Suppose he succeeded to nine-tenths of the thirty-eight estates, how can I say he shall pay 221. 18s. when he is out of possession of one of the estates; for what relief is payable in respect of that particular one? When it is not known what payment is to be made in respect of any single estate, how can I make Lord Bolton pay, unless I find that he is in possession of at least a part of every one? Nobody knows even the name of any single one of the thirty-eight estates. Now as to Lord Bolton's possession, the effect of the evidence is this:-During the time of Lady Bolton and the life of the late Lord Bolton there was an alienation of a large portion of the property, and among the property alienated, were portions of land in the town of Basingstoke. Now, although it is impossible to trace any of the property with precision, this at least appears, that two at any rate of the thirty-eight estates were in the town; that is, among the lands which have been alienated. Another circumstance appearing is, that among the thirty-eight estates, in respect of which reliefs were paid on the death of the said Duke of Bolton, were some houses in the town, and these were parted with by the late Lady Bolton; therefore they are not in the possession of the present Lord Bolton. Now if the other thirty-six of the estates were clearly in the possession of Lord Bolton, what is he to pay for those thirty-six? How am I to measure the proportion of the 100l. and 227. 18s. that he is to pay? But then it is said that the circumstances show that up to the present time the thirty-eight estates may well be considered to be in his possession, because the same quit rents have been continued to be paid; that is, that 187. 15s. 4d. continued to be paid during the lifetime of Lady Bolton, and for one or two years after the accession of the present Lord Bolton. And it is 1854. said that, on the death of the first Lady Bolton, in 1814, the full amount of the heriots and reliefs was paid to the Mayor and Corporation of same amount; and it is insisted that those facts are eviBASINGSTOKE dence of the fact that the thirty-eight estates were not alienated. Now, if the question were alienation or not, and no positive evidence of it, that might be evidence ; but it is distinctly proved that some of the estates were alienated. v. Lord BOLTON. Another argument is this; it is said, true there may have been alienation of the original estates; but when the commissioners' award was made, allotments were made in respect of many or all of those estates; and the commissioners by their supplemental award directed that the allotments should be also subject to the quit rents; and therefore that, although Lady Bolton may have alienated some of the original estates, the present Defendants have some of the allotments. Now on that it is to be observed, that, looking at the Enclosure Acts, I find that there is no clause which has the effect of making the lands allotted liable to heriots or reliefs. There is an express clause as to copyholds, that the allotments made shall be liable to the services, &c.; but there is no clause applicable to freehold estates, and these are freehold estates. The commissioners had therefore no authority to make any such direction. Then as to the reliefs, it appears to me that the evidence shows that Lord Bolton is certainly not in possession of all the lands; probably that he is not in possession of any of them, and that it would be inequitable to lend the assistance of a Court of Equity to enforce against him and his successors the payment of any portion of the sums of 1007. and 221. 18s. for heriots and reliefs. Then there is no ground established as to confusion of boundaries. If there were, the Court would give a commission; but it is clear there is no such case, since you cannot in the evidence fix on any single house or parcel of land, and say it was part of these estates. And with reference to the position of the parties, one as lord and the other as tenant, the question is, whose duty it was to preserve a record of all these liabilities, whether it was obligatory on the tenant? Now surely it does not lie in the mouth of the lord to say, "I have preserved no memorandum of what estates are liable, but I come upon you as the tenant to pay." If there was an obligation on any body, it was on the lord, who claims to be entitled. If he will not take the trouble to preserve any record, it cannot be said that the tenant should. On that ground also I am therefore of opinion that there is no equity in the lord of the manor; and on the whole I come to the conclusion that I must dismiss the bill, but, having regard to all the circumstances, without costs. 1854. Mayor and Corporation of BASINGSTOKE v. Lord BOLTON. 1854: 21st Dec. Partnership. Surviving Partner. DAVIS v. AMER. on the termination of their partnership, came to an ar rangement for mutual convenience, that a third person should collect the outstanding assets; it was for acted upon some time, and Two partners, MESSRS. DAVIS and AMER were in partnership together as law booksellers near Lincoln's Inn under certain acts, by which the partnership terminated in September, 1853. When the partnership so terminated, they came to an arrangement, by which, as each was continuing the business of a law bookseller, and at no great distance from the other, in order to avoid the mutual inconvenience, and the probable injury to the collection of their assets, they placed in the hands of Messrs. Spillman and Spence, auctioneers, an authority then one of the for their customers to pay the debts due to the firm to partners died: Held, that the Spillman and Spence, with power to those parties to surviving part- give receipts; and circulars were accordingly sent by ner could not Davis and Amer, or by Spillman and Spence, to the cusrepudiate the agreement and tomers. There was no positive written contract, nor was alone collect the alleged agreement, that neither party should receive, the debts, but that the exor should be at liberty to revoke, the authority to Spillecutors of the man and Spence; but merely that Spillman and Spence deceased partner had a right should be authorized to receive as above stated. The evidence showed that the intention of Davis and Amer, in making this arrangement, was to prevent either party from pressing customers who might after the separation employ the other party, and to prevent what was termed in the argument any unseemly scramble, as between the late partners, in collecting the outstanding debts. Davis died in September, 1854. Before his death the authority to Spillman and Spence was partially acted upon; but on one occasion Spillman and Spence having applied to have a re ceiver appointed. to a customer for a debt alleged to be 307., he refused to pay on the ground that the debt was only 261. They refused to accept 267., and then the customer applied to Amer to receive the 261. This he at first declined, admitting it. to be the full amount of the debt, on the ground that Spillman and Spence were the parties authorized and the proper parties to receive; but on further being pressed, he took the payment, on the ground, as he swore, that he feared by refusing, to offend a customer of the former firm. He offered to hand the money to Spillman and Spence, but they refused to take it, and he accordingly held it for the firm. After Davis's death, his executor the Plaintiff, being dissatisfied, as he alleged, with the charges of Spillman and Spence, and with their mode of keeping the account, gave notice to the customers not to pay them; and thereupon Amer, as the surviving partner, proceeded to call in and to receive debts. Davis then filed his bill for an account, and now moved for an injunction to restrain Amer from further receiving the partnership assets, and for a receiver to collect them. No imputation was cast upon Amer, except that the Plaintiff produced some evidence of belief that he was in distressed circumstances; but this was distinctly denied by the affidavits for Amer. Mr. Glasse and Mr. C. C. Berkeley for the motion. The Plaintiff swears that there was an agreement. The Defendant denies it; and no doubt it is true there was no written contract; but the very terms of the authority to Spillman and Spence to receive for them, shows that there must have been such an agreement. The Defendant, indeed, while denying that there was an agreement, admits that it was verbally arranged that a joint authority for purposes of convenience should be given to Spillman and Spence; and though he denies 1854. DAVIS บ. AMER. |