Imatges de pàgina
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Mr. Prior, in support of the motion.The 34th article of the 16th of the General Orders of May 1845 (1), limited the time within which amendments were to be made to fourteen days; and in Armitstead v. Durham (2) it was held, upon allowing a demurrer, that an order for leave to amend, in which no time was specified, came within the General Orders, and expired in fourteen days. In this case leave was given to amend in a specific manner, but no amendment was made in fourteen days, neither was the order acted upon in any way; but after it had expired, the common order was obtained to amend generally this was wholly irregular and contrary to all practice.

Mr. Turner and Mr. Webster, contrà.— The delay was unavoidable; it was necessary to procure some information before the amendments could be made. At the time the order of course to amend was obtained, one defendant only had put in his answer; he consented to the order, and it was not objected to by the other three defendants. In Armitstead v. Durham, where leave was given to amend, the time was held to be the same as that allowed by the General Orders of 1845. The Lord Chancellor's order therefore became a nullity, and the cause was in the same condition as if no order had been made; and the plaintiff was at liberty to get an order of course to amend; they submitted therefore that the order ought not to be discharged.

Mr. Prior, in reply.

The MASTER OF THE ROLLS.-I shall take it for granted that the Lord Chancellor allowed some part of the demurrer, and gave special leave to amend the bill: in such cases leave to amend is by no means an order of course, but it may be considered as the opinion of the Judge that the defects in the bill may be amended, and that justice requires that permission should be given to complete the record. It is usual to ask that the amendments may be made in a limited time, but in this case it was omitted, and as no time was limited, the case falls within the pro

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vision of the General Orders, which gives leave to amend within fourteen days after the date of the order, within which time if no amendment is made, the order becomes void. There might have been an application made to the Court to enlarge the time for making the amendments, and the circumstances might have been such that the Court would have granted it; but as this was not done, the order became void, but I do not think that the cause was out of court; there had been an adjudication; and though the leave to amend was lost, the cause was not out of court without a dismissal. In the mean time the plaintiff had a right to apply for further time to amend; but instead of that, he obtained an order of course to amend at large that cannot be sustained; it must be discharged for irregularity, and the cause restored to the same state as before the order was obtained; but upon application leave may still be given to amend.

No such application is now before the Court; I must therefore discharge the order, with costs.

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The plaintiff alleged that a partnership had been constituted between himself and the defendant, who was a general merchant, by a memorandum in which the defendant agreed to pay the plaintiff 100l. per annum, in consideration of his general services in business; and in addition toth is the plaintiff was to receive one-fifth of the net profits on all new business entered into through the plaintiff, including also the net profits of insurance. The defendant denied the partnership, and alleged that the plaintiff was engaged as a clerk only :-Held, that this memorandum constituted a partnership, and that the plaintiff was entitled to a receiver.

The bill in this case stated that the plaintiff and the defendant had separately carried on business as general merchants

until the month of September 1847, when it was agreed between them that they should enter into partnership together, that the plaintiff should manage the business of the defendant, and should receive a salary of 100l. per annum for his services, and should also receive one-fifth of the net profits of all such new business as should be entered into through the connexion of the plaintiff. That in pursuance of such agreement, the following memorandum was prepared and executed by both the plaintiff and the defendant:"Memorandum. William Schenck agrees with G. K. Katsch, in consideration of his general services in business 100%. per annum, and in addition to this onefifth of the net profits on all new business entered into through G. K. Katsch, including also the net profits of insurances commencing from the 1st of November 1847. London, September 16, 1847. W. Schenck and G. K. Katsch."

That under this agreement the business was carried on until March 1849, when the defendant, being dissatisfied with the plaintiff, desired him to quit the office, and thereupon excluded him from all participation in the profits of the business. The bill alleged that the above-mentioned agreement constituted a partnership between the plaintiff and the defendant, and it prayed a dissolution of the partnership, and that the usual accounts might be taken, and that the defendant might be restrained from carrying on the business in his own name, and from receiving and dealing with the partnership property, and that a receiver might be appointed.

A motion was now made for an injunction and receiver according to the terms of the prayer, and affidavits on both sides were read. Those on behalf of the plaintiff set forth the correspondence which had taken place between the plaintiff and the defendant at a time when the defendant was absent on the continent, in which the defendant had used the expression "our business," and had always written in the plural we" as to any steps to be taken, although no expression occurred in which a partnership was actually recognized. The plaintiff also stated that although the business was

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carried on under the name of the defendant only, still that had been done on the ground that a change of name might be prejudicial to the affairs of the partnership. The defendant, in his affidavit, denied that any partnership had ever been contemplated, and stated that he had engaged the plaintiff as a clerk to manage the business at a fixed salary, with the additional advantage of being allowed one-fifth of such business as might be brought by the connexion of the plaintiff. The defendant denied the allegations of the plaintiff respecting the title under which the business had been carried on, and further stated that the ledger had always been kept by himself, and that the defendant had never been allowed access to it.

Mr. Bethell and Mr. Nalder appeared for the motion, and urged that the beforestated memorandum constituted a partnership, and that no circumstance appeared on the affidavits to shew that any other view of the matter had ever been taken by the defendant. The case of Knowles v. Haughton (1), cited in Collyer on Partnership, p. 198, n., was referred to.

Mr. Rolt and Mr. J. H. Palmer, for the defendant, contended that the memorandum of September 1847 was not of itself sufficient to constitute a partnership, and that the conduct and communications of the defendant were only such as would necessarily take place between a principal and his clerk. The plaintiff had been engaged at a fixed stipend, and, as was usual in cases where a clerk was able to bring new business from his own nexions, the plaintiff was to receive a fifth of the profits of such business for the purpose of stimulating his exertions. The following cases were cited-Withington v. Herring (2) and Geddes v. Wallace (3).

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evidence which can contradict that impression. A partnership having been thus constituted, it does not appear to me that the defendant did any act to remove the effect of that agreement. The plaintiff therefore being entitled to a share in the profits has an interest in seeing that those things out of which the profits arise are properly disposed of, and he is consequently entitled on principle to have a receiver appointed unless the parties can come to some agreement to avoid the necessity of such a proceeding. I do not think that the cases cited affect the question.

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This was a motion, on behalf of Martha Thring Brown and Henrietta Brown, to discharge, with costs, an order which had been obtained on the 23rd of May 1849, at the instance of George Bird, the next friend of the plaintiff's, discharging Mr. Collins as the solicitor of the plaintiffs in the original and supplemental suits, and appointing the Messrs. Stafford in their stead.

The original bill was filed, in June 1838, on behalf of Henry Brown, since deceased, M. T. Brown and H. Brown, infants, by Martha Hossack, their next friend, against the defendants in the first-mentioned cause, to carry into effect the trusts of the will of James Brown, their father; and on the 22nd of July 1843 the usual decree was made by Vice Chancellor Wigram to take

the accounts. G. Bird was appointed the next friend of the plaintiffs, M. T. Brown and H. Brown. On the 27th of August 1844 the Master made his general report, which was subsequently confirmed.

M. Hossack having died,

On the 14th of November 1844 the plaintiff Henry Brown died, leaving Louisa Groves Brown, the plaintiff in the second suit, his only child, an infant.

On the 7th of December 1844 L. G. Brown, by G. Bird her next friend, filed her bill against William Bastow, as the purchaser of the share of H. Brown, and others to obtain the benefit of the decree in the original suit. To this suit M. T. Brown and H. Brown were not parties.

The defendants to the second suit put in their answer, and on the 20th of February 1845 the causes came on upon further directions, and it was referred to the Master to appoint a guardian of M. T. Brown and H. Brown, and also to continue the accounts, and further directions were reserved.

In July 1845 M. T. Brown attained twenty-one.

On the 12th of January 1846 the Master found that the plaintiff H. Brown was of the age of seventeen or thereabouts.

On the 29th of August 1846 Jane Brown, the widow of the testator J. Brown, and the tenant for life under his will, died, and an attempt was made to bring on the cause for further directions without the Master's report.

In April 1848 Mary Brown, one of the defendants in the second suit, died, and it became abated as to her.

It was stated that in January 1849 H. Brown attained twenty-one, but this was not clearly ascertained.

On the 14th of July 1849 M. T. Brown and H. Brown filed a bill of revivor and supplement.

Up to this time the suits had been conducted by Messrs. Collins & Rigley as the solicitors of the plaintiffs, but upon the dissolution of their partnership, G. Bird, the next friend of the plaintiffs, appointed Messrs. Stafford to act as their solicitors; and on the 23rd of May 1849 an order was obtained, substituting them as solicitors for the plaintiffs in the place of Mr. Collins.

Mr. Turner and Mr. Rudall, in support of the motion, asked that this order might be discharged on the ground that the plaintiffs had attained twenty-one, and had adopted the proceedings; and that no person had any authority to interfere with them in the appointment of their solicitor.

Mr. Roupell and Mr. Southgate, contrà, objected that the plaintiffs made this application through Mr. Collins, although his retainer was discharged by the retirement of his partner, and he was not the solicitor on the record-Griffiths v. Griffiths (1). There could be no doubt that the order was wrong as to the adult plaintiff; but it was doubtful as regarded the other; it was not now known that she had attained twenty-one: as regarded the adult plaintiff the order had been obtained without attention being paid to the ages of the parties; but under the circumstances the order ought to be discharged only to the extent that it was irregular, and without costs.

The MASTER OF THE ROLLS.-I do not think that Mr. Bird has acted wilfully wrong, but as next friend he undertook great responsibilities: he was responsible. for the conduct and costs of the suit. One of the infants, at least, has attained twentyone, and I cannot say that the other has not also attained twenty-one, but it is at present doubtful. From the circumstances that had arisen between the solicitors it might have been desirable to change them, but the office of next friend was discharged by the arrival of the plaintiffs at twentyone; here, one of the infants has been adult for four years, she has adopted the suit and proceedings, yet the next friend obtained an order of course to discharge the solicitor, and appointed a new one, by which means the adult plaintiff had her solicitor taken away, and a new one imposed on her. Still it is asked that no costs may be given, because the next friend did not make himself aware of the age of the parties. This cannot avail : the order was wrong, and must be discharged, and the costs must be paid by the next friend.

(1) 2 Hare, 587; s. c. 12 Law J. Rep. (N.S.) Chanc. 397.

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A bill was filed to impeach a deed, on the ground of fraud, and the production of cases and opinions and confidential letters by the solicitor relating to the execution of the deed was required. The defendants, who claimed under the deed, alleged that these documents had reference to the proceedings in the suit, and were privileged :Held, that the documents must be produced.

The bill stated that a certain annuity had been left to the defendant Captain Taylor, by the will of a testator, subject to a proviso that if he attempted to alienate the said annuity it should go to other persons; that the said Captain Taylor had executed a deed, dated the 24th of May 1848, by which he had assigned the annuity to the defendant Young, a solicitor, for the separate use of his wife, who was also a defendant in the suit; and that the property of the said Captain Taylor, who was not within the jurisdiction of the Court, had been sequestered. This bill was filed, in November 1848, by the sequestrators, alleging that the said deed of assignment of May 1848 had been executed for the mere purpose of defrauding the plaintiffs, by making it appear that the annuity had been forfeited, and it prayed a declaration that the said assignment was fraudulent and void, as against the plaintiffs, and it asked for the production of the deed of May 1848 and the papers relating to the preparation of the said deed, consisting of cases for the opinion of counsel, opinions of counsel, and letters which had passed between the defendant, Mrs. Taylor, and the defendant Young, acting as the solicitor for Captain and Mrs. Taylor, upon the subject of the said transaction. The defendants, by their answer, admitted the possession of the documents, but alleged that they were not bound to produce the cases and opinions and confidential letters between them and their solicitor, on the ground of their being confidential communications taken or writ

ten in contemplation of the institution of these proceedings against the defendants. in respect of the matters which were the subject of the suit, and with a view to obtain professional advice and assistance as to their conduct in such matters.

Mr. Bethell and Mr. Kinglake appeared in support of a motion, on behalf of the plaintiffs, for the production of these documents.

Mr. J. Parker and Mr. Freeling opposed the motion on the ground that the documents asked for came within the general rule as to privileged communications; and cited

Herring v. Clobery, 1 Phil. 91; s. c.

11 Law J. Rep. (N.s.) Chanc. 149. Hughes v. Biddulph, 4 Russ. 190. Greenough v. Gaskell, 1 Myl. & K. 98.

Mr. Rolt and Mr. Prior appeared for other parties.

Mr. Bethell, in reply, said the object here was to impeach the validity of a certain deed, and it was necessary that the advice under which the deed was executed should be also produced. The opinions and letters relating to the transaction could not, under such circumstances, be considered as privileged.

The VICE CHANCELLOR.-As to the consideration of cases such as Herring v. Clobery, where the question is as to the rights of parties with respect to something that has happened independently of the party's own acts, I do not think that they apply. The Court would not direct production of such documents, which appear to come to parties independently of their own acts. In this case the question is, whether this deed is a fraud or not; and when the suit is filed for the purpose of having the question decided, whether there be fraud, and if there be to give the plaintiffs the benefit of it, there the parties have themselves made the case by the alleged fraudulent act; and, inasmuch as the deed must be produced, such things as relate to the very birth of the deed must also be produced.

V.C. May 28.

In re THE INDIA AND AUS

TRALIA MAIL STEAM-PACKET
COMPANY.

Injunction-11 & 12 Vict. c. 45. s. 58.Lord Mayor's Court-Interim Manager.

junction which had been granted, without a On a motion to dissolve a special injunction which had been granted, without a bill having been filed, to restrain a creditor from proceeding against a company with a suit in the Lord Mayor's Court, which had been commenced previously to an order made, under the 11 & 12 Vict. c. 45, for winding up the affairs of the company :-Held, that the injunction must be dissolved with costs; and that, notwithstanding an interim manager had been appointed since the application for the injunction.

This was a motion to dissolve an injunction granted by the Vice Chancellor on the 15th of May, on the application of John Yates and Robert Ford, two of the directors of the India and Australia Mail Steampacket Company, to restrain two persons named Samuel Jones and Joseph Causton from further proceeding with their suit in the Lord Mayor's Court against the company, and that the said J. Yates and R. Ford might be ordered to pay the costs of this application to the said S. Jones and J. Causton, or that such costs might be ordered to be paid to them by the official manager of the said company when appointed, out of the funds of the company.

It appeared from the affidavit of J. Yates, upon which the injunction was granted, that, by an order of this Court, bearing date the 4th of May, made upon the petition of the deponent and R. Ford, the said two directors of the company, it was ordered, that the said company should be absolutely dissolved and wound up under the provisions of the Joint-Stock Companies Winding-up Act, 11 & 12 Vict. c. 45. That previously to the said order being pronounced, the said S. Jones and J. Causton issued an attachment against the funds of the above-named company for the amount of a certain debt of 5281. 6s. 8d., alleged to be due to them for a bill for printing and stationery on account of the company. That a writ of certiorari had been obtained and duly served upon the said Messrs. Jones and Causton for the removal of the

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