MILLAR v. CRAIG. [ *441 ] was brought into the concern, and is alleged by John to have been brought into the concern for the purpose of being consolidated with that capital, to a moiety of the profits of which he considered himself to be entitled. After the 1st of January, 1814, when Nicholls and Lewis were admitted into the partnership, we again find that there is a computation of interest commenced. The capital, treated as the capital of James and John, was credited with interest against Nicholls and Lewis, and it so went on until the death of James Craig. That which was the usage of Corrie and James Craig before John could have had anything to do with it, became again the usage of James and John Craig, the instant they admitted any other person into the concern. But we are again under the same ambiguity as to John and James, because even then there was no account stated, as between James and John, in respect of any interest whatever. Now supposing it to be the law (which I do not think is quite so clear), that, when you find partners equally laborious and equally attentive to the business, as I think is proved they were in this case, you allow no interest on any excess of capital, and that therefore you do not put the parties on equal terms in that respect, still you would clearly give it, if you can collect, from the circumstances, *or from the usage between these parties, that there ought to be, or was intended to be, such a computation of interest. Can one believe that the party to whom the whole capital belonged renounced his advantage in that respect, and continuing to take an equally laborious part in the transaction of the business, should bring in his whole income, both partnership and private, and yet intend to reserve no advantage of that income upon the settlement of accounts between himself and co-partner? I must say, I have great difficulty in coming to such a conclusion as that. My present opinion is, that interest ought to be charged. I will look a little further to see whether there are any authorities upon it and I will reserve that point. : With regard to the length of time that has elapsed, I feel considerable apprehension in opening these accounts altogether, from the possible loss of documents during that time, and particularly, in consequence of John Craig being represented by the defendant James Craig, and of a great number of the partnership documents having got into the possession of Mr. Nicholls independent of James Craig. I confess that, unless bound, I should be reluctant to do it. THE MASTER OF THE ROLLS: On the best consideration I can give to this case, I think that John Craig must have known all the arrangements which took place in the business of Corrie and Craig, and the principles on which it was carried on, and the mode of computing interest on the capitals of the partners. My opinion, therefore, is, that interest ought to be computed on James Craig's capital. On the other point, I think that the justice of the case will be sufficiently answered by giving the plaintiffs liberty to surcharge *and falsify the account. The case may be in the paper to-morrow. THE MASTER OF THE ROLLS: On consideration of this case, I retain the opinion I before expressed, that interest ought to be charged upon the capital of the partners engaged in this concern. I think, that the circumstance of John Craig being perfectly aware of the nature of the accounts kept as between James Craig and Corrie, and the fact that there was no agreement entered into and no act done, in any way to show that the business between James Craig and John Craig was to be carried on on any other footing than it had been previously carried on between James Craig and Corrie, make it almost a necessary inference that an allowance of interest upon the capital must have been intended. As to the relief which ought to be afforded, it appears to me, that under the circumstances of this case, justice will be sufficiently answered by giving the plaintiffs leave to surcharge and falsify the accounts. Under all the circumstances, some considerable risk of undue loss to the legal personal representative of John Craig might be incurred, if the accounts were altogether opened. The decree I propose to make is this: Declare that the indenture of release of the 15th of July, 1823, shall stand only as a discharge for the several sums of money thereby stated to be retained by, or paid to, the several parties thereto as therein mentioned. Declare that the account in the indenture mentioned to be stated shall stand, with liberty to the plaintiffs and the defendant, the legal personal representative of John Craig, to surcharge and falsify the same. Direct the Master to ascertain *and state, what, at the date of the indenture, was the just amount and value of the residuary estate of James Craig deceased. Direct an inquiry at what time John Craig deceased was admitted to be, and became, a partner with James Craig, in the business in the pleadings mentioned. Direct 141 MILLAR C. CRAIG. April 3. [ *442 ] [ *443 ] MILLAR V. CRAIG, [444] 1843. June 6. Rolls Court. Lord LANGDALE, M.R. [454] that, so far as it may be necessary for the purpose stated, the Master is to take an account of the dealings and transactions of the partnership subsisting between John Craig deceased and James Craig deceased, from the commencement thereof to the time when Charles Nicholls and William Lewis were admitted partners in the said business, and also of the dealings and transactions of the partnership subsisting at the decease of James Craig, and at the decease of John Craig, between Charles Nicholls and William Lewis, from the commencement thereof up to the time of the death of James Craig. Let the Master ascertain and state what was due to James Craig deceased, from the said partnership firms, or either of them, at the time of his death; and, in taking those accounts, interest is to be allowed to each partner for the amount of his capital, from time to time, employed in the concern. Let the Master also, so far as it may be necessary for the purpose aforesaid, take an account of the personal estate and effects of James Craig deceased, possessed by John Craig deceased, William Millar and Charles Nicholls, or any or either of them, the plaintiffs waiving all relief against Ann Craig, the estate of John Craig deceased, and William Millar and Charles Nicholls, in respect of any acts and receipts of Ann Craig on account of the estate of James Craig. Let the parties produce before the Master all books, documents, &c. in the usual way, and if, in the proceeding to surcharge and falsify the accounts mentioned in the indenture of release, or, in taking any of the accounts hereby directed, it shall appear, that any books, documents, or writings necessary or useful as evidence in respect of the matters aforesaid, or any of them, are wanting, let the Master report the same specially (1), and also state, whether, in consequence of the want of any such books or documents, he is unable to proceed satisfactorily in taking the accounts, or in making the inquiries hereby directed. Reserve all the costs. THE ATTORNEY-GENERAL v. LORD CARRINGTON. (6 Beav. 454-461; S. C. 12 L. J. Ch. 453.) The Court will not interfere with the discretion of the taxing Masters as to the quantum of fees to counsel. Costs of process of contempt for not answering, not allowed in the taxation of costs of suit as between party and party. THIS case came before the Court upon petition, partly impugning the correctness of the Master's taxation of costs. (1) See Turner v. Corney, 59 R. R. 564 (5 Beav. 515). The fees paid to the Attorney-General and two counsel with him amounted to 391. 4s., of which the Master taxed off 15l. 15s. The petitioner insisted, that having regard to the time devoted to the case, the cause having occupied two days, the fees paid were reasonable and proper; and that the whole ought to have been allowed. THE MASTER OF THE ROLLS: This is a mere question of quantum, I cannot deal with it. The Master had disallowed two items of 1l. 4s. 8d. which were costs incurred in issuing process of contempt against two defendants who had not answered within the limited time, but which had not been executed. The petitioner sought to have these sums allowed. It was said that it was contrary to practice to allow these costs, unless specially directed by the order of taxation. THE MASTER OF THE ROLLS: There is a rule that you cannot get the costs, unless they are specially applied for. The Master is right. STURGE v. DIMSDALE (1). (6 Beav. 462-466; S. C. 7 Jur. 453.) 1843. June 9. Lord LANGDALE, M.R. A testatrix created a mixed fund of realty and personalty for payment of Rolls Court. her debts and legacies, but she directed the charity legacies to be paid out of pure personalty. She afterwards directed her trustees to set apart a sum of stock sufficient to provide for a number of annuities, and as the annuitants died, the stock let loose was to be applied in payment of the charity legacies. Held, that the direction created a demonstrative fund of pure personalty, out of which the charity legacies were to be paid. THE testatrix Ann Dimsdale devised her freehold, copyholds, and leaseholds to trustees, upon trust to sell, and stand possessed of the produce and of her personal estate, upon trust, in the first place, to pay her debts and funeral and testamentary expenses, and then to pay the several legacies and annuities thereinafter bequeathed, so far as the same would extend, and she then proceeded as follows: "Provided nevertheless, and my will is, that none of the legacies hereinafter bequeathed to charitable societies (1) Beaumont v. Oliveira (1869) L. R. 4 Ch. 309, 38 L. J. Ch. 239, 20 L. T. 53. [ 462 ] STURGE v. DIMSDALE. [463] or institutions, or for charitable purposes, shall be paid out of the monies to arise by the sale of my estates, messuages, lands, tenements, and hereditaments, or any of them, but shall be paid, so far as the same shall or may become payable under and by virtue of the directions hereinafter contained, exclusively out of and from such part of my personal estate only, as is legally applicable thereto." The testatrix then gave a number of annuities to individuals; and, for the purpose of providing a permanent fund for payment of the annuities, she directed her trustees to retain so much of the capital stock in the Three per centum Consolidated Bank Annuities which she might have at the time of her decease, if she should have sufficient for the purpose, and if not, then to purchase with other part of her personal estate so much more of the said capital stock as, with the capital she should have therein, should produce such annual interest and dividends as should be equal to the aggregate annual amount of the annuities which she had thereinbefore given. She then gave a number of pecuniary legacies, and also a charitable legacy of 500l. "to be paid out of her personal estate only," and twelve legacies of 500l. to individuals. And in case her real and personal estate, after payment of her debts, funeral, testamentary and other expenses, and after making such investments in the Three per centum Consolidated Bank Annuities, as she had directed, and payment of all the legacies and sums of money therein before given (except the said last-mentioned twelve legacies of 500l.), should prove insufficient to pay the said twelve lastmentioned legacies of 5001. each, then the deficiency was to be paid in manner thereinafter mentioned. And she declared, that her trustees should stand possessed of the said sum of capital stock in the Three per cent. Consols, subject to the charges thereon, under and by virtue of that her will expressed, upon trust, as the said annuitants died, to sell out sufficient capital stock, to pay off so much of the twelve legacies as there should remain unpaid. And after full payment of all the legacies, annuities, and charges therein before given, she bequeathed unto the British and Foreign Bible Society, and the Moravian Missionary Society the sum of 1,000l. each, and to the Bristol Infirmary, the Bristol Strangers' Friend Society, the Bristol Refuge Society, the Bristol Lying-in Society, the Bristol Guardian Society or House, the Bristol Misericordia Society, the Bristol Dorcas Society, and the Prison |