the merits the plaintiffs were not entitled to any relief against him, relied upon the absence of any prayer for specific relief. A bill against a solicitor or other agent was demurrable, if it did not pray costs, power of appointment by deed or will over the estates of which these hereditaments formed part, had, by different deeds executed in 1845, and by her will, 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, and Marshall was therefore not properly a party, except as the creditors' assignee of Samuel Boucher. The prayer for general relief must be read in connexion with the preceding prayers for specific relief. The Master of the ROLLS said he should make a decree in the terms mentioned above against the representatives of the two trustees, and, after giving his reasons for so doing, continued, with reference to Marshall, that he did not understand the argument that he was not properly a party. That defendant admitted that he had agreed to indemnify the trustees, who were therefore entitled to have him made a party. He had also been practically the solicitor of the trustees as well as of the cestuis que trustent, being the person who induced the former to become trustees; and it appeared that he had a sum of 237. in his hands which he had not accounted for. It was objected that no specific relief had been prayed against him, and he agreed that that would have been the more proper course. However, if necessary, he should have given leave to amend for that purpose; and in the present case, considering that the case against the defendant Marshall was fully stated in the bill, and that that defendant had met it in his answers, and had gone into evidence, he thought he might make a decree against him upon the present pleadings. His Honour then made a decree in the terms he had previously suggested, reserving the costs. son. other sums, amounting altogether to 13,500l., in favour of some of her children and grandchildren, to be raised at certain specified times; also with a life annuity of 1007. to a daughter, and a life annuity of 50%, to a These sums and annuities were made a primary charge upon certain hereditaments not taken by the Secretary of State, and which were, by the will, appointed to trustees for a term of 2000 years. The rest of the estates (including the hereditaments taken by the Secretary of State) were, by the will, appointed to the same trustees for 2,500 years as an auxiliary fund for the payment of these charges. Subject to these two terms the estates were, by the will, limited to P. A. Morshead for life, with remainder to his sons successively in tail male, with remainders over. Mrs. Morshead's will contained a power to the same trustees to sell the fee, and also a power to give receipts; but these powers were not set out in the petition, and a suggestion that the petition should be amended for the purpose of setting them out was subsequently dropped. the two terms, one of whom was the tenant for life, The petition, which was presented by the trustees of and by the first tenant in tail, an infant, prayed that the whole fund might be paid out to the trustees upon the trusts of Mrs. Morshead's will. No one had been served with the petition. The 21st section of the Defence Act, 1860 (23 & 24 Vict. c. 112), enacts that "where any compensation 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 such compensation with such additional sum (which shall be deemed part of such compensation) being so paid, the Secretary of State shall be discharged from all liability in respect thereof, and the Court of Chancery may allot to any tenant for life or for any partial or qualified estate, in respect of any expenses of investment incurred by him, any portion of any compensation which the Court may deem just." other The 26th section of the Defence Act, 1842 (5&6 Vict. c. 94), empowered the Court of Exchequer to make such orders for paying out any money paid into the thereof as should be principal in the funds or of bank under that Act, or for placing out such part government or real securities, and for paying the dividends or interest thereof to the persons respec tively entitled to receive the same, or for laying out the principal in the purchase of other hereditaments to be settled to the same uses, &c., as the lands taken stood settled to, "or otherwise concerning the disposi tion of the said money, or any part thereof, and the interest of the same, or any part thereof, for the benefit of the person and persons entitled to and interested in the same respectively, or for appointing any person or persons to be a trustee or trustees for all or any of such purposes, as the said Court should think just or reasonable." By the 22 & 23 Vict. c. 21, sect. 8, compensation moneys under the Defence Act, 1842, were directed to be paid into the Court of Chancery, which was empowered to exercise the like powers in relation to such moneys as had been before given to the Court of Exchequer. By the Defence Act, 1860, s. 20, compensation payable under that Act was subjected to the provisions of the Defence Act, 1842. Selwyn, Q.C., and Rowcliffe, in support of the petition, submitted, 1st. That the 21st section of the Defence Act, 1860, made it unnecessary to serve the Secretary of State with the petition. This view of the Act had been acted upon in the Chambers of Vice-Chancellors Wood and Stuart. [THE MASTER OF THE ROLLS concurred in this view.] 2nd. That the 26th section of the Defence Act, 1842, enabled the Court to appoint the trustees of the will trustees for the purpose of holding and applying these funds. The expense of distributing the fund in Court or in Chambers among the persons entitled, would be very considerable. Mrs. Morshead's will contained powers to the trustees to sell and to give receipts. They were, therefore, entitled to the confidence of the Court. Similar orders to that now asked for, had been made in Chambers. THE MASTER OF THE ROLLS doubted whether he could make the order, at least not without hearing the mortgagee; but he would allow the matter to be mentioned again on Tuesday. 15 DEC. 1863. Arbitration-Misconduct of Arbitrator-Bill of Costs not seen by the other side-Employment of Accountant-Uncertainty. An award was objected to on the following grounds:(1). The arbitrator had allowed certain bills of costs These bills were only sent to him after the last meeting in the accounts of one of the parties with a trust estate. on the reference, and the other party never saw them before the award was made. (2). The submission to arbitration authorised the arbitrator to employ an accountant not objected to by any of the parties. He employed an accountant, but without naming him to the parties. (3). The award found that sums were due from certain persons to the trust estate, and directed them to be paid or accounted for by them to the trust estate, but without specifying how this was to be done : Held, that each of the three objections was fatal to the award, and that the first rendered it inexpedient to refer the award back to the arbitrator. This was a motion to set aside an award. By an agreement dated the 14th of April, 1863, and made between Richard Thomas Tidswell (1), Mr. and Mrs. Royle (2), Mr. and Mrs. Barratt (3), and Benjamin Kay Tidswell (4), after reciting that Benjamin K. Tidswell and Richard T. Tidswell, together with their brother Henry Earnshaw Tidswell, were executors under the will of Benjamin Tidswell, deceased, and that divers disputes had arisen between the parties thereto of the first, second, and third parts, and Benjamin K. Tidswell, and that Richard T. Tidswell had filed a bill against Benjamin K. Tidswell and others, for carrying into effect the trusts of Benjamin Tidswell's will, and taking the accounts of his estate, and otherwise as Selwyn, 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. Tidsthe other Judges. 18 DEC. 1863. THE MASTER OF THE ROLLS said, that he had made inquiries, but could not learn that the case had been brought before any other branch of the Court. He had, however, looked into the Acts as carefully as he could, and he thought he might make the order. Selwyn, Q.C., said, that since the matter was last mentioned, the petitioners had discovered a case in which Vice-Chancellor Wood had made a similar order in Court, Re Sadler's Will, 27 June, 1863. well, should be referred to the award of W. Slater. The agreement empowered the arbitrator, if he thought it necessary, to appoint some person, not objected to by any of the parties thereto, an accountant to assist him. Mr. Slater made his award on the 13th of June, 1863. Among other things, he awarded that certain costs, charges, and expenses of Benjamin K. Tidswell, amounting to the respective sums of 701. 1s. 6d., 851. 6s. 11d., 1067. 12s. 4d., 2047. 17s. Od., and 731. 7s. 10d., and included in his accounts of the trust estate, should be allowed to him. He also awarded that the sum of 4467. 10s. 4d. was due from Benjamin 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 order as prayed. language with reference to a sum of 65l. 11s. 3d. found due from Richard T. Tidswell, and to a sum of 1521. 6s. 5d. found due from Mr. and Mrs. Royle. He also awarded that there was now due to Mrs. Barratt from the trust estate the sum of 4307. 3s. 10d., which sum he directed to be paid to her, or to the parties entitled to receive the same as her trustees or representatives, from and out of the payments thereinbefore directed to be made by Benjamin K. Tidswell, Richard T. Tidswell, and Mr. Royle. And he awarded that the balance of trust money, so to be received by or accounted for to the trust estate, should be divided as received in equal shares among, and paid or accounted for to, the five legatees (meaning, apparently, the three brothers, Mrs. Royle, and Mrs. Barratt). It appeared that two of Benjamin K. Tidswell's bills of costs (those for 2047. 17s. and 731. 7s. 10d.) were only sent in to the arbitrator by Benjamin K. Tidswell's solicitor on the 2nd of June-the last sitting on the reference having been held on the 22nd of Mayand that they were never shown to the other parties or their solicitors until after the award had been made. It also appeared that, after the 22nd of May, the arbitrator called in an accountant to assist him in calculating the interest; but he did not previously inform the parties to the arbitration what particular person he intended to employ. Southgate, Q.C., and T. A. Roberts, for Richard T. Tidswell, in support of the motion, contended that the award ought to be set aside, on the grounds, 1st. Of improper conduct on the part of the arbitrator. He had adjudicated upon the bills of costs without hearing both sides, and had employed an accountant without giving the parties an opportunity of objecting to him, Dobson v. Groves, 6 Q. B. 637; Re Plews and Middleton, 6 Q. B. 845; Walker v. Frobisher, 6 Ves. 70; Eastern Counties Railway Company v. Eastern Union Railway Company (L. J.), 2 N. R. 588; Re Haigh, 3 De G. F. & J. 157, 167; Harvey v. Skelton, 7 Beav. 455. 2nd. Of uncertainty and want of finality. The direction, in general terms, for the division of the balance of the trust estate could never be carried out, except in a suit. The award repeatedly directed sums to be paid or accounted for to the trust estate without saying to whom the payments were to be made, or who was to determine whether they were to be paid or accounted for. In Stonchewer v. Farrar, 6 Q.B. 730, 744, Wightman, J., with reference to an award directing the defendants to take "all proper and reasonable precautions," said that an award ought to be so express that there should be no difficulty or doubt as to the performance. [Jolliffe said that he was instructed to support the motion on the part of some of the other parties to the award. The MASTER OF THE ROLLS declined to hear him.] Selwyn, Q.C., and C. Hall, for Benjamin K. Tidswell, argued in support of the award. They also suggested that the Court might, under the 8th section of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125) remit the matters referred to the reconsideration of the arbitrator. THE MASTER OF THE ROLLS said, that, in his opinion, the award was defective upon all the three grounds assigned. The first objection was a very serious one. The arbitrator at the time when he received the bills of costs knew that Richard T. Tidswell had not seen them, and yet, instead of giving him an opportunity of examining them, he at once made his award allowing them. It was quite settled by several cases, that, if the arbitrator took any evidence whatever, however slight or trivial, in the absence of either party, that vitiated the award In re Plews and Middleton (loc. cit.), each of the two arbitrators examined a witness separately in the absence of the parties to the reference, and finding that their conclusions agreed, they made their award accordingly. It was admitted that the arbitrators had acted with perfect bona fides, and yet the award was set aside. The present was a much stronger case, as the arbitrator had allowed accounts not seen by the other side. There was no difficulty in determining the principle upon which accounts were to be taken without seeing the accounts, but to determine whether the items were proper to be charged or not was a very different matter. For that purpose it was essential that the parties should see the accounts. The employment of the accountant was a trifling matter, but considering the rules which the Cont always enforced as regarded arbitrators, he was obligel to hold it a fatal objection to the award. The submission authorised the arbitrator to employ an accountant not objected to by any of the parties. The arbitrator had employed an accountant, but the parties had never heard who he was, and had, therefore, had no opportunity of objecting. If that had been the only objection, he should have been disposed to send the case back to the same arbitrator, but the other objection made this inexpedient, for, however honest an arbitrator migł: be, it was impossible that he should not have SOLA secret desire that the reference back should prov: useless. He was also of opinion that the award was void fer uncertainty. It found that certain sums were de from certain persons, and it merely directed thos sums to be paid or accounted for by them to the trust estate; whereas it ought to have said to whom they were to be paid, and in what proportions. How could such a direction be enforced, supposing the party, who was directed to pay or account, were to allege that be had incurred expenses on account of the trust estate. He quite concurred in the observations of Mr. Justice Bond in Restraint of Trade-Consideration- 25 & 26 Vict. c. 42. The assignees of a bankrupt having carried on his business for some time, were about to discontinue it and sell the stock. The plaintiff agreed to buy the stock, and ntinue the business in partnership with a son of the ankrupt, provided the bankrupt would give a bond not carry on the business within certain limits:— Held, that this was a good consideration for the bond. In a case where, but for Roll's Act (25 & 26 Vict. c. 2), the Court would have retained the bill with liberty bring an action : ·-- Held, that, as directing an issue would not, under ve circumstances, be a convenient mode of trying the Mestion, the Court could only dismiss that part of the ¡ll which involved such question, without costs and ithout prejudice to any action. The defendant Thomas Edge the elder had for many ears previously to December, 1860, carried on the usiness or businesses of gas-meter making, gasagineering, and gas-fitting on premises occupied by im in Great Peter Street, Westminster. According to the evidence of the defendant and his itnesses, which was not contradicted, the three busiEsses of a gas-engineer, a gas-meter maker, and a gaster are distinct from and have no necessary connecon with each other, and each requires workmen skilled the particular business. The business of a gasgineer is to prepare the plans for erecting works for manufacture of gas, the retorts, gasometers, puri, and other apparatus for the works, and to ascerin the levels for and the sizes of the various mains, Snections, &c. The business of a gas-meter maker to design and make an apparatus to measure the antity of gas consumed in separate houses or buildngs, and also governors and pressure registers. The usiness of a gas-fitter consists in fitting pipes to coney gas to the places where it is required to be used a private houses or buildings, and to supply burners, Pliers, glass shades, and chimneys, &c. In December, 1860, Thomas Edge the elder became ankrupt, but his assignees continued the business, which was a profitable one, for two years. The plaintiff purchased the stock in trade from the assignees, by private contract, on the 9th of January. catalogue previously prepared by the assignees with a view to a public sale, described it as the stock in trade of "T. Edge, gas-engineer and gas-meter maker;" " but included a great many gaseliers and illumination devices and other stock only useful for the special business of gas-fitting. The plaintiff made it a condition of his entering into partnership with the son, that the father should give the bond following. This bond, which was in a penalty of 5000l., and was executed by the father on had, at the request of the son, with a view to the the 15th of January, 1863, recited that the plaintiff the assignees the stock in trade, plant, and tools of partnership thereinafter mentioned, purchased from the father, and that the plaintiff and the son had agreed to become partners in henceforth carrying on "the trade of a gas-meter maker and gas-engineer and matters connected therewith," subject and on condition that the father would give his bond to the partners, "that he would not set up or exercise the trade or business of a gas-meter maker and gas-engineer within twenty miles from Great St. Peter Street aforesaid," which the father had agreed to do; and the condition of the bond was, that if the father should faithfully perform his said agreement, and should not, within ten years from the date of the bond, carry on "the trade or business of a gas-meter manufacturer and gas-engineer or matters connected therewith " within twenty miles from Great Peter Street, unless employed by the partnership firm for the benefit of the partnership business, and should not do anything to the prejudice of the said trade or business of a gasmeter manufacturer, and gas-engineer, and matters connected therewith, as thereafter carried on and conducted by the son and the plaintiff, their executors, administrators and assigns; but, on the contrary, should, to the utmost of his power, endeavour to promote the interests of the son and the plaintiff among the customers of him (the father) and otherwise; then the bond should be void. The plaintiff and the son on the same day gave th father the following letter: "If you will sign the bond for 5000l. penalty not 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 manage1 of Thomas Edge the elder, proposed to the plain-ment of the business we intend to carry on in partnerff. 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." siness, 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 contended that it was given subsequently to and independently of the bond. The stock in trade was removed to some premises in Regent Street, Westminster, and the plaintiff and the son began to carry on business there under the firm of Edge & Co., the father being employed to assist in the business at a salary of 21. a week, which was the amount verbally agreed upon. The son lived in the same house with the father, and had from the time of the bankruptcy contributed mainly to the support of him and his family. At the time of the illuminations for the Prince of Wales's marriage, the father obtained orders for illumination-devices from former customers, and had these orders executed at the Regent Street works by the workmen in the employ of the partnership. He afterwards contended that these orders had been given to him on his own account, and endeavoured to obtain payment from the customers. He also insisted generally that, notwithstanding the bond, he was at liberty to carry on business as a gas-fitter. The bill asked for an injunction against the father in the terms of the bond, including in particular the business of gas-fitting. It also prayed for an injunction to restrain him from receiving moneys belonging to the copartnership, and an account of all moneys so received by him. It also prayed that, if necessary, the son, who was also made a defendant, might be directed to join the plaintiff in any proceedings on the bond. The father's case was, that the plaintiff and the son did not at first intend to carry on the gas-fitting business, and that, knowing this, he (the father) had executed the bond, in the belief that it did not extend to the gas-fitting business, which he had all along intended to carry on. Selwyn, Q.C. (Roxburgh with him), for the elder defendant, contended, 1st. That the bond did not extend to gas-fitting. 2nd. That the defendant, being at liberty to get orders for gas-fitting, had obtained these orders on his own account, and merely employed the partnership firm to carry them out, and that therefore he was entitled to receive the money from the customers. 3rd. That there was no consideration for the bond. In the partnership articles the term was left in blank, so that it was only a partnership at will. The agree ment for employing the defendant was void for uncertainty, or at any rate could not be specifically performed, Sichel v. Mosenthal, 30 Beav. 371; Hobhouse, Q.C., replied only on the question whether the bond extended to gas-fitting. 17 DEC. 1863. THE MASTER OF THE ROLLS, after deciding that the partnership was entitled to all moneys received or owing from customers on account of orders executed on the partnership premises, but that the defendant was, ou the other hand, entitled to an account of what was due to him as remuneration for his services, proceeded to consider the validity and the construction of the bond. He was of opinion that the bond was valid. For the purpose of considering that point, he must treat the bond as expressly including the business of gas-fitting. It had been said that the defendant had not received any consideration, and that there was therefore simply a bend under a penalty of 50007., upon which the plaintif 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, 1st. That the plaintiff was entitled to the injunction and account with reference to moneys owing to the co-partnership for gas-fitting work done on orders obtained by the elder defendant. 2nd. That the purchase of the stock and the entering into partnership with the son were a sufficient consideration for the bond. But for the plaintiff's coming forward, the business would have been broken up, and the Edge family ruined. 3rd. That the plaintiff was entitled to an injunction to restrain the violation of the bond, and had not merely a right of action for liquidated damages, Sainter v. Ferguson, 1 Mac. & G. 286; Barret v. Blagrave, 5 Ves. 555; assignees had carried on the business for a time, and were about to discontinue it and sell the stock. The plaintiff and the defendant's son proposed to buy the stock and carry on the business, and become partners for this purpose. The defendant's son, however, hai no capital, and the plaintiff refused to advance the amount required, unless the defendant would do every thing he could to prevent the proposed partnership fro being injured by competition. Under those circun stances the defendant executed the deed, which recite l that the plaintiff, at the son's request, had purchased the stock in trade, and that the plaintiff and the wor had agreed to become partners, subject and on condition that the defendant should give a bond not to carry on the business, within twenty miles. It was, therefore, on the faith of that transaction that the plainti Sloman v. Walker, 1 Bro. C. C. 418; 2 Tudor, advanced his money and engaged in a new trade; an L. C. Eq. 785; Fry on Specific Performance, 27. upon the principle which had been so frequently acti 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 hal |