In favour of the objection it is urged, that Browne v. Blount (1), The King of Spain v. Hullett (2), and *Kirwan v. Daniel (3), all establish the proposition, that a person against whom process is prayed, only as and when he comes within the jurisdiction, is no party to the cause, and that being no party, it is contended, that the operation of the statute is not suspended by reason of the suit. On the other hand, I am referred to the cases of Coppin v. Gray (4), Purcell v. Blennerhassett (5), Forster v. Thompson (6), which seem to me to establish, that in such cases the operation of the Statute of Limitations is suspended. And this appears to me to be the rational course of proceeding, and to be consistent with the cases cited on behalf of Sir George Bowyer. In truth, these cases only establish, that the defendant against whom process is prayed when he shall come within the jurisdiction, is not such a party as that active relief can be, without appearance, enforced against him personally, and that when this is necessary to work out the equities between the remaining parties to the suit, the suit is defective till he appears, or is put in such a situation that the orders of the Court can be enforced against him. It would create and give facilities for frauds of many gross kinds, if a man, by keeping out of the jurisdiction of the Court, could prevent the statute from running against him, but, at the same time, could claim the benefit of the statute against his creditors, who had taken every means in their power, by legal proceedings, to compel him to appear, and to obtain payment from him of the amounts due to them. I am of opinion, therefore, that the objection fails. With respect to the decree, it may be convenient that counsel should go through the minutes and settle them now, after the observations which will, I think, dispose of the points argued by them. With regard to the annuitants, for whom Mr. R. Palmer and Mr. Lloyd appeared, who neither claim the benefit of the suit, nor disclaim any interest in it, I am of opinion that the suit must be dismissed as against them without costs. (1) 2 Russ. & My. 83. (2) 3 Sim. 338. (3) 82 R. R. 144 (7 Hare, 347). 1 Y. & C. C. C. 205. (5) 3 Jo. & Lat. 24. 4 Dr. & War. 303. HELE v. LORD BEXLEY. [135] [136] 1855. March 10. Rolls Court. [136] [137] 1855. Feb. 9, 13. 1855. Feb. 28. March 5. Rolls Court. RICHARDSON v. RUSBRIDGER. (20 Beav. 136-137.) A stock legacy, bequeathed to several in succession, was appropriated by the executors, and the residue paid over. In a suit between the remainderman and the executors alone, the legacy was transferred into Court, and the costs of the suit were paid thereout. The tenant for life afterwards filed a claim to have the amount of costs recouped out of the residue. It was dismissed with costs. In the case of The Governesses' Benevolent Institution v. Rusbridger (1), the executors and trustees alone were parties, and Mrs. Richardson, the tenant for life of the 12,000l., now alleged that she had no notice of the proceedings in that suit. Under the decree, a sum of 96l. Consols (part of the legacy of 12,000l. Consols, bequeathed to Mrs. Richardson for life), was sold out and applied in payment of the costs of that suit. Mrs. Richardson now filed a claim against the executors and her husband alone, alleging, contrary to the fact, that at the time of the institution of the former suit, her legacy had not been appropriated, and claiming to have the 961. replaced out of the residuary estate. Mr. W. H. Clarke, for the plaintiff. Mr. Selwyn, contrà. The MASTER OF THE ROLLS dismissed the claim with costs, to be paid by the plaintiff's next friend. WATSON v. CLEAVER. (20 Beav. 137-138.) [Additional evidence admitted after notice of motion for decree.] HALL v. HALL (2). (20 Beav. 139-142.) Claim of retiring partner to a share in the value of the goodwill of the business disallowed. Two persons entered into partnership for twenty-one years, but in consequence of disagreements and misconduct, disputes ensued. The partnership was dissolved by decree, one consenting to retire and the other to take the stock and effects at a valuation: Held, that the retiring partner was not entitled to any allowance for his share of the goodwill, no provision being made by the partnership articles for such an allowance on a dissolution by death or by the retirement of one partner by notice during the term. IN 1848, John Hall, who for thirty years had carried on the trade of a brewer, agreed to take his relative, James Hall, into partnership with him. By indenture, dated the 20th of March, 1848, they covenanted (1) 104 R. R. 502 (18 Beav. 467). (2) This case is not in accordance with more modern cases which decide that "goodwill" where susceptible of valuation forms part of the property of a partnership: In re David and Matthews [1899] 1 Ch. 378, 68 L. J. Ch. 185, 80 L. T. 75; In re Leas Hotel Co. [1902] 1 Ch. 332, 71 L. J. Ch. 294, 86 L. T. 182.-O. A. S. to be partners for twenty-one years, determinable as after mentioned. By the 29th article it was stipulated, that in case either of the partners should die before the expiration of the term of the partnership, then the surviving partner was to have the option of taking the share of the deceased partner "of and in the property, credits and effects of the said partnership," at a valuation. But in case the surviving partner declined to purchase, "the property and effects" of the partnership were to be collected in or converted into money and divided. By the 30th article, if either of the copartners should, during the continuance of the copartnership, be desirous of retiring from and disposing of his share and interest in the partnership, he was to be at liberty to do so, upon giving twelve calendar months' notice in writing; and in such case, the other was to have the option of purchasing the share" of the retiring partner. But if he should not elect to purchase the share," the "stock and effects " were to be sold, and *the partnership affairs wound up. If James Hall gave notice to retire, he was to execute a bond to John Hall, conditioned for the payment of 5,000l., not to embark in any of the businesses within thirty miles for twenty years. The partnership was carried on, but disputes and disagreements occurred, which at length arrived to such a pitch, that in November, 1849, John absolutely excluded James from the partnership business. In this state of things, James Hall filed his bill against John Hall, praying that the articles of partnership might be performed. John Hall filed a cross bill, praying a dissolution, and that the affairs might be wound up. At the hearing of the two causes, in August, 1851, a decree was made, at the suggestion of the COURT, whereby, James consenting to retire from the partnership, and John "consenting to take to the stock in trade and effects of the said partnership," as continuing partner, at a valuation, it was ordered, that John should be charged with the amount of such valuation. And it was declared, that the partnership should be dissolved from the date of the decree, and it was referred to the Master to take the partnership accounts, and to inquire "whether James Hall was entitled to any and what compensation, in respect of such dissolution." The matter was afterwards transferred into chambers, when James Hall claimed the sum of 1,200l. as compensation, being two years' purchase of the interest formerly held by him in the said copartnership, at the rate of 600l. per annum, being the estimated amount of *profits realized by the copartnership, while the same existed. HALL v. HALL. [ *140 ] [ *141] HALL V. HALL. March 5. [ *142 ] The chief clerk, on the 30th of January, 1855, certified, that James Hall was not entitled to any compensation in respect of the dissolution of the partnership. This finding was contested, and the matter came on for argument. Mr. Fooks, for James Hall: The dissolution was brought about by the violence and misconduct of John Hall; and he, having thus retained the partnership business, must account to James for his share in the goodwill of the business, as part of the partnership property. This is not over estimated at two years' purchase. Mr. Lloyd and Mr. W. H. Clarke, for John Hall, argued, that the plaintiff had obtained a share of the business by misrepresentation, and had caused its dissolution by his misconduct and mismanagement, and that the acts of John were justifiable. They contended, also, that the terms of the articles and of the decree, precluded any right to or allowance for the goodwill of the business. The MASTER OF THE ROLLS reserved judgment. THE MASTER OF THE ROLLS: In this case, the opinion which I have come to upon the question of compensation for goodwill is, that the question is in fact concluded by the terms of the contract and the partnership articles. The 29th and the 30th clauses of the partnership *articles provide for what is to take place either on the dissolution, by the death of one of the partners, or by notice; and although they regulate how the partnership property is to be valued to the surviving or remaining partner, they in no way specify that any compensation is to be made for the goodwill. It is clear that if one of the partners had gone out upon twelve months' notice, he would not have been entitled to anything for his share of the goodwill. By arrangement between them, they might have waived notice altogether, and I am of opinion that this, in fact, is the effect of the course that has been adopted by them. I am satisfied that this view which I have taken of the right to compensation is the best for both parties; for even if I adopted the view that James was entitled to compensation, I should not be satisfied with the mode in which he has attempted to prove it, or the amount which he has demanded, and I should be obliged to send the matter back to chambers, to enable me to arrive at the amount of compensation on some more satisfactory principle than that which has been suggested. This would require very careful investigation, occupy considerable time, and entail a great additional expense to the parties. I am satisfied, therefore, that the view which I take of this case is not only the right one, but HALL v. HALL. IN RE FLUKER. A., the next friend of infants in a suit, employed B. as solicitor therein and in other matters. An order was made, in the suit, for the taxation and payment to B. of his costs of suit. Before this had been done, A. obtained, ex parte, an order to tax B.'s bill in all the matters in which he had been employed for A.: Held, that the order was regular. MR. FLUKER acted as the solicitor of the infant plaintiffs, in a cause of Timms v. Watson, in which Taylor was their next friend. By the decree on further directions, made by Vice-Chancellor STUART, on the 31st of May, 1853, the costs of all parties in that suit were ordered to be taxed, as between solicitor and client, and paid out of the fund in Court; the plaintiffs' costs to be paid to Mr. Fluker, their solicitor. On the 15th of February, 1855, an order was made to change the plaintiffs' solicitor, and on the 2nd of March, 1855, Taylor obtained an order of course, for the delivery by Fluker of "a bill of fees and disbursements, in all suits, causes and other matters of business in which he had been employed as the attorney or solicitor for the petitioner " (Taylor), and for its taxation, &c., in the usual form. The petition, on which the order was obtained, stated the employment of Fluker by Taylor, in the suit of Timms v. Watson, and in other matters," and that the petitioner was desirous of obtaining the papers in the possession of Fluker, which, it alleged, he had refused to deliver until payment of his bill of costs. The costs of Fluker in Timms v. Watson had not yet been taxed or paid. A motion was now made on behalf of Fluker, to discharge the ex parte order to tax. Mr. Roupell and Mr. J. H. Taylor, in support of the motion, argued, that there had been a suppression, on the part of the petitioner, of a material fact, namely, the existing order for taxation of the costs in the suit, and that this suppression invalidated the ex parte order: In re Walker (1), In re Winterbottom (2). Secondly, that the order ought to have been limited to such costs. as had not already been ordered to be taxed, otherwise there would be two conflicting orders to tax. Mr. R. Palmer and Mr. Amphlett, contrà, were not heard. (1) 92 R. R. 83 (14 Beav. 227). (2) 92 R. R. 312 (15 Beav. 80). 1855. March 27. Rolls Court. M.R. [143] [144] |