1794. Earl of upon the whole there was a clear intention, that the bulk of the charges should be raised by sale and mortgage. There a large sum was to be raised for debts: here the question is ALBEMARLE between volunteers. It is unnatural to suppose the testator should create a term of eleven years in order to sell it. Lord CHANcellor. v. ROGERS, The question for my consideration is, to whom this advowson would have belonged, an avoidance falling during the term; for Rogers has not exercised as the trustee a discretion here: the conveyance is by Mr. and Mrs. Meyrick as cestui que trusts of the advowson during the term. That is the ground, upon which they have proceeded imperatively to direct him to dispose as she thought fit, of the contingent eventual chance of the avoidance falling within the term. In that view of the case it is impracticable to conceive, if the avoidance had happened and no money had passed, that I should have said, Lord Albemarle had a right to the presentation, and not Mrs. Meyrick. [ *482 ] This devise is to an indefinite extent an application of the rents, issues, and profits, in the most ample terms. The determination of the term has not yet happened. An avoidance has happened. I am called upon to say, to whom the right of presentation belongs. The claim of the Plaintiff as heir is given up. It is argued for the Plaintiff, that the trustee cannot present upon this avoidance: he must be directed, he has no beneficial interest. That I agree. If there is no other person, who is cestui que trust, then as in the case in Forrester there is a resulting trust for the heir: but in that case there was no person, who upon the will could make a disposition, the exercise of the right of presentation. An estate was given V. 460, and Greaves v. Mattison, T. Jones, 201. See also upon this subject, Hebblethwaite Cartwright, For. 41; Goodall v. Rivers, Mos. 395; Sandys v. Sandys, 1 P. Will. 707; Ravenhill v. Dansey, 2 P. Will. 179; Stanley v. Stanley, 1 Atk. 549; Hall v. Carter, 2 Atk. 354; Lyon v. Duke of Chandos, 3 Atk. 416; to Smith v. Evans, Amb. 633; Con- Bea. 65, 1794. to trustees. They were to make profit. Being mere trustees they could take no possible benefit to themselves; not even the ALBEMARLE advantage of presenting for nothing. The object of their trust Earl of v. ROGERS. [ *483 ] was charities. The different charities could not exercise the right of presentation. Therefore the right, of no pecuniary value, the living being void, belonged to the heir. It must The trustees could not derive any belong to somebody. species of advantage. Here I am to look at the will to see, whether there is any cestui que trust of this estate during the term. Is not Mrs. Meyrick entitled to the rents, issues, and profits of this estate, subject to the imposed charges? After these purposes are answered the whole estate during the term is in her. I am called upon to examine, what would have been the testator's intention upon this vacancy. I am perfectly satisfied, the idea of a vacancy did never occur to him: but I cannot from that speculation draw any construction to limit or extend the will. I might reason thus; that he did not choose, his nephew under age should have the right of presentation, and enjoy that any more than any other advantage till the age of 25, the time for which the term was calculated. If I am put to conjecture, there is no reason to form any probable conjecture, that he did not intend his daughter to have the nomination. He puts her in possession of all the fortune he intends her to have by his will. She was marriageable. The case might have been put of her marrying a gentleman in orders. In that case I could not have said, the testator did not mean her to present her husband. But none of these cases occurred to him. He has used general and comprehensive words in giving to the Defendant, a person capable of exercising this right, all beneficial interest during the period for which he has debarred the Plaintiff from the exercise of any right. If Mrs. Meyrick and her husband had wanted a *house, and chose to live at the mansion-house, not spoiling it, the trustee would with a very bad grace have refused it. I do not know, that I should not have been bound to admit them. The Plaintiff cannot claim as heir at law, because there is a specific cestui que trust during the term. As the case now stands, if I was to direct, to whom, whether to the nominee of Mrs. Meyrick or the Plaintiff, the trustee should make out the presentation, I think he ought to the nominee of Mrs. Meyrick. 1794. v. ROGERS. This decides the whole case; for the presentation being in Mrs. Meyrick, who has directed her trustee to do this, wheEarl of ther she had money or gave it for nothing is indifferent; ALBEMARLE except that the 400%. being received it must like all other issues, when reduced to a certainty, be a subject of account from the trustee as a profit arising during the term, to those, who have a right after all the prior charges are satisfied; for though she takes, she takes subject to the other purposes. It must be an account generally of all his trust. consequence of my opinion is to dismiss the bill. Therefore the NEWMAN v. MILNER. 1794. Nov. 11th. Plaintiff prayed a discovery, injunction, and delivery of a BY indentures dated March 1, 1789, between Francis Newman, Thomas Alves, and Herman Grauman, on entering into partnership it was among other things agreed, that any bills, notes, or securities upon the partnership should, if judged bill of exproper to be accepted by any two of the partners, be accepted change: upon by Newman and Alves, and not by Grauman; and that Grauman the answers should not of his own accord accept without their knowledge and evidence or consent any bill, execute any bond, or sign any promisory the right being note in the name of the partnership, or otherwise by any clear, the Court writing or verbal engagement bind the partnership; and if he refused an opshould do so, that the said bill, bond, note, or engagement, portunity of trying it at should not be considered as binding on the partnership; and law; and dethat no credit should be given to any person whatsoever, nor creed an imother transaction of any kind take place concerning the busi- mediate deliness of the said partnership, without the knowledge and very. consent of all the parties, when such consent could be obtained in a reasonable time, or two of them in the absence of one. The deed recited that Grauman had traded upon his separate account, and it was provided, that all merchandize or other effects consigned to him and all sums of money, debts, &c. due or becoming due to him, on his separate account should be received by the partnership; and that the nett proceeds should be placed to his account; and that he should when required acquaint the other partners with the state of his private affairs; and should not, directly or indirectly, carry on any [ *484 ] 1794. NEWMAN v. MILNER. any trade or business on his own account; and that none of the parties should permit the joint stock to be in any way charged or incumbered with any private debt not concerning the partnership; but that such private debt should be discharged out of the separate property of the debtor; and that every transaction, that ought to take place in the business of the partnership, should be as far as possible with the knowledge and consent of all the parties, provided always, and it was thereby expressly covenanted, declared, and agreed, that if any of the parties should of their own accord, without the knowledge or consent of the others, draw upon or receive any money from the banker of the partnership on his separate account, or draw any bill of exchange on any house abroad or in Great Britain in the name or firm of the partnership or on their account or otherwise, or should accept any bill drawn upon the said firm, or give any promisory note, or execute any bond, or give any other security in the name of the firm, or purchase any goods on account of the partnership, without the knowledge and consent of the others, when it could be obtained, and should not in all things truly observe and perform all other the covenants, &c. but should break any part thereof, it should be lawful for the others to dissolve the partnership. July 2d, 1790, Grauman remitted to James and Dennis Milner of Manchester, a bill drawn in the name of Newman and Co. upon a house at Hamburgh for 2201. In consequence of directions sent by Newman the bill was returned unaccepted; of which the Milners gave notice to Newman. Afterwards the partnership was dissolved; and Alves assigning all his effects to Newman, he agreed to pay the joint debts. Grauman having become a bankrupt, an action was in Trinity Term, 1791, brought on the bill by the Milners against Newman; who filed this bill against them charging, that Grauman drew the bill of exchange without consent of the other partners, and delivered it to the Defendants in discharge of a private debt, for which they insisted upon his giving them the said partnership security; and that they never paid, and the part[485] nership never received, any consideration. The Plaintiff prayed a discovery and injunction; and that the bill should be delivered up; or that his name or the stile of the partnership should be struck out. The Defendants by answer stated, that they they had various dealings previous to and in March 1789, with Grauman, and that in February of that year, a short time before they furnished him with the last parcel of goods, he informed their agent that he was about to enter into partnership with the Plaintiff, (who was reputed to be, and whom the Defendants considered, a man of considerable property,) and another person; and that the said partnership would support him to any amount; that upon the faith of that assertion and in full expectation that his intended partners would, if necessary, enable him to pay for the goods; they on the 4th of April, 1789, delivered to him a parcel of goods of the value of 2231.; that on the 2d of July when the price became due, he remitted the bill in question voluntarily and without any solicitation; which was the only security they ever received; and that they would not have supplied the goods but for such representation. They admitted, they paid no consideration to the partnership, and never had any dealings with, or debts due from them. They denied any knowledge, that the bill was drawn without consent of the other partners, or without authority; and stated that the partnership was first made known to them in or about February 1791. Mr. Lloyd, Mr. Graham, and Mr. Stanley, for the De- Objected, that the Court could not prevent them from trying the question at law. Attorney General, for the Plaintiffs. In Adey v. Anderson in the Exchequer, bills to a great amount were decreed to be delivered up under similar circumstances; and Lord Commissioner Eyre stated it as clear equity. This Court desires the assistance of a Court of law, but is not bound to send the case to law, where a sufficient ground appears for ordering the bill to be delivered up. Here the Defendant lay by, till Grauman became a bankrupt. If the conscience of the Court is satisfied, that a jury ought to be directed to find for the Plaintiff, he is not to be sent to a Court of law, that another Judge may tell the jury what is the clear conclusion of law upon the facts. 1794. NEWMAN บ. MILNER. |