons.
2. The old Rule 213 was as follows:
When the existence of the partnership or the right to, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating summons returnable before the Judge sitting in Chambers against his partners, or former partners, or their representatives (if any) for the purpose of having the partnership dissolved (if it be still subsisting) and for the purpose of taking the accounts of, and g winding up, such partnership.
3. This rule was amended in January 1919, and it now appears among the High Court Rules as Rule 215. It is as follows:
Any partner in a firm or his representatives may take out an originating summons returnable before the Judge sitting in Chambers against his partners, or former partners, or their representatives (if any) for the purpose of having the partnership dissolved (if it be still subsisting; and for the purpose of taking the accounts of, and winding up, such partnership and for the determination of any question arising in such partnership whether to be dissolved or wound up or not.
4. On comparing the two rules it will be observed that the words 'when the existence of the partnership or the right to, or the fact of the dissolution thereof, is not in dispute', which occurred in the old rule, are omitted, and the words 'and for the determination of any question arising in such partnership whether to be dissolved or wound up or not' are added.
5. It is argued for the plaintiff that the omission of the words 'when the existence of a partnership is not in dispute' has the effect of bringing within the scope of the rule questions as to the existence of a partnership. I am unable to accede to this contention. Rule 212 begins with the words 'A vendor or purchaser'; Rule 214 begins with the words 'Any mortgagee or mortgagor'; the present rule begins with the words 'Any partner.' As to Rule 212 it was held by Pratt J. in an un-reported case (Ebrahim Haji Mahomed v. Haji Tar Mahomed Abba Shariff (1921) O.C.J. Suit No. 221 of 1921 that it did not apply where either party denied the agreement for sale. That rule does not contain the words 'where the fact of the agreement for sale is not in dispute. As to Rule 214 it has never been suggested that it applies where the factum of a mortgage is in dispute. Rule 209, Clause (g), provides for the determination by originating summons of 'any question arising in the administration of the estate or trust.' As to this rule it has never been held that it applies where a trust is denied. On the other hand, it was held under the corresponding English rule (Order LV, Rule 3(g)), where an action was brought by writ to determine whether the defendant was a trustee of a settlement and for his discharge and for the appointment of a new trustee, that the action was rightly brought by writ, and not by originating summons : Elworthy v. Harvey (1888) 60 L.T. 30.
6. I think that Rule 215 does not apply where the existence of Da partnership is in dispute. Almost all the rules as to originating summons are a reproduction of the corresponding English rules. There is no rule corresponding with the old Rule 213 or the new Rule 215 among the rules of the Supreme Court. The words 'when the existence of the partnership is not in dispute' seem to have been used in the old rule ex majore cautela. In omitting these words from Rule 215, the rule has been brought into line with Rule 212 as to vendor and purchaser and Rule 214 as to mortgagor and mortgagee. The summons is, therefore, discharged with costs. Counsel certified.