adduced was not sufficient to prove the identity of the he by an indenture assigned his interest in the partner. diamonds. Druce, for the defendant Hayne, submitted to act according to the direction of the Court. STUART, V.-C., said, that the diamonds were no part of the assets of Lady Seale. A person who took chattels by gift, always took them subject to any conditions attached to the gift. The evidence of the gift, and of the conditions attached, was in the present case sufficiently clear, as also was that of the identity. The necklace was to be considered an heirloom, and not the absolute property of Lady Seale. The declaration must therefore be, that the diamonds in question did not form part of the assets of Lady Seale; and the defendant Hayne must be ordered to deliver them up to the plaintiff. Wood, V.-C. 25 Wood, Y.-1863. } KNOX v. GYE. Practice-Amendment of Bill after DecreeSupplemental Bill. A bill was filed seeking to establish a partnership between the plaintiff and defendant. It alleged that a third person, now deceased, had been a partner with them, but had, by indenture, assigned his interest in the adventure to the plaintiff and defendant. The answer denied the partnership and the assignment; but alleged, as was the fact, that the share of the third person had been bequeathed to the plaintiff and defendant. The bill was not amended by stating the facts, and at the hearing was dismissed so far as it sought to establish the partnership: but an account of the profits was granted. The plaintiff then moved for leave to amend by setting out the will, so as to obtain an account of profits in respect of the deceased's interest. Leave was refused, but the plaintiff was allowed to file a supplemental bill stating the facts, and to amend the original bill by striking out all allega. tions relating to the assignment. This was a motion by the plaintiff to obtain leave to amend his bill after decree. ship to the plaintiff and defendant. Thistlethwaite died shortly afterwards. The bill prayed that the partnership might be dis solved, and an account taken of the copartnership dealings between the plaintiff and defendant, and also of what was due to the plaintiff in respect of his share of the capital (including the plaintiff's share of the 12,0007. brought in by Thistlethwaite) and profits. The answer denied that any partnership had ever existed between the plaintiff and defendant. It alleged that the sum of 50007. had been paid by the plaintiff on the understanding that he alone was to bear the loss if the adventure turned out unprofitable, but was to be repaid if it should prove to be a successful specu lation; repudiated the notion of being a partner with the and that the plaintiff had on all occasions defendant. It also denied that the adventure had been a profitable one. It was also alleged by the defendant, and proved to be the fact, that the indenture of assignment of Thistle thwaite's share was prepared, but never executed. Thistlethwaite, however, made a will, by which he gave all his interest in the Opera House to the plantif and defendant, and appointed them executors. true state of the case as regarded Thistlethwaite's inteThe plaintiff did not amend his bill by setting out the rest, but in November, 1863, a short time before the cause came on to be heard, he obtained probate of the will. At the hearing, his Honour held that the defendant's bill so far as it sought to establish a partnership view of the case was the correct one, and dismissed the between the plaintiff and defendant, but granted an hearing of the cause, in order that it might be deteraccount of the profits of the adventure up to the mined whether or not the defendant was to repay the plaintiff the sum which he had advanced. Sir H. Cairns, Q.C., Giffard, Q.C., and Townsend, now moved that the plaintiff might have leave to amend the bill by setting out the will of Thistlethwaite, so as to obtain an account of what was due to the plaintiff in respect of his share of the 12,000l. brought in by Thistlethwaite. They cited, Lord Darnley v. The London, Chatham and Dover The bill alleged that in 1851 the plaintiff entered 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 10,000l. 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 50007. had been repaid by the plaintiff, and 10007. by in which the account should be taken up, as in, the defendant. It further alleged that in 1853, Arthur Henry Thistlethwaite, an ensign in the Scots Fusilier Guards, entered into partnership with the plaintiff and defendant, bringing with him a capital of 12,0007.; that in 1854, Thistlethwaite was ordered to the Crimea with his regiment, but previously to leaving the country, Willett v. Blandford, 1 Hare, 253. The Court exercised a judicial discretion in granting leave to amend at this stage, Watts v. Hyde, 2 Ph. 406; Bieddermann v. Seymour, 1 Beav. 597; Gossip v. Wright, 2 N. R. 152; s. c. 32 L. J. (N. s.) Ch. 648; and ought not to allow the bill to be amended by stating facts directly at variance with the case made. Sir H. Cairns, in reply, urged that the plaintiff ought not to be put to the expense of a new suit simply because he had made a mistake in the pleadings. If a new suit were instituted, notice would be immediately given to read the evidence in the present one and thus nothing would be gained. Gossip v. Wright, where leave was refused, was a very different case from the present: it was there proposed to turn a bill for redemption into one for setting aside a purchase at an undervalue. 4 DEC. 1863. WOOD, V.-C., said, that the plaintiff had shown by taking out probate that he had a bonâ fide intention of proceeding on the will. The matter ought, therefore, to be put in a train for final settlement. But the plaintiff had had ample opportunity of amending his bill before the hearing, and ought not now to be allord to introduce the proposed amendments. Besides, both the bill and answer had been exclusively directed to the view that a partnership existed between the plaintiff and defendant; and it had turned out that that partnership did not exist. It might be that the defendant could meet the new case now proposed to be set up, and he ought to have an opportunity of making his defence. The proper course, under those circumstances, would be for the plaintiff to file a supplemental bill; and for that purpose his Honour gave leave to amend the original bill by striking out all passages relating to the alleged assignment of Thistlethwaite's share in the adventure. Wood, V.-C. 4 DEC. 1863. cumbents filed an information and bill, and succeeded in establishing their claim: Held, that they were estopped from demanding arrears previous to the filing of the bill; but were entitled to the costs of the suit. The relators and plaintiffs in this suit were the curates of the parishes of Lowicke and Kyloe, in the county of Northumberland; and Tweedmouth, Ancroft, and Holy Island, in the county of Durham; and the object of the information and bill was-to compel payment of certain annual stipends of 107. cach, payable to them respectively, and charged on property vested in the defendants. Island. It appeared that previous to the dissolution of the monasteries, the cures of the above-mentioned parishes were served by priests, who were paid small stipends by the monks of a Benedictine monastery on the Holy After the suppression of the monasteries, part of the property belonging to the monasteries of Durham and Holy Island was seized by the Crown, and the stipends continued to be paid out of the rents and profits thereof. The stipends were augmented to their present value by Queen Elizabeth. By letters patent, dated the 21st of December, 1603, King James I. granted to Lord Home and his heirs part of the property which had been seized by the Crown, but charged (as was held by the Court) with the payment of the stipends. There was evidence that the stipends had been paid to the incumbents of the above-named parishes as of right from the date of the letters patent up to 1853; and that from the year 181 to 1853 the payments had been made exclusively by the predecessors in title of the defendants, the present owners of ATTORNEY-GENERAL V. NAYLOR. part of the lands and hereditaments granted by the letters patent of the 21st of December, 1603. Practice-Parties-Rent-charge-Charity Suit To an information and bill filed on behalf of a charity seeking to establish a rent-charge, the owners of all the property on which it is charged are not necessary parties:- In 1853 the then owner of the property, now sought to be charged with the stipends, refused to pay them, and the incumbents of the parishes threatened legal proceedings. In 1858 the property was sold under a decree of the Court to the defendants. ments to the incumbents were mentioned in the particulars and conditions of sale, but it was stated that The pay Secus in the case of a bill filed by a private indi- they had been discontinued in 1853, and were believed vidual. If the charity proceeds against a particular portion of the property and succeeds, the Court will direct an inquiry as to the other property charged, but at the expense of the party desiring the inquiry, and not of the charity. Certain annual payments were made by the owners of property to the incumbents of five parishes up to the year 1853, when they ceased to make them, and legal proceedings were threatened. In 1858, pending the dispute, the property was sold and in the particulars of sale (which were approved of by the incumbents) the payments were mentioned, but it was said that they were believed not to be legally recoverable. In 1861 the in not to be legally recoverable. The conditions and particulars of sale were submitted to, and approved by the present plaintiffs. The information and bill, which was filed in 1861, prayed for a declaration that the stipends were subsisting charges on such of the hereditaments comprised in the letters patent as were now vested in the defendants, and that they might be decreed to pay the same; and for an account of what was due to the plaintiffs in respect of the arrears of the stipends, and that the defendants might be decreed to pay to the plaintiffs what should be found due to them. By the answer it was pointed out, that the property, now sought to be charged with the stipends, was only part of the property charged therewith by the letters patent; and the owners of other portions of such lastmentioned property were specified and it was submitted that they ought to be parties to the suit. Rolt, Q.C., and Lindley, for the relators and plaintiffs, cited on the question of parties, Attorney-General v. Shelly, 1 Salk. 163; Sir H. Cairns, Q. C., and North, for the defendants, argued, 1st. That the evidence of there being a subsisting charge on the lands now in the possession of the defendants was insufficient. 2nd. That the owners of the other lands ought to be made parties. Though the Court would not abstain from making a decree when there was merely a general suggestion in the answer that other persons were liable to contribute to pay a rent-charge to a charity; yet, that where such persons were specifically pointed out, the Court would direct an inquiry at the plaintiffs' expense. 3rd. The plaintiffs were not entitled to any arrears anterior to the sale, Cook v. Smee, 4 B. P. C. 537. Even if the plaintiffs would have been otherwise entitled, they had debarred themselves by the conditions of sale from claiming arrears. Lindley, in reply, commented on Cook v. Smee (loc. cit.), where the whole arrears were recovered, though those previous to the sale were obtained from the vendor. If the words in the conditions of sale precluded the plaintiffs from obtaining the arrears, they would also be precluded from obtaining any payment whatsoever. WOOD, V.-C., held, that the plaintiffs had clearly established a good charge on certain portions of the property included in the letters patent; and the queswhat were the rights of the defendants, seeing that other portions of the property might be charged with the payment of the stipends. tion arose, In Attorney-General v. Jackson, Lord Eldon had come to the conclusion that, although a private individual seeking to establish a rent-charge must bring the owners of all the lands out of which it issued before the Court, yet it was not so with a charity, which might go against particular portions of the lands charged. If the charity succeeded, then the Court would aid the owners of such portion in obtaining contribution from owners of the other portions; but the assistance would only be given at the expense of the person requiring it. In the present case there was an additional reason for imposing the costs of such inquiry on the defendants. The circumstance of the stipends having been paid up to 1853 by their predecessors in title, afforded a strong presumption that, at some time or other, the owners of the lands in question had undertaken to indemnify the owners of the remaining portions of the charged property against the payments. If this were so, the claim of the charity would not be affected, though the right to contribution would be swept away. As regarded the arrears, his Honour thought that, independently of the case of Cook v. Smee (loc. cit.), the plaintiffs, by assenting to the conditions of sale, had deprived themselves of the right to demand them. They were seeking, at the time of the sale, to establish their claim against the then owners of the property, and might have succeeded in so doing then as well as now; and under those circumstances they ought not to have led the defendants to suppose that the claim would turn out to be a bad one. No arrears could be given previous to the date of the filing of the bill. If the bill had been filed immediately after the sale, he should have held that the question of costs depended on the same circumstances as the arrears, and he should have refused to give them to the plaintiffs; but the bill not having been filed till 1861, a claim for payments subsequent to the sale was the same as aay other claim in this Court, and the defendants having failed to establish their case, must pay the costs of the Will, Construction-Lapse. A testator gave residue equally to all and every the children of his cousins R B and B B, who should be living at his death, and to ten other persons by name, one of whom died in his lifetime: Held, that the share of the deceased legatee lapsed. The testator gave the residue of the proceeds of the conversion of his real estate and of his personalty equally to all and every the children of his late cousins, R. Brook and B. Brook, who should be living at his decease, to Mary East, and to nine other persons whom he named. Mary East died in the testator's lifetime. A ques tion having been raised by the other legatees, whether her share lapsed or not, the trustees paid the fund into Court under the Trustee Relief Act, and this was a petition for the payment of it out. Kenyon, Q.C., and Woodroffe, argued that there was Daniel, Q.C., and Marten, contrà, cited, Drakeford v. Drakeford, 11 W. R. 977. C. Hall, Eddis, and E. R. Turner, for other parties. Wood, V.-C., said, that were it not for the case of Clark v. Phillips (loc. cit.), he should have had no doubt; for it did not at first sight appear to him to be open to argument, that there was no lapse. Now it appeared to his Honour to be incorrect to speak of a class of residuary legatees as such. A class was, strictly speaking, a set of persons filling a defined position. For example, in Shaw v. M‘Mahon (loc. cit.), the testator desired that his residue should be divided amongst all his children, and Lord St. Leonards held, rightly, that the legatees took as a class, notwithstanding that two of them were named. It was true in the present case that the shares of the legatees could not be determined until the testator's death. But why should that circumstance prevent a lapse of the share of one legatee dying before the testator? In Clark v. Phillips (loc. cit.), the testator himself revoked the bequest by codicil, and that case was therefore perhaps distinguishable from the present one. In case of revocation, a question might arise whether the testator had not expressed an intention that his will should be read as if the legatee's name were erased from it. In the present case his Honour held that there was a lapse, and directed the order to be prefaced by a declaration to that effect. Arbitration-9 & 10 Will. 3, c. 15-Common Law Procedure Act, 1854, s. 17—Jurisdiction to Set Aside Award. The 17th section of the Common Law Procedure Act, 1854, does not import into every submission to arbitration all the consequences of the Act, 9 & 10 Will. III. c. 15. The Court has jurisdiction to set aside an award which does not fall within the statute of Will. III., and has not been made a rule of a Court of Common Law; but, where full relief might have been obtained at Law, it will exercise its jurisdiction only in cases of great fraud or injustice. further sums, amounting in the whole to 6,8077. 14s., were brought into the partnership by him. Shortly afterwards, Smith discovered that Bainbrigge's share of the partnership property was subject to a mortgage for 5,500l., which had been concealed from him; and he thereupon insisted on having the partnership dissolved. Accordingly, by articles dated the 23rd of June, 1856, it was agreed that the partnership should be dissolved; arrangements were made for carrying on the business for four months from the 9th of June; and it was agreed that in the event of Bainbrigge's not paying to Smith his share in the concern, or giving him good security for the payment thereof within that period, then Smith was to pay Bainbrigge 5,3001., provided Bainbrigge made a good title, and paid off the mortgage; but if not, then Smith was to take the concern. The mortgage was not paid off by Bainbrigge. Smith took the business, and wound it up; but the terms of the agreement providing for this event were not strictly adhered to. It was found that Bainbrigge had, unknown to Smith, drawn out of the partnership funds the sum of 2,2971. 2s. for his private use; and in a letter written by the plaintiff to Bainbrigge on the 19th of June, 1857, the result of an investigation of the accounts was stated to be, that a balance of 30007. was owing by Bainbrigge in respect of overdrawings and other items. The mortgage debt, and the interest thereon, amounted at the time to about 6000Z., thus making 90007. in the whole owing by Bainbrigge, against which was to be set off his share of the capital, 80007., leaving, according to the letter, 10007, due to Smith. In 1858 Bainbrigge took the benefit of the private arrangement clauses of the Bankrupt Law Consolida tion Act, and the defendant Whitmore was appointed official assignee. Smith made a claim against the estate on account of the sum of 2,2977. 2s., and other items alleged to be due to him as above mentioned. No claim was made in respect of the capital brought by Smith into the partnership. The claim was referred to the arbitration of two persons named Percival and Daniell, who, by the 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 award a rule of Court. In October, 1855, the plaintiff Smith entered into partnership with the defendant Bainbrigge, who was The arbitrators appear to have proceeded to inthen carrying on the business of a brewer at Senhals, investigate 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 80007. 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 80007.; and arbitrators, insisted that Smith ought to be credited that Smith should pay down forthwith the sum of with his share of the capital; and the matter was 5341. 188. 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 5347. 188. Sd, was paid by Smith, and who, though not convinced, yielded. The award of 1 the arbitrators was published on the 9th of June, 1859, and found that 3641. 2s. was due from Smith to Bainbrigge's estate. This award was now impeached on two grounds; 1st, that Daniell had adopted the opinion of Rotton without exercising an independent judgment on the matters in question; 2nd, that Rotton's opinion had been taken in the absence of the parties, notwithstanding notice having been given by the plaintiff's solicitor to the arbitrators, that he wished to appear before the umpire, and be heard by him. By the Common Law Procedure Act, 1854, section 17, the award might have been made a rule of Court; and steps might then have been taken for setting it aside at any time before the end of Michaelmas Term, 1859. It was not, however, made a rule of Court, and in December, 1859, Whitmore brought an action on the award. To this action Smith pleaded nul tiel agard. The case was tried at Stafford at the Spring Assizes of 1860. The Judge, shortly after Smith's case was opened, directed the jury to find a verdict for Smith on the issue raised by this plea, giving Whitmore leave to move to set aside the verdict, and enter a verdict for himself for the amount claimed. A rule nisi was accordingly obtained, which was afterwards discharged. The arguments and judgment at this stage of the proceedings are reported in 5 H. & N. 825. Whitmore appealed to the Exchequer Chamber, when, on the 2nd of December, 1861, the decision of the Court below was reversed, on the ground that the invalidity of the award could not be properly pleaded as a defence to the action. See 7 H. & N. 509. In March, 1862, Smith filed his bill in this Court, alleging the invalidity of the award on the grounds already mentioned, and the serious injury he would suffer thereby, and praying that the award might be set aside. that the plaintiff was not entitled to be so credited, inasmuch as he had "taken the concern" under the agreement for dissolution. As to the jurisdiction of the Court : 1st. It was argued that it was ousted under the statutes 9 & 10 Will. 3, c. 15, the Common Law Procedure Act, 1854, and the Bankruptcy Act, 1849. By the statute of Will. 3, a submission to arbitration may be made a rule of any Court of record whenever the agreement for reference to arbitration contains a provision to that effect. By the Common Law Procedure Act, 1854, s. 17, it is enacted that every submission to arbitration may be made a rule of Court, unless the agreement contains words purporting that the parties intend that it shall not be made a rule of any one of the superior Courts of Law or Equity. The Bankruptcy Act, 1849, s. 153, enables assignees in Bankruptcy to refer any matter in dispute to arbitration, and section 154 provides that any such agreement for reference may be made a rule of any one of the superior Courts of Law. It was held in, Nicholls v. Roe, 3 My. & K. 431; Heming v. Swinnerton, 2 Ph. 79; that a Court of Equity has no jurisdiction to set aside awards made in pursuance of such agreements for reference to arbitration as fall within the statute of Will. 3. It was now contended that the effect of the above sections of the Common Law Procedure Act, 1854, and Bankruptcy Act, 1849, was to introduce into every submission to arbitration a clause, providing that such submission should be made a rule of Court; and that thus every submission must now fall under the statute of Will. 3. On the other hand, it was said that the effect of the clauses in question was merely to enable either party 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. The arguments turned partly on the facts of the case, and partly on the jurisdiction of the Court in such cases. As to the facts of the case : : On this point the 1st. It was scarcely denied that there had been a miscarriage of the arbitrators. following cases were cited :Eastern Counties Railway Company v. Eastern Union Railway Company, 2 N. R. 538; Hutchinson v. Shepperton, 13 Q. B. 955; Hall v. Hinds, 2 M. & G. 847. 2nd. It was argued on behalf of the plaintiff, that he had suffered serious injury by the award, in consequence of his not having been credited with his share of the capital, while for the defendants it was submitted c. 42, was cited. 2nd. It was also contended that, even if the case did not fall within the statute of Will. 3, it was altogether the fault of the plaintiff that the submission to arbitration was not made a rule of Court, and so the matter would have been expeditiously settled; and that the Court ought not to allow him to take advantage of his own neglect. 3rd. Further, the Court of Bankruptcy had complete power to do justice between the parties, and, where a competent Court of record was in possession of the matter, a Court of Equity would not interfere, Harding v. Wickham, 2 J. & H. 676; Davis v. Getty, 1 S. & S. 411; Nicholls v. Roe (loc. cit.); Heming v. Swinnerton (loc. cit.). |