« AnteriorContinuar »
the merits the plaintiffs were not entitled to any relief power of appointment by deed or will over the estates against him, relied upon the absence of any prayer for of which these hereditaments formed part, had, by specific relief. A bill against a solicitor or other agent different deeds executed in 1845, and by her will
, was demurrable, if it did not pray costs,
dated in 1846, charged these estates with a sum of Le Texier v. Margravine of Anspach, 15 Ves. 60001. and interest, payable to a mortgagee, and with 159, 164,
other sums, amounting altogether to 13,5001., in favour and Marshall was therefore not properly a party, of some of her children and grandchildren, to be raised except as the creditors' assignee of Samuel Boucher. at certain specified times; also with a life annuity
The prayer for general relief must be read in con- of 1001. to a daughter, and a life annuity of 501 to a nexion with the preceding prayers for specific relief. son. These sums and annuities were made a primary
charge upon certain hereditaments not taken by the THE MASTER OF THE Rolls said he should make a
Secretary of State, and which were, by the will
, ap. decree in the terms mentioned above against the repre- pointed to trustees for a term of 2000 years. The sentatives of the two trustees, and, after giving his rest of the estates (including the hereditaments taken reasons for so doing, continued, with reference to Mar- by the Secretary of State) were, by the will, appointed shall, that he did not understand the argument that he to the same trustees for 2,500 years as an auxiliary was not properly a party. That defendant admitted fund for the payment of these charges
. Subject to that he had agreed to indemnify the trustees, who were these two terms the estates were, by the will
, limited therefore entitled to have him made a party. He had to P. A. Morshead for life, with remainder to his sons also been practically the solicitor of the trustees as successively in tail male, with remainders over. well as of the cestuis que trustent, being the person who induced the former to become trustees ; and it ap- trustees to sell the fee, and also a power to give re
Mrs. Morshead's will contained a power to the same peared that he had a sum of 231. in his hands which ceipts ; but these powers were not set out in the he had not accounted for. It was objected that no petition, and a suggestion that the petition should be specific relief had been prayed against him, and he amended for the purpose of setting them out was subagreed that that would have been the more proper sequently dropped. course. However, if necessary, he should have given leave to amend for that purpose ; and in the present the two terms, one of whom was the tenant for life
The petition, which was presented by the trustees of case, considering that the case against the defendant and by the first tenant in tail, an infant, prayed that Marshall was fully stated in the bill, and that that the whole fund might be paid out to the trustees upoz defendant had met it in his answers, and had gone into the trusts of Mrs. Morshead's will. evidence, he thought he might make a decree against
No one had been served with the petition. him upon the present pleadings. His Honour then made
The 21st section of the Defence Act, 1860 (23 & 24 a decree in the terms he had previously suggested, Vict. c. 112), enacts that “where any compensation reserving the costs.
is required to be paid into the bank under this Act
, there shall be added thereto the sum of 301. for the }
expenses consequent upon such payment, and upon 12, 15, 17 DEC. 1863.
such compensation with such additional sum (which Practice—Compensation paid into Court-De- shall be deemed part of such compensation) being so
paid, the Secretary of State shall be discharged from fence Acts, 1842, 1860 — Payment out to all liability in respect thereof, and the Court of Chana Trustees-Service.
cery may allot to any tenant for life or for any other Where compensation moneys have been paid into Court partial or qualified estate, in respect of any expenses under the Defence Act, 1860, and the distribution thereof compensation which the Court may deem just."
of investment incurred by him, any portion of app by the Court is likely to prove expensive, the Court will, under the Defence Act
The 26th section of the Defence Act, 1842 (5&6 trustes to apply it according to the directions of that such orders for paying out any money paid into the The Secretary of State need not be served with a peti- thereof as should be principal in the funds of ou
bank under that Act, or for placing out such part, tion for the payment out of Court of moneys paid in
government or real securities, and for paying the under the Defence Act, 1860.
dividends or interest thereof to the persons respet
: This was a petition relating to a sum of 25,0001., tively entitled to receive the same, or for laying out which, with interest and 301. for costs, had been paid the principal in the purchase of other hereditaments to into Court by the Secretary of State for War as the be settled to the same uses
, &c., as the lands taken price of certain freehold hereditaments in Devonshire stood settled to, " or otherwise concerning the dispestwhich had been taken by him under the powers of the tion of the said money, or any part thereof
, and the Defence Act, 1860.
interest of the same, or any part thereof, for the Mrs. Elizabeth A. Morshead, who had a general benefit of the person and persons entitled to and
Re MORSHEAD'S WILL.
interested in the same respectively, or for appointing
Master of the Rolls. any person or persons to be a trustee or trustees for
} Re TIDSWELL. all or any of such purposes, as the said Court should
17 DEC. 1863. think just or reasonable.”
Arbitration-Misconduct of Arbitrator-Bill of By the 22 & 23 Vict. c. 21, sect. 8, compensation
Costs not seen by the other side-Employment moneys under the Defence Act, 1842, were directed to be paid into the Court of Chancery, which was em.
of Accountant—Uncertainty. powered to exercise the like powers in relation to such
An award was objected to on the following grounds: moneys as had been before given to the Court of
(1). The arbitrator had allowed certain bills of costs Exchequer.
in the accounts of one of the parties with a trust estate. By the Defence Act, 1860, s. 20, compensation These bills were only sent to him after the last meeting payable under that Act was subjected to the provisions
on the reference, and the other party never saw them of the Defence Act, 1842.
before the award was made. Selwyn, Q.C., and Rowcliffe, in support of the peti
(2). The submission to arbitration authorised the tion, submitted,
arbitrator to employ an accountant not objected to by any Ist. That the 21st section of the Defence Act, 1860, of the parties. He employed an accountant, but without made it unnecessary to serve the Secretary of State naming him to the parties. with the petition. This view of the Act had been
(3). The award found that sums were due from acted upon in the Chambers of Vice-Chancellors certain persons to the trust estate, and directed them to be Wood and Stuart.
paid or accounted for by them to the trust estate, but
without specifying how this was to be done :[TAE MASTER OF THE ROLLS concurred in this view.]
Held, that each of the three objections was fatal to 2nd. That the 26th section of the Defence Act, 1842, the award, and that the first rendered it inexpedient to enabled the Court to appoint the trustees of the will refer the award back to the arbitrator. trustees for the purpose of holding and applying these
This was a motion to set aside an award. funds. The expense of distributing the fund in Court
By an agreement dated the 14th of April, 1863, and or in Chambers anjong the persons entitled, would be made between Richard Thomas Tidswell (1), Mr. and Fery considerable. Mrs. Morshead's will contained Mrs. Royle (2), Mr. and Mrs. Barratt (3), and powers to the trustees to sell and to give receipts. Benjamin Kay Tidswell (4), after reciting that BenjaThey were, therefore, entitled to the confidence of the min K. Tidswell and Richard T. Tidswell, together with Court Similar orders to that now asked for, had their brother Henry Earnshaw Tidswell, were executors been made in Chambers.
under the will of Benjamin Tidswell, deceased, and that The MASTER OF THE ROLLS doubted whether he divers disputes had arisen between the parties thereto could make the order, at least not without hearing the of the first
, second, and third parts, and Benjamin K. mortgagee ; but he would allow the matter to be Tidswell, and that Richard T. Tidswell had filed a bill mentioned again on Tuesday.
against Benjamin K. Tidswell and others, for carrying
into effect the trusts of Benjamin Tidswell's will, and 15 Dec. 1863.
taking the accounts of his estate, and otherwise as Seleyn, Q.C., produced four similar orders made in therein prayed, it was agreed between the parties his Honour's Chambers.
thereto that the said suit and all other disputes
between the parties thereto of the first, second, and The MASTER OF THE Rolls said he would consult third parts, or any of them, and Benjamin K. Tids
well, should be referred to the award of W. Slater.
The agreement empowered the arbitrator, if he thought 18 Dec. 1863.
it necessary, to appoint some person, not objected to by THE MASTER OF THE ROLLS said, that he had made inquiries, but could not learn that the case had any of the partics thereto, an accountant to assist him.
Mr. Slater made his award on the 13th of June, bæn brought before any other branch of the Court.
1863. Among other things, he awarded that certain He had, however, looked into the Acts as carefully as
costs, charges, and expenses of Benjamin K. Tidswell, he could, and he thought he might make the order.
amounting to the respective sums of 701. ' ls. 6d., Selwyn, Q:0.; said, that since the matter was last 851. 6s. 11d., 1061. 128. 4d., 2041. 178. Od., and mentioned, the petitioners had discovered a case in 731. 78. 10d., and included in his accounts of the trust which Vice-Chancellor Wood had made a similar order estate, should be allowed to him. He also awarded
that the sum of 4461. 10s. 4d. was due from Benjamin Re Sadler's Will, 27 June, 1863.
K. Tidswell to the trust estate, and directed that this
sum should be paid or accounted for by him, and THE MASTER OF THE ROLLS thereupon made the brought into the trust estate. He used the same
language with reference to a sum of 651. 11s. 3d. found
the other Judges.
order as prayed.
due from Richard T. Tidswell, and to a
The MASTER OF THE ROLLs declined to hear him.) 1521. 6s, 5d. found due from Mr. and Mrs. Royle. He
Selwyn, Q.C., and C. Hall, for Benjamin K. Tidsalso awarded that there was now due to Mrs. Barratt well, argued in support of the award. from the trust estate the sum of 4301. 3s. 10d., which
They also suggested that the Court might, under sum he directed to be paid to her, or to the parties the 8th section of the Common Law Procedure Act, entitled to receive the same as her trustees or repre- 1854 (17 & 18 Vict. c. 125) remit the matters referred sentatives, from and out of the payments thereinbefore
to the reconsideration of the arbitrator. directed to be made by Benjamin K. Tidswell, Richard T. Tidswell, and Mr. Royle. And he awarded THE MASTER OF THE ROLLS said, that, in his that the balance of trust money, so to be received by opinion, the award was defective upon all the three or accounted for to the trust estate, should be divided grounds assigned. The first ohjection was a very as received in equal shares among, and paid or serious one. The arbitrator at the time when he accounted for to, the five legatees (meaning, apparently, received the bills of costs knew that Richard T. the three brothers, Mrs. Royle, and Mrs. Barratt). Tidswell had not seen them, and yet, instead of
It appeared that two of Benjamin K. Tidswell's bills giving him an opportunity of examining them, he at of costs (those for 2041. 178. and 731. 78. 10d.) were once made his award allowing them. It was quite only sent in to the arbitrator by Benjamin K. Tids- settled by several cases, that, if the arbitrator took well's solicitor on the 2nd of June—the last sitting on any evidence whatever, however slight or trivial, in the reference having been held on the 22nd of May- the absence of either party, that vitiated the awan! and that they were never shown to the other parties or in re Plews and Middleton (loc. cit.), each of the their solicitors until after the award had been made. two arbitrators examined a witness separately in the
It also appeared that, after the 22nd of May, the absence of the parties to the reference, and finding arbitrator called in an accountant to assist him in that their conclusions agreed, they made their awal calculating the interest ; but he did not previously accordingly. It was admitted that the arbitrators inform the parties to the arbitration what particular had acted with perfect bona fides, and yet the avant person he intended to employ.
was set aside. The present was a much stronger Southgats, Q.C., and T. A. Roberts, for Richard T. case, as the arbitrator had allowed accounts not
seen by the other side. There was no difficulty in Tidswell, in support of the motion, contended that the award ought to be set aside, on the grounds,
determining the principle upon which accounts were
to be taken without seeing the accounts, but to 1st. Of improper conduct on the part of the arbi
determine whether the items were proper to be trator. He had adjudicated upon the bills of costs charged or not was a very different matter. For that without hearing both sides, and had employed an accountant without giving the parties an opportunity purpose it was essential that the parties should ses
the accounts. of objecting to him,
The employment of the accountant was a triffing Dobson v. Groves, 6 Q. B. 637;
matter, but considering the rules which the Court Re Plews and Middleton, 6 Q. B. 815;
always enforced as regarded arbitrators, he was obligel JValker v. Frobisher, 6 Ves. 70;
to hold it a fatal objection to the award. The submisEastern Counties Railway Company v. Eastern sion authorised the arbitrator to employ an accountant :
Union Railway Company (L. J.), 2 N. R. 588 ; not objected to by any of the parties. The arbitrator Re Haigh, 3 De G. F. & J. 157, 167;
had employed an accountant, but the parties had never Harvey v. Skelton, 7 Beav. 455.
heard who he was, and had, therefore, had no opportunity 2nd. Of uncertainty and want of finality. The direc- of objecting. If that had been the only objection, he tion, in general terms, for the division of the balance should have been disposed to send the case back tə of the trust estate could never be carried out, except the same arbitrator, but the other objection made tic's in a suit. The award repeatedly directed sums to be paid or accounted for to the trust estate without saying be, it was impossible that he should not have some
inexpedient, for, however honest an arbitrator might to whom the payments were to be made, or who was
secret desire that the reference back should prove to determine whether they were to be paid or
useless. for. In
He was also of opinion that the award was voil fer Stonchewer v. Farrar, 6 Q.B. 730, 744, Wightman, J., with reference to an award directing from certain persons, and it merely directed those
uncertainty. It found that certain sums were dns the defendants to take “all proper and reasonable pre- sums to be paid or accounted for by them to the trust cautions,” said that an award ought to be so express that there should be no difficulty or doubt as to the estate ; whereas it ought to have said to whom they
were to be paid, and in what proportions. How could performance.
such a direction be enforced, supposing the party, tha [Jolliffe said that he was instructed to support the was directed to pay or account, were to allege that be motion on the part of some of the other parties to the had incurred expenses on account of the trust estate award.
He quite concurred in the observations of Mr. Justke
sltman, in Blmelewer v. Farrar. Apparently the partnership with himself for the purpose of carrying Certainty was less in that case than in the present on the same.
Some draft articles of partnership were prepared,
dated the 7th of January, 1863, but they were not Hinute. — Award set aside.
signed, and the number of years for which the part
nership was to continue was left in blank. These Master of the Rolls. } CLARKSON V. EDGE.
articles only spoke of “the business of a gas-meter 15, 16, 17, 18 DEC. 1863.
The plaintiff purchased the stock in trade from the Bond in Restraint of Trade—ConsiderationPartnership formed with Son of Obligee- A catalogue previously prepared by the assignees with
assignees, by private contract, on the 9th of January. 25 & 26 Vict. c. 42.
a view to a public sale, described it as the stock
in trade of “T. Edge, gas-engineer and gas-meter The assisces of a bankrupt having carried on his maker;" but included a great many gaseliers and E business for some time, were about to discontinue it and illumination devices and other stock only useful for xll the stock. The plaintiff agreed to buy the stock, and
the special business of gas-fitting. meinue the business in partnership with a son of the
The plaintiff it a condition of his entering into aiz krupt, provided the bankrupt would give a bond not
partnership with the son, that the father should give carry on the business within certain limits :
the bond following. This bond, which was in a Held, that this was a good consideration for the bond.
penalty of 50001., and was executed by the father on er a case where, but for Roll's Act (25 d: 26 Vict. c. 2:, the Court would have retained the bill with liberty had, at the request of the son, with a view to the
the 15th of January, 1863, recited that the plaintiff Bring an action :
partnership thereinafter mentioned, purchased from Held, that, as directing an issue would not, under the assignees the stock in trade, plant, and tools of
circumstances, be a convenient mode of trying the the father, and that the plaintiff and the son had Bestim, the Court could only dismiss that part of the 21 which involved. such question, without costs and agreed to become partners in henceforth carrying on
“the trade of a gas-meter maker and gas-engineer bithout prejudice to any action.
and matters connected therewith,” subject and on The defendant Thomas Edge the elder had for many condition that the father would give his bond to the
ears previously to December, 1860, carried on the partners, "that he would not set up or exercise the * - usiness or businesses of gas-meter making, gas- trade or business of a gas-meter maker and gas-engi
ngineering, and gas-fitting on premises occupied by neer within twenty miles from Great St. Peter Street im in Great Peter Street, Westminster.
aforesaid," which the father had agreed to do; and the According to the evidence of the defendant and his condition of the bond was, that if the father should itnesses, which was not contradicted, the three busi- faithfully perform his said agreement, and should not,
of a gas-engineer, a gas-meter maker, and a gas- within ten years from the date of the bond, carry on her a
are distinct from and have no necessary connec- “the trade or business of a gas-meter manufacturer on with each other, and each requires workmen skilled and gas-engineer or matters connected therewith " the particular business. The business of a gas- within twenty miles from Great Peter Street, unless igineer is to prepare the plans for erecting works for employed by the partnership firm for the benefit of
inanufacture of gas, the retorts, gasometers, puri- the partnership business, and should not do anything en, and other apparatus for the works, and to ascer- to the prejudice of the said trade or business of a gastin the levels for and the sizes of the various mains, meter manufacturer, and gas-engineer, and matters Anections, &c. The business of a gas-meter maker connected therewith, as thereafter carried on and conI to design and make an apparatus to measure the ducted by the son and the plaintiff, their executors, Bantity of gas consumed in separate houses or build- administrators and assigns; but, on the contrary, ngs, and also governors and pressure registers. The should, to the utmost of his power, endeavour to prousiness of a gas-fitter consists in fitting pipes to con- mote the interests of the son and the plaintiff among ey gas to the places where it is required to be used the customers of him (the father) and otherwise ; then Bprivate houses or buildings, and to supply burners, the bond should be void. raseliers, glass shades, and chimneys, &c.
The plaintiff and the son on the same day gave th In December, 1860, Thomas Edge the elder became father the following letter : bankrupt, but his assignees continued the business,
will sign the bond for 50001. penalty not which was a profitable one, for two years.
to carry on the business of a gas-meter maker, we In January, 1863, Thomas Edge the younger, the undertake to employ you in the conduct and manageBxil of Thomas Edge the elder, proposed to the plain- | ment of the business we intend to carry on in partnertiff, Thomas Clarkson, that the latter should advance ship, at a reasonable remuneration to commence from money to purchase the stock in trade, used in the said Monday next.” Lusiness, from the assignees, and should enter into The plaintiff alleged that this letter was given as
part of the consideration of the bond. The father Selwyn, Q.C. (Roxburgh with him), for the elder contended that it was given subsequently to and inde defendant, contended, pendently of the bond.
· 1st. That the bond did not extend to gas-fitting. The stock in trade was removed to some premises in 2nd. That the defendant, being at liberty to get Regent Street, Westminster, and the plaintiff and the orders for gas-fitting, had obtained these orders on son began to carry on business there under the firm of his own account, and merely employed the partnerEdge & Co., the father being employed to assist in the ship firm to carry them out, and that therefore he was business at a salary of 21. a week, which was the entitled to receive the money from the customers. amount verbally agreed upon.
3rd. That there was no consideration for the bond. The son lived in the same house with the father, In the partnership articles the term was left in blank, and had from the time of the bankruptcy contributed so that it was only a partnership at will. The agree. mainly to the support of him and his family.
ment for employing the defendant was void for unAt the time of the illuminations for the Prince of certainty, or at any rate could not be specifically perWales's marriage, the father obtained orders for illu- formed, mination-devices from former customers, and had Sichel v. Mosenthal, 30 Beav. 371 ; these orders executed at the Regent Street works by Rogers v. Challis, 27 Beav. 175; the workmen in the employ of the partnership. He Ogden v. Fossick, 1 N. R. 143. afterwards contended that these orders had been given
Hobhouse, Q.C., replied only on the question to him on his own account, and endeavoured to obtain
whether the bond extended to gas-fitting. payment from the customers. He also insisted generally that, notwithstanding the bond, he was at liberty to carry on business as a gas-fitter.
17 Dec. 1863. The bill asked for an injunction against the father THE MASTER OF THE Rolls, after deciding that the in the terms of the bond, including in particular the partnership was entitled to all moneys received or owing business of gas-fitting. It also prayed for an injunction from customers on account of orders executed on the to restrain him from receiving moneys belonging to partnership premises, but that the defendant was, ou the copartnership, and an account of all moneys so the other hand, entitled to an account of what was due received by him. It also prayed that, if necessary, the to him as remuneration for his services, proceeded to son, who was also made a defendant, might be directed consider the validity and the construction of the bond. to join the plaintiff in any proceedings on the bond. He was of opinion that the bond was valid. For the
The father's case was, that the plaintiff and the son purpose of considering that point, he must treat the band did not at first intend to carry on the gas-fitting as expressly including the business of gas-fitting. It had business, and that, knowing this, he (the father) had been said that the defendant had not received any con executed the bond, in the belief that it did not extend sideration, and that there was therefore simply a bond to the gas-fitting business, which he had all along in- under a penalty of 50001., upon which the plaintiff tended to carry on.
must be left to his remedy at Law; but the answer to
that was, that the consideration, though thin, was Hobhouse, Q.C., and Haddan, for the plaintiff, con- sufficient. The defendant had become bankrupt : his tended,
assignees had carried on the business for a time, and 1st. That the plaintiff was entitled to the injunc. were about to discontinue it and sell the stock. The tion and account with reference to moneys owing to plaintiff and the defendant's son proposed to buy the the co-partnership for gas-fitting work donc on orders stock and carry on the business, and become partners obtained by the elder defendant.
for this purpose. The defendant's son, however, had 2nd. That the purchase of the stock and the enter- no capital, and the plaintiff refused to advance the ing into partnership with the son were a sufficient con- amount required, unless the defendant would do everysideration for the bond. But for the plaintiff's coming thing he could to prevent the proposed partnership front forward, the business would have been broken up, and being injured by competition. Under those circuit the Edge family ruined.
stances the defendant executed the deed, which recited 3rd. That the plaintiff was entitled to an injunction that the plaintiff, at the son's request, had purchased to restrain the violation of the bond, and had not the stock in trade, and that the plaintiff and the son merely a right of action for liquidated damages, had agreed to become partners, subject and on can. Sainter v. Ferguson, 1 Mac. & G. 286 ;
dition that the defendant should give a bond not to carry Butler v. Powis, 2 Coll. 156;
on the business, within twenty miles. It was, thersBarret v. Blagrave, 5 Ves. 555 ;
fore, on the faith of that transaction that the plaintif Sloman v. Walker, 1 Bro. C. C. 418; 2 Tudor, advanced his money and engaged in a new trade ; and L. C. Eq. 785;
upon the principle which had been so frequently acted. Fry on Specific Performance, 27.
upon, the Court would restrain the defendant from 4th. That the bond extended to the gas-fitting breaking his word and violating his engagement. He business.
was of opinion that the bond was valid, and he had