The other question is of a similar nature, and in a great degree in the same terms, though going into a much more enlarged view of the case, and that is, whether the purchase of Donaldson's mortgage, and the purchase of the Betsey's Hope estate, were partnership transactions, in which the partnership firm of Robley and Brooke would become interested in the profits, and liable to the loss that these transactions might entail upon them, in the proportion of two thirds and one third, or whether those are to be taken as out of the limits of the partnership, as exempt from the partnership, as private transactions between Mr. Robley and Mr. Brooke, and as if no partnership had existed for general purposes at all; in which case they would be entitled to the profits in equal moieties, and be liable in equal moieties to any loss also that might accrue.. Upon the first of these questions, with the best attention which I have been able to bestow upon the evidence and the arguments, I have no hesitation in coming to the conclusion, that the share of Mr. Anderdon was taken by the two partners in the proportions in which, at the formation of the partnership, it had been arranged that they were to distribute their profit and loss, that is to say, dividing two thirds to the one, and one third to the other; in short, that it fell into the partnership. This is a question of circumstantial evidence. One person will draw one inference from the same circumstances and facts appearing by parol evidence, or upon the face of depositions and documents, as in this case, and another person will form a conclusion and draw from those very same circumstances an inference totally different. After the 1833. ROBLEY บ. BROOKE. 1833. ROBLEY BROOKE, greatest attention bestowed in sifting this evibence consisting for the most part of an investigation of the accounts, and the relative situation of the parties in these transactions, my noble and learned friend, whose assistance you have had in this long inquiry, and who has paid all possible attention to these circumstances, as well as myself, came to the conclusion to which, I may say, we both of us came independently, and in a great degree without communication upon some of the material views of the case, that the order pronounced by the Vice'Chancellor must be varied. I shall shortly run over a few of the particulars; to detail the whole would be useless. First, the whole profit and loss account is to be divided among the three partners; two shares to Mr. Robley, one share to Mr. Brooke. That was prior to Mr. Anderdon's leaving the firm. Now, looking at the transactions as they pass, who pays for Mr. Anderdon's share? The 2500l. and 26687. 12s. 5d. 'come out of the whole concern, and therefore Mr. 'Anderdon's share was purchased in the proportion of two-thirds and one-third, two-thirds by Mr. Robley, and one-third by Mr. Brooke. Whatever was due upon Mr. Anderdon's share, comes out of the same fund, and is borne in the same proportions. Then look at the sixth article, which provides that in the event of Mr. Anderdon dying, the whole is to be divided in these proportions of twothirds and one-third: the event contemplated (the death of Mr. Anderdon) being provided for in this way, raises a very strong probability that in the same way an event not provided for, a casus omissus, that of Mr. Anderdon retiring and not dying, should be provided for in like manner, unless proof to the contrary could be shown. This consideration would be enough to throw the onus of proof on the other side, which onus has not been discharged, and without that evidence to bear me out, I must draw an inference from the facts opposed to that come to by the Vice-Chancellor. The attorney's charges with respect to the dissolution of the partnership, and the payment of them, was also alluded to, which will be found in the thirtysecond folio of the Appellant's Appendix, and the mode of paying the 25007. in the third and fourth folios, and Sir William Young's account running through the years 1804 and 1805. If your lordships will look at the Appellant's Appendix 18, A. and B., it will clearly appear that they run through that year; they go on after April 1804 to the end of that year, and the balance is carried down after Mr. Anderdon's retirement: the transaction is treated as a charge for interest, and it is there brought into the balance of the former firm to the credit of the new firm. This observation is very material, not merely with respect to the first point in the cause, but is very powerful also upon the second, which is more important than the first. A good deal was said upon the funds, and the manner in which they were brought into the concern, in reference to the second part of the case. It is said that the prayer of the Respondent's cross bill shows, that he did not object to the two ships, Phoenix and Cove, being treated as money or money's worth, and carried to the credit of the new firm. Another observation upon this important part of the case, it is fit to make, and I make it in the outset upon the second point, and that is, 1833. ROBLEY บ. BROOKE. 1833. NOBLEY บ. BROOKE. that the advances made by Mr. Brooke were repaid, with interest, on or before 1815, as appears in the eighth folio of the Appellant's Appendix. With respect to the second point, in addition to what I have already said, it is clear that Sir William Young was indebted to the firm; from that original debt to the firm, springs the transaction of the purchase of this mortgage; and it is to be observed that Donaldson's mortgage was only completed in September after the purchase of the Betsey's Hope, and after the mortgage of the Betsey's Hope was complete, the description of Robley and Brooke as partners, in the assignment of the mortgage, is not material. Much is said, as I have already observed, upon the source from which these monies proceeded, and I may as well here make a general observation, which greatly guides my opinion upon the second point. It is said the money came from Mr. Brooke. Now, that a great deal came from Mr. Brooke, is doubtless true; a great deal from Brooke and Co.; some from Mr. Brooke as an individual, and some from Brooke, Webb, and Cole. But how did it come? In what way? It came through the firm of Robley and Co. It came through the partnership concern. It was not that Mr. Brooke lent the money to Mr. Robley, with which he was to purchase the assignment; it was not that they two jointly, as individuals in the firm, entered into this transaction together, but every thing was brought first into the firm; it all came through the firm. At first, the money was lent by these partners to the firm, and then by the firm was employed in purchasing a mortgage; the firm thereby became indebted, not to the firm, but to Brooke and Co., and the others, whoever advanced the money, and the firm being so indebted, became bound to pay the principal and interest. Then the firm used that money as partnership funds in purchases and in speculations in the West Indies. The first step Now does it make any material difference in this matter, that it appears that the money was advanced by one of these partners in a larger proportion, even a much larger, than the other, when it was all done in the name of the firm? in every one of these transactions, the firm with the amount of that then credit the same firm with the amount of the purchase. It is admitted that the payment of the instalments were made, and it appears upon the extracts from the books, that they were made by the firm providing funds to meet the bills, by means of transactions with their bankers. Sometimes they were provided for in one way and sometimes in another, and upon some parts of the transaction it appears, in the course of the accounts, that the advances were made (and that bears upon this point) by Mr. Brooke, or those with whom Mr. Brooke was concerned. If we look at the other details of the case, the solicitor's bills of costs for instance, in the Appellant's Appendix, folio 72; if we look at the mortgage accounts in the Appellant's case, folio 10, and the Respondent's Appendix, folio 24, it proves the transaction to have been that of the firm. Mr. Brooke, some considerable time before that, had come to the management of the concern in London: he sees that account so 1833. ROBLEY บ. BROOKE. |