The Sun.
London, England, 1833-05-04 00:00:00

COURT OF CHANCERY, (THIS DAY.)

FYSON v. MILLER.

The arguments were resumed this morning, and the hearing
of this case occupied yesterday and to-clay. The Attorney-
General, Mr. Rolfe, and Mr. Koe were for the plaintiff's; and
for the defendants were Sir Edward Sugden, Mr. Pepys, and
Hr. Pigot. The application came before his Lordship both in
the shape of an appeal from a decision come to by his Honour
the Vice-Chancellor, and that of a new motion. The points
were these :—Mr. John Miller was a nurseryman near Bristol,
and he, with his father, carried on the business of nursery-gar-
deners for nearly half a century. Latterly he had a partner of
the name of Sweet, who died in 1822. At that time the capi-
tal of the concern amounted to 29,000/., of which 22,000/.
was the share of Mr. Sweet, and the executors claimed that
sum soon afterwards. Mr. Miller being desirous of carrying
on the business, was then obliged to. cast about to ascertain in
what way he could raise this large sum of money, and still re.
tain sufficient to enable him to go on. In 1824 he obtained
10,000/. from Mr. Thomas Fyson, a cooper at Bristol.
In 1826 he obtained an additional sum of 2,000/.
from that gentleman, and also a sum of 1,000/., from Mr. John
Acraman, a timber.merchant at Bristol. A deed of partner.
ship was then executed between the three parties, by which
Mr. Miller bound himself to pay to Messrs. Fyson and Acre-
man five per cent. by half-yearly payments, and an additional
seven per cent. of profit upon their capital, whatever the profits
arising from the business might be. It was stipulated that
Mr. Miller should be the acting and managing partner, anti
that the other two should be considered as sleeping partners.
The business was to be carried on under the firm of Miller and
Co. In 1829, the concern not being so profitable as it had been,
the plaintiffs executed a new deed, by which they agreed to
take five per cent. interest, with an additional 3i per cent.
(instead of the seven per cent.) in the shape of profits. In
1832 the partnership became dissolved by affiuxion of time, Mr.
Miller was then called upon to pay out the capitals of the two al-
leged partners, with the stipulated interest,&c. He felt himself un-
able to do so without being allowed time. Soon afterwards, as he
alleged, by the ptessing conduct of the plaintiff many of his
best customers became offended, and the business much in-
jured, which rendered it impossible for him to do more than
offer to pay back the plaintiffs the moneys they had advanced,
with legal interest, and that only as he should be enabled
hereafter to work the same out of the concern. The plaintiff's,
not agreeing to this, filed their bill, praying for an injunction
to restrain the defendant from drawing or accepting bills, &c.,
in the name of the partnership, for a receiver upon the concern,
for a declaration that the partnership was dissolved, and for the
accounts to be taken in the Master's office. His Honour the
Vice-Chancellor, upon the affidavits of the defendant refused
to interfere, further than to direct an issue to try whether the
partnership deed had not been entered into merely as
a colour to evade the statute of usury, and whether
the 12 per cent. stipulated to be received by the plain-
tiffs was not an usurious interest. The Counsel for the
plaintiff's contended that the whole was a bona fide co-partner-
ship concern, and that the plaintiffs were equally liable upon
bills, &c., with the defendant. Counsel on the other side argued
that the whole was decidedly usurious, and that the deeds ought
to be declared void—at all events, that it was a fair question for
the opinion of a jury, and one which could only be decided in a
Court of law.

The LORD CHANCELLOR said it was impossible to deny

that in deciding such a question as this the Court and the Jury
were at liberty to look at the circumstances dehor, the deeds
into which the parties had entered forthe purpose of ascertain-
ing the real nature of the transactions. He would take time to
look into the papers and consider it.