1800. FORSTER v. HALE [ * 319 ] latter succeed. That decides, that at the time of that proposal they in his conception stood interested in fourths in the share of the colliery, to which his interest in the ship was to be attached, which he desired, not Kent, but them, to buy, not as partners in the bank, but as partners in the colliery; and the inducement is, that they would find it very useful ; and this springs out of a proposal by Kent, which marks, that he had a confidence, that he was a part-owner in the colliery; for he frankly and naturally writes to Burdon, that as an owner his ship The Burdon ought to have the usual advantage of carrying the first cargo to market. Burdon's answer is not, "You are no owner: you may be fitter; but have no right as "owner:" but he says, he concludes from that, Kent has an idea of selling The Tynemouth Castle; because, if she is not to be sold out and out, that is the ship of two of the owners of the colliery. Then he pursues the idea, not of selling it out and out; but he takes another turn. Complaining of the ship he states the account; computing the value of his share in the ship at 10597. He argues oddly as to the value * of his share. He values it to them at what it cost him: which is to his own advantage. But it is to be sold to them quá partners in the colliery. In order to explain the conduct of Burdon and the other parties, what possible account can you give, but that there was an agreement established between them, that they should be interested in equal shares in his fourth of the colliery? Kent acts upon it as a thing established. He makes the proposal, not as desiring a favor, but claiming a preference to The Burdon as an owner. Burdon answers him rather quickly; "No; that can only be "upon the supposition of your ridding me of The Tynemouth "Castle; for that is the ship; being one belonging to two "owners." He again presses them: and what is the threat? He had a singular anxiety about this ship. It is whimsical enough; considering the circumstances, that have since come out, as to the will. But what is their answer? They do not buy it. What is the threat he holds out? He might have said upon the supposition now taken by his representatives, "if 66 you do not take the share in the ship, you shall have "nothing to do with the ship or the colliery." "No:" he says, "consider, you are in my power in another way;" as to the the time of paying the money due to him from the bank. Then comes another part of the transaction, Burdon having kept a very exact account with the partners in the bank desires a settlement. The result is, that 30,000l. is due to him against the bank. Whence does that balance arise? It is the just balance of his account with them upon the supposition, that their entries with regard to the payments upon the colliery account were just: but it is not the balance due to him upon the other supposition, that all the payments out of the cash in the bank were to be carried to his account. It is false by 1500l. The balance falls short of 30,000l. by that sum but upon the supposition, that their applications of Burdon's cash as well as of their own to the colliery were just. It is too lightly assumed, that, because he lived at Hardwicke, he is not accurate about their accounts; for it is clear from his own ledger, that he was uniformly and constantly very vigilant and attentive to their operations in his concerns with them. He had a large stake; and was by no means inattentive; the farthest from a sleeping partner that can be imagined; as vigilant and active as any other partner can be. The next thing is the transaction in August. He had been making codicils to his will. It was very prudent, considering his age; though I do not find, his faculties were in the least degree impaired. A more quick and intelligent man, minute and exact in his business, we seldom have seen. An instance of that is the direction he gave to Rowntree. We hardly know from his statement what the specific direction 1800. FORSTER v. HALE. [ *320 ] was. 1800. FORSTER v. HALE. [ *321 ] was. As I said of Wade, I do not doubt Rowntree's evidence of the fact; nor, that Rowntree thought, Burdon did not think himself compellable. Rowntree mistakes the reason. It was not, because in point of engagement they had no right to claim: but, that he had so great an empire over them that they could do nothing. Rowntree's opinion in that respect is correct and true. What has Rowntree done? Burdon intimated to him, that he meant to take a security upon that share of the colliery for all the money due, and to become due to him from the bank; giving them the benefit that might result from the partnership, and also making them liable to the loss, if the adventure should prove unfavourable; though he looked upon it as a very prosperous adventure. His purpose was to attach to that security the charge of all the debt they owed him. In execution of this idea Rowntree prepares the deed. They talk of an assignment. The idea they had was of an assignment of his share in the colliery and a re-assignment. But Rowntree thinks it better to do it in another way: to declare a trust upon the fourth of the lease; which is not to be assigned to the partners. They have no assignment of the legal interest in the lease: but all is to remain in the person of Burdon; and he is to declare a trust. The first trust is to secure all, that might be due to Burdon: the last, after all charges are discharged, is for the benefit of the partners in the bank * in equal shares. He keeps the whole by these means in his own hands. Their observation upon it is, that it leaves them under some disadvantage. They would rather have had their interests set out distinctly, and an assignment to each, according to the idea upon which they had kept their accounts. They remonstrate. They do not appear quite satisfied with Rowntree's reason. He states that Burdon will not consent; but will have it his own way. They at last agree: but their conduct was not at all that of men afraid they should lose the tide of his favour setting in to them at that time. They act, as far as they can, considering their dependence upon Bardon. They are in no hurry. There is no pressure; and they make fair and proper remonstrances. It is impossible to answer the question put by the Solicitor General: Why should Burdon be anxious to get a security upon this? He had the thing. He had the whole interest, according to the Defen dants; dants; and why he should have thought it a clever thing to get a security upon that, which was entirely his own, for so sensible man, or any other man, is utterly inexplicable. But if he considered it, not as about to be done, but as concluded and agreed upon, he did get an advantage to himself, not a fair one, not a due advantage, by forcing that security to be made to himself, which he knew they could not refuse. To come to any other conclusion, it is necessary, that the letters should not be considered to bear the meaning, which any man would impute to them. You must also suppose, that these several entries, which perfectly correspond with the idea the letters prove to have subsisted in their minds and in his, were fabricated with a view by fraud to raise an interest to themselves. It was a very odd, a foolish, species of fraud, to give themselves, upon some aspect of what might happen hereafter, and that at the chance of a discovery by any person, who might inspect their books, even their own clerks, this interest. Great stress was laid upon the alteration in the account. In my view it is quite evident, the alteration was a consequence, that in their opinion resulted from their having acquiesced in the manner Rowntree proposed by the deed to be executed a trust to be established in the colliery; for it was no longer a colliery, in which there were four distinct interests: but all was in Burdon: he holding it, only subject to account to them for three-fourths, after all charges defrayed. Therefore it was properly the result of that transaction, that a more proper and correct account, squaring with that deed, should be kept, as John Burdon's colliery account; as he was the only person sustaining that account. As far as it was an account to be kept in their books, he was the accounting party. They individually were not to be accountable. To suppose, they made the alteration, because they gave the thing up, is exactly analogous to the supposition, that they had made the former entries with a view to create an interest to themselves deceitfully, without being authorised by the nature of the transaction or any explanation between them and Burdon. Upon this view of the case I am perfectly satisfied and convinced by the written evidence; which is perfectly unaffected by any parol evidence. It might square more with the 1800. FORSTER v. HALE. [ *322 ] . 1800. ނ FORSTER บ. HALE. the written evidence upon a cross examination of Wade and Rowntree but it is enough that it does not contradict the written evidence; and as to the books, it is impossible by any art, by any ingenuity in book-keeping, to raise them into any thing to contradict the letters. I think, they confirm the letters. It is not necessary, that the books in themselves should afford that evidence: but I confess, I think, the books explaining the letters, and the letters receiving that explanation from the books, are parts of the same case. Therefore, though an issue might have been had perhaps, before the cause was canvassed, I cannot direct an issue: for if the verdict found, that these Plaintiffs were not engaged in partnership with Burdon in this colliery, I should not let that verdict stand. The decree was affirmed. 1798. July 25th, 26th. 1800. March 14th. husband, al lowed. [ *323 ] LE TEXIER v. The MARGRAVE of ANSPACH. Demurrer by THIS bill, filed against the Margrave and Margravine of a married wo- Anspach, by Le Texier and the assignees under a man to a bill commission of bankruptcy issued against him, stated, that of discovery before the year 1792 the Margrave of Anspach came to reof transactions side in England at Brandenburgh House near Hammersmith, with her, as agent to her and kept an establishment of attendants and officers, exclusive of menial servants, in the stile of, and according to the ceremonies used by princes of the German Empire; and the Margrave being unaccustomed to the manners of this country authorised and empowered the Margravine to take upon herself the management and control of all his affairs and concerns, and to act in his name in whatever she should think proper to do in regard to his establishment and the arrangement of his domestic concerns; and she has in fact from and before 1792 down to the present time, with the authority and consent of the Margrave, had the management and control of the affairs and concerns of the Margrave; and all persons, who had any business to transact with him, have transacted the same with the Margravine, as the avowed and acknowledged agent of her husband. |