THE

LAW TIMES REPORTS

OF

All the Cases Argued and Determined

IN ALL THE

COURTS OF LAW AND EQUITY, IN BANKRUPTCY, INSOLVENCY, NISI PRIUS,

THE CRIMINAL COURTS, AND IN IRELAND,

FROM NOVEMBER 1859 TO MARCH 1860.

GLYN v. HOOD.

count of the surplus assets of B. and Co., and claim the whole of Sir G. L.'s share of the assets of B. and Co. without deducting the 5000l.: Held, that the plaintiffs were entitled to recover the whole amount of Sir G. L.'s share to the extent of 25,000l. without deducting the 50007.

This suit arose out of the following circumstances:— In the month of Dec. 1843 an agreement was entered into between the late Sir George Gerard de Hochepied Larpent and the late William Bell, for the formation of a partnership for the purpose of carrying on business as merchants and commission agents at Canton, under the name or style of Messrs. Bell and Co.; and it was agreed that they, together with such other persons as might be nominated and admitted in manner therein mentioned, should become partners for three years from the 1st Dec. 1843.

On the 1st Dec. 1843 the defendants, Messrs Alfred Wilkinson and Joseph Mackrell Smith, were nominated and admitted partners in the said firm.

A partnership for a term of years having expired, Sir G. L., one of the retiring partners, having occasion to borrow 20,000l. of the plaintiffs, writes to them on the 10th July 1847 to the effect that the amount of his capital stock in the late partnership, clear of all claims, might be taken roughly at 25,000l., and he was informed that a portion of the balance at credit with C. and Co. (in which firm Sir G. L. was a partner) on account of the late firm would be appropriated towards payment of the same. Sir G. L., by the same letter, authorises B., one of his late On the 1st Dec. 1846, according to the terms of partners acting for the firm, to pay to the plaintiffs the agreement, the partnership was dissolved. The the amount of his said capital stock, and binds him- business was very extensive and lucrative; and Sir self to give the plaintiffs a full and perfect lien George Larpent's share in it was estimated at upwards thereon, such as they might think necessary to secure of 25,000l.; but the accounts of the partnership, and to them an exclusive title to the said balance. On of the gains and profits, had not, at the time of the the 14th July B. writes to the plaintiffs, through Sir filing of the bill, been settled or adjusted. G. L., stating that in compliance with Sir G. L.'s letter, he had instructed C. and Co. to transfer to the plaintiffs from the surplus partnership assets of B. and Co. in their hands the sum of 5000l., and he further engages to pay to the plaintiff's the remaining balance of Sir G. L.'s capital with them. Shortly afterwards Sir G. L. gives the plaintiffs his promissory note for 20,000l., and sends the letter of the 14th July as a collateral security. In Sept. 1857 C. and Co. become bankrupt, and the promissory note of Sir G. L. is afterwards dishonoured. The plaintiffs then apply to the continuing partners of the late firm of B. and Co. for payment. The latter claim to be allowed, in accounting for Sir G. L.'s share, to deduct the 5000l. which he had directed C. and Co. to pay to the plaintiffs.

The plaintiffs, on the other hand, allege that there never was a sum of 5000l. with C. and Co. on ac

VOL. XXXV.-No. 867, O. S.-No. 1, N. S.

On the dissolution of the above copartnership, another partnership was entered into between Messrs. Bell, Wilkinson and Smith, for continuing the same business under the same name.

In the month of July 1847 Sir George Larpent entered into negotiations with the plaintiff's Sir Richard Plumptre Glyn, Bart., and Messrs. Charles Mills, George Carr Glyn and Edward Wheler Mills, bankers, for the loan of a sum of 20,0007. on the security of his share in the stock and effects of the late firm of Bell and Co.; and on the 10th of the same month Sir George Larpent wrote to the plaintiffs the following letter:

"Austin-friars, 10th July 1847. "Messrs. Glyn, Hallifax, Mills and Co., "Lombard-street. "Dear Sirs,-My partnership with Messrs. Bell and Co., of Canton, having terminated on the 31st Dee

GLYN v. HOOD.

last, I am entitled by its conditions to receive payment of the 14th July last, informing us that you had inof my capital stock on the 31st May next. The structed Messrs. Cockerell and Co. to transfer to us amount thereof, clear of all claims, may be taken 5000l. from the surplus partnership assets of Messrs. roughly at 25,000l., and I am informed by Mr. William Bell and Co. in their hands; also engaging on behalf Bell that a portion of the balance at credit with Messrs. of yourself and partners in the Canton house to pay Cockerell, Larpent and Co., on account of Bell and Co. us in due course the remaining capital balance of Sir (say about 4000l. or 50004), will be appropriated George Larpent's capital with them.-We are, &c., towards the payment of the same. In pur*" (Signed) suance of the arrangements between me and your firm I hereby authorise Mr. William Bell, acting for Bell and Co. in this country, to pay you the amount of my said capital stock, say 25,000, or thereabouts, and your acknowledgment thereof will be a sufficient discharge, and I hereby bind myself to enter into such further covenant and engagements as you may require, in order to give you a full and perfect lien thereon, such as you may think necessary to secure to you an exclusive title to the said balance, the same being in consideration of and as collateral security for your advances now due, or which may be hereafter due, by the house of Cockerell, Larpent and Co. to your firm. GEO. LARPENT."

V.C. S.]

LAZARUS v. MOZLEY.

make up the deficiency. The plaintiffs must suffer the loss which was occasioned by the failure of Cockerell and Co.

[V.C. S. put to an insurmountable difficulty by being compelled to admit that there was not a sum of 5000l. in the hands of Sir G. Larpent at the time of his making this order; and by the failure of Cockerell and Co. taking place within two months of the order. The declaration will be, that the plaintiffs are entitled to against the defendants, without deducting the sum of 5000l., or any other sum in respect of any moneys alleged to be in the hands of Cockerell and Co. on account of the said share. The amount of 53211. being admitted to be due, decree payment of that sum, with interest on 5000l. from July 1847. The representatives of Bell admitting assets, order them to pay. The plaintiffs to have their costs up to the hearing.

Wednesday, Nov. 9. LAZARUS v. MOZLEY. Practice-Sufficiency of affidavit as to production of documents-15 & 16 Vict. c. 86. An order was made on a defendant in the common form to "make and file a full and sufficient affidavit, stating whether he has, or has had, in his possession or power any, and if any what, documents relating to the matters in question in the suit, and accounting for the same." The defendant filed an affidavit, saying that he had not in his actual custody any documents relating to the matters in question, except such entries as might be contained in account-books of a firm, which he objected to produce, on the ground that they were not in his exclusive possession, but only in his possession jointly with another, who was not a party to the suit." He did not, however, set forth the number or particulars of the books. Motion, that the defendants be ordered to make an affidavit in conformity with the terms of the order, setting forth the number and particulars of the documen's which he acknowledged to be in his joint possession, but claimed to be privileged-granted, but

without costs.

The VICE-CHANCELLOR, without calling for a reply, said :—The plaintiffs claim to be equitable assignees of the share of the late Sir George Larpent, as a partner of the firm of Bell and Co. Mr. Bell, one of the part-recover the whole amount of Sir G. Larpent's share as ners, was accountable for the share of Sir George Larpent in the partnership assets, by a letter, the language of which is wholly unambiguous, recognising that liability. In that letter he mentions that, in respect of that share, what is due from the continuing partners, to the extent of 50007., will be paid to Messrs. Glyn and Co. through Cockerell and Co., and he tells Messrs. Glyn and Co., the plaintiffs in this suit, that he has instructed Cockerell and Co. to transfer to them 5000%., a sum which represented pro tanto part of what was due in respect of the share of Sir George Larpent. That seems to me to be the fair and clear construction of the letter of the 14th July 1847. I called the attention of the defendant's counsel in the course of the argument to the letter of his own client, and upon reading that letter there seems to me not the slightest doubt of the right of the plaintiffs to the decree they now ask. Mr. Bell says, "I acknowledge the receipt of your letter of the 10th inst., covering a copy of a letter from Sir George Larpent to yourselves, authorising me to make payment to you of 5000l. on account of his capital with Bell and Co.; and also to make further payment to you of the remaining balance of the capital in that firm." Sir G. Larpent has authorised Mr. Bell to pay the whole share, which he (Sir G. Larpent) was entitled to, as against Mr. Bell and the other partners. How, then, is it possible to recognise Mr. Malins' argument on the part of Mr. Bell's representatives, that the transaction was this-that what was transferred to Glyn and Co. was, first of all, 5000l., in the hands of Cockerell and Co., and then Bell and Co. were only liable to pay what should remain due in respect of the share of Larpent? The whole language of the documents contradicts that view. The letters of Sir G. Larpent and of Mr. Bell show that the 50007., if paid, was to be paid only pro tanto in satisfaction of that right which by the transaction Glyn and Co. had against Bell and Co. and the other partners, to recover the whole share to the extent of the 25,000l. The form of the instruction given by Mr. Bell to Cockerell and Co. to make payment of 5000l. is such as to impose no active duty upon Glyn and Co. at all. It was only a mode by which to ensure the payment of Sir G. Larpent's share. It was only a mode by which he states that he has instructed an agent to pay over that Charles Mozley and Sampson Samuel made a joint sum to Glyn and Co. If that unfortunate insolvency of and several affidavit. Charles Mozley, for himself, said Cockerell and Co., who are supposed to have had this that, to the best of his knowledge, &c., he had not sum in their hands, had not occurred, there was no now in his actual custody or possession any deed, acprivity whatever between Glyn and Co. and Cock-count-book of accounts, &c., or any other document erell and Co. which could have authorised Glyn whatsoever, relating to the matters in question, &c., and Co. to maintain any action against Cockerell other than and except such entries, if any, as might be and Co. There was no more than an instruction contained in account-books of the firm of Israel Barned to Cockerell and Co. to pay Glyn and Co., and a and Co., Liverpool, bankers, of which firm he was a statement that that instruction had been given. As partner jointly with Lewin Barned Mozley. He obto the question of laches, it seems that has not been jected to produce the last-named books of account. The gone into, and very properly so, for laches there could grounds upon which he made such objection were, that be none, because there was no duty and no right which such books of account were privileged from discovery could be enforced in the nature of a legal obligation. or production to the plaintiff, because the same were The defendants' case admits of no doubt, because Glyn not in his exclusive possession, but only in his possesand Co. have proved that they are equitable assignees sion jointly with the said Lewin Barned Mozley, who from Bell and Co., through Sir G. Larpent, of what was not a party to the suit." was due by Bell and Co.; they are therefore entitled, Sampson Samuel, for himself, said that, to the best as against the surviving partners, to an account of the of his knowledge, &c., he had not now in his own sole whole share of Sir G. Larpent in the hands of the sur-custody or possession any deed, account-book of acviving partners, and out of that to pay the whole counts, &c., relating to the matters in question in the amount of the promissory note for 20,000l. The fact, suit, or any of them. I understand, to be this, that Sir G. Larpent's share has been accounted for, except as to this sum of 50001. [Bacon.—Yes.] The defendants have been

In this case an order had been made for the production of documents upon the defendants under the 18th section of the Chancery Amendment Act (15 & 16 Vict. c. 86). The order was in the common formviz.: "That the defendant do, within, &c., make and file a full and sufficient affidavit, stating whether he has, or has had, in his possession or power any, and if any what, documents relating to the matters in question in this suit, and accounting for the same."

The defendants were three in number, and they filed two separate affidavits in reply to the order.

Charles Mozley and Sampson Samuel then said that, according to the best of their knowledge, &c., they had not now, and never had, in their own possession, &c.,