Toulmin v Copland
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1844 |
| Date | 18 July 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 553
HIGH COURT OF CHANCERY
S. C. reversed 2 Ph. 711; 41 E. R. 1118.
[41] toulmin v. copland. July 10, 18, 1844. [S. C. reversed, 2 Ph. 711; 41 E. E. 1118.] On the death of one qf two partners, his executors filed a bill against the survivor, alleging that the survivor had transferred the partnership funds into his own name, and had applied and intended to apply them in carrying on the business for his own benefit; and praying that the partnership accounts might be taken, and the interests of the parties therein ascertained. The decree, among other things, directed the partnership accounts to be taken. Before the general report was made the Defendant (the survivor of the partners) died; and the Plaintiffs filed their bill of revivor and supplement against his representatives, praying the benefit of the proceedings, and that the accounts might be carried on as against the new Defendants ; and that the Plaintiffs might be declared to be entitled, at their option, to the profits or interest on the partnership property used by the surviving partner after the death of the other. Held, that the supplemental bill was in the nature of a bill of review, and, having been filed without the leave of the Court, was irregular. That, inasmuch as the relief sought by the supplemental bill might, in substance, vary the decree in the original suit, the Defendants had not, by answering the bill, precluded themselves from insisting on that objection. That the irregularity might be corrected by ordering a stay of proceedings, without taking the bill and answer off the file. That, although the supplemental bill might not of necessity have been irregular if it had excluded a period of eleven days, between the death of the one partner and the filing of the bill against the other, yet the Court would not reject that period for the purpose of sustaining the bill. A motion by the Defendants that the bill filed in this cause in July 1843 and amended in April 1844, and the answer of the Defendants thereto, filed in November 1843, or some or one of them, might be taken off the file. The ground of the application was that the amended bill of April 1844 was a supplemental bill in the nature of a bill of review; that it was not founded on error apparent on the face of the decree in the original suit; and yet that the leave of the Court to file it (which is necessary where the foundation of the bill of review is the discovery of new matter) had not been obtained. The defence to the motion was rested on the argument, first, that the bill in question had not the nature of a bill of review; and, secondly, that the Defendants had waived any objection of irregularity by answering the bill. The facts were briefly these:-Toulmin & Copland were for. many years navy agents and partners. Toulmin died on the 4th of January 1819, and on the 15th [42] of the same month the original bill was filed in the Exchequer, by his repre- V.-C. xii.-18* 554 TOULMIN V. COPLAND 4 HARE, 43. sentatives, against Copland, charging the latter with applying and intending to apply the partnership property in his hands to his own use, and in carrying on the business on his own account; and the bill prayed that the partnership accounts might be taken, and the balance paid, and for a receiver and an injunction to restrain the Defendant from dealing with the assets in the manner alleged to be threatened. The decree, which was made in June 1828, referred it to the Master to take an account of the partnership transactions and of the monies received and paid by each partner on account thereof; to make inquiries respecting the terms of the partnership agreement; and to ascertain what was due to either partner according to the result of such inquiries. Several separate reports were made by the Master, and were excepted to by the different parties; and the orders upon the exceptions were the subject of divers appeals. In March 1843, before the general report was made, Copland died. The bill now in question was filed by the Plaintiffs in the original suit against the daughters of Copland, who, under his will, represented his real and personal estate; and it stated, by way of supplement, the will and death of Copland; and that Copland, after the death of Toulmin, employed the capital, property, furniture and fixtures of the partnership in carrying on the business in his own name; and that he transferred to his own account the debts and balances due to the firm, carrying interest, according to -the custom of the business, at 5 per cent., with annual rests; and that the accounts so transferred were always afterwards carried on by Copland as his own accounts, although they included balances belonging to the partnership; and that Copland from time to time received and paid monies on such accounts, and at the end of every year struck the balances [43] and carried on the sums remaining due as debts to himself. Sums amounting to upwards of 12,000 were especially stated to have been dealt with in this manner. About 12,000 had been ultimately paid into Court to the credit of the original cause. The bill prayed that the suit might be revived, and the Plaintiffs have the benefit of the proceedings against the Defendants, the representative, devisees and co-heiresses of Copland; that the accounts directed by the decree might be carried on; and that it might be declared that the Plaintiffs were entitled, at their option, either to participate in the profits made by Copland in carrying on the business after the death of Toulmin, or to be allowed interest at 5 per cent, per annum upon the balances from time to time due from Copland to the estate of Toulmin in respect of Copland's receipts and payments on account of the partnership, or upon such parts of the balances as should be found to have been employed by Copland in his business of navy agent, or otherwise subjected to the risks of such business; and that the amount of such profits, and the proportions in which the parties were severally entitled thereto, might be ascertained; and that what should be found due to the Plaintiffs, as well in respect of the accounts directed by the decree, as in respect of such profits, might be paid out of the personal estate of Copland, and, if necessary, out of his real estate. And the bill prayed a receiver of the outstanding debts of the partnership. The Defendants put in their answer in November 1843, to which answer exceptions were taken and allowed. The Plaintiffs then obtained leave to amend their bill, and obtained an order that the Defendants should answer the amendments and exceptions together. The bill was amended on the 3d of April 1844; and, a short time afterwards, the present motion was made. [44] Mr. Wakefield and Mr. Kenyon, for the motion, cited Lord Bacon's Order (Beames Ord., p. 1), Hodson v. Ball (Phill. 177) and Partridge v. Usborne (5 Euss. 195); and contended that there had been no waiver of the right of the Defendants to object to the improper proceeding: Cope v. Parry (1 Madd. 83), Wall v. Stulls (2 V. & B. 354), Lem v. Ward (1 S. & S. 334), Pilkingim v. ffimsworth (1 Y. & C. 612). Even if this bill were prosecuted to a hearing, no decree could be made upon it, inasmuch as the question which it involved had been adjudicated upon by the original decree. Mr. Simpkinson and Mr. Phillips, for the Plaintiffs, insisted that the bill in question was purely supplemental, and sought not to vary the original decree, but only to add to it a declaration founded upon facts not known at the time the original bill was filed, and therefore not comprehended in the original suit. It was, indeed, known that Copland had taken possession of the partnership property, and transferred the accounts into his own name, and the original bill sought to charge him with the con- 4 HAKE, 45. TOtJLMIN V. COPLAND 555 sequences of those acts, but it did not seek for an account of the profits made by Copland in respect of such transactions, inasmuch as it could not have been known that there would be any profits thereby, nor that the then Defendant would persist for twenty years in carrying on the transactions complained of. It could not reasonably be suggested that any profits were made during the eleven days which intervened between the death of Toulmin and the institution of the original suit, so as to render it necessary to exclude those eleven days from a suit in respect of the subsequent trans-[45]-actions; Cropper v. Knapman (2 Y. & C. 338). The fact that the Defendants are obliged either to ask that their own answer may be taken off the file, or to take off the bill and leave the answer, supports the argument that the objection, if any, must be taken to have been waived. the ViCE-CHANCELLOR [Sir James Wigram]. The Defendants in this case have applied for leave to take the bill and their own answer off the file, not upon the ground that the answer was filed by mistake or surprise, but that the bill itself was a bill which could not be filed without the leave of the Court. Very extraordinary circumstances must be shewn to have occurred before the Court would make an order in that form ; but as, in a proper case, the order may be modified by directing a stay of the proceedings in the cause, leaving the answer upon the file, I have considered whether the bill is open to the objections which the Defendants allege may be made to it. Abraham Toulmin and John Copland carried on business in partnership as navy agents. On the 4th of January 1819 Toulmin died, and on the 15th of January his representatives filed their original bill against Copland, the surviving partner, stating that the partnership assets consisted principally of outstanding debts, money in the funds, and of money in the hands of Copland; that John Copland threatened and intended to apply the partnership assets in carrying on his trade, and for his own purposes; and it charged, specifically, that he had...
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