The Sun.
London, England, 1844-04-26 00:00:00

ment was entered into between the surviving partnere
and the Lancaster Bank. The effect of that arrange-
ment, as I collect it from all the circumstances of •the
case ; the effect of the transaction was this, that they
agreed between themselves that the account should go •• ;_
en, as it had before gone on, between the bank and the 'll
serviving partners—that is, between the bank and the
new firm, not between the bank and the surviving part-
&era, but between the bank and the new firm. The
effect of the arrangement I consider to be this,—that
they take the new firm as their debtors, the account was
to go on between the bank and the new firm as it had
gone on before. That being so, upwards of 30,000/.
more than the balance due at William Hiride's death•
is
admitted to have been paid by the new firm to the hank:
The ultimate balance at the time of the bankruptcy, I
think, against the partnershipaiis 28,000/, but the effect
of this operation, if I understand it, is clearly this—that •
the whole of that part of the debt that'aeas due by Wil- •
ham Hinde, has been paid off and discharged. If that
be so then, the consequence follows that the first charge
upon the partnership is the mortgage; which ought to
have been executed by the partnership -to the
representatives in favour of the estate of William
Hinde. I consider the whole of the debt due
from William Hinde to have been paid off in consequence
of that arrangement between the parties immediately
after the death of William Hinde, and renewed and re-
peated at subsequent periods so as to put an end to•itll
doubt as to what the nature of the understanding and
transactions between them was; the account was trans-
ferred as it were to the new partnership, and the earlier
part of it, namely, 1833, or 1834, or 1836, which was
due at William Ilincle's death, has been long since wiped
off and discharged ; therefore, I apprehend that the first
security is the mortgage security, that ought to have
been executed upon the- leasehold and freehold
property in favour of the estate of William Hinde.
The next question for consideration is as to the lease-
holds or rather as to the fixtures. There was a lease
granted, I believe, of the machinery and premises at
Dolphinholme, by the late Duke of Hamilton. The late
Duke of Hamilton agreed when that lease ran out to
to renew it, and he gave a bond'in 7,0001. for the purpose
of securing that renewal, in case he should die, by his
successors. The lease ran out in the year 1836. There
is no dispute, and no doubt that while that lease was
current, the fixtures were a part of the security. I do
not think that has been at all controverted. It is clear,
beyond all doubt in point of law, that the fixtures
were part of the security. The present Duke
of Hamilton refued to renew the lease, and the
bond, which had been part of the securities, de-
posited—the bond was put in suit, 6,0001. was recovered
in the shape of damages, and the 6,0001. was paid to
the Lancaster Bank. It is said that the lease having
run out there was an end to the lien upon the fixtures,
because they formed :a part of the mortgaged estate as
long as the lease continued ; but the moment the lease
ended, of course there was an end of the security upon
the fixtures ; they became goons and chattles, the fix-
tures for the purpose of trade, and therefore goods and
chattels in the order and disposition of the bankrupts,
and therefore passed to their assignees ; and that was
so considered, and the assignees, I believe, sold them.
However, the question is reserved for consideration—the
money is secured, and therefore there was no difficulty
on that ground. At the time when the bond was deli-
vered over, at the desire of the new partnership, to the
agent of the late Duke of Hamilton, there was an ex-
press agreement and stipulation that any new lease
that should be granted by the present Duke of Hamil-
ton should be deposited as a continuing security with
the Lancaster Bank ; and a negotiation took place with
the present Duke for a new lease, and a new lease was
executed by the Duke, and a counterpart so executed by
the partnership was deposited with the Lancaster Bank.
But before the lease was delivered over by the Duke to
the partnership the bankruptcy took place, the lease be-
came forfeited, and the question is, under these circum-
stances, whether the lien upon the fixtures continued,
and I think it does. After the first lease terminated,
they held as the tenants from year to year,
under the new Duke, during the treaty for the
lease. Whatever interest, therefore, they had in the
premises I consider in point of equity was the interest of
the Lancaster Bank, and I think that was sufficient
therefore to maintain the lien, the fixtures being a part
of that interest, and I think under such circumstances
the assignees have no right whatever to the fixtures.
There was an interest in the partnership, an interest
from year to year, waiting the event of the execution of
the now lease, and that interest I think in point of equity
vested in the Lancaster Bank, and was sufficient there
fore to maintain a lien upon the fixtures, which were a
part of those premises. I think, therefore, under these
circumstances, that the fixtures belong to the Lancaster
Bank. and did not pass to the assignees. This, I think,
is the nicest point that I have had to decide, and after
some consideration I think that is the true view of the
case. I think, therefore, I have decided all the points
that it is necessary to decide for the purpose of settling
the rights of the parties. The estate of William Made
is entitled to the mortgage security for the difference
betweed the 30,0001. and the amount of his capital at the
time of his death. I think that amounts to about 11,0001.
I think, as I have before stated, as between the Lan-
caster Bank and the assignees, that the fixtures belonged
to the Lancaster Bank. I think they were entitled, as
of course, to a lien upon all the deeds that had been de-
posited with them, subject always to this mortgage se-
curity, to which, the estate of William Hinde is entitled.
I think that all the rights of the parties will be adjusted,
having decided those particular points, and therefore
with that view, if the parties cannot agree upon the mi •
nutes, I will settle the minutes.

Mr. BETIIELL—I would humbly ask of your Lord
ship that a day might be named for the purpose ; and
all that I would beg to suggest to your Lordship at pro•
sent would be, that as your Lordship now declares, as a
judge, that the debt due to the Lancaster Bank at the
time of the death of William Ilinde, has been paid off
by the new partnership, the new partnership will bo
entitled to stand in the shoes of the bank as touching
the freehold and leasehold property comprised in that
instrument, in priority to that charge which the estate
of 'William Ilinde will have.

The LORD CHANCELLOR—I think not at all. I think
that is considered entirely, and settled in arranging what
the capital of William Ilinde was in the concern ; that
is one of the items in the account. The partnership
take that to themselves. It is settled between William
llinde's estate and theopartnership, if you will consider
that ; if you will look at the stock, and see the manner
in which the account was settled, you will find that is
one cf the items in the account ; and it is taking that
into account the capital of William Ilinde is reduced to
41,0001

Mr. BETITELL—Yes ; we shall have something, pro.
bably, to submit to your Lordship.
___. _ ._. _ _

The LORD CHANCELLOR.—If there is any point I have
omitted—there are so many points—l have decided the
main points, I believe.
Mr. BETHELL—YourfLordship has decided every
thing necessary to make these declarations, which will
govern the other directions which follow there-under.
The only thing would be as to the ascertaining the
capital of William Hinde.
The LORD CHANCELLOR—I think, with respect to the
point you have made now, it occurred to me in the
course of considering the question ; but the moment I
turned to the manner in which the capital is to be ascer-
tained, according to the stock-taking, I found that every
item in the account, namely, the debt due to the Lan-
caster Bank, was included; therefore, in fact, it has been
paid and settled between the estate and the partnership.
Mr. TINNEY—I dare say your Lordship recollects
that part of our case was that the 11,0001., if due, has
been actually paid off.
The LORD CHANCELLOR—WheII I say 11,000/.—
Mr. Tr.:NEY—Whatever the sum was, it is a matter
of account, because we say, in point of fact, that the
estate has had much more. That will lead to accounts
and inquiries in the decree ; there will be a good many
questions as to that, and I suppose your Lordship would
probably
what you are
minutes.odshir
Mr. BETHELL—We need not trouble youFt Lordship
about the accounts. There will be, of necessity, an ac-
count. We have paid to the estate large sums of
money
since.
The LORD CHANCELLOR--There was so much re-
u
vill find the ques-
tion ference as to the stock•taking.
r. BETHELL—The only thing
is
simplified.fi
fix a day on
w
minutes, while the matter is
hirch as
mto the
m might
g accounts
settleou ts n
t i s h
e very much
fresh Wednesday, if you
hand the project to me before we
meet, as the case is
very complicated, I will consider it.
The i nL the
810 jp,orecollection
c ticaA nN c EL Lo of
itt_h
e parties..
xt
f
plc'Nallsr. :re
I sE
Ttli''usNELYLT—ViNe mf we
can
ns
t agree.
A consider the decree your
Lordship has made between the Lancaster Bank and the
partnership, with respect to the fixtures, •
The LORD CHANCELLOR—Whom do you represent ?
Youlsi
rr.e pirteussesnEanittlLhstoLhoerltbfe t arteep
roefsleVnitlliathine iieisnidatee. of William
greea
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bo
jledexes eatnnoddem,dyt
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raoellrf
ot
mortgage,
the
etlh:
aa sstoelhet
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yd
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t
interest will come in priority to the bank over that,
The LORD CHANCELLOR—Yes.
Mr. RUSSELL--And it will be necessary, also, to have
a direction to refer it to the Master.
The LORD CHANCELLOR—Yes. If I am right in de-
ciding that the debt due by William Riede has been
paid off, and I have no doubt about it, then your mort-
gage comes first.
Mr. RussELL—Then I was entitled also to have, a
joint and several bond, as well as a mortgage.
The LORD CHANCELLOR—DO you mean the Duke` of
Hamilton's bond.

Mr. RUSSELL— No ; I was entitled to have a bond.
The LORD CHANCELLOR—Oh yes ; you were entitled
to have a bond—a joint and several bond from.the
viving partners.
Mr. RUSSELL—It will be therefore requisite that there
should be a reference to the Master to inquire whether it
would be for the benefit of the 'infants. to elect to ;eke
the security against the joint estate or againit "the slim-
rate estate.
Mr. BETHELL—That must settle between your-
selves; the only thing, if your Lordship would forgive
me for asking it, is this, that-I did not very clearly col-
lect whether you consider, that the general .estateof
William Hinde became a partner to the extent of thirty
thousand pounds.
The LORD CHANCELLOR—No; I consider it precisely-
as if William Mode had directed his executors to On-
ploy thirty thousand pounds in the concern. That, 'of
course, would not make his general estate liable.
Mr. BETHELL—No, my Lord, I appreciated, I rally
understood that ; but whether your Lordship considered
the application to employ the 30,00014 which would he
the limit of the liability, was for the benefit id his estate
generally or for the benefit of the son alOnet , Whether
all the children could be entitled to participate in the be-
nefit of the 30,0001.?
The LORD CHANCELLOR—OnIy the SOH in the first
place, and those who partake according to the discretion
of the widow; and after her death according to the di..