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In Chancery-Compton v. Bloxham.

opinion on all questions respecting the table-spoons and six silver tea-spoons to practice of the court, that I have referred be kept for the use of my widow; at her to the clerks of records and writs to ascer- death, the whole property, the house I tain what is the understood practice on now live in, the garden behind the house, this point, and I have received from them the little garden opposite the house, it this certificate: "The clerks of records being all free land, and goods and furniand writs certify, that, where a defendant ture of every description, with all my is in contempt for want of answer, (wheth- books of every sort, to be given to my er in custody or otherwise,) and he after- said sister Jane Bloxham, my executrix, wards files his answer, to which the plain- and to my said brother Charles Bloxham, tiff replies, such defendant is thereby my executor, their heirs and assigns forentitled to be discharged from his con- ever, my monies in the funds, £16,000 in tempt, without payment of the costs there- the 3 per cent. reduced, and £12,000 in of." That is in accordance with the de- the new 4 per cents., to be equally divided cision in Haynes v. Ball, and there is no between my said sister Jane and brother contrary decision. I think, therefore, I Charles Bloxham, on condition my said must consider that what has taken place sister Jane resides in my house after my amounts to a waiver of the contempt, and death, to direct and manage all my wife's that, as regards the order of commitment, affairs, to receive her monies and pay her the defendant is entitled to be discharged debts, until my wife think proper, and is without payment of costs. There have capable of directing her own affairs." been other applications to the court to dis- The testator died in 1827, and the Will charge that order for irregularity, which was proved by Jane Bloxham alone, powhave been refused with costs. The pre- er being reserved in the usual form for sent does not affect those other orders. Charles Bloxham to come in and prove.

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Shapter. One who has a bequest made to him, who is appointed an executor or trustee prima facie, takes the bequest in respect of his office, and he cannot take the benefit given him by the will without bearing the burthens imposed on him by it. Reed v. Devaynes, 2 Cox, 285; Stackpoole v. Howell, 13 Ves. 100; Calvert v. Seddon, 4 Bea. 222; Peggott v. Green, 6 Sim. 72; Hanbury v. Spooner, 5 Beav. 630. In the cases of Cocksetter v. Barker, 2 Russ. 585, and Dix v. Reed, 1 S. & S. 239, the principle is recognized, though, in those was not annexed to the office. It will be cases, it appeared clearly that the legacy said, perhaps, that the gift of the stock to the executor was not a specific bequest, but was a gift of part of the residuary property; and Griffith v. Pruen, 11 Sim. 202, and Christian v. Devereux, 12 Sim. 264, may be relied on as shewing that a gift of residue to an executor or trustee is not annexed to his office. It is difficult to see the ground for these decisions, since the principle applicable to such questions is, that no one shall take a benefit under a will without performing the duties, or bearing the burthens attaching to it.

JOHN BLOXHAM made his will, dated in 1826, as follows:-As it is probable I may die before my wife, it is my will, as soon as I die, my sister Jane Bloxham, my executrix, my brother Charles Bloxham, my executor, take possession immediately of the oak chest of drawers, and the little writing-desk in my usual sittingroom, with all its contents; the oak chest of drawers in the dressing-room, the middle room on the ground floor, fronting the street, with all its contents; the oak chest of drawers in my bed-room, with all its contents. The wearing clothes of every description to be given to my brother Charles Bloxham. The silver plate be- KNIGHT BRUCE, V. C.-The court, in ing in the oak chest of drawers in my those cases, consistently with all the moddressing-room, it is my will that six silver ern decisions, was endeavoring to escape

In Chancery.-Nelthorpe v. Holgate.

from, and slide out of, a rule that is found to be inconvenient, and the existence of which it regrets.

Shapter. The gift of the stock was a specific legacy. The whole property defined by the testator to be a house, goods, furniture, and books, is given to Jane and Charles as joint-tenants. The stock is given in a distinct sentence to them as tenants in common, with a condition annexed.

object being to enable Sir John to acquire the property on more favorable terms than might be expected by dealing directly with Holgate, whose land adjoined and lay convenient to the bulk The bill was of the baronet's estates. filed against Holgate, who resisted the performance on the ground of this latent agreement. It was not alleged that Holmes had been guilty of any misrepresentation; but Holgate contended that the concealment of the sub-contract was KNIGHT BRUCE, V. C.-I do not see a a tacit deception, which vitiated the prinsingle instance throughout this will where Charles Bloxham's name is not accompa-tained no averment, nor did he give any cipal contract. Holgate's answer connied by a description of him as the testa- evidence of Holmes or Nelthorpe, or their tor's brother. Looking at the whole will, solicitors having asserted, in answer to I think that the testator did not intend Holmes was not acting as an agent or any question on Holgate's part, that trustee. The answer, likewise, contained no suggestion that Holgate had even refused or declined, or expressed or felt, any disinclination to sell to Nelthorpe; or that Holgate, if he had known Nelthorpe to be the real purchaser would have refused or objected to deal with him; or that Holgate, if he had known the real circumstances, would have obtained better terms from Nelthorpe.

that the assumption by Charles Bloxham
of the office of executor should be a con-
dition precedent to his taking this legacy.
In arriving at that conclusion, I think it
immaterial whether the will does or does

not dispose of the residue; and I think
it also immaterial whether Jane Bloxham
and Charles Bloxham took as joint-tenants
or as tenants in common, or not. How
ever these questions are decided, I am of
opinion, that, according to the terms of
this will, Charles Bloxham will take this
legacy. It is not necessary for this pur-
pose to decide whether the stock was
given specifically or as part of the residue.
Glasse appeared for the plaintiff.
Wray and W. P. Wray, for the other

defendants.

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The principal case referred to, and on which the Vice Chancellor gave his judgment, is Hunter v. Atkins, 3 Myl. & K. 113.

VICE CHANCELLOR KNIGHT BRUCE, after going over the circumstances of the case, observed,-An eminent writer (Cic. de Off. lib. 3, c. 13) has said,-Neque enim id est celare quidquid reticeas; sed cum, quod tu scias, id ignorare emolumenti tui causâ, velis eos quorum intersit id scire;" a description or proposition within which, according to a just exposition of the ex"emolumenti tui causâ," and pressions, "intersit id scire," the present case certainly, in my judgment, is not. I must entitled to a specific performance. therefore hold that Sir John Nelthorpe is

He was a man without any sense of his duty as a prince; without any regard to the dignity of his crown; without any love to his people; dissolute, false, cruel, and destitute of any positive good quality whatsoever, except a pleasant temper and the manners of a gentleman.-Burke's description of Charles the Second.

In Chancery.-Harris v. Harris.

Before Sir JAMES WIGRAM, Knight, Vice
Chancellor.

HARRIS V. HARRIS.—April 11th and 14th, 1845.

PARTNERSHIP-ANSWER-PRODUCTION OF
DOCUMENTS.

of no partnership by answer, and the question was, whether the documents enumerated in the schedule to the answer ought to be produced or not. The answer, after denying the existence of the partnership, stated that the business had been carried on by the defendant on his own sole account, and that he had A defendant is bound to answer all the allegations in been in the habit of employing his son W. the bill, the answer to which would or might prove Harris as his assistant in the business. The the truth of the plaintiff's case; and, therefore, the answer admitted, that, with a view to the inmere allegation that the documents contained introduction of Walter into the business when the schedule to the answer relate exclusively to the defendant's title, is of no avail to the defendant the defendant should retire, the words “Harin resisting production, unless supported by aver-ris & Son" were painted on the show board ments excluding all probability that the documents at the entrance of Wellington Yard, and on would furnish evidence in support of the plaintiff's the omnibusses and other carriages employed

66

case.

in the business, but denied that those words THE bill alleged that the partnership subsisted were put upon the harness. And it stated and was carried on under the style or firm of that Walter's name was, with the same view, Harris & Son," from June, 1834, till the inserted in the license for driving one of the death of Walter Harris, one of the alleged barouches, as the owner thereof. The answer, partners, upon certain premises known by as to the documents, was as follows:-And the name of Wellington Yard, at Richmond; this defendant admits he hath in his possesand it charged (amongst other things) that sion or power the books, and divers accounts, the name of "Harris & Son" was painted on receipts, vouchers, documents, and papers rethe show-board placed over Wellington Yard, lating to the said business, but he denies it and also on the omnibusses, carriages, and to be true that he hath, or ever had, in his harness employed in the business, or belong-possession, custody, or power, or in the cusing thereto; and that all payments, receipts, acts, matters and things made, had, and done in the course of the said business, were made, had, and done in the joint names of Thomas and Walter Harris. And the bill charged, that the defendant ought to set forth a full, true, and particular account of the receipts and payments on account of the said partnership; and it also charged that the defendant had formerly, and had then, in the possession, custody, or power of himself or of his agents, certain indentures of assignment of the lease of the premises called Wellington Yard, and the books belonging to the said business, and also divers accounts, books of account, ledgers, day-books, receipts, vouchers, documents, deeds, securities, memoranda, statements, letters, copies, extracts, or other papers and writings connected with, mentioning, referring, or relating to the matters in the bill mentioned, and by which the truth thereof would appear. The defendant at first endeavored to make his defence by a negative plea. In April, 1844, that plea was heard before his honor, who, upon the argument, was of opinion that it was bad. The plea was then amended, and, upon the argument of the amended plea, his honor held, that the plea was, in substance, overruled by the answer. The defendant then set up the same defence

tody, possession, or power of any agent or agents, any books or book belonging to the alleged copartnership, no such copartnership having, in fact ever existed. And this defendant saith, that, save as aforesaid, he hath not, and never had, in his possession, custody, or power, or in the possession, custody or power of any agent or agents, divers or any accounts or account, books of account or book of account, books or book, ledgers or ledger, day-books or day-book, receipts or receipt, vouchers or voucher, documents or document, deeds or deed, securities or security, memoranda or memorandum, statements or statement, letters or letter, copies or copy, extracts or extract, or other papers or writings, paper or writing connected with, or mentioning or referring, or relating to, any or either of the matters in the bill mentioned, or by which the truth of the several matters in the bill mentioned, or any or either of them, would appear. And this defendant hath, in the schedule to this his answer, set forth a list or schedule of the books, accounts, receipts, vouchers, papers, and documents in his possession, as hereinbefore mentioned. But this defendant saith, that all the said last-mentioned books, accounts, receipts, vouchers, papers, and documents relate exclusively to the title of this defendant, and to matters

Privy Council.-Tobin v. Murison.

connected with his own property and affairs, the schedule, and which were admitted to reand to businesses carried on by him on his late to the business in question, might contain own sole and separate account, and in which entries in the joint names of Harris & Son, the said Walter Harris had not any interest, and, if so, those entries would be evidence to and do not relate to any partnership between ke submitted to a jury, or to this court perhim and the said Walter Harris, or to any forming the office of a jury, upon the question businesses or business carried on by him in of partnership or no partnership. No attempt conjuction with the said Walter Harris. And has been made on the part of the defendant this defendant submits, and humbly insists, to shew that the documents contained in the that, for the reasons herein and in his former schedule were not on the joint account. Conanswer appearing, he is not bound and ought sistently with the answer, every entry might not to be required to produce any or either of the last-mentioned books, accounts, receipts, vouchers, papers, or documents; and that the said complainant has no right to call for any production or inspection thereof.

tiff.

be in the joint names of Walter and Thomas; and it was not clear upon the evidence in the case, as it might be found upon the answer, that the onus was not upon the defendant to prove the non-existence of the partnership. Neither would the allegation that the docu

K. Parker and Winstanley, for the plain-ments relate exclusively to the defendant's

title enable him to resist the production, notTemple and Miller, for the defendant. withstanding the contrary character of the documents, in the absence of specific aver[The following cases were referred to:ments excluding all probability that the docuSmith v. The Duke of Beaufort, 1 Hare 507; Edwards v. Jones, 8 Jur. 416; Adams v. Fisher, 3 M. & C. 526.]

ments would furnish evidence in support of the plaintiff's case: the documents should be produced that the court might exercise its judgment upon the evidence before it.

Privy Council.

Before Lord BROUGHAM, The Vice Chancellor
KNIGHT BRUCE, The Vice Chancellor
WIGRAM, The Judge of the Admiralty
Court, and Mr. PEMBERTON LEIGH.

[APPEAL FROM CANADA.]

JURY-BAILOR AND BAILEE-NEGLIGENCE.

THE VICE CHANCELLOR, after stating the case to the effect given above, said that, supposing the denial of the partnership to have been made by plea instead of by answer, and that the answer as to the documents was an answer in support of the plea, (an hypothesis most favorable to the defendant,) he was still of opinion that the documents should be produced. The defendant was bound to answer the allegations in the bill, the answer to which would or might prove the truth of the plain- TOEIN V. MURISON.-June 17th, 21st, 1845. tiff's case, and the plaintiff had, therefore, prima facie a right to a full discovery of every matter relating to the use of Walter's name, jointly with that of the defendant, in the business in question, for that would be evidence before the jury by which to test the truth of the allegations in the bill. Denys v. Locock, 3 M. & C. 205. The answer had admitted the joint use of the names of Thomas and Walter on the show board at the entrance of Wellington Yard, and upon the omnibusses and carriages employed in the business; that many of the payments, receipts, accounts, matters, and things made, IN an action brought in the court of king's had, and done in the course of the business, bench for the district of Montreal, by Muri. were made, had, and done in the joint names son, the present respondent, against Tobin of Walter and Thomas; and that the defend- and another, the present appellants, the declaant allowed it to be understood that Walter ration stated a breach of promise by the dewas a partner. That being so, it could not fendants in not rendering a just and reasonabe doubted that the documents mentioned in ble account of certain goods delivered to them

The manner in which a court should act with refer-
ence to special facts found by a jury, and in draw-
ing inferences from them.
What state of facts, as found by a jury, would be
sufficient to support a charge of negligence, so as
to give a ground of action by a bailor against the
bailee.

Negligence not to be inferred, unless the state of facts
cannot otherwise be explained.
Duties of the bailee in respect of the instructions of

the bailor.

Privy Council.-Tobin v. Murison.

by the plaintiff, and for not taking due and the said quantity of thirty-three hogsheads is proper care of certain goods of the plaintiff, unaccounted for by the said defendants. That, of which the defendants had the custody. in addition to the said quantity of thirtyAnd, upon trial before a special jury, on the three hogsheads of sugar a general balance of 24th September, 1841, the following special accounts between the said plaintiff and the verdict was returned, and from which the said defendants on their general commercial main facts of the case will sufficiently appear: dealings which had existed between them for "That the said defendants, on or about the a number of years before, leaves a balance 27th day of October, in the year 1837, re- due by the said defendants to the said plainceived from the plaintiff on consignments a tiff of 6401. Ss. currency, with interest therequantity of eighty hogsheads of sugar, to be on from the 6th June, 1832, making the sum disposed of on account of the said plaintiff, of 27S/. 14s. Sd. interest up to this day. That the sugar being of the value of 15107. Ss 9d. as to the said sum of 728l. 14s. Sd. aforesaid, current money of the said province of Cana- the said defendants did undertake and promda. That, while the said sugar was in their ise, and are bound to account to the said plainpossession, in a certain store situate on the tiff in manner and form as complained of by Pointe a Calliere, in the city of Montreal, him; and they assess the damages of the said which store had been used for purposes of plaintiff, on occasion of the not performing storage for a number of years, a quantity of of the said promises, at the sum of 728l. 14s. thirty-three hogsheads was destroyed by an Sd. That the total sum of money now due unusual rise of the waters of the river St. to the said plaintiff by the said defendants, Lawrence, while the said thirty-three hogs- payable to the said plaintiff at Montreal, is heads were stored in the basement story of 14817. 14s. Sd., with interest from this day. the store. That the said waters did begin to But, as to the sum of 7531. and interest aforerise on or about the 20th day of December, said, the value of the said thirty-three hogs1837, and it did continue rising until the 3rd heads of sugar destroyed as aforesaid, the juJanuary, at which period it had reached an rors aforesaid are altogether ignorant, and, unprecedented height, and which rise of wa- therefore they pray the advice of the court; ters was occasioned by the formation and and if, upon the whole matter aforesaid, it shoving of the ice of the river St. Lawrence; should seem to the said court that the said and the said quantity of thirty-three hogs- defendants as to the said thirty-three hogsheads, during the rising of the said waters, heads, did undertake and promise, and are were entirely lost to the said plaintiff. That bound to account, then the jurors aforesaid, the average value of the said thirty-three upon their oaths aforesaid, say, that the said hogsheads of sugar was 49s. 6d. for each hun- defendants did undertake and promise, and dred weight, and the weight of the thirty- are bound to account, in manner and form as three hogsheads was 362 cwt. 29 qrs. 2 lbs., the said plaintiff hath by said suit complainand that the value of the said thirty-three ed, and in that case assess the damages in rehogsheads of sugar was 8991. 14s. 2d. That spect of the said thirty-three hogsheads of sua certain paper filed in this cause, and mark- gar, on occasion of the said promise and uned G, filed by the said plaintiff, and dated dertaking and accountability, to be 7537. with April 30th, 1836, is a letter written by the de- interest. But if, upon the whole matter aforefendants at Montreal to the plaintiff at Hali- said, it shall seem to the court, that, as to the fax; and that the paper filed by the said plain- said thirty-three hogsheads of sugar, the said tiff as his exhibit, marked P, and bearing the defendants did not undertake and promise, and date the 18th day of May, 1836, is a true are not bound to account in manner and form copy of the answer thereto, written by the as complained, then the jurors aforesaid, upon said plaintiff to the said defendants, and re- their oaths aforesaid, say, that the said deceived by the said defendants in due course fendants did not undertake and promise to acof post. That the store referred to in said count, and are not bound to account, in manletter, written by the said defendants to the ner and form as the said complainant hath said plaintiff, and in the answer thereto writ- complained against them." The letter markten by the said plaintiff to the said defend- ed G, referred to in the special verdict, was ants, is the same store in which the said thir- to the effect that the storehouse of the dety-three hogsheads of sugar were afterwards fendants had narrowly escaped destruction in stored by the said defendants, and where they consequence of the accumulation of ice, and were afterwards lost and destroyed. That the answer of the plaintiff, also referred to in

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