1855. Moss v. BAINBRIGGE. resulted to him from the estate having been recovered, and at the same time to repudiate the terms by which he has obtained those advantages? If he had at any time any equity to be relieved against this agreement, I think BAINBRIGGE he has by his conduct raised a counter equity against himself, and upon the whole I feel no doubt that the agreement of November 1845 is binding upon him. v. Moss. This agreement of November 1845, being binding upon Thomas Parker Bainbrigge, the 5,8771. 3s. 5d. mentioned in it became a debt due from him, and having regard to the terms of the memorandum of May 1851, it may not be material to consider the question how far William Henry Bainbrigge could in any event have been permitted to question the amount of that debt, or to insist upon the taxation of the bills with a view to the reduction of it. The agreements of May 1851 are not, as I read them, agreements by which each of the Bainbrigges charges his interest in the estates with the amount due from himself only, but agreements by which each of them charges his interest in the estates with the amount due from himself and from his brother. The words of the agreement are, "all sums of money owing to Moss by both or either of us," and these words occur not only in the memorandum signed by both the brothers, but in the memorandum signed by William Henry Bainbrigge only. Whatever monies, therefore, were due from Thomas Parker Bainbrigge to Moss became, as I understand these agreements, a charge upon the interest of William Henry Bainbrigge in the estates, as well as upon Thomas Parker Bainbrigge's interest in them. And accordingly the 9,3771. 3s. 3d. mentioned in the memorandum of the 18th of November 1845, became charged upon William Henry Bainbrigge's interest on the estates. That this was the true meaning of the agreement is, I think, more evident from the declaration. as as to the priority of Moss's charge. Why did William Henry Bainbrigge join in that declaration, if it was not intended that his interest in the estates should be charged with the debt due from Thomas Parker Bainbrigge to Moss? If, however, it was necessary to enter into the question as to the right of William Henry Bainbrigge to dispute the amount of the debt due from Thomas Parker Bainbrigge, I am very strongly inclined to think that William Henry Bainbrigge could not, under the circumstances of this case, have been permitted to call for the taxation of the bills. His affidavits as to his knowledge of Moss's claims against Thomas Parker Bainbrigge, and of the agreement of November 1845, are most guardedly framed. He swears that he did not know of the extent of his brother's liability, or that Moss had a legal claim upon him for 10,000l., but I do not find that he ventures to swear that he did not know that Moss claimed nearly 10,000l. against his brother. He says that he did not know of the agreement of November 1845, until long afterwards, but he nowhere states when first he knew of it. Looking to the language of these affidavits and to the evidence on the part of Moss, I think it must be imputed to William Henry Bainbrigge that he knew of the extent of Moss's claim against Thomas Parker Bainbrigge from the commencement of the proceedings, with reference to the second litigation, and it is clear upon the evidence that he knew of the agreement of November 1845, at least as early as the month of June 1846. In this state of circumstances, and the new litigation having been carried on for his benefit, he surely ought to be precluded in equity, no less than his brother, from questioning the debt secured by that agreement. The agreement next in order is, that contained in the letter of the 4th of June 1848, from William Henry Bainbrigge to Moss, by which agreement William Henry 1855. Moss v. BAINBRIGGE. BAINBRIGGE V. Moss. 1855. Moss v. BAINBRIGGE. v. Moss. Henry Bainbrigge agrees to pay the bills of costs upon the principle of an annual settlement of the bills with interest upon them, that is, his own bills of costs. If this letter had stood by itself, I should have considered it as entitled to little, if any weight; but I consider it to be important, when looked at with reference to what had passed before, and what followed afterwards. I construe it as an agreement by William Henry Bainbrigge to pay compound interest upon the balances, which should appear against him on the bills of costs and accounts; and I think it material with reference to what had passed, as affording strong evidence that he was not at this time dissenting from Thomas Parker Bainbrigge's costs being paid upon the same principle, under the agreement of November 1845, with which he was at that time acquainted; and, as to what afterwards followed, I think it more material, as conveying to William Henry Bainbrigge full knowledge of the terms upon which Moss considered that he was to carry on the then pending litigation. The next and final agreements between these parties are the agreements of the 30th of May 1851. Those agreements are in these terms--[His Lordship read them as set out above]. It was objected to the first of these agreements that it was void, upon the ground of usury, and it would clearly be so, if it was intended to secure compound interest upon the balance due at the date of the agreement; but I do not think that this is the true meaning of the agreement. The agreement charges the estates with the payment to Moss of all sums of money and bills of costs, due to him from the Bainbrigges, or either of them, with lawful interest on the same respectively, on the principle of of annual rests. The latter words, "with lawful interest on the same respectively, on the principle of annual rests," may either mean that the interest, to be computed on the principle of annual rests, is to form part of the sum to be charged on the estates, or that the sum to be charged on the estates is to carry interest upon the principle, which is mentioned. I think that the first of these meanings is the true one, for it had been before agreed, that these sums of money and bills of costs, should carry interest upon the principle of annual rests; but unless this construction be adopted, the estates would not be charged for the time past with any interest upon them. Besides, if the interest was not intended to be part of the capital sum to be charged on the estates, it is most improbable that the provision respecting it should be found in this part of the agreement, which is evidently intended to define the amount to be charged; and, again, the mortgage to be effected, is to be "a legal and proper mortgage;" but no mortgage could be legal or proper by which interest, to be computed upon the principle of annual rests was reserved. I think, too, that the authorities mentioned by Mr. Webster, have an important bearing upon this question; and upon the whole, therefore, my opinion is, that the objection, upon the ground of usury, cannot be maintained. These agreements were then further objected to, upon the ground of the relation of solicitor and client having subsisted between the parties at the time when they were entered into. How this question would have stood, if the compound interest had been insisted upon, it is not material for us to consider, it being in the power of the Court, when called upon to enforce the agreement, to modify its provisions, and the counsel for Moss having waived all claim to the compound interest, the simple question is, whether, under the circumstances of this case, 1855. Moss v. BAINBRIGGE. BAINBRIGGE บ. Moss. 1855. Moss บ. BAINBRIGGE. BAINBRIGGE บ. Moss. upon case, an agreement to charge the estates with interest the taxed amount of the bills of costs, as if annually settled, can, or cannot, be maintained. I am of opinion that, under the very special and peculiar circumstances of this case, the agreement ought to be upheld. It is true, that, when the agreements were entered into, the relation of solicitor and client subsisted between the parties; but it subsisted only in a modified degree. There had been an unpleasant correspondence, and an altercation between the parties, before these agreements were entered into. It is sworn by Mr. Moss, that before he went to Liverpool, where the communications as to these agreements took place, (and there is no denial of it,) there had been an angry or unpleasant correspondence between the parties; and it also appears there was an altercation between them at the first meeting on the subject of the settlement of the transactions with Moss. The relation of solicitor and client, though not terminated, had been loosened. The influence consequent upon that relation was not subsisting in its full and perfect force. It appears, indeed, that before this time William Henry Bainbrigge had employed other solicitors. That is a fact also sworn to in Moss's affidavit, and not contradicted. Again, these agreements were not signed by either of the parties in the presence or under the personal control of Moss. No attempt was made to prevent either of them from consulting any other solicitor upon the subject. They had full power and Indeed Mr. Lace, a soli full opportunity of doing so. |