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The Vice-Chancellor said, he did not recollect that the precise point had ever before come under the consideration of the Court. From the way the question was argued in the case of "Tooker v. Annesly," 5 Sim., he was induced at that time to look into all the authorities, and he remembered that they only amounted to this, that where the Court did interfere it would go on to make an application of the proceeds of timber which constituted the inheritance, by investing it in the 3 per Cents., and pay the interest to the parties in succession. The present point must be determined by analogy, and the whole law, as far as tenant for life without impeachment of waste was concerned, was thus expressed in the resolution in Lewis Bowles's case:-"The clause of 'without impeachment of waste' gives a power to the lessee, which will produce an interest in him, if he executes his power during the priority of his estate." That he believed was the true law, and for that reason, where there was an estate settled to one for life without impeachment of waste with remainders over a power of sale to be exercised with the concurrence of the tenant for life, the Court had refused to permit the power to be exercised by selling the whole and excepting from the purchase-money the value of the timber, to be paid to the tenant for life. The very case occurred forty years ago, before Sir W. Grant, who held, that a tenant for life who had an option of cutting timber should not sell the whole estate, and have the value of the timber excepted. That was an authority for the case where the tenant for life was unimpeachable of waste, but in cases where, either

by the act of God, or by the act of the Court, timber, which was standing as part of the inheritance, became converted into Consols, and the Court had dealt with it as representing the estate of inheritance, by giving a commutation of the rights which the tenant for life impeachable of waste would have, his Honour thought when the estate of the tenant for life had ceased, the Court would consider only the estate of the trustee or person next in possession, and if he was unimpeachable of waste and asked to have the corpus paid to him that he only asked for that which by analogy the law gave him a right to exercise when his estate came into possession. In strict analogy to that, when an estate in remainder came into possession in the shape of an estate for life without impeachment of waste, the person that was entitled took that portion of the inheritance which was represented by the proceeds of the timber cut.

ROLLS' COURT.

February 2.

ROBINSON V. GRANT.-In this petition there was this singularity

that Mrs. Mason, a married lady, had appointed her husband, Thomas Mason, to be one of the trustees of her separate income, which was derived from a sum of 10,000l. in consols, and she now desired that he might receive the dividends.

Lord Langdale.-Such an appointment was peculiar. The object of trustees was to put the fund out of the power of the husband, but the course this lady had taken was to enable her husband to receive. However, as it appeared from the affidavit that the

lady was aware of the consequences, and understood what she was doing, the prayer of the petition must be granted.

July 8.

HALE v. HALE.-This motion, commenced yesterday, was resumed to-day. Mr. Pemberton and Mr. Romilly were for the plaintiff, the Rev. John Hale, clerk; and Mr. Kindersley, Mr. Bethell, and Mr. Goodeve, for the defendant, George Hale, opposed the motion.

Mr. Pemberton said, the object was to have a receiver appointed, to wind up the affairs of a partnership, to take the usual accounts, and for the production of documents. The plaintiff and defendant were concerned as partners in the Wheat Sheaf Brewery in Redcross-street, London; and the defence was, that the plaintiff, being a clergyman, was incapable of having any interest in the partnership, or any claim upon the defendant. The bill stated that Joseph Hale, the father of the plaintiff, was possessed of the stock in trade, book debts, &c., of the brewery in copartnership with William Wiggins, Wall, Lynn, and the defendant George Hale, under the firm of Hale and Co., and that Joseph Hale, by his will, made in July, 1810, bequeathed his property to John Pewtriss and George Hale, upon trust, after the death of his wife, to pay or permit his son John Hale, the plaintiff, to receive all the residue of his estate and effects, and declared, that in case the plaintiff and his nephew George Hale (the defendant) should be desirous of continuing the trade of a brewer, his trustees should have power to lend the plaintiff such sums as they

should think sufficient for that purpose, and he appointed his wife, Pewtriss, and Hay, as his executors. The testator died in 1812; the executors proved his will and allowed his share to remain in the brewery, and annually received the profits. The brewery was carried on until 1815, when a new partnership was established between the defendant George Hale, Wiggins, Lynn, and Pewtriss, in the character of executors of the testator. Pewtriss died in 1827, and in 1828 Wiggins and Lynn retired. The brewery was then carried on by the defendant George Hale, on behalf of himself and the representatives of the testator. In 1832 Mrs. Hale, the widow of the testator, died, and the defendant, who was then the sole surviving legatee in trust of the residue of the property of the testator, and also his sole surviving executor, carried on the business as the manager of the brewery both on his own and on the account of the plaintiff, as the person entitled to the residue of Joseph Hale's estate. Accounts were from time to time delivered by the defendant to the plaintiff. The business, however, turning out less profitable than it used to be, the plaintiff became desirous of putting an end to it as far as he was concerned, and proposed that the defendant should pay him the value of his interest, or that the concern should be sold. The parties could not agree upon the terms of the dissolution, and in consequence the bill was filed for an account, for a receiver, and to put an end to the business. The answer alleged that the accounts had been settled from time to time, but the plaintiff said those settlements were not binding upon him. That was not, however, material

to the present question. The defendant said, that, as long as the business was profitable, the plaintiff was anxious to remain in it, although he now wished to quit it; but that by the act of 21st of Henry the 8th it was enacted, that no spiritual person should have, use, or occupy, by himself or other persons, any brewhouse, &c.; and that by the 53rd of George the 3rd, no spiritual person can carry on any business, and also that by an act of her Majesty no spiritual person can carry on trade or business for profit; that the suit was vexatious, being to open settled accounts; that it originated from the defendant's refusal to admit the plaintiff's son-in-law into partnership; and the defendant insisted upon the statutes as a bar to the relief sought, in the same manner as if he had pleaded them. He however added, that he had notwithstanding continued to pay, and still offered to pay, the plaintiff the proportion of profits coming to him in respect of the business; and was willing, upon the withdrawal of the suit to come to the fullest account. This defence, if maintainable in law, must be painful for a gentleman to raise against his cousin, with whom from 1812 to 1841 he had been dealing as partner. If there were anything in the objection, it would deserve serious consideration how far it would be competent for the defendant, who had been dealing with the plaintiff, who was a mere sleeping partner, twenty-nine years, to raise it now; but the point was free from all doubt. The statutes had been repealed by 1st and 2nd of the Queen, cap. 106, by the 29th section of which it was not lawful for spiritual persons to engage in trade, except in certain

cases, amongst which is the case where the trade or share in the trade shall have devolved upon a spiritual person by devise, bequest, settlement, marriage, &c. The business, by the will of his father, thirty years ago, devolved upon the plaintiff, who did not come within the statute, and this was

a

case in which the defendant had not only excluded his partner, but had absolutely denied his right.

Mr. Romilly followed on the same side.

Mr. Kindersley, for the defendant, said, that to prevent the brewery being put to a stop, which would be the effect of granting the present application, the defendant had taken the legal objection. The accounts were examined and approved by the Rev. John Hale. It was arranged that the defendant should be the manager, and be allowed for it 2007. a-year, so that the plaintiff was making the defendant his agent. The plaintiff had gone through the accounts and had ticked them. It appeared from the letters of the plaintiff, that he was acquainted with the act of Henry the 8th, for in them he writes, "If I think proper to run the risk of a qui tam action? or why not substitute my wife's name?" The plaintiff had been before, in point of fact, in the name of Pewtriss, a partner in the firm. The testator died in 1812, and the plaintiff was his residuary legatee, absolutely entitled to his property. He continued to carry on the trade after the expiration of the partnership, and could it now be said that the trade had devolved upon him? After Pewtriss's death, in 1833, the plaintiff and defendant, without any written articles, tacitly agreed to carry on the busi

ness together. The plaintiff sought to put an end to the brewery, by appointing a receiver, insisting upon his right, as residuary legatee, to have the whole affair closed, and came with an interlocutory application to destroy the defendant's trade, which he had been carrying on for thirty or forty years. The plaintiff put his claim, not upon the footing of a partner, but asserting that, as residuary legatee to his father, he had a right to an account from his father's executor. Had the defendant really refused the plaintiff his share, one moiety, the present defence would have been ungracious, but the defendant took it as a defence to the course adopted by the plaintiff, of endeavouring to destroy the trade altogether. His Lordship had simply to decide upon the dry question of law, and he submitted that the plaintiff was, as a spiritual person, within the penalty of the

act.

Mr. Pemberton replied, and, referring to the act of the Queen, said, that under it the trade might go on, and the effect of the act was not that the spiritual person was to forfeit the civil benefits of his contract, for the law was completely altered in that respect, but that the clergyman should not remain in the enjoyment of his benefice. The act created a penalty of the spiritual preferment of the trader. The Court was dealing with a strictly penal statute, which was to be construed with the greatest severity against the party contending for the penalty. The brewery had devolved from the father to the son. He had no desire to say more than was necessary of this most ungracious defence and the denial of the plaintiff's right, who was ready to take security, and

had not the remotest desire to inconvenience the defendant.

Lord Langdale said, that it was an extraordinary defence. After the testator's death, it was suggested that it was not competent for the plaintiff, being a spiritual person, to enter into the trading concern. The consequence was, to vest the interest in another person, and the executors agreed to continue in the firm for him. Ultimately, however, the whole interest became vested in the plaintiff and the defendant, the plaintiff not being a mere nominal partner, but a common interest was admitted. They had gone on for thirty years, during the whole of which time the defendant had been paying to the plaintiff his share, admitting his interest as a partner, so that it was a matter of surprise that when relief was asked, the defendant should say to the plaintiff, "You are a spiritual person, and entitled to nothing; when your legal title is defeated, I will account with you in such manner as I shall think best." The property of the testator was continued in the trade in which he employed it. Had the legatee or executor a right to the mere pecuniary value only, or to the profits made by the continuing partnership? Had he not a right to have the value obtained accurately? It was, however, said, he should not have it in the way he required, and the statutes were appealed to. He (Lord Langdale) must consider those statutes before he expressed his opinion. If they did not preclude the plaintiff, the defence was unfortunate, for it denied that the plaintiff had any claim. Looking at all these matters, it was very expedient for the parties to come to an arrangement without the interference of the

Court. He would consider the statutes and the notice of motion.

Thursday, July 29.

THE ATTORNEY-GENERAL v. DULWICH COLLEGE.-Lord Langdale delivered his judgment on this information, heard last January. The information prayed that it might be declared who the parties were that were entitled to participate in the benefits of the charity; that the charity ought to be extended to a greater number of objects; that the number of scholars might be increased; for a reference to the master as to the residence of the members, the government of the college, and the appropriation of the revenue by a scheme, and that in such scheme regard should be had to the statutes and will of the testator. On the 21st of June, 1619, by letters patent of James 1st, licence was granted to Edward Alleyne, for the maintenance of poor men, women, and children, and for the education of poor children, to found one college in Dulwich to endure for ever, to consist of one Master, one warden, four fellows, six poor brethren, six poor sisters, and twelve poor scholars; to be maintained, educated, and governed according to such ordinances and statutes as he (Alleyne) should make in his lifetime, or any person specially nominated by him should make after his death; the college to be called God's Gift; the master, warden, &c., to be a body corporate, with perpetual succession, and the Archbishop of Canterbury to be for ever the visitor of the college, and to have power to visit, order, and punish according to the ecclesiastical laws of England, and according

to such ordinances as Alleyne should make. By deed of the 13th of September, 1619, Alleyne established the college, and nominated the master, warden, fellows, brethren, sisters, and poor scholars, to have perpetual succession according to such ordinances; and by deed of the 24th of April, 1620, he conveyed land to the sole and only use of the master, warden, fellows, &c., and for no other intent or purpose whatever. On the 29th of September, 1626, six years after the endowment, the founder established certain statutes for the government of the college, prescribing qualifications and duties, and how the revenues were to be distributed. He seemed to consider he was in some respects entitled to vary the foundation; he appointed six chanters for music and singing in the chapel, who were to be appointed junior fellows, and thirty members, and, desiring that a portion of those poor persons should be chosen out of three parishes, he directed the churchwardens of St. Botolph, St. Saviour, Southwark, and St. Giles without Cripplegate, now St. Luke, to make choice of ten poor persons each, five men and five women of each parish, to be members, and to be admitted into the almshouses at London, and thence to be admitted into the college; and he appointed the manner of choosing them by lot; and he ordered to be paid to each of the chanters a certain annual sum, and to each of the thirty members a weekly payment of 3d. Alleyne, by his will of the 13th of November, 1626, gave several specific bequests to the college, and directed his executors to build ten almshouses in each of the three parishes, and died on the 26th of December in the same

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