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| Knox v. Gye.

adduced was not sufficient to prove the identity of the he by an indenture assigned his interest in the partnerdiamonds.

ship to the plaintiff and defendant.

Thistlethwaite died shortly afterwards. Druce, for the defendant Hayne, submitted to act

The bill prayed that the partnership might be dis. according to the direction of the Court.

solved, and an account taken of the copartnership

dealings between the plaintiff and defendant, and also STUART, V.-C., said, that the diamonds were no

of what was due to the plaintiff in respect of his share part of the assets of Lady Seale. A person who took

of the capital (including the plaintiff's share of the chattels by gift, always took them subject to any conditions attached to the gift. The evidence of the gift

, 12,0001. brought in by Thistlethwaite) and profits.

The answer denied that any partnership had ever and of the conditions attached, was in the present case

existed between the plaintiff and defendant. It alleged sufficiently clear, as also was that of the identity. The that the sum of 50001. had been paid by the plaintif necklace was to be considered an heirloom, and not

on the understanding that he alone was to bear the the absolute property of Lady Seale. The declaration must therefore be, that the diamonds in question did loss if the adventure turned out unprofitable, but was not form part of the assets of Lady Seale ; and the lation ; and that the plaintiff had on all occasions

to be repaid if it should prove to be a successful specudefendant Hayne must be ordered to deliver them up repudiated the notion being a partner with the to the plaintiff.

defendant. It also denied that the adventure had been a profitable one.

It was also alleged by the defendant, and proved to Wood, V.-C.

be the fact, that the indenture of assigument of Thistle. 25 Nov. 4 Dec. 1863.

thwaite's share was prepared, but never executed.

Thistlethwaite, however, made a will, by which ha Practice- Amendment of Bill after Decree

gave all his interest in the Opera House to the plantis Supplemental Bill.

and defendant, and appointed them executors.

The plaintiff did not amend his bill by setting out the A bill was filed seeking to establish a partnership true state of the case as regarded Thistlethwaite's intebetween the plaintiff and defendant. It alleged that a

rest, but in November, 1863, a short time before the cause third person, now deceased, had been a partner with

came on to be heard, he obtained probate of the will. them, but had, by inulenture, assigned his interest in the

At the hearing, his Honour held that the defendant's adventure to the plaintiff and defendant. The answer

view of the case was the correct one, and dismissed the denied the partnership and the assignment; but alleged, as bill so far as it sought to establish a partnership was the fact, that the share of the third person had been between the plaintiff and defendant, but granted an bequeathed to the plaintiff

' and defendant. The bill was account of the profits of the adventure up to the not amended by stating the facts, and at the hearing was hearing of the cause, in order that it might be deterdismissed so far as it sought to establish the partnership: mined whether or not the defendant was to repay the but an account of the profits was granted. The plaintif" plaintiff the sum which he had advanced. then moved for leave to amend by setting out the will, so as to obtain an account of profits in respect of the

Sir H. Cairns, Q.C., Giffard, Q.C., and Townsend, deceased's interest. Leave was refused, Inut the plaintiff now moved that the plaintiff might have leave to was allowed to file a supplemental bill stating the facts, amend the bill by setting out the will of Thistleand to amend the original bill by striking out all allega- thwaite, so as to obtain an account of what was due tions relating to the assignment.

to the plaintiff in respect of his share of the

12,0001. brought in by Thistlethwaite. They cited, This was a motion by the plaintiff to obtain leave to

Lord Darnley v. The London, Chatham and Dorer amend his bill after decree. The bill alleged that in 1851 the plaintiff entered

Railway Company, 1 N. R. 409. into partnership with the defendant in carrying on the Rolt, Q.C., Hobhouse, Q.C., and Martindale, opposed Royal Italian Opera House, Covent Garden. The the motion; and submitted that the plaintiff ought capital consisted of 10,0001. advanced by Messrs. to be put to file a fresh bill, in order properly to enable Coutts & Co., on the security of the joint and several the defendant to meet the case now proposed to be set bond of the plaintiff and defendant. Of this sum up. There would be a serious question as to the mode 50001. had been repaid by the plaintiff, and 10001. by in which the account should be taken up, as in, the defendant.

Willett v. Blandford, 1 Hare, 253. It further alleged that in 1853, Arthur Henry The Court exercised a judicial discretion in granting Thistlethwaite, an ensign in the Scots Fusilier Guards, leave to amend at this stage, entered into partnership with the plaintiff and defen- Watts v. Hyde, 2 Ph. 406; dant, bringing with him a capital of 12,0001. ; that

Bieddermann v. Seymour, 1 Beav. 597 ; 1854, Thistlethwaite was ordered to the Crimea with Gossip v. Wright, 2 N. R. 152; s. c. 32 L. J. his regiment, but previously to leaving the country,

(N. s.) Ch. 648;

and ought not to allow the bill to be amended by cumbents filed an information and bill, and succeeded stating facts directly at variance with the case made. in establishing their claim :

Held, that they were estopped from demanding arrears Sir H. Cairns, in reply, urged that the plaintiff ought not to be put to the expense of a new suit previous to the filing of the bill; but were entitled to the

costs of the suit. simply because he had made a mistake in the pleadings. If a new suit were instituted, notice would be

The relators and plaintiffs in this suit were the immediately given to read the evidence in the present curates of the parishes of Lowicke and Kyloe, in the one : and thus nothing would be gained. Gossip v.

county of Northumberland ; and Tweedmouth, Ancroft, Wright, where leave was refused, was a very different and Holy Island, in the county of Durham ; and the case from the present: it was there proposed to turn a

object of the information and bill was—to compel paybill for redemption into one for setting aside a purchase ment of certain annual stipends of 101. cach, payable at an undervalue.

to them respectively, and charged on property vested 4 Dec. 1863.

in the defendants. WOOD, V.-C., said, that the plaintiff had shown by

It appeared that previous to the dissolution of the taking out probate that he had a bona fide intention of monasteries, the cures of the above-mentioned parishes proceeding on the will. The matter ought, therefore,

were served by priests, who were paid small stipends to be put in a train for final settlement. But the by the monks of a Benedictine monastery on the Holy plaintiff had had ample opportunity of amending his Island. After the suppression of the monasteries, bill before the hearing, and ought not now to be part of the property belonging to the monasteries of allorid to introduce the proposed amendments. Durham and Holy Island was seized by the Crown, kesides, both the bill and answer had been exclu- and the stipends continued to be paid out of the rents sively directed to the view that a partnership existed and profits thereof. The stipends were augmented to between the plaintiff and defendant; and it had their present value by Queen Elizabeth. turned out that that partnership did not exist. It

By letters patent, dated the 21st of December, 1603, might be that the defendant could meet the new case King James I. granted to Lord Homo and his heirs now proposed to be set up, and he ought to have an part of the property which had been seized by the opportunity of making his defence. The proper course,

Crown, but charged (as was held by the Court) with under those circumstances, would be for the plaintiff the payment of the stipends. to file a supplemental bill ; and for that purpose his

There was evidence that the stipends had been paiil Honour gave leave to amend the original bill by to the incumbents of the above-named parishes as striking out all passages relating to the alleged assign- of right from the date of the letters patent up to ment of Thistlethwaite's share in the adventure.

1853 ; and that from the year 1817 to 1853 the payments had been made exclusively by the predecessors

in title of the defendants, the present owners of Wood, V.-C.

} ATTORNEY-GENERAL v. NAYLOR. part of the lands and hereditaments granted by the 4 Dec. 1863.

letters patent of the 21st of December, 1603. Practice PartiesRent-charge - Charity Suit

In 1853 the then owner of the property, now sought - ArrearsCosts.

to be charged with the stipends, refused to pay them,

and the incumbents of the parishes threatened legal To an information and bill filed on behalf of a proceedings. In 1858 the property was sold under a charity seeking to establish a rent-charge, the owners of decree of the Court to the defendants. The payall the property on which it is charged are not neccssary ments to the incumbents were mentioned in the parperties :

ticulars and conditions of sale, but it was stated that Secus in the case of a bill filed by a private indi. they had been discontinued in 1853, and were believed

not to be legally recoverable. If the charily proceeds against a particular portion The conditions and particulars of sale were subof the property and succeeds, the Court will direct an mitted to, and approved by the present plaintiffs. inquiry as to the other property charged, but at the The information and bill, which was filed in 1861, capense of the party desiring the inquiry, and not of the prayed for a declaration that the stipends were subsistcharity.

ing charges on such of the hereditaments comprised in Certain annual payments were made by the owners of the letters patent as were now vested in the defendants, property to the incumbents of five parishes up to the and that they might be decreed to pay the same; and for year 1853, when they ceased to make them, and legal an account of what was due to the plaintiffs in respect proceedings were threatened. In 1858, pending the dis- of the arrears of the stipends, and that the defendants pute, the property was sold : and in the particulars of might be decreed to pay to the plaintiffs what sale (which were approved of by the incumbents) the should be found due to them. paymants were mentioned, but it was said that they were By the answer it was pointed out, that the property, believed not to be legally recoverable. In 1861 the in- now sought to be charged with the stipends, was only



part of the property charged therewith by the letters the owners of the lands in question had undertaken to patent; and the owners of other portions of such last- indemnify the owners of the remaining portions of mentioned property were specified : and it was sub. the charged property against the payments. If this mitted that they ought to be parties to the suit.

were so, the claim of the charity would not be affected,

though the right to contribution would be swept away. Rolt, Q.C., and Lindley, for the relators and plain

As regarded the arrears, his Honour thought that, tiffs, cited on the question of parties,

independently of the case of Cook v. Smee (loc. cit.), Attorney-General v. Shelly, 1 Salk. 163;

the plaintiffs, by assenting to the conditions of sale, Attorney-General v. Wyburgh, 1 P. Wms. 599;

had deprived themselves of the right to demand them. Attorney-General v. Jackson, 11 Ves. 365.

They were seeking, at the time of the sale, to establish Sir H. Cairns, Q.C., and North, for the defendants, their claim against the then owners of the property, aud Argued,

might have succeeded in so doing then as well as now; 1st. That the evidenco of there being a subsisting and under those circumstances they ought not to charge on the lands now in the possession of the have led the defendants to suppose that the claim defendants was insufficient.

would turn out to be a ball one. No arrears could be 2nd. That the owners of the other lands ought to be given previous to the date of the filing of the bill. made parties. Though the Court would not abstain If the bill had been filed immediately after the sale, from making a decree when there was merely a general he should have held that the question of costs depended suggestion in the answer that other persons were liable on the same circumstances as the arrears, and he to contribute to pay a rent-charge to a charity; yet, should have refused to give them to the plaintiffs ; but that where such persons were specifically pointed out, the bill not having been filed till 1861, a claim for the Court would direct an inquiry at tho plaintiffs' payments subsequent to the sale was the same as aay

other claim in this Court, and the defendants having expense.

3rd. The plaintiffs were not entitled to any arrears failed to establish their case, must pay the costs of the anterior to the sale,

suit. Cook v. Smee, 4 B. P. C. 537. Even if the plaintiffs would have been otherwise entitled, they had debarred themselves by the con- Wood, V.-c.

Re CHAPLIN'S TRUSTS. ditions of sale from claiming arrears.

5 DEC. 1863. Lindley, in reply, commented on

Will, Construction-Lapse. Cook v. Smee (loc. cil.),

A testator gave residue equally to all and every thu. where the whole arrears were recovered, though thoso children of his cousins R B and B B, who should previous to the sale were obtained from the vendor.

be living at his death, and to ten other persons by name, If the words in the conditions of sale precluded the

one of whom died in his lifetime :plaintiffs from obtaining the arrears, they would also

Held, that the share of the deceased legatee lapsed. be precluded from ohtaiuing any payment whatsoover.

Clark v. Phillips, 17 Jur. 886, commented on. Wood, V.-C., held, that the plaintiffs had clearly The testator gave the residue of the proceeds of the established a good charge on certain portions of the conversion of his real estate and of his personalty property included in the letters patent; and the ques. equally to all and every the children of his late tion arose, what were the rights of the defendants, cousins, R. Brook and B. Brook, who should be living seeing that other portions of the property might be at his decease, to Mary East, and to nine other persons charged with the payment of the stipends.

whom he named. In Attorney-General v. Jackson, Lord Eldon had Mary East died in the testator's lifetime. A quescome to the conclusion that, although a private indi- tion having been raised by the other legatees, whether vidual seeking to establish a rent-charge must bring her share lapsed or not, the trustees paid the fund into the owners of all the lands out of which it issued before Court under the Trustee Relief Act, and this was a the Court, yet it was not so with a charity, which petition for the payment of it out. might go against particular portions of the lands charged. If the charity succeeded, then the Court Kenyon, Q.C., and Woodroffe, argued that there was would aid the owners of such portion in obtaining con

no lapse, and that the remaining legatees were entitled, tribution from owners of the other portions; but the

Re Stanhope's Trusts, 27 Beav. 201 ; assistance would only be given at the expense of the

Clark v. Phillips (V.-C. S.) 17 Jur. 886 ;

Shaw v. M'Mahon, 4 Dru. & W. 431 ; person requiring it. In the present case there was an additional reason

Porter v. Fox, 6 Sim. 435. for imposing the costs of such inquiry on the defend

Daniel, Q.C., and Marten, contrà, ants. The circumstance of the stipends having been

Drakeford v. Drakeford, 11 W. R. 977. paid up to 1853 by their predecessors in title, afforded a strong presumption that, at some time or other, C. Hall, Eddis, and E. R. Turner, for other parties. WOOD, V.-C., said, that were it not for the case of further sums, amounting in the whole to 6,8077, 148., Clark v. Phillips (loc. cit.), he should have had no were brought into the partnership by him. doubt ; for it did not at first sight appear to him to Shortly afterwards, Smith discovered that Bain. be open to argument, that there was no lapse. Now brigge's share of the partnership property was subject it appeared to his Honour to be incorrect to speak to a mortgage for 5,5001., which had been concealed of a class of residuary legatees as such. A class was, from him ; and he thereupon insisted on having the strictly speaking, a set of persons filling a defined partnership dissolved. Accordingly, by articles dated position. For example, in Shaw v. M'Mahon (loc. cit.), the 23rd of June, 1856, it was agreed that the partthe testator desired that his residue should be divided nership should be dissolved ; arrangements were made amongst all his children, and Lord St. Leonards held, for carrying on the business for four months from the rightly, that the legatecs took as a class, notwith- 9th of June ; and it was agreed that in the event of standing that two of them were named. It was Bainbrigge's not paying to Smith his share in the true in the present case that tho shares of the concern, or giving him good security for the payment legatees could not be determined until the testator's thereof within that period, then Smith was to pay death. But why should that circumstance prevent a Bainbrigge 5,3001., provided Bainbrigge made a good lapse of the share of one legates dying before the title, and paid off the mortgage; but if not, then testator? In Clark v. Phillips (loc. cit.), the testator Smith was to take the concern. himself revoked the bequest by codicil, and that case The mortgage was not paid off by Bainbrigge. was therefore perhaps distinguishable from the present Smith took the business, and wound it up; but the one. In case of revocation, a question might arise terms of the agreement providing for this event were whether the testator had not expressed an intention not strictly adhered to. It was found that Bainbrigge that his will should be read as if the legatee's name had, unknown to Smith, drawn out of the partnership were erased from it.

funds the sum of 2,2977. 2s. for his private use; and In the present case his Honour held that there was in a letter written by the plaintiff to Bainbrigge on the a lapse, and directed the order to be prefaced by a 19th of June, 1857, the result of an investigation of declaration to that effect.

the accounts was stated to be, that a balance of 30001. was owing by Bainbrigge in respect of overdrawings

and other items. The mortgage debt, and the interest Wood, V.-c.

thereon, amounted at the time to about 60001., thus 18, 19, 20 Nov., SMITH V. WHITMORE,

making 90001. in the whole owing by Bainbrigge, 7 DEC. 1863.

against which was to be set off his share of the capital, Arbitration-9 & 10 Will. 3, c. 15-Common 80001.

, leaving, according to the letter, 10001, due to

Smith. Law Procedure Act, 1854, s. 17-Jurisdiction

In 1853 Bainbrigge took the benefit of the private to Set Aside Award.

arrangement clauses of the Bankrupt Law Consolida.

tion Act, and the defendant Whitmore was appointed The 17th section of the Common Law Procedure Act,

official assignee. 1854, does not import into every submission to arbitration

Smith made a claim against the estate on account of all the consequences of the Act, 9 & 10 Will. III. c. 15. The Court has jurisdiction to set aside an award the sum of 2,2977. 2s., and other items alleged to be

due to him as above mentioned. No claim was made eckich does not fall within the statute of Will. III., and in respect of the capital brought by Smith into thô has not been made a rule of a Court of Common Law; but, where full relief might have been obtained at Law,


The claim was referred to the arbitration of two it will exercise its jurisdiction only in cases of great

persons named Percival and Daniell, who, by the fraud or injustice.

agreement for reference, were to be at liberty to This was a suit instituted for the purpose of setting nominate an umpire in case of disagreement; but the aside an award.

parties were not thereby empowered to make their In October, 1855, the plaintiff Smith entered into award a rule of Court. partnership with the defendant Bainbrigge, who was The arbitrators appear to have proceeded to inthen carrying on the business of a brewer at Senhals, in vestigate the state of accounts on the footing of the Prussia. By the articles of agreement for the partner- terms indicated by the letter of the 19th of June, ship, it was agreed that the brewery then occupied by 1857, allowing Bainbrigge credit for 80001. as his Bainbrigge, should become partnership property, and share of the capital, and debiting him with the mortthat Bainbrigge should be credited in respect thereof as gage debt, his overdrawings, &c. Daniell, one of the his capital in the concern, with the sum of 80001. ; and arbitrators, insisted that Smith ought to be credited that Smith should pay down forth with the sum of with his share of the capital; and the matter was 5841. 183. 8d., and within six months bring into the 'referred to a Mr. Rotton, who had been appointed concern the further sum of 7,5007.

umpire. He decided against the view taken by Daniell, The sum of 5341. 188. Sl. was paid by Smith, and 'who, though not convinced, yielded. The award of


the arbitrators was published on the 9th of June, that the plaintiff was not entitled to be so credited, 1859, and found that 3641. 2s. was due from Smith to inasmuch as he had “taken the concern under the Bainbrigge's estate.

agreement for dissolution. This award was now impeached on two grounds ; As to the jurisdiction of the Court : 1st, that Daniell had adopted the opinion of Rotton 1st. It was argued that it was ousted under the without exercising an independent judgment on the statutes 9 & 10 Will. 3, c. 15, the Common Law Promatters in question ; 2nd, that Rotton's opinion had cedure Act, 1854, and the Bankruptcy Act, 1849. been taken in the absence of the parties, notwith- By the statute of Will. 3, a submission to arbitration standing notice having been given by the plaintiff's may be made a rule of any Court of record whenever solicitor to the arbitrators, that he wished to appear the agreement for reference to arbitration contains a before the umpire, and be heard by him.

provision to that effect. By the Common Law Procedure Act, 1854, section By the Common Law Procedure Act, 1854, s. 17, it 17, the award inight have been made a rule of Court; is enacted that every submission to arbitration may be and steps might then have been taken for setting it made a rule of Court, unless the agreement contains aside at any time before the end of Michaelmas Term, words purporting that the parties intend that it shall 1859. It was not, however, made a rule of Court, and not be made a rule of any one of the superior Courts of in December, 1859, Whitmore brought an action on Law or Equity. the award. To this action Smith pleaded nul tiel The Bankruptcy Act, 1849, s. 153, enables assignees agard.

in Bankruptcy to refer any matter in dispute to arbiThe case was tried at Stafford at the Spring Assizes tration, and section 154 provides that any such agreeof 1860. The Judge, shortly after Smith's case was ment for reference may be made a rule of any one of opened, directed the jury to find a verdict for Smith the superior Courts of Law. on the issue raised by this plea, giving Whitmore It was held in, leave to move to set aside the verdict, and enter a Nicholls v. Roe, 3 My. & K. 431 ; verdict for himself for the amount claimed.

Heming v. Swinnerton, 2 Ph. 79 ; A rule nisi was accordingly obtained, which was that a Court of Equity has no jurisdiction to set aside afterwards discharged. The arguments and judgment awards made in pursuance of such agreements for at this stage of the proceedings are reported in 5 H. & reference to arbitration as fall within the statute of N. 825.

Will. 3. Whitmore appealed to the Exchequer Chamber, It was now contended that the effect of the above when, on the 2nd of December, 1861, the decision of sections of the Common Law Procedure Act, 1854, and the Court below was reversed, on the ground that the Bankruptcy Act, 1849, was to introduce into every invalidity of the award could not be properly pleaded submission to arbitration a clause, providing that such as a defence to the action. See 7 H. & N. 509.

submission should be made a rule of Court; and that In March, 1862, Smith filed his bill in this Court, thus every submission must now fall under the alleging the invalidity of the award on the grounds statute of Will. 3. already mentioned, and the serious injury he would On the other hand, was said that the effect of the suffer thereby, and praying that the award might be clauses in question was merely to enable either party set aside.

to make the submission a rule of Court if he saw fit, Rolt, Q.C., Gray, Q.C., and Druce, for the but not to import any new provision into the subplaintiff.

mission. In support of that view the case of

Mills v. Bayley, 2 N. R. 38, Amphlett, Q.C., Prendergast, and Dowdeswell, for decided on an analogous point under 3 & 4 Will. 4, the defendant.

C. 42, was cited. The arguments turned partly on the facts of the 2nd. It was also contended that, even if the case did case, and partly on the jurisdiction of the Court in not fall within the statute of Will. 3, it was altogether such cases.

the fault of the plaintiff that the submission to arbiAs to the facts of the case :

tration was not made a rule of Court, and so the matter 1st. It was scarcely denied that there had been a would have been expeditiously settled ; and that the miscarriage of the arbitrators. On this point the Court ought not to allow him to take advantage of his following cases were cited :

own neglect. Eastern Counties Railway Company v. Eastern 3rd. Further, the Court of Bankruptcy had comUnion Railway Company, 2 N. R. 538;

plete power to do justice between the parties, and, Hutchinson v. Shepperton, 13 Q. B. 955 ;

where a competent Court of record was in possession Hall v. Hinds, 2 M. & G. 847.

of the matter, a Court of Equity would not interfere, 2nd. It was argued on behalf of the plaintiff, that Harding v. Wickham, 2 J. & H. 676 ; he had suffered serious injury by the award, in conse- Davis v. Getty, 1 S. & S. 411; quence of his not having been credited with his share Nicholls v. Roe (loc. cit.); of the capital, while for the defendants it was submitted

Heming v. Swinnerton (loc. cit.).

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