The British Press; or, Morning Literary Advertiser.
London, England, 1826-06-13 00:00:00

EX-PARTE ORDISTEAD IN TIIE MATTER OF HOWARD AND

GUIDS.

His Lortnentr read the evidence in this ease, and commented
on it at considerable length. He observed, in conclusion, that lie
found it difficult to reconcile the answers ; he should state before
be left the Court on Wednesday the final decision to which he
should arrive.

The Dukes of Lennox, Argyle, and Montrose, the Illarquis of
Lothian and Viscount Dumblainc, took the oaths of allegiance
and supremacy, previous to voting at the election of Scotch Repre-
sentative Peers.

VIC&CHANCELLOWS COI,'RT, MOND kY, JUNE 11

BOLLARD V. MARSH.

This was • bill filed by Mr. Bolland, assignee of the banking-
house of Marsh, Stracey, anedCo., to recover the sum of 73,5001.,
due of Marsh and Son, of the Navy Agency Oflice, to that bank-
ing.house. Wm. Marsh, the father of the present defendant, was
a partner in both establishments, and there was no contradiction of
the fact of the payment of the money by the banking-house to
support the credit of the Navy Agency Office. The defence set
up was. that the defendant, Arthur Cuthbert Marsh, was not a
artner in the Navy Agency Offiee, within the knowledge of
the bankers, and that his non-liability was to be deduced
in consequence of a letter, sent by William Marsh (his
father) to the other partners of the banking establishment.—
This letter, dated in December, IWO, stated," that although they
understood that all the drafts of his sen Arthur, for the accounts
standing in their book, in the name of Arthat Cuthbert Marsh,
were tinkly on his (Wm. Marsh's) responsibility and account ; and
that his son was not his partner for matters of profit and loss; yet
that he deemed it necessary to state particularly to the firm, that
tars son was not a partner.' The father subsequently died, and the
son, the present defendant, wrote a letter on the fah October, 1824,
to the banking-house, in which he stated, that an account stood on
their kooks in his name, which was to their knowledge on the ac.
count of his lather solely, and as he wished to settle all the debts due
to and from the estate, lie desired that they would appoint some
person with whom he might windup the affairs of his (the Navy
Agency Office)establishment in the first instance. This letter was
backed by one from Fauntleroy, in which he stated that he as-
sented to the troth of what was written by the defendant, and that
be would not consent to any interference of the assignees of Marsh
and Son, except for the purposes mentioned in the Son's letter. A
long discussion respecting the liability of the dcfcrAlatit as a partner
occurred to-day, in which
Mr. Mole•raott and Mr. RIALTO contended, that as the only
question was, whether the debt was a joint one of Marsh and Son,
or a separate debt of William Mandl, It would be wrong that the
creditors of the banking-house, which confessedly supplied the
o..err, 'should be in a worse condition than any of the others.
'l.l.ete WAS a nominal and also an actual partnership; for the
fiv ;i
he-, wishing to ;inner .his son, had agreed by a deed to exempt
hint from the responsibil:e.y of the concern. It was contended on
the opposite side, that the banking concern was well aware of the
irrespon.ihility of the defendant under the deed, but all the deal-
ings were evidently of a joint nature, and the securities received
were treated in a manner which countenanced that impression.
Mr. HART argued that the defendant was not liable, and that
• the relief would be incon,i,tent with propriety ; for the Court had
no tight to cleave where a common action would lie, as in this ease.
The partners in the batik had acted under a knowledge of the de-
feedant's exemption. linen Mr. William Marsh went to re-esta-
blish the navy agency office, lie took his sou into partnership, in
• expectation that ultimately some profit would befortheoming.; but to
prevent his liability, it was specially provided by a deed of contract,
that the son should receive Platt in lieu of profits, and that he
should be free from any charges affecting the establishment, but
that the surplus profit should be allowed to accumulate, and on
the contingency of such an event, that then he was to participate.
The letter also spewed that the purpose was to make him separate.
The partners in the bank had been actuated by a.consideration of
having an additional security in case of the father's death.

His HOWOU II was of opinion that, either es a nautili; or actual
,partner, the defendant was prima facie liable. There was, how.
ever, some novelty attaching to the case. If the partners had acted
•undet the influeneeof a nilsrepresemation.made by the father, in
the letter of December, 1820, it must be considered a joint debt,
notwithstanding their acquiescence. Unless that interfered, there
could be no doubt that the defendant was implicated in the debt.
There were two views to be taken of the matter, either that be was
IDA actual ot a nominal partner ; but a nominal partner was liable,
except to those who knew that he was not in fact in partnership, and
who were told that he was not so. The next question was, whether
the representation in the father's letter wu true or not; and the cre-
ditors seemed :o say to the father, "we will not cousider whether
your son was or was not,a,partner, an:l therefore we look to you."
life Honour did not think that it could be correc:ly shewn that the
eepeuentation ie the letter was true, which would prove that the
sot was not a punnet in the profits. From what other source was
be-to get the 800/. per annum stipulated in the contract, and
the motet, of the surplus profits when they accumulated to 44,006/.?
The defence set up was a special contract against the general law ;
and the point turned on the effect of the representation in the let.
ter. Hut that was not consistent with the deed of contract to which
it !fretted, and which entitled hint to an annual ►hare and a con.
tiiigcnt benefit of the accumulation. The question was simply
Ow, whether that representation, as inconsistent with the deed,
sLoul.l he deemed valid ? Were the banking partners to he botiod,
because they arquieaced under the erroneous Idea that the repre-
sentation in the letter was curect ? No ; they were not to be hell
hy such a misrepresentation. The first impression of every person
w:to read that letter mutt naturally be. that the son was a partner.
J!i• would therefore direct au iuue on the point in:o the Courts
er Law.

Jr. HEALD Raid it vu 1141111 to send the Jaques from that
Court into the Court of Common Fleas, but he hoped that the
assignee would not, In consequence of having formally brought the
nia-ter into Equity, be precluded from the option of the Court in
•ttirh they would otherwise have had the privilege of-the case being
met. From the magnitude of the sum which formed the subject
ut di4pute, they were anxious that the trial should be in the Court
or Aing's Betwift.

-
Ilk Ilowous did not see any cause for altering the usual course
sending issoes into the Common Pleas, where the matter would
plosive all requisite attention. lle therefore directed that the Issue
►uo..ld be tried is that Court