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assuming that the plaintiff had suppressed facts which, in Chili, possessed of land there and personalty. In if known to the Commissioner, would have prevented 1832, it was proposed that H, who was residing in him from making the order, the Court was bound to Chili, and managing the property, but had not lost his treat the order as valid ; independently, therefore, of English domicile, should purchase his brothers' shares. the defect in the pleadings, the objection to the Several proposals and counter-proposals were made, and plaintiff's right to sue could not prevail.
H sent some remittances to his brothers, and then reThe deed of March, 1860, was made for the benefit tained possession of the property from 1835 to 1850, of the assignees, and was not intended to, and could without any interruption from cither of them. B died not, prejudice or affect the plaintiff's claim against the in 1849, and in 1850, T and B’s representatives comdefendant.
menced a suit in Chili against II, to recover their shares. The allegation of acquiescence was sufficiently Two Chilian Courts in succession decided that there was answered by the fact that the plaintiff could not have a contract binding B but not T. I, who had actively sued during his bankruptcy.
defended the suits in Chili, now came to England, and Upon the whole, he was of opinion that public filed a bill, to restrain T from disturbing him in the policy and private justice required that the sale should possession of G's estate. This Court having come to the be set aside, and that the defendants should pay to conclusion that, according to English law, Ths delay for the plaintiff, a portion of his costs, or, if they pre- seventeen years, and until after B's death, barred his ferred it, the sum of 1001. ; the decree, however, must right to an account :be declared to be without prejudice to the question, Held, that the contract being between threc domiciled, whether the creditors of the plaintiff, or the assignees, Englishmen, was governed by English law, although were entitled to get the benefit of the setting aside of the principal subject-matter was landed property in the sale.
Chili, and that therefore the Chilian decisions were not Trener, L. J., said, that the sale could not have binding upon this Court. been upheld against the assignees, and the only question was, whether the plaintiff was entitled to
This was the hearing of the suit upon motion for have it set aside ; it was not open to the defendants
decree. upon the pleadings to object to the validity of the
The plaintiff, Henry Robert Linnett Cood, and the order annulling the bankruptcy; but if it had been, defendant, Thomas Cood, were two of four brothers. he agreed that the Court was bound to treat the order George Cood, the eldest of the four brothers, had as valid.
established himself in business at Valparaiso, in the The words in the order, protecting sales made by republic of Chili, and died at Arequipa in Peru in the assignees, were intended to prevent such sales April, 1825, possessed of landed property at Valparaiso, from being impeached on the sole ground of the bank- and also of personal property, including a share in a ruptcy having been annulled.
partnership, and leaving his three brothers and his The deed did not assist the defendants; they were
mother him surviving. The mother died in October, not parties to it, and the assignees might, without 1831, having left the residue of her property equally their consent, have waived their rights under it; and among her three surviving sons. Thus, according to the plaintiff might, if necessary, have sued in the both the English and the Chilian law, each of the names of the assignees, upon giving them the usual three surviving brothers became entitled to one-third indemnity.
of George Cood's estate. Even if the right to have the sale set aside was in
Henry Cood, who was then established in business capable of assignment, which he did not admit, he at Truxillo, in Peru, was, in 1826, appointed by his was of opinion that the plaintiff, by virtue of the mother and brothers, jointly with ono Barnard, who annulling order, became entitled to have it set aside died in 1829, to act for them in relation to George 011 any other ground except that of the bankruptcy Cood's estate, and he and Barnard were also aphaving been annulled.
pointed by the proper Chilian Court administrators of As to the form of the decree, and as to the costs, George Cood's estate. he concurred with the Lord Justice Knight Bruce.
The settlement of George Cood's affairs proved very
troublesome, and, in particular, claims were set up The defendants elected to pay the 1001. in lieu of against his estate by his surviving partners and by a
person claiming to be his illegitimate child, who, if such, would, by the Chilian law, be entitled to one
sixth of his property. 3, 4, 5 Nov., 3 Dec. 1863.
Henry Cood had remitted considerable sums to his Judgment of Foreign Court-Contract between mother and brothers on account of their shares in Englishmen, but relating to Land abroad.
George Cood's estate, and he also sent them full ac
counts of his payments and receipts and other proThree brothers, H, T, and B, were each entitled to one- ceedings in relation to the estate. third of the estate of a fourth brother G, who had died In a letter dated the 2nd of February, 1832, the
Master of the Rolls; } Coop v. Coop.
defendant, Thomas Cood, proposed to sell his share in in my power to make good my contract with you and George Cood's estate to Henry Cood for 10001., but Ben, and have, with every British merchant here, to he made it a condition that the money should be regret my not being able to do so.
Of course, as I placed in his hands before the following October. have not fulfilled my contract, it lies with Henry Cood being absent from Valparaiso did not Ben to be off the same should you
wish. receive this letter until November, 1832. In a letter You only say, as regards my offer, that you have dated the 18th and 19th of January, 1832, he informed passed my letter to Ben, and whatever he determines Thomas that for this reason “his offer did not take on will meet, you say, your approval. He does agree effect.” He then went into details as to the state of individually, but not jointly with yourself, and which the house property and the threatened litigation, and was, if you will refer to my letters of the 18th and expressed his willingness to purchase his two brothers' | 30th of January, 1833, my positive offer, as without shares, which would obviate the necessity of voluminous both your approvals and regular deeds of sale to me, accounts of his journeys and of the repairs, &c. of the I cannot make out deeds of sale to others." houses and land. Then, after referring to the risks of On the same day, 31st May, 1834, Henry Cood wrote “revolution, fire, earthquakes, &c.,” he proposed to a letter, substantially to the same effect to Benson make over to his two brothers, in exchange for their Cood. shares in the residue of George Cood's estate, his own Henry Cood subsequently, in 1834 and 1835, wrote, share in his mother's property.
and sent remittances, to Benson Cood, and the latter In another letter, dated the 30th of January, 1833, paid part of these remittances to Thomas Cood; but also from Henry Cood to Thomas, Henry confirmed his Thomas Cood (by his answer in this suit) denied that previous offer.
he had received them on the footing of any contract In a letter, dated the 29th of June, 1833, from for the sale of his share in Thomas Cood's estate, or Benson Cood, the other brother, to Henry Cood, Ben- that he received as much as 1,100l. son Cood, after stating that Thomas Cood had handed From 1836 till 1850, Thomas Cood, so far as ap. him the letter of the 18th and 19th of January, pro-peared, made no application to Henry Cood for any posed to sell his own share in George Cood's estate for accounts of George Cood's estate, and never set up any 1,1001., to be paid on or before the 1st of July, 1834. claim to any share in the estate.
A letter, dated the 13th of July, 1833, from Benson Cood died in 1849, and in 1850 Thomas Thomas Cood to Henry Cood, contained the following Cood and the representatives of Benson Cood compassages :
menced proceedings against Henry Cood in the Court “ You have no idea of the task it is to me to write of First Instance at Valparaiso, and upon his deto the dearest friend or relation I have.
I claring himself insolvent, they continued them against have now quite retired from business, and am about to his estate, of which the other plaintiff, Nicholas Altake up my residence on the Continent.
Ibano, was appointed assignee or syndic according handed your letters, as directed by you, to Ben, and to the Chilian law. In these proceedings they claimed he will act on them. Whatever he determines will to have certain landed property in Chili belonging to meet my approval, so high is my opinion of him in all George Cood, and also his share in the partnership, matters of business. In future address to him at with their profits and interest, and with the exception No. 12, Upper Stamford Street, Blackfriars. If you of the third part belonging to Henry Cood, delivered have anything to communicate to me personally, to them. address it to the care of the Ross's (the relations of The Court of First Instance at Valparaiso decided Henry Cood's wife), and desire them to deliver it to that as regarded the share of Benson Cood the me personally, and to no one else.
Recollect sale had been perfected without the necessity of any in writing to me address to Ross's, and on matters of further formality, but with respect to the share of business to Ben as above."
Thomas Cood the facts were not sufficient to constitute There was no direct evidence as to whether Henry's a complete contract on the part of Thomas Cood; and letters referred to in the preceding letter were those of ordered Thomas Cood's share to be delivered up to the 18th and 19th of January, and the 39th of him after a partition had been made by arbitrators January, 1833.
named by the two parties. On the 31st of August, 1833, Benson Cood wrote Both sides appealed against this decision, but it again to Henry Cood ; and, referring to his previous was affirmed in 1858 by the Superior Court at offer, expressed a hope that “this may greatly facilitate Santiago. your settlement with G. C.'s late partners (through From the judgment of the Valparaiso Court it T. C. acquiescing with you in a similar way), by being appeared that the syndic of Henry Cood's estate the sole representative to arrange
contended among other defences that the action On the 31st of May, 1834, Henry Cood wrote to was barred by lapse of time; and that by amicable Thomas Cood ; and, after referring to the civil war in arrangements Thomas and Benson had renounced Peru, and to the money he intended to remit being their hereditary rights realisable in Chili in favour buried, said ;—"I will not fail to do every endeavour of Henry, in consideration of payments, grants
and remunerations of hereditary rights realisable in landed property at Valparaiso, and expended large England made by him in their favour, and therefore sums in lasting improvements and upon the law suits, they could only come in as creditors for any balance and that Thomas Cood had, for seventeen years, allowed due to thein under these arrangements; and that him to do this without ever claiming to be interested Henry's possession for twenty years was in itself evi- in the property. dence of these arrangements. He put in certain! They also alleged that it was not competent to letters (apparently those set out above) as containing them in the Chilian suits to ask for a declaration that these arrangements, and relied upon the circumstance Thomas Cood was a trustee for Henry Cuod, or to seek that Benson, the representative of the vendors, never specific performance of the agreement between Henry afterwards claimed the property but only the balance Cood and Thomas Cood as one only partly performed, of the accounts.
or to insist upon the equitable grounds stated above, The following extracts from the judgment of the or to obtain discovery from Thomas Cood. Valparaiso Court will sufficiently show the view that And they prayed, Court took of the case.
1st. That Thomas Cood might be restrained from "7th. The proposal of sale of his rights on the part of continuing the aforesaid proceedings, or taking any Mr. Benson, contained in the memorandum at folio 37 other proceedings in the Chilian Courts, or otherwise, [a memorandum' accompanying the letter of the 29th for disturbing the plaintiffs in the possession of Thomas of June, 1833), although conditional as regards the Cood's share of George Cood's estate. term limited of payment and other circumstances, 2nd. That Thomas Cood might be declared a trusbecame a simple contract when, as appears by acts tee for the plaintiffs of any legal estate, interest or sufficiently proved, Mr. Benson released the said con- property he might have in George Cood's estate, and ditions.
that the said agreement might be specifically per"11th. That (Mr. Henry being in possession of the formed, and that Thomas Cood might be ordered to do parts sold by Mr. Benson), from the time that the all things necessary for carrying the same into effect, or latter, as is before said, charged to him in account the for vesting his share in George Cood's estate in the agreed price, and by reason of the contract afterwards plaintiffs. received sums of money, the sale stood completed with- Thomas Cood, by his answer, asserted that it would out other formality, according to the provisions of L. have been competent to the plaintiffs to seek specific 47, tit. 28, partida 3, and L. 8, tit. 5, partida 5. performance in the Chilian proceedings, and it ap.
"12th. That in respect of Mr. Thomas Cood the same peared that they did examine Thomas Cood in France does not follow, for his proposal at folio 33 [apparently under a commission. that of the 2nd of February, 1832] being equally a con- There was no evidence as to the law of Chili, as the ditional one, it remained without effect when the con- defendant had objected to a commission being sent out ditions were not fulfilled by Mr. Henry, nor released to Chili to ascertain what questions could have been by Mr. Thomas.
determined in the Chilian proceedings; and, even as "13th. That the release of the conditions made by Mr. to the proceedings in the Chilian Courts, the eviBenson does not bind the same Mr. Thomas as the dence was very incomplete, and the Master of the syndic pretends, inasmuch as the letter of Mr. Thomas, Rolls only admitted it to be read de bene esse, to on which for this purpose the syndic relies (that of the see whether there was any ground for instituting 13th of July, 1833), does not express the matter or inquiries as to the Chilian proceedings. matters of business in which he submits himself to the
The defendant had originally put in a plea and decision of Mr. Benson, nor is it possible to ascertain answer, the plea denying any contract between him. it, not knowing the contents of the letters of Mr. self and Henry Cood. That plea was overruled on the Henry, to which that of Mr. Thomas relates.
ground that the bill made out a case of acquiescence "14th. That neither do the other data which the which would be sufficient to bind the defendant, even records afford, in addition to the letters, suffice to if there were no express contract. prove in the requisite manner the completion of the
Selwyn, Q.C., and De Gex, for the plaintiffs, cited contract on the part of the said Mr. Thomas.
as to the jurisdiction of the Court over property "15th. That the prescription alleged by the syndic
abroad, has no place, since Mr. Henry has, in regard to Mr.
Penn v. Lord Baltimore, 1 Ves. Sen. 444 ; 2 Tud. Thomas, no title of ownership that justifies his posses
L. C. Eq. 664. sion." Henry Cood remained in Chili till 1859, when he (THE MASTER OF The Rolls referred to
Norris v. Chambres, 29 Beav. 246.) carne to England in the present suit.
They also cited as to the enforcement of informal The plaintiffs in the present suit by their bill now
family arrangements, alleged that on the faith of his contract with Thomas
Neale v. Neale, 1 Keen, 672. Cood, Henry Cood had, with the knowledge of Thomas Cool, made large disbursements and incurred heavy Baggallay, Q.C., and Pooks, for the defendant, con. Dersonal responsibilities in respect of George Cood's tended that the plaintiffs were bound by the deci. sions of the Chilian Courts. Perhaps, if they had come His Honour then went through the facts of the case, to this Court in 1850, it might have interfered, but they remarking, as to Thomas's letter of the 13th of July, had submitted themselves to the Chilian forum, and 1833, that, in his opinion, it meant that Thomas had had the opportunity of raising, and had in fact would confirm whatever Benson did as to the sale of raised, the same questions; and the decision having his share, and that, at any rate, it must be construed been against them, they were now come here to ask this most strongly against the writer, and in the sense in Court to act as a Court of Appeal from the Chilian which Henry might have understood it, or, in fact, Court.
did understand it, unless there was some subsequent The Chilian Court was the proper forum for the repudiation of that sense. decision of the present case, the principal subject- He did not find any such repudiation, nor any claim matter of the litigation being landed property in Chili. whatever made by Thomas, until after Benson's death Besides Henry Cood's residence in Chili, obliged Thomas in 1849. In 1850, however, when Benson, the prinCood to institute his proceedings in the Courts there. cipal actor in the transaction with Henry, was dead,
Paragraph 15 of the judgment of the Valparaiso Thomas sends out one of his nephews to demand the Courts showed that the lapse of time was taken into estate of George Cood, who had then been dead 25 account by the Chilian Courts.
years. The time which had since elapsed was not to [THE MASTER OF THE ROLLS said, that in 1833-6, there be taken into account, but if Thomas had, in 1850, was a rebellion in Chili, and the property was of very filed a bill in this Court for an account of George little value. Could the defendant acquiesce in the sale Cood's, his Honour, considering it as a question of for a time, and then come fourteen years afterwards, English equity, should have held that he was barred by when the property had greatly increased in value, and lapse of time and acquiescence, and should have conask for an account? Paragraph 15 dismissed the vital fined the account to the 11001., the price agreed point of the case very shortly and not very satis- upon, factorily.]
The second question related to the effect of the The lapse of time might have been a reason for Chilian proceedings, and this formed the principal refusing Thomas any relief in this court if he had ground relied upon by the defendant. In those pricome here as plaintiff to ask for an account, but it was ceedings, Thomas claimed one-third, and the reprenot a reason for interfering against him. The Court sentatives of Benson another third, of George Cood's would not have interfered on that ground, if the defen- estate, and the Chilian Court held that the contract dant had recovered in an English Court of Law on the for the sale to Henry bound Benson but not Thomas. strength of a legal estate.
Now, if he were regarding the case simply as a They also contended that the letters did not show question of English law, he should have had great any concluded agreement even between Henry and difficulty in coming to that conclusion. How could Benson. Every proposal or contract was conditional, one entire contract be binding upon Benson, and not and the conditions were never complied with,
binding upon Thomas. Henry's object in purchasing Governors of Kingston-upon-Hull v. Pitch, 24 L. was to avoid having to render voluminous accounts, J. (N. s.) Ex. 23.
and this would not be accomplished unless he pur
chased the shares of both his brothers. The correSelwyn, Q.C. (in reply), contended that Henry hav- spondence did not disclose any separate contract with ing only proposed to make a joint contract with both Benson. his brothers, the Chilian decision that the contract
The question, however, was, which law was to was binding upon Benson and not
The right to land situate in Chili be wrong, and that the reference in paragraph 11 to the would prima facie be regulated by the Chilian law; formalities required for a contract showed that the but the present question related to a contract beCourt had proceeded upon some local law requiring a tween three Englishmen, of whom two were resident contract to be executed with certain formalities.
in England, and the third, though residing in Chili
had not acquired a domicile there; and it must there3 DEC. 1863.
fore be determined by English law. THE MASTER of the Rolls said, that the questions He was of opinion that although Benson had not which arose in the present case were two—Ist, Whether been constituted Thomas's agent to bind Thomas Henry Cood bought the share of his brother Thomas ; Thomas had said that he would be bonud by what and, 2nd, Whether the preceding question had been Benson did, and — considering that Thomas hal disposed of in the decision of the Chilian Courts, and, taken no step to question the contract until after if so, whether this Court, supposing it to come to a the lapse of seventeen years and the death of Benson different conclusion, would be
, bound by he was further of opinion, that although thera those decisions ; and he thought it would be most was no contract which the Court could specifically convenient, in the first instance, to consider the rights enforce, it was not open to Thomas in 1850 to of the parties as they would stand independently of the claim to have the accounts taken. He should not Chilian decision.
direct specific performance, but proposed to preface the decree with the following declaration :"Declare, account appeared to be due to them were paid to them that having regard to the correspondence between the or their mortgagees. plaintiff Henry Cood the defendant Thomas Cood and The appointment of the trustees was obtained by Benson Cood from the beginning of 1833 to the end another firm of solicitors, who afterwards professed of 1835 set forth in the pleadings, and having regard to act as solicitors to the trustees, Marshall conto the lapse of time from the close of the correspond- | tinuing to represent the cestuis que trustent. Marshall, ence to the commencement of the proceedings in the however, prepared the release, and it appeared that Chilian Courts, and that during that time Thomas some small payments charged in the accounts had not Cood took no step to question the plaintiff's purchase, been actually made, but the amounts had been retained or to obtain any account, the Court was of opinion, by him. that Thomas Cood was not now entitled to any The original bill was filed against the personal account." The decree would then direct relief representatives of Boucher and Wood, asking for an according to the prayer of the bill, but was to be account. without prejudice to any step which Thomas might The defendants by their answers set up the settled take to enforce an account of what was due from account and release as a defence, and also objected that Henry on the footing of their contract.
the suit was defective as to parties, Samuel Boucher having in December, 1858, taken the benefit of the
Insolvent Debtors Acts. Master of the Rolls.
} BROOKES v. BOUCHER. The bill was afterwards amended very extensively, 11, 12, 15 Dec. 1863.
and the circumstances stated above as to Marshall were Pleading-Prayer for General Relief. introduced. The bill also stated that Marshall was
the creditors' assignee, and one Harding the official A bill stated that M and H, two of the defendants, assignee of Samuel Boucher, and both Marshall and were respectively the creditors' assignee and oficial Harding were made defendants. No specific relief was assignee of one of the plaintiffs. It also stated a case prayed against Marshall, but there was the usual for relief against M, but did not pray any specific relief prayer for such further or other relief as the nature of against him. I was interrogated upon, answered, and the case might require. bent into evidence upon the whole bill :
Marshall was interrogated upon all the statements Held, that the Court could, under the prayer for in the amended bill, and put in two answers, admitgeneral relief, make a decree against M, founded on the ting thereby that he had 231. ls. in his hands, part of statements in the bill.
a sum retained to answer some costs supposed to be Michael Brookes, deceased, by his will, dated the due to the Solicitor-General. 14th of December, 1827, devised certain real estate to
He also filed affidavits in answer to the plaintiffs' two trustees in trust for his wife for life, and after her notice of motion for decree. decease to sell and divide the proceeds among his
It appeared that the settled account included certain children.
items which could not be supported, e. g., agreed sums The testator died in 1828, leaving six children, of for costs of which no bill had been delivered, and ten whom the plaintiffs Michael and Samuel Brookes were guineas to the trustees for their trouble.
Cole, Q.C., and T. H. Terrell, for the plaintiffs, The testator's wife died in 1856. The two trustees stated the plaintiffs' case against the different defenwere then both dead, and the language of the trust for dants, and as regarded Marshall, contended that they sale in the will did not, it was considered, enable the
were entitled to relief against him under the prayer for devisce of the surviving trustee to make a good title.
general relief, Under these circumstances, Mr. Marshall, a solicitor
1 Daniell, Ch. Pr. 265--269. thom the testator's children consulted, advised them trustees appointed by the Court of
THE MASTER OF THE ROLLs said, that subject to Chancery: and ultimately a petition was presented, what might be said on the other side, he should treat and the Court appointed John Boucher and Robert H. the account of the 2nd of July as a settled account, but Wood as trustees.
give the plaintiffs leave to surcharge and falsify, and Boncher and Wood became trustees at Marshall's he should also direct an inquiry whether any and what request; and he admitted in his answer that he under- part of the trust funds came into the hands of the took to indemnify them against any loss in con- defendant Marshall, and if so, when and in what chasequence.
racter, and in what way he disposed of the same. The sales were all completed before July, 1858. On the 2nd of that month an account of the trustees'
Baggallay, Q.C., and Surrage, for the executrix of
Boucher. receipts and payments was submitted to the cestuis que trustent, who signed their approval thereof. On the
Selwyn, Q.C., and Ince, for the executrix of Wood. 7th of that month the cestuis que trustent executed a release, and the amounts which according to the T. A. Roberts, for Marshall, besides arguing that on
to have new