Stuart v. Lord Bute

Aldridge, and to the accumulations (if any) upon the whole orig. inal and accrued shares of Joseph Aldridge: and it was referred, to the Master, to inquire and state what sum would be proper to be allowed, for the maintenance of Joseph Aldridge, from the death of his father to his own death, having regard to the whole of his fortune, with liberty to the Master to state special circumstances and further directions and costs were reserved.(a)

[*460]

*STUART v. LORD BUTE.

Insufficiency.-Defendant.-Answer.-Examination.-Partners.

1842: 18th January.

A defendant, who was required to set forth, in his answer to interrogatories, certain entries in the books of a firm of which he was a member, stated, in his answer, that the books were in the joint custody of himself and his co-partners, and that he had asked their permission to inspect and make extracts from the books, to enable him to comply with the requisitions of the interrogatories, but that they had refused to permit him so to do. Held that the answer was insufficient; as the defendant had not stated that there was any contract, between him and his co-partners, which prevented him from inspecting the books, and making extracts from them, without their permission.

THE Court having decided that the answer and examination put in, by the defendant Lord Wharncliffe, to the 4th, 5th, and 6th interrogatories, was insufficient, (b) his Lordship put in a further answer and examination stating, in effect, that the books and accounts of the partnership were in the joint custody of himself and of Lord Ravensworth and Mr. Bowes, his co-partners; and, that, before putting in his further answer and examination, he had applied, to them, for permission to inspect and make copies of and extracts from the books and accounts of the partnership, in order to enable him to answer and comply with the requisi

(a) The plaintiffs have appealed, to the Lord Chancellor, from the latter part of the above order.

(b) See ante, Vol. XI. p. 445.

Stuart v. Lord Bute.

tions of the interrogatories; but that they had refused and still did refuse to give him such permission.

The Master certified that the further answer and examination was insufficient with respect to the three interrogatories before mentioned whereupon Lord Wharncliffe excepted to the certificate.

Mr. Stuart and Mr. Parry, in support of the exceptions, said that Lord Wharncliffe had shown, by his further answer and examination, that it was wholly out of his power to give the information *which the interrogatories required. [*461] They cited Taylor v. Rundall,(a) and Murray v. Walter.(b)

Mr. Bethell appeared in support of the certificate.

THE VICE-CHANCELLOR:-It appears to me that enough has not been stated, in this case, to show in what respect permission was necessary, or that permission was at all necessary, to enable Lord Wharncliffe to inspect the partnership books. For anything that appears to the contrary on this examination, Lord Wharncliffe might have gone down to Newcastle and inspected the books, if he had thought fit to do so. He does not state that he and his co-partners became partners under such a contract as disabled any one of them, without the express permission of the other two, to inspect the books or make extracts from them. Nothing of the kind is stated.

With respect to what is alleged to have taken place, in the year 1838, with regard to Mr. Nicholas Wood, (c) I cannot comprehend how an order given by A., B. and C., being partners, to their agent or servant, can have the effect of giving up the right of the partners, unless there was some contract that it should be given up. One partner would, as a matter of course,

(a) Ante, Vol. XI., p. 391; and 1 Craig. & Phill. 104.

(b) Ibid. 114.

(c) See ante, Vol. XI., p. 445.

Stuart v. Lord Bute.

have dominion over his agent or servant, though he was the agent or servant of the partnership. The effect of the order given, in 1838, to Nicholas Wood, was to prevent any stranger

from inspecting the books; but I do not see that any [*462] order was given which would have the effect of disabling Lord Wharncliffe, himself, from inspecting the books; and, if he had given an order as against himself, the same power which enabled him to give the order, would have enabled him to revoke it.

There may have been, for anything that I know to the contrary, some contract between Lord Wharncliffe and his two partners, which, in effect, has disabled him from inspecting the books and making extracts from them without their permission. But there is no intimation of any such contract in any part of the examination; and, therefore, there was not any necessity for Lord Wharncliffe to apply, to his co-partners, for permission to inspect and make extracts from the books of the partnership.

If Lord Wharncliffe had stated that he had gone to Newcastle, and had proceeded to examine the books; but that an opposi tion was made: I mean such an opposition as amounted to a civil representation, to his Lordship, that, if he persisted, force would be used that would have been a very good reason for holding that he was not bound to do anything more. But there is no such statement in his further examination. And, as no case is stated which shows that it was necessary for his Lordship to ask permission to inspect the books and that he did ask it and was refused, my opinion is that it does not sufficiently appear, on the examination, that his Lordship is justified in not complying with the requisitions of the interrogatories; and, consequently, I must hold that the further examination which he has put in is not sufficient.

Strickland v. Strickland.

*STRICKLAND v. STRICKLAND.

[*463]

Pleading.-Parties.-Executors.-Revivor.

1842 27th January.

If a defendant dies having appointed two or more executors and all of them do not prove the will, it is sufficient for the plaintiffs to revive the suit against those who prove.

EUSTACHIUS STRICKLAND, one of the defendants, died, having appointed Sir George Strickland and G. Meynell his executors: but Sir George alone proved his will. The plaintiffs revived the suit against Sir George, but not against Meynell.

Mr. Shadwell, for Sir George Strickland and Mr. Meynell, now moved that the plaintiffs might revive, within 14 days, against both the executors, or that the bill might be dismissed as against them. He said that executors derived their title under the will, and if one of them proved it, they all became the personal representatives of the testator.

Mr. Bethell, for the plaintiffs:-As the plaintiffs have revived the suit against the executor who has proved the will, they have done all that it is incumbent on them to do.

The Vice-Chancellor said that although, where A. and B. were appointed executors and A. alone proved, the probate enured to B.; yet the general rule was that it was sufficient to bring A. alone before the court.

Everett v. Prythergch.

[*464] *EVERETT v. PRYTHERGCH.-STRICKLAND v. STRICK

LAND.

Costs.-Exceptions.-Practice.

1842 27th January, 8th February, and 23d March.

If exceptions to the Master's report as to scandal or impertinence are allowed, the Court, on the application of the successful party, will order the costs of the reference to the Master, and also the costs of the application, to be taxed and paid by the unsuccessful party.

IN Everett v. Prythergch(a) the defendant excepted, to the bill, for scandal and impertinence; and the Master allowed some of the exceptions. The plaintiff excepted to the report; and the court allowed his exceptions.

In Strickland v. Strickland, the plaintiff excepted, to the answer, for impertinence; and the Master allowed the exceptions. The defendant excepted to the report; and the court allowed his exceptions.

The defendant then moved that the costs of the reference to the Master, and also the costs of the application, might be taxed and paid by the plaintiff.

The Vice-Chancellor, at first, hesitated to make the order as to the costs of the application; but, after having been furnished, by Mr. Bicknell, the registrar, with the order in Everett v. Prythergch, (in which those costs, as well as the costs of the reference, were ordered to be paid by the defendant, who was the unsuc cessful party in that case,) his honor made an order according to the notice of motion.(b)

(a) See ante, p. 365.

(b) In Desanges v. Gregory, ante, Vol. VI., p. 473, the costs of the application were not asked for.