Wallis v The Duke of Portland
| Jurisdiction | England & Wales |
| Judgment Date | 07 August 1797 |
| Date | 07 August 1797 |
| Court | High Court of Chancery |
English Reports Citation: 30 E.R. 1123
HIGH COURT OF CHANCERY
S. C. Bro. P. C. 161. See Reynell v. Sprye, 1852, 1 De G. M. & G. 677; Bradlaugh v. Newdegate, 1883, 11 Q. B. D. 7; Harris v. Brisco, 1886, 17 Q. B. D. 511.
3 VES. JITN. 495. WALLIS V. PORTLAND (DUKE op) 1123 CiLLis" v.' The Duke of portland. Feb. 8th, Wth, Aug. 7th, 1797. fS. C. 8 Bro. P. C. 161. See Eeynell v. Sprye, 1852, 1 De G. M. & G. 677 ; Bradlaugh v. Newdegate, 1883, 11 Q. B. D. 7; Harris v. Brisco, 1886, 17 Q. B. D. 511.] Bill for discovery, whether the Plaintiffs were not employed by one Defendant, a Peer, as solicitors to present and prosecute a petition on behalf of the other Defendant, complaining of a return of a member of Parliament, and praying, that he might be duly elected : demurrer allowed on grounds of public policy, and because the discovery could have no effect, and principally, because such transaction would amount to maintenance at common law. The bill stated, that the Plaintiffs were in 1789 employed by the Defendant, the Duke of Portland, to act as his solicitors, and to present on behalf of the other Defendant George Tierney a petition to the House of Commons, complaining of the return of George Jackson, Esq., to serve as member for the borough of Colchester in Parliament; alledging, that Tierney had been duly elected ; and praying, that he might be declared duly elected. The Plaintiffs in compliance with the direction of the Duke of Portland caused a petition to the effect aforesaid to be prepared and presented; and continued to act as solicitors on the said petition during the whole period, which the same was depending; and advanced very considerable sums on account, amounting in the whole to £3407, 1 Is. 6d. The petition being determined on or about the 4th of April 1789, the Plaintiffs delivered their bill of costs to a gentleman, who then acted as the confidential friend [495] of the Duke ; and not having received the amount they repeatedly applied to the Duke and to Tierney for the same. The bill then stated several pretences of the Defendant the Duke of Portland, that he was not indebted to the Plaintiffs ; and never instructed them to act as his solicitors, and to present such petition ; or to expect, that the expence, which might be incurred in presenting and proceeding upon it, should be defrayed by him; and that he repeatedly, after the petition was presented, declared to the Plaintiffs, that he did not consider himself liable; and in particular, that a gentleman, then his confidential friend, by letter communicated to the Plaintiffs, that the Duke did not consider himself liable to any demand in respect of such petition, and apprised the Plaintiffs, that if they proceeded thereon, they must not look to him for payment of the charges, which might be thereby incurred ; and that the Plaintiffs being so apprised did proceed thereon upon the credit of Tierney. In answer to these pretences the Plaintiffs made the following charges. About the beginning of February 1789 they were informed by Tierney, that he had just seen the Duke of Portland, and that he was directed by the Duke to instruct the Plaintiff Troward to present the said petition, and to prosecute the same ; and that the Plaintiffs believing the said direction to have been received by Tierney from the Duke did present and proceed on such petition on the credit of the Duke in consequence of such direction. The only intimation, they ever received, of the Duke's not considering himself liable was by a letter, dated the 15th of March 1789, from a friend of the Duke of Portland to the Plaintiff Troward (set forth in the bill) which after suggesting, that it was material to have a consultation on the state of Colchester with the Duke, Mr. Tierney, the Plaintiff Troward and some other persons, and stating some circumstances, which then prevented it, concluded thus :-" Your very handsome offer to me in your " letter, of the 3d instant, is most properly considered : but I am desired to say, that it " is impossible to think of putting you to the inconvenience, which accepting it would be " attended with you. As things now stand, it is material, that we should turn our " attention to the expence incurred, to that, which is likely to be incurred, and to the " probable judgment of the committee in the end. It [498] seems to me, that the sum, " which I mentioned to you and Mr. Tierney to be brought in aid of the expence of the " petition, must be exhausted ; and that it would be unfair to him not to suggest this " to his consideration. You and he are better able to judge of every circumstance " than any body else ; and as my object in obtaining a consultation on the case has been " frustrated, I hope you will be prepared to have it considered as soon as possible ; in " order that no measure may be pursued, which can tend to produce any difficulty " about the expence, or to lead to more than Mr. Tierney may think convenient for him " to bear." 1124 WALLIS V. PORTLAND (DUKE op) 3 VES. JUN. 497. The Plaintiff Troward being much surprised and alarmed at the conclusion of the said letter shewed it to the Defendant T'ierney; who expressly declared, that he did not consider himself liable to the costs of the petition ; and that he was as aforesaid authorised and directed by the Duke to instruct the Plaintiffs to present and proceed upon it. The Plaintiff Troward answered, the said letter ; stating, that he had shewn it to Tierney ; and that it had a good deal alarmed him ; as he said, he never intended making any addition to the expence already incurred by him : and that it was understood, that he was not to be at any expence respecting the petition, and reminded the Plaintiff, that he had so informed him in the beginning of the business ; and the Plaintiff farther stated, that he conceived the expence incurred at that time to be not less than £1300. The Plaintiffs not receiving any reply proceeded upon the petition ; concluding, that if the Duke had intended to withdraw his liability to the costs, he would in consequence of the Plaintiff's letter have declared such intention. The expence then incurred did not exceed £1500, and the Plaintiffs were entitled to be repaid that sum by the Duke, though he had thought proper to withdraw himself from future liability. The Plaintiffs never received any sum on account of their demand except £1000, which they received from Tierney ; and which they have heard and believe he received from the Duke. The Plaintiffs repeatedly applied to the Duke for payment; and he has not complied with their request of payment; though he has in conversation admitted the justice of the same ; and on or about the 27th of June 1789, the Duke in a letter to Tierney says, he has just heard, that some doubts remain in the Plaintiff's mind respecting Colchester, and desires Tierney to refer him to the letter, [497] which Mr. A. wrote him with the privity and concurrence of the Duke, or to appoint a meeting ; that no misunderstanding may remain respecting that business. The Duke considered himself liable to the whole or part of the expence ; and has admitted the same within the last six years ; but has requested the Plaintiffs not to prosecute their demand, but to wait some time longer. The bill then stating, that without a discovery the Plaintiffs cannot make their demand available at law, prayed a discovery with reference to the facts charged ; and whether in the communications between them and the Duke the latter did not subsequent to the 15th of March 1789, refuse to permit the Plaintiff Troward to give his time and attendance without charge ; as he could not think of accepting such offer ; and whether he did not consider such offer as amounting to an offer to proceed without any person being responsible ; and whether by declining it he did not consider, that he entitled the Plaintiffs to charge some persons, and whom, for the...
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...Bench Division, page 1, and I do not propose to refer to them at length. It is, however, worth noting that whereas in the case of Wallis v. Duke of Portland, 3 Vesey, page 494 (decided in 1797), one finds Lord Lougnborough roundly declaring that "maintenance is not malur prohibitum but malu......
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