1832.

ROBLEY

บ.

BROOKE.

of correspondence, consisting chiefly of letters which passed between John Robley and the Respondent, and between John Robley and the firm of John Robley and Co. during the absence of the former in the West Indies: a sketch or plan of account, which was inclosed in a letter of the 3d of May, 1809, and the office copy of the bill filed in March, 1823,by the Respondent against Henry Smith and the Appellant William Blake.

The two causes came on to be heard before his Honour the Vice-Chancellor, on the 4th of June, 1829, when the following decree was made in both causes: viz. It was declared that the said John Robley and the Respondent Charles Brooke, became the purchasers of and were interested in and entitled to the said mortgage debt or sum of 94,511. 1s. 6d., and the estates of Pembroke and Calliaqua, otherwise Villa, in the said island of St. Vincent, and the estates of Betsey's Hope, in the island of Tobago, in equal shares; and that the purchases thereof respectively were not transactions of the said partnership; and regard being had to this declaration it was referred to the Master, to take an account of the said mortgage debt or sum of 94,5117. 1s. 6d., and the purchase-money for the same, and the profit made thereby down to the time of the purchase of the said estates called Pembroke and Calliaqua respectively, and from the respective times of the purchase of the several estates therein.before respectively mentioned, and that he should also take an account of the issues and profits thereof respectively, by whom the same were received, and of the several outgoings and expenses attending the same respectively. And it was also referred to the Master to take an account of the receipts and payments of the said John Robley

and Charles Brooke respectively, or of any other person or persons by their or either of their order, or for their or either of their use, in respect of the said mortgage debt; and the profits made thereby and in respect of the said estates, and the issues and profits thereof, and the outgoings and expenses attending the same. And the Master was to ascertain and certify whether any thing and what was due from the said Charles Brooke to the estate of the said John Robley, or from the estate of the said John Robley to the said Charles Brooke, in respect of the matters aforesaid. And in taking such accounts the Master was to enquire and state to the Court whether any and what slaves were furnished by the said John Robley from his own estate, or which were his own property for the use of the said estate called Betsey's Hope; and the Master was to enquire and state whether any and what allowance ought to be made to the said John Robley or his estate for the use of such slaves; and if the said Master should find that any such allowance ought to be made, he was to include the same in taking the accounts herein-before directed; and it was also declared that the said John Robley and Charles Brooke purchased the share and interest of the said Thomas Oliver Anderdon in the said partnership in equal shares; and that by virtue of such purchase, and of the assignment made by the said Thomas Oliver Anderdon, of his share and interest in the said partnership to the said John Robley and Charles Brooke, they the said John Robley and Charles Brooke became entitled to and interested in the profits and loss of the said co-partnership, from the commencement thereof, in the following shares,

1832.

ROBLEY

v. BROOKE.

1832.

ROBLEY.

v. BROOKE.

1

(that is to say,) the said John Robley in fiveeighths, and the said Charles Brooke in threeeighths. And it was declared that the said partnership continued between the said John Robley and Charles Brooke down to the time of the death of the said John Robley. And having regard to those declarations, it was referred to the Master to take accounts of the said partnership dealings and transactions, as well before the retirement of the said Thomas Oliver Anderdon as subsequently thereto, down to the decease of the said John Robley, and of the subsequent receipts and payments on account thereof. And the Master was also to take an account of what partnership effects were remaining, and what debts of the said partnership remained unpaid. And it was ordered that the said partnership effects should be applied in payment and discharge of such debts. And the Master was also to take an account of the receipts and payments of the said John Robley and Charles Brooke respectively in respect of the said partnership, or any other person or persons by their or either of their order, or for their or either of their use; and to ascertain and state whether any thing and what was due from the said Charles Brooke to the estate of the said John Robley, or from the estate of the said John Robley to the said Charles Brooke, in respect of the said partnership. And the Master was to enquire and state to the Court the amount of capital brought into the said partnership by the said John Robley and the said Charles Brooke respectively. And the Master was also to enquire and state whether the said John Robley and Charles Brooke respectively entertained the customers and friends of the

co-partnership. And in taking the said accounts, the Master was to consider whether the said John Robley and Charles Brooke respectively, or either of them, became entitled to any, and what allowance in respect thereof. And it was also declared, that the said Charles Brooke was entitled to compensation for the use of his counting-house and premises in Sambrook Court, and for the expenses incurred by him in keeping up the establishment for the said copartnership business there; and a reasonable allowance in respect thereof was to be made to the said Charles Brooke by the Master in taking the accounts therein-before directed. And the parties were to be examined on interrogatories, and to produce on oath all deeds, books, papers, and writings. And the Master was to be at liberty to state any special circumstances relating to the matters thereby referred to him, as he should think fit. And the consideration of all further directions and costs was reserved until after the Master should have made his report.

The appeal was against so much of this decree as declares that John Robley and the Respondent Charles Brooke became the purchasers of, and were interested in, and entitled to, the mortgage, debt, or sum, of 94,5117. 1s. 6d., and estates of Pembroke and Calliaqua in St. Vincent's, and Betsey's Hope in Tobago, in equal shares, and that the purchases thereof respectively were not transactions of the partnership; and directs accounts to be taken, having regard to that declaration. And also so much thereof as declares that John Robley and the Respondent Charles Brooke purchased the share and interest of Thomas Oliver Anderdon in the partnership in equal shares; and that by virtue

1832.

ROBLEY

V.

BROOKE.

1832.

ROBLEY

V.

BROOKE.

April 4,

1833.

of such purchase, and the assignment of the share and interest of Thomas Oliver Anderdon in the partnership, John Robley and the Respondent Charles Brooke became entitled to and interested in the profits and loss of the partnership, from the commencement thereof, in the proportions of five-eighths to John Robley and three-eighths to the Respondent; and directs accounts to be taken, having regard to that declaration.

The case was argued for the Appellants by Mr. Knight and Mr. Kindersley; for the Respondents by Sir Edward Sugden and Mr. Pemberton.

The Lord Chancellor.-In this case I am disposed to advise your Lordships to alter the decree which has been pronounced by the Vice Chancellor, both upon the first and the second points that were made in the arguments at the bar, and considering that these points arise upon minute questions of fact, and matters of circumstantial proof, it would be a most useless task if I were to go again into any detailed statement of these matters, out of which this case has arisen, and which have been so fully discussed both here and in the Court below. I shall first submit the questions, and then state briefly the reasons why I cannot come to the decision at which the Court below has arrived.

The first question is, whether or not, upon Mr. Anderdon's leaving the partnership, his share was to be divided equally between the two partners, Mr. Robley and Mr. Brooke, or whether it was to be divided in the same proportion in which the shares were originally arranged in the house, namely, into three parts, two of these to go to Mr. Robley, and the remaining third to Mr. Brooke.