[CHAN. CHAN.] PIGGOTT . STRATTON. corroborated by other witnesses, Harbour being an are to be understood in courts of justice in the sense in experienced builder as well as Stratton, the importance which the person using them wished and believed that of preserving the sea view was well known to both; they should be understood by the person to whom they and it would have been strange if Harbour had not were addressed. Must not Harbour have understood mentioned this to Stratton during their negotiation; the answer to his question to mean that Stratton was equally strange if no reference had been made by bound during the currency of his lease, and that during Stratton to the covenant in his lease, by which it would the currency of the underlease he (Harbour) would be be preserved; and it is sworn that Stratton had made safe from the apprehended obstruction? Must not similar representations when negotiating for subletting Stratton have wished Harbour so to understand his to others another part of the land demised to him by answer? Therefore, after Harbour executed the the lease of 1845. I give faith to the evidence of underlease, and, Stratton looking on, erected the houses Harbour, who swears thus: "I put the question on the faith of the assertion, Stratton is not at liberty about buildings in front to the defendant Stratton, and to deny that he was under the obligation. How it he told me he could not build closer than thirty feet, arose is immaterial, and he can no more oppose the because the lease from Sir Richard Simeon forbad him; injunction than if there had been an actual continuing and thereupon I was induced to take the land; and covenant legally binding upon him. Next it was said further, in order to satisfy myself, I asked for and was that all are supposed to know the law, and that Harshown the draft of the lease." Harbour then consented bour must be supposed to have known that the lease of to take the underlease, and with the knowledge of 1845 might be surrendered, and that he ought to have Stratton expended large sums of money upon the land required a covenant from Stratton not to surrender the comprised in the underlease under the expectation of the lease, or an express covenant that on the land demised continued benefit of the restriction imposed on Stratton to Stratton there should be no building erected to interby the covenant in the original lease. I agree with cept the sea view. But if Stratton's representation had the V. C. in thinking the following to be the fair effect been sincere and faithful, all such precautions were of the evidence. Harbour, in negotiating with Stratton unnecessary, and the business of life could not be confor the sublease of the property, was doing so, as ducted if it were required that men should anticipate Stratton well knew, with a view to build upon the and expressly guard against the wily devices to which land; with that view he asked a question very material the deceitful may resort. The argument, however, to enable him to form an estimate as to the value of chiefly relied upon for the appellant was, that what the property. Stratton's answer is, "You need be Stratton said during the negotiation in reference to the under no apprehension on the subject; the land sea views results merely in the expression of intention; between that which I am selling to you and the sea is and that the case of Jorden v. Money, 5 H. of L. in my hands as lessee for this long term of years, and Cas. 185, is a conclusive authority in his favour. I am I cannot build upon it so as to obstruct the sea view, bound to suppose this case to have been properly defor I am bound by my lease not to do so." Stratton cided by the majority of the members of the House who having received the price of the land, enhanced by the voted upon it; but, in considering the doctrine of law security of the sea view, and having stood by while he which it establishes, I must look to the facts which saw Harbour erect houses on the property sublet, which those who have decided it considered to be proved by were valuable on account of having a sea view, but the evidence. I cannot look at that evidence and say would be almost worthless without it, is it consistent that different inferences are to be drawn from it, and with equity and good conscience that Stratton, to that the law laid down is accommodated to these inmake an increased profit of the land which he had not ferences. The majority of the Lords thought that sublet, should be allowed to build houses upon it con- nothing more was proved than the declaration of a present trary to the covenant in his lease from Sir Richard intention not to enforce the bond. Therefore it is not Simeon, so as entirely to obstruct the sea view enjoyed legitimate reasoning, after comparing the evidence by the houses of Harbour? No attempt has been made there with the evidence in this case, to argue that there to defend the good faith or to palliate the perfidy of as much as here a positive assertion of a fact had been such a transaction. But the counsel for the appellant, made. The doctrine there laid down and acted upon in the proper discharge of their duty, have with much was, that where a person possesses a legal right, a ingenuity and ability offered various technical objec- court of equity will not interfere to restrain him from tions to the injunction being granted on equitable enforcing it, though between the time of its creation grounds. First, they contend, that if there was no and that of his attempt to enforce it he has made recovenant, the injunction must rest on a parol promise, presentations of his intention to abandon it. This is the which, as it respects an interest in land, is void by the ratio decidendi, and this only is binding upon us. We Statute of Frauds. If the remedy sought did rest on are not called upon to give any opinion upon the contract, we must bear in mind that there was a valu- point of law on which the law lords were divided, as to able consideration for the promise, and that there has the difference between misrepresentation of a fact as been part performance. But I apprehend that the in- it actually existed, and a misrepresentation of an junction is to be supported on the well-established doc-intention to do, or to abstain from doing, an act which trine that if A. deliberately makes an assertion to B., intending it to be acted upon by B., and it is acted upon by B., A. is estopped from saying that it was not true. If it turns out to be false A. is answerable for the damage which may have accrued to B. from having acted upon it, and B. is entitled, in respect of anything done in the belief that it was true, to object to any denial of its truth by A. This doctrine is to be found in Pickard v. Sears and a series of subsequent decisions. But it is argued that the representation, to have this effect, must be false, whereas all that Stratton asserted was strictly true; for when he made the assertion, the lease from Sir Richard Simeon had not been surrendered and remained in force; he was bound not to build so as to intercept the sea view; he only said "I am bound," and so he was till the rrender. But moralists and jurists tell us that words would lead to the damage of the party thereby induced to do an act on the faith of the representation. Taking the law as there laid down, that a mere expression of intention, although acted upon, is no ground for equitable interference, we are to say whether, in this case, considering the evidence, we can come to the conclusion that there was here a mere ex pression of an intention not to do an act. Now, according to my conclusion upon the evidence, Stratton absolutely asserted that there was no power to do the act, and that this act could not be done during the currency of the lease. It would be childish to suppose that he meant to be understood to say that, although he then had no power to do this act, he might afterwards acquire the power by surrendering the lease. He clearly gave Harbour to understand that he would have no power to disturb the sea view during the cur CHAN.] Re THE MEXICAN AND SOUTH AMERICAN COMPANY, ex parte HYAM. [CHAN. rency of the lease, and that during the currency of the | a capital of 100,000%. in 10,000 shares of 107. each. lease the sea view could not be disturbed. For these Of this sum 57. per share is to be paid at the following reasons I am of opinion that the appeal ought to be periods: namely, 17. per share on subscribing; 17. ditto dismissed with costs. on 1st Sept. 1835; 17. ditto on 1st Dec. 1835; 17. ditto on 1st Feb. 1836; and 17. ditto on 1st April 1836. The remainder of the capital to be called for when required by the directors, in sums not exceeding 17. per share at each call, and at an interval of not less than two months between each call; thirty days' notice of each call to be given in the London Gazette and three daily morning and evening papers. If any call be not paid within thirteen days of the same becoming due, the directors shall, at the first convenient opportunity, sell the shares so in default, and hold the proceeds thereof, after deducting the amount of the call and interest thereon at the rate of 51 per cent. per annum, at the disposal of the proprietors thereof. As the principle on which the company is formed is that of putting its capital speedily into active operation, and as one engagement has already been made for this purpose, it is proposed Lord Justice KNIGHT BRUCE.-It appears to me also, that the plaintiff's rights against the defendant Mr. Stratton in this suit are substantially or exactly the same as they would have been if the surrender by him to his landlord, on which Mr. Stratton's counsel have so much relied, had not taken place; and without giving any opinion on the case made by the plaintiff as to oral representations, I think the decree right on the ground of the covenant on his part contained in the underlease of the 17th Dec. 1851. The appeal ought certainly, in my opinion, to be dismissed with costs. Lord Justice TURNER.-This case has been so entirely exhausted, thut I have nothing more to add than that I agree in the decision. I think the case entirely distinguishable from Jorden v. Money. Nov. 9 and 22. (Before the LORD CHANCELLOR (Campbell) and the that the dividend at the rate of Gl. per cent. per annum LORDS JUSTICES.) Re THE MEXICAN AND SOUTH AMERICAN on the subscribed capital shall be at once fixed, and that the directors shall make such additions from time to time thereto in the shape of bonus as the state of the company may authorise, the first dividend to be paid on 1st Jan. 1837. In the event of the operations of the company admitting of the advantageous employment of a larger amount of capital, the directors shall have the power to create 10,000 additional shares of 107. each, the same to be issued preferably to the possessor of shares in a joint-stock company, transferable by delivery, instructed his broker, a few days before the order was made for winding-up the company, to sell them. He afterwards introduced C., a person in his employment, to the broker as a pur-holders of the existing shares; and in the event of its chaser. The shares were then sold at the market price (which was at that time nearly nominal) to C., who, to pay for them, gave the broker five bank shares, in order that he might sell the same and pay B. It afterwards appeared that these bank shares were the property of B., although held in C's name. The joint-stock company being wound-up, the M. R. ordered B.'s name to be placed on the list of contributories: Held (affirming that decision), that B. was properly made This was an appeal from a decision of the M.R., who had ordered the names of Simeon and Moses Hyam to be placed on the list of contributories to the debts of the Mexican and South American Company, which was formed in April 1835. The company was formed in the first instance with the view of making advances of money to the owners of mines in Mexico, and receiving the produce of the mines at fixed rates, yielding a good return for the advances; but it was afterwards extended to mining operations. Upon the foundation of the company, certificates were issued to the subscribers, purporting that the holders of certificates, having made a certain specified payment to the directors, were entitled to a specified number of shares in the company, subject to certain further payments mentioned in the prospectus, a copy of which was printed at the foot of the certificate, and which, after setting out the objects of the company, was as follows: -"For the foregoing purposes it is proposed to raise appearing expedient still further to increase the capital, a further creation of shares may take place, with the consent of the majority of the shareholders, at a general meeting to be called for that purpose, the same being in all cases to be issued preferably to the holders of existing shares. The affairs of the company to be managed by the board of directors, the directors to remain in office until the second Wednesday in May 1840, when, and at the same period annually, one director shall go out of office. Vacancies in the direction previously to the second Wednesday in May 1840 shall be filled up by the directors after that period; they shall be filled up by the proprietors at the general annual meeting, or at a general meeting to be called specially for that purpose. A director retiring to be immediately re-eligible. The auditors shall be elected annually at the general meeting of the proprietors. Fifty shares shall be the qualification of a director, and forty shares the qualification of an auditor. A general meeting of the proprietors shall be held on the second Wednesday in May in each year, when the state of the company's affairs will be laid before them. Certificates will be issued for the shares; a proprietor of twenty-five shares to have one vote, &c., &c. It is proposed that on the payments of each dividend a sum equal to 107. per cent. of the amount thereof shall be appropriated to form a reserve fund, and that if at any time the shares of the company should be below par, the directors shall have authority, if they shall see fit, to apply the amount of the reserve fund to the purchase of such shares for the account of the company, such shares, if afterwards disposed of, to be sold by public tender for the account of the company." The shares were, as appeared by the certificates, transferable by delivery. At different times, after the foundation of the company, further shares were issued under the powers given by the prospectus, and certificates were issued for these shares, varying somewhat in form from the first certificates, but still purporting that the holders were entitled to the shares. On the 6th Nov. 1857 the company held a special meeting, at which it was decided that the company should be wound-up, and a petition was presented for that purpose, and an order made on the 24th Nov. CHAN.] JAUNCEY . KNOWLES. [CHAN. 1857 to wind-up the company. It appeared that the inter se. The questions that have been suggested appellants Simeon and Moses Hyam had purchased about whether the liability shall be upon a trustee or 300 shares at the price respectively of 5l. 178. 6d., and cestui que trust to be a contributory do not arise here. 51. 12s. 6d. per share, and they had paid a call of 17. The relation of cestui que trust and trustee was never per share. A few days before the date of the winding-established between these parties. It was a mere fable up order, they delivered over these shares to Mr. Samuel, a broker; but shortly afterwards they told Mr. Samuel they had found a purchaser for them, and introduced to him a Mr. Hodson, one of their warehousemen, to whom they paid a salary of 150l. 2-year. The shares were then sold to Hodson at 2s. 6d. a share, he paying for them by handing to Mr. Samuel five shares in the Ottoman Bank to be sold, and out of the proceeds of which Messrs. Hyams were to be paid. Mr. Samuel sold the five shares for 807., and paid Messrs. Hyam. The point raised was, whether this sale was a valid transaction, or merely an attempt on the part of the Messrs. Hyam to escape any liability attaching to the possession of these shares, whilst at the same time they might have the benefit, should any arise, by Hodson being a trustee for them, the appellants contending that the Ottoman shares were the property of Messrs. Hyam, consequently that no consideration had been given for the shares in the Mexican and South American Company. This was denied, and the case stood over for the examination of witnesses; but on the case coming on to be heard at a future day, the appellant's counsel stated that it had just come to their knowledge that the Ottoman shares were, in fact, the property of Mr. Moses Hyam, although standing in the name of Mr. Hodson. The Attorney-General (Sir R. Bethell), Selwyn, Q.C. and Joseph Brown (of the common law bar) appeared for the Messrs. Hyam, the appellants. R. Palmer, Q.C., Bovill, Q.C. and Roxburgh for the official manager. Southgate for the creditors' representative. The following authorities were referred to:-Re The Mexican and South American Company, ex parte De Pass, 33 L. T. Rep. 322; Lund's case, 33 L. T. Rep. 85; Ex parte Jessop v. The London and County Insurance Company, 2 De G. & J. 638; S.C. 32 L. T. Rep. 53. they were acting, not intended to have any real operation, and it is quite clear to me that this was a contrivance on the part of these two gentlemen to get rid of their liability, if there should be liability cast upon them, by reason of this being a losing concern; but still, if by some unforeseen possibility an advantage should arise, they might still claim the benefit that might be claimed from their still being actually shareholders in the company. The whole examination proves that, and that if they had attemptedwhich would have been more expedient-to shape their defence, that this was a transfer to a man of straw, and that they knew that, it would have had a much better chance of success than the shape it has assumed; because they gave it the shape of being a commercial transaction-a sale of what was valuable, and what was understood to be valuable by the transferors, and was understood to be valuable by the transferee. That is conclusive to my mind to show that it was a mere sham, and that it was intended to have no actual operation; therefore I consider these two gentlemen are to be adjudged as still shareholders in this company, and that they were properly placed on the list of contributories. As to their liabilities as contributories, or of their privileges as contributories, we are not at all called upon to give an opinion. Lord Justice KNIGHT BRUCE.-This transaction is clearly fraud and simulation. Without seeing at present any reason for dissenting from either of the decisions of the Lords Justices, to which allusion has been particularly made in the argument, I think the order of the M. R. right; I do not think it prejudices, nor that our order will prejudice, any right that Mr. Selwyn's parties may have to apply in respect of the call or debts, or otherwise. Lord Justice TURNER.-The Messrs. Hyam are undoubtedly the owners of the shares up to the 10th Nov. The question is, whether they have discharged The LORD CHANCELLOR.-The only thing we have themselves from that ownership. I do not mean to to determine is, whether these two gentlemen ought to intimate now any doubt upon the question whether remain in the list of contributories of this company. I they could have discharged themselves from that owneram of opinion that his Honour the M. R. did right ship by making an out-and-out transfer of the shares. in refusing to remove them from that list. According The opinion of my learned brother and myself has been to the decision of this court, to which I most re- already given on that point, and I do not, as at present spectfully bow, if it had been proved that they had advised, entertain any doubt upon the matter; but parted with all interest in these shares-although it that they could make a mere nominal transfer of the was for the express purpose of getting rid of the shares in trust for themselves, I beg leave altogether to liability, and although they knew they were of no value, dispute. The sole argument in the present case is, and although they knew that the transferee was a man that Hodson was to be a trustee for Hyams; but that of straw-they would have been absolved from liability, is a trust which, upon the facts of this case, if created and ought to be removed from the list of contri- at all, was created for a fraudulent purpose of covering butories. I confess I should have hesitated before the real ownership. It is not a trust which this court I concurred in these decisions, because I think could in any way recognise or act upon. It is said there might have been a considerable difference that they might have assigned to a beggar. I assume drawn between the analogy of an assignee of a that they might, but I very much doubt, subject to any lease assigning the lease to a man of straw, and a further argument which could be advanced upon this shareholder who has become a partner with others, and subject, whether they could create a beggar a trustee who has incurred a joint liability at a time when the for themselves as between them and the other partners property had ceased to be of any value, and his sole object in this concern. It is clear that the intent undoubtbeing to throw the liability entirely on his copartners; edly was to cover the real ownership by the creation of but I again say I most respectfully bow to the deci-a fraudulent trust. I am of opinion that the M. R. is sions of this court. According to those decisions it is incumbent upon a shareholder to prove that he has actually parted with all interest in the shares. That onus rests upon him. His Honour the M.R. was not satisfied with the evidence that he had to show, that they had actually parted with their interest. I think that the evidence now before us clearly demonstrates that they had not parted with their interest; that it was a mere fable they were acting; that they intended that all that passed should have no operation whatever in all respects right, and this appeal must be dismissed, and, as I think, be dismissed with full costs, including those of the creditors' representative. Saturday, Dec. 3. (Before the LORD CHANCELLOR (Campbell). JAUNCEY V. KNOWLES. Partnership-Misrepresentation-Dissolution. B., a practising surgeon, took C. into partnership, having represented to him that his practice produced CHAN.] JAUNCEY . KNOWLES.] [CHAN. about 700l. a-year. C. paid a premium. It was | Mr. Knowles, the defendant, confirmed the statements afterwards discovered that the practice did not made by him as to the annual value of his practice, and amount to more than half the amount stated, and also that the expenses of conducting such practice did also that B. had, the year previous to the partner- not exceed 100%. per annum, by which he was induced ship, made a return to the commissioner of the to agree to pay to Mr. Knowles the sum of 750l. as a property tax that his income amounted only to 350l. consideration for a partnership with the defendant for per annum. The M. R. ordered a dissolution of fourteen years. the partnership, and that the defendant should repay the plaintiff half the premium he had paid: Held, that sufficient misrepresentation had been proved to uphold the decree of the court below. This was an appeal from a decision of the M.R. The following were the facts of the case: This agreement was shortly afterwards carried ont. By a partnership deed, dated 17th March 1856, and made between the defendant George Beauchamp Knowles of the one part, and the plaintiff Walter Jauncey of the other part, it was witnessed that, in consideration of the sum of 750l. then paid to the defendant by the plaintiff, they the said George B. Knowles and Walter Jauncey did mutually agree to carry on the profession or practice of surgeons and apothecaries in copartnership, in the town of Bir George Beauchamp Knowles, the defendant, was a surgeon, carrying on business in Birmingham, and the plaintiff was formerly his pupil, and subsequently became a licentiate of the Royal College of Surgeons of Edinburgh, and house surgeon to the Tiverton dispensary.mingham, for the term of fourteen years from the The defendant held for many years various offices or appointments, from which he derived certain emoluments in the shape of fixed annual stipends; amongst these offices were those of surgeon to the Queen's College and Queen's Hospital, both in the town of Birmingham. He also derived considerable emoluments from premiums he received from pupils. On the 12th Feb. 1856 the defendant wrote to the plaintiff as follows:-"I have been wondering for some time past that I have not heard from you since you were last in Birmingham, and not knowing whether you were gone down to Tiverton or not, I wrote to your father to make the inquiry, as I wished to write to you. For some weeks past a few of my friends have thought it desirable that I should take a partner. They think that I should get rid, as far as possible, of the night-work, and furthermore that I should be relieved of the heavier duties of the practice by the assistance of an active partner. Now, I do not know what your views may be, but it has occurred to me that if you should like to practise in Birmingham, you could not well have a more favourable opening. I am told that if I were to advertise I should have plenty of applications; but I would rather not treat with a stranger. Will you turn the matter over in your mind and let me know?" The plaintiff having requested to be informed the amount of income the defendant annually derived from the practice of his profession. The defendant on the 17th Feb. 1856 wrote as follows: 25th March then instant, under the style or firm of Knowles and Jauncey, in the house then in the occupation of the said defendant, in St. Paul's-square, in Birmingham, and some other dwelling-house or premises, to be occupied by the plaintiff, or in such other house or houses as the parties should thereafter mutually approve, and that, subject to the condition thereinafter contained and hereinafter mentioned, respecting the working and other expenses, the said parties should be interested in and entitled to the gains and profits of the said copartnership practice or business in equal shares and proportions, but that the gains and profits of the copartnership practice should not be considered to extend to the appointments then held by the defendant in the Queen's College and Queen's Hospital, in Birmingham aforesaid, nor to any similar public appointments which might hereafter be held by either of the said parties, but that each partner should retain for his own use the profits of any such appointment to which he himself should or might be exclusively appointed; and it was also agreed that all drugs then in the surgery of the defendant should belong to the said partnership, and one moiety thereof should be considered to be paid for and included in the premium paid by the plaintiff to the defendant, and that in inaking and stating the annual general account as therein aforesaid, the payments and expenses thereinafter mentioned should be allowed and deducted before any division of the yearly gains or profits of the said partnership should be made; that was to say, that in such account should be allowed and deducted the expenses attending the purchase for the said partnership of all drugs and surgical and medical apparatus and all other things of a like nature necessary for the proper carrying on of the said partnership practice, and also the yearly wages of the man-servant for the time being of the said defendant, and also the keep or maintenance of such servant, to be estimated at the sum of 201. per annum, such servant also, if required, to take care of and attend to the horse of the plaintiff if kept at the stable of the defendant; and also the yearly expenses of common fodder for the horse now in possession of the said defendant, and all other necessary and usual expenses attending the keeping of any horse or carriage by the sai defendant or plaintiff to be used for the purposes of the said partnership; and also all expenses attending any accident to such horse or carriage as aforesaid while used in or about the affairs or business of the said copartnership; and also that upon the purchase of any additional horse or carriage for the purposes of the said firm, the payment for such horse or carriage should be defrayed out of the partnership funds and carried into the said general account, but that the horse and carriage at present in the use of the said defendant should be Shortly after the receipt of the last-mentioned let-deemed to be his separate property. And that after ter the plaintiff went to Birmingham and had an inter- the deluctions in respect of the expenses thereinbefore view with the defendant, when, as the plaintiff' alleged, mentioned should have been allowed in each of "With regard to terms, I think I ought to expect 1000l., as mine is a practice of more than forty years' growth; 600l. to be paid at once, and the remainder by instalments of 100l. per annum to be paid out of the receipts. It is to be considered also at my time of life, I cannot be expected to work for any great while longer, when of course you will succeed to the whole. Shall you return through Birmingham when you leave Tiverton?" The plaintiff replied to this letter by repeating the request he had made for information as to the annual income the defendant derived from the practice of his profession, in answer to which the defendant on the 22nd Feb. 1856 wrote as follows:-"I write a few lines for the purpose of affording you some additional inforination which I had omitted from my last letter. I have recently made out a complete list of all the accounts contained in the ledgers for last year, and find that my practice amounts to about 8001. per annum. The expenses I cannot state with accuracy, but suppose they cannot exceed 100%. However, as you are leaving Tiverton so soon, it will be unnecessary to go into further particulars at this time. Perhaps you will go to Cradley before you come to Birmingham. Let me know when we may expect you here." CHAN.] [CHAN. subject of treaty between them. He also charged that, by the misrepresentation of the defendant, he had not only paid him the sum of 7501., and entered into partnership with him, but had lost much valuable time and incurred considerable expense in attending to the affairs of the partnership; and he submitted that a reasonable allowance by way of salary ought to be made to him in any account which might be taken between them; and he prayed for a dissolution of the partnership, and that the partnership deed of the 17th March 1856 might be such annual accounts as aforesaid, and of all other moneys, debts and expenses then due, owing or incurred from or by the said copartnership, the said parties thereto should with all convenient speed divide between them, in equal shares and proportions, such of the said gains and profits of the copartnership as should then for the time being have been gotten in and collected and be available for such division, in equal shares, and stated in the general account; and that the said defendant should retain and maintain at his own expense, and receive the premiums in respect of, his pre-declared void, and set aside as having been executed by him sent pupils who should be employed in the said joint practice, but no future articled pupil, apprentice or assistant should be taken by either of the parties on account of the said partnership without the consent of the other of them first obtained; and that any premium or fee taken with any articled pupil by either of the said parties with such consent should be held to belong separately and exclusively to the partner to whom such pupil might be articled, and that such partner should bear the expenses attending the maintenance of such pupil. The defendant in his answer averred that the statements in his letter were true, but were not intended to convey any guarantee or assurance to the plaintiff that his practice would at all times afterwards continue of the same annual value, nor were such statements made as showing the average annual value of his practice up to that period, but simply the amount of his practice for the year 1855. He also submitted that, as the books and accounts of his practice were always kept in the surgery, the plaintiff during his residence of five years with him as his pupil had daily opportunities of inspecting the same, and of becoming acquainted with the nature and value of his practice. He admitted that the annual value of the practice had to some extent fallen off, but he submitted that it was wholly out of his power to prevent such falling off, and that he had never professed to guarantee that his practice would continue of the same annual value that it had been in his individual hands up to the commencement of the partnership. under the circumstances hereinbefore mentioned, and that the defendant might be decreed to repay the plaintiff the sum of 750, together with interest, and also that he might be allowed a reasonable sum of money for his expenses and loss of time in assenting to the said partnership practice and affairs, and also that he might be indemnified against all the partnership debts, liabilities and engagements, he offering to assign to the defendant all his interest in the partnership estate, and to account for all the moneys received by him on account of the said partnership. Or, The accounts of the partnership were not made up, that the said partnership might be dissolved, and an nor the annual profits ascertained, until the beginning account taken of the profits, dealings and transactions of the present year, when it was found that the profits according to the true construction to be placed upon did not realise one-half the sum the defendant had the said indenture of the 17th March 1856, and that represented to be the annual proceeds of his practice. his interest might be ascertained and paid to him; and The plaintiff, alleging himself to have been deceived by that a receiver might be appointed to realise the partthe misrepresentations of the defendant, with a view tonership property, he offering to account for all sums avoid litigation, made a proposal to the defendant, of money received by him on account of such partnerwhich was not in the end acceded to; and, after some ship. further correspondence and much altercation, which it is not necessary to detail here, the plaintiff filed his bill, in which he charged that the statement made by the defendant in the aforesaid letter of the 22nd Feb. 1856 to the effect, "that he had recently made out a complete list of all the accounts contained in the ledger for the last year, and found that his practice amounted to about 8007. per annum," was made in order to deceive the plaintiff' as to the annual value of such practice, and that the defendant's income, derived as well from his practice as a surgeon and apothecary, as also from the appointments he held as surgeon to the Queen's College and Queen's Hospital respectively, and from a contract the defendant had made, did not, after deducting expenses, realise him more than 3501. per annum; and, as evidence thereof, it had been proved that the defendant had made a return to the Commissioners of Property-tax of such his income for the year immediately previous to his partnership with the plaintiff as amounting to the sum of 3501. and no more, and that such return was made The case came on before the M.R., when his Honour by the defendant at or about the time when he was gave the following judgment:-"The defendant is a representing his income to plaintiff as being exclusive gentleman of advanced years, and has apparently acof the income the defendant derived from the two said quired a considerable reputation in Birmingham as a several appointments, and of the profit derived by him medical man. The plaintiff is a young man, apparently from the said contract of the annual value of 7001. or of very considerable knowledge and ability, who was a thereabouts. The plaintiff further charged that the pupil of the defendant for a period of something more than defendant either did not make out the above men-four years, from 1849 to 1854. After that he graduated tioned list, or, if he did, included therein entries and as a licentiate at Edinburgh, and he was appointed items with the object of deceiving the plaintiff, the surgeon to a hospital in Tiverton. In 1856 the dedefendant well knowing that there were no practical fendant proposed to the plaintiff that they should enter means by which the plaintiff could discover whether into partnership, and accordingly, after stating the the list so made out, if the same were made out truly, number of his pupils and that his gross profits were set forth such items, and such items only, as 800l. a-year, and that the expenses could not be more would truly show what had been the gross pro- than 100l. a-year, making the net profit 700l. a-year, fits made by the defendant by his practice as he proposed a partnership with him for fourteen years. a surgeon and apothecary for the year pre- Finally it was settled that he should join in the partvious to the date of such letter, and for a nership, and pay a premium of 750/ There were moiety of which practice only the defendant and certain other things settled and arranged between them, plaintiff were treating, or that the defendant, but various matters could not be arranged, or various in order to deceive him, included in such list matters were not referred to and were not thought of. items which he knew were exceptional, and did not It so happened, when they came to act together, properly belong to or form part of the ordinary income particularly after the plaintiff was married and they derived by a surgeon and apothecary from the practice were residing together, that the differences becaine so his profession, and which income alone formed the insuperable that it is obviously impossible for |