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Stevenson reclaimed, and pleaded-No evidence has been produced to instruct that any debt whatever is due by the deceased James Stevenson to the claimant John Geddes. Not only is the claim not constituted, but the whole statement of the claimant is "not admitted." Whatever may be the result, if the claimant can elsewhere instruct his claim on Stevenson's estate, it is not competent for any alleged creditor of the deceased to constitute his claim in this process. It must be constituted by a separate proceeding against the representatives of the deceased. Hume's Trustees v. Ralston's Trustees, 13th June 1834; British Linen Co. v. Chandos, 24th Dec. 1836. But farther, any claim against Stevenson, as one of Geddes' executors, must be made against his estate, in the courts of the deceased's domicile. It is not alleged that any part of Geddes' estate was received or collected in Scotland; and the late Stevenson is represented in Jamaica, and has left funds there sufficient to answer all claims.

Geddes answered-The first question is as to the competency of the claim in this Court. Now, Stevenson is a domiciled Scotsman; he has himself brought the fund into Court; and is he to be allowed, on the pretext that this is not the proper forum, to carry it out of the country? If this plea is allowed, and the claim is made on the executor in Jamaica, the same answer may be made, and it may be said that Stevenson is not under the jurisdiction of the Jamaica court, and the claim ought to be urged here. But this point must now be held settled by the cases of Peters v. Martin, 21st June 1825; M'Tavish v. Saltoun, 3d Feb. 1821, F. C. Then, secondly, in considering the competency of the claim, the averments of Geddes must be held pro veritate. Those averments are, that Stevenson, as executor, is Geddes' debtor in the fund. Is it necessary, then, in a multiplepoinding, to constitute the claim against the representative of the deceased, any more than against the deceased himself? The same principle must apply whether the claim be directly against the deceased's estate, or merely a rider on that claim.

Lord Justice-General.-This is a very nice case; but, taking into consideration the allegations on record, it appears to me, that whether we sustain this judgment or not, we ought not to allow the fund to go out of the country. If we find that this is a proceeding in which Geddes is not entitled to be heard, and the money is paid over to this party, he may take it out of the country at once, Therefore, without entering into the question itself, I may say that I cannot agree to any decision under which this sum may be taken out of the country, until the case has been fully investigated.

Lord Mackenzie.-This is said to be a riding claim, and yet it is spoken of as if it were not a riding, but a proper competing claim. Now, a riding claim must have something to proceed on; you cannot ride without a horse. A party cannot come forward in his own person and assume that he is to be admitted as claimant in a competition unless he can show some foundation for his claim. It may be, though I am not without doubt, that a party having a riding interest is a creditor of the primary claimant; for my idea of a riding claim is this, that if the primary claim is found good, then the party has direct right to whatever that claimant gets. But to admit a riding interest to be constituted by a mere claim, would throw our whole law into confusion. But, then, to admit that a claim of this kind may not only not be constituted, but altogether illiquid, is going still farther. It would lead to action upon action, and would never do. Under our present system of records, where every one answers every one, there would be no end of such proceedings. I am, therefore, for stopping at this point, if we have gone so far; I think it is quite time to stop. I do not admit that it is properly a riding interest when it is only a claim-but cer

tainly not when it is merely an interest not constituted in any way.

Lord Fullerton.-I concur. We must all see the necessity of putting a stop to such a complicated multiplepoinding as this would be, on the plan Mr. Inglis proposes. But I agree with your Lordship that there is no propriety for any such order as would allow of the fund being carried out of the country. The claimant Geddes is a Scotsman, and can take proper measures for constituting his claim.

Lord Jeffrey. My opinion concurs with that last delivered; I cannot agree with the interlocutor. It is too late now to go back on the principle of admitting riding claims in a multiplepoinding; but it is a practice of comparatively recent date, and I suspect they were originally admitted only in the clearest cases. But it really is most serious to contemplate what would be the results of admitting such a principle as is now contended for. Mr. Inglis seemed to suppose that the cases were parallel, of primary claimants and claimants with riding interests; and that it was even in favour of the present claim that it was likely to give rise to a new and secondary competition. But such interests are quite new in our law; and I think they were admitted originally only in very clear cases, as a sort of substitute for arrestment. But unless there is a practice to that effect-which is not alleged-I would not admit such a claim as that before us. A claim to be admitted as a riding interest must be a much more complete and operative right. To carry the existing practice so far forward as we are asked to do here, with the almost absolute certainty of a secondary multiplepoinding, would lead to the worst results. I think we must put a check on this kind of proceeding.

The Court pronounced the following interlocutor :"Recal the interlocutor of the Lord Ordinary reclaimed against: Sustain the reclaimer's objections to the competency of the claim of Andrew Geddes, farmer near Elgin, and repel the claim: Rank and prefer the reclaimer upon the fund in medio, in terms of his claim; and decern: Find the reclaimer entitled to his expenses against the said Andrew Geddes; appoint an account," &c.

Lord Ordinary, Cuninghame.-For Stevenson, Lord Advocate (Rutherfurd), More; W. A. G. and R. Ellis, W.S. Agents.--For Geddes, Inglis, Boyle; Murray and Logan, W.S. Agents.-W. Clerk.-W.G.T.]

5th December 1849. FIRST DIVISION,

No. 34.-RICHARD GORDON, Pursuer, v. MATHEW HOWDEN, Defender.

Copartnery-Possession-Pawnbroking Act-Statute 39 and 40 Geo. III. c. 99-Process-H and D M entered into a contract of copartnery for carrying on the business of pawnbroking, but in the name, and under the management, of the latter alone. On the death of D M, his widow and executrix continued in possession; but the deceased's estate having been sequestrated, H applied for and obtained authority from the Sheriff to enter into possession, and wind up the business, which he did. Subsequently, the cautioner for a cash-credit which D M had obtained in his own name, raised an action of relief against H, and the deceased's trustee, on the ground that the credit must be held to have been given to the pawnbroking company. The defenders were found liable, and H paid the debt. Thereafter, the deceased's trustee raised an action of reduction of the contract of copartnery on the ground of contravention of the Pawnbroking Act, and of count and reckoning against H. The contract having been reduced, the trustee, in the count and reckoning, claimed from H the full amount realized by him in winding up the business, without any deduction. He having admitted that he was bound to pay the amount realized, under certain deductions:-Circumstances in which-Held, that I was entitled to deduct the sum paid to the cautioner, with expenses of the action of relief on both sides. This was an action of reduction of the contract of copartnery between the late Daniel Munro and the defender, and for count and reckoning, at the instance of the trustee on the sequestrated estate of Mrs. Munro, executrix of the late Daniel Munro. Decree of re

duction having been pronounced as narrated below, the question now turned on the count and reckoningin regard to which the conclusions of the summons were as follows:

"That the defender, on the pretence that the said latent contract of copartnership is effectual to entitle him, as an alleged partner of the said Daniel Munro, to an equal share of the stock and capital, and of an alleged share of the profits of the said pawnbroking concern, and that his right thereto is recognized by the said interlocutor or decree of the sheriff of Edinburgh, refuses, or at least delays, to hold just count and reckoning with the pursuer, as trustee foresaid, for his intromissions with the same: Therefore," &c. "And the said contract, and additional contract, or article annexed thereto, and the said interlocutors or decrees, being reduced, either in toto, or to the effect of not being competent to be founded on by the defender in defence against the petitory conclusions hereof, the said defender ought and should be decerned and ordained to exhibit and produce before our said Lords a full and particular state and account of the whole stock, funds, goods, gear, debts and effects, of the said pawnbroking establishment carried on by, or in name of, the said Daniel Munro, and of his intromissions therewith, from the said 15th day of November 1833 till the date hereof, and of all sums received by him from the said Daniel Munro, or any other person on his behalf, during the said period, with the proper vouchers and instructions of the same, and to make payment to the pursuer, as trustee foresaid, of the sum of £5000 sterling, or such other sum as shall be found to be due to the pursuer, with the legal interest thereof from the respective terms of the defender's intromissions, or otherwise, as shall be fixed by our said Lords in the course of this process; and failing of his holding just count and reckoning as aforesaid, to make payment to the pursuer of the sum of £5000 sterling, and of the lawful interest thereof from such period as shall be fixed by our said Lords, as aforesaid, and in time coming during the not-payment thereof: Or otherwise, and in case it shall be found by our said Lords that the said contract, and additional contract, or article annexed thereto, are good and effectual against the pursuer, as trustee foresaid, then the defender ought and should be decerned and ordained to exhibit and produce before our said Lords a full and particular account and state of the whole stock, funds, goods, gear, debts and effects, of the said pawnbroking establishment carried on in name of the said Daniel Munro, and of his intromissions therewith from and after the 4th day of April 1837, when, as alleged by him, the said copartnership was dissolved, till the date hereof, and of all sums received by him in relation to, or in connection with, the said pawnbroking establishment during the said period, in order that the proper share of the same, and profits thereof, effeiring and belonging to the said Daniel Munro, or the said Mrs. Ann Eliza Munro, as executrix foresaid, may be fixed and ascertained by our said Lords; and to make payment to the pursuer, as trustee foresaid, of the sum of £2000, or such other sum, more or less, as shall be found to be the amount thereof, with the lawful interest of the same from the said 4th April 1837 till payment; and failing of his holding just count and reckoning as aforesaid, to make payment to the pursuer of the said sum of £2000, with the legal interest thereof from the said 4th April 1837 till payment."

The facts on which the present point was decided are fully narrated in the following interlocutor of the Lord Ordinary, which was allowed to become final :

"14th December 1847.-The Lord Ordinary having heard parties' procurators on the closed record, and whole process, finds, Imo. That, on the 17th of April 1841, William Smith, in whose right the pursuer Richard Gordon now stands, as trustee on the sequestrated estate of Mrs. Munro, executrix of the deceased Daniel Munro, instituted the present action of reduction and count and reckoning against the defender. 2do. Finds that the summons narrates, that on the 4th of April 1837 the defender presented a petition to the Sheriff of Edinburgh, praying for an interdict against the trustee on the sequestrated estate of the said Mrs. Munro, as executrix of the said Daniel Munro, who died on the 16th of June 1836, prohibiting the said trustee, and all others acting under his authority, from interfering with the petitioner in the possession and management of the property belonging to and in possession of the company which carried on business under the firm of Daniel Munro, pawnbroker. 3tio.

Finds that in this application to the Sheriff the defender rested his title on a contract of copartnery between him and the said deceased Daniel Munro, for carrying on the said pawnbroking business, dated 15th November 1833, and an addition thereto dated 12th May 1835. 4to. Finds that answers were lodged by the trustee on the said sequestrated estate, in which he founded on the said contract of copartnery, and on certain previous proceedings before the Sheriff giving effect thereto, and that he objected to the prayer of the defender's application, maintaining the right of Mrs. Munro and of himself, under the said contract, to wind up the said concern. 5to. Finds that, on the 3d July 1837, the Sheriff pronounced an interlocutor to the effect that the present defender, as the only solvent partner of the said company, had the sole right to manage and wind up the affairs of the company, to the exclusion of the trustee, or any person appointed by him, and therefore authorized the present defender, on finding caution, to enter into the premises let by him to the company, to manage and dispose of the unredeemed effects, and to take possession individually of such parts of the premises as might not be necessary, for the purpose of winding up the affairs of the company. 6to. Finds that effect was thus given by the Sheriff to the said contract, on the efficacy of which both parties then founded, and that no challenge of the said contract or judgments of the Sheriff was brought until the present action was instituted as aforesaid. 7mo. Finds that the defender found caution in terms of the said interlocutor, entered into possession, and intromitted with the effects of the said pawnbroking concern, and took steps, by himself and others, for the winding up thereof. 8vo. Finds that, in the month of August 1834, a cashcredit for the sum of £400, for behoof of Daniel Munro, pawnbroker, High Street, Edinburgh, was granted by the National Bank, in which Daniel M'Leod was a cautioner; and the said Daniel M'Leod instituted an action, in which he concludes that 'the said Mathew Howden, as the surviving partner of the said company, and the said Mrs. Ann Eliza Munro, as relict and executrix foresaid of the said deceased Daniel Munro, the only other known partner of the said company, and as representing him as aforesaid,' should be decerned to relieve the pursuer of the said cash credit. 9mo. Finds that the trustee on Munro's sequestrated estate sisted himself as a party in the action in which the executrix gave in defences. 10mo. Finds that, on the 27th June 1839, the Court decerned in terms of the libel, and found expenses due; and that the sum decerned for, of principal and interest, amounted to £487:5:7, and the expenses to £139:6:2 11mo. Finds that the said sums have been paid by the defender to the said Daniel M'Leod, or his agent, and that the defender also incurred to his own agent an account relative to the said process, stated to amount to £114:12:3, the total amount incurred on this head being thus stated at £741: 4s. 0 d. 12mo. Finds that the present action of reduction of the said contract of copartnery was chiefly rested on the ground of being in contravention of the Pawnbrokers' Act, 39 and 40 Geo. III. c. 99, and that, on the 28th May 1842, the Lord Ordinary reduced the contract and interlocutor of the Sheriff, by which the defender was put in possession as aforesaid. 13o. Finds that, on the 22d of February 1843, the First Division of the Court altered the interlocutor of the Lord Ordinary, repelled the reasons of reduction, in so far as they proceed upon an alleged agreement to violate the Pawnbrokers' Act; aud, quoad ultra, remitted to the Lord Ordinary to proceed as might be just. 140. Finds that, on the 28th of April 1845, the House of Lords reversed the judgment of the Court of Session, and remitted back with instructions to adhere to the interlocutor of the Lord Ordinary of the 28th May 1842; and therefore finds that the foresaid contract, and addition thereto, and the interlocutors of the Sheriff, by which effect was given to the said contract in favour of the defender, must be held to be null and void. 15to. Finds that the case having come before the present Lord Ordinary by remit from the Court to proceed in the accounting, the parties agreed to hold the amount of stock realized by the defender to be £2464: 5: 6, on which the defender admitted a balance to be due of £1542: 5:5, and for which last sum decree has been pronounced, which decree is now final; and finds that an additional record has now been made up with respect to the balance which the defender claims right to retain as a lawful deduction from, or right to take credit for, the foresaid amount of the realized funds of the said concern. 16to. Finds that the defender does not pretend any right to retain any portion of the said balance as against the just and lawful creditors of the foresaid pawnbroking concern of Daniel Munro

as a company or pretended company, but that he admits his personal liability for the whole debts of the foresaid concern, he having been partner thereof, and liable to the creditors whether the contract was in itself legal or illegal between him and the said Daniel Munro, and, consequently, that the question of retention or deduction now arises between the defender on the one hand, and the pursuer on the other, as trustee for Mrs. Munro, executrix of Daniel Munro, individually. 17mo. Finds that the claims of retention consist chiefly of the sums paid and incurred by the defender in reference to the foresaid action at the instance of Daniel M'Leod, and amounting in all to the sum of £741: 4s. 04d; and finds it expedient that this question should be determined in the first instance; and, therefore, appoints the parties to prepare minutes of debate thereon-said minutes to be lodged by the box-day in the ensuing recess, and to be revised and lodged by the third sederunt-day in January next.

"Note.-The findings in the prefixed interlocutor seem to embrace all that is necessary for the determination of the question as to the right of the defender to retain the money paid to M'Leod under the action at his instance. There can be no doubt that the contract must now be held to have been illegal from the commencement. It is condemned in the clearest manner by the judgment of the House of Lords, and is set aside. The judgment of the Sheriff, founded on that contract as a valid contract, under which the defender obtained possession, has also been set aside, and therefore the pursuer may now say that the title of possession was bad. The defender, in this view, certainly could not claim, as against his partner, any profits under the illegal contract; but there are two most important specialties to be kept in view in determining the present right of retention.

"In the 1st place, the defender did not obtain possession of any part of the funds of this illegal concern at his own hand, or intromit by virtue of a possession obtained under the contract alone. On the contrary, he was put into possession by virtue of judicial authority, and that after a competition with the pursuer's predecessor, both parties founding on the contract as a legal contract, and each claiming right to possess as against the other by virtue thereof. It no doubt must be held that it was erroneous in the Sheriff to give possession on the strength of the contract, and that neither party was entitled to found on that instrument. But his Lordship gave that possession, and it was obtained bona fide by the defender under judicial authority, neither party then believing or maintaining that the contract was void. Had this been so held at the time, as it ought to have been, then no doubt a third party would have been named receiver; and suppose the sheriff-clerk, or any other indifferent person, had been so nominated, can there be any doubt that, in accounting for his intromissions, such third party would have been entitled to credit for a debt of the concern which he had actually paid? But does it make any difference that the defender, a bona fide possessor, though now held to be without a title, having a judicial appointment, made such payment; and can the representatives of the other partner in the illegal concern, or his private creditors, (for there are no unpaid creditors of the concern, or at least there ought to be none, as the defender is solvent and ready to pay), object to the payment thus made, and obtain an advantage over the partner paying a just debt out of the company's stock? The result of this would be, that Munro, in respect of the illegality of the contract, would receive a sum of money out of the pocket of Howden, which he could not do if the contract had been lawful, because, if Howden had paid a just debt of the lawful company, it would have formed a good deduction in an accounting for his intromissions with the concern. How can the pursuer found upon the illegality of the contract to bring about a different result?

"But, 2dly. The judgment in the case of M'Leod was pronounced on the footing that there was a lawful company, for it was only in respect of Howden being a partner of the company called Daniel Munro that he became liable for M'Leod's debt. The pursuer's predecessor was also a party in this action, and nobody then suggested the illegality of the contract. Had this been pleaded and sustained, then the defender would not have been liable in the debt. But the Court, on the footing of there being a valid copartnery, declared this to be a company debt, and ordered it to be paid by the company. The defender, under authority of the Sheriff, was in posession of company funds, and he obeyed the order of Court by making payment. When the other partner calls upon him to account for his intromissions, had the contract been a lawful contract, there can be no question that the payment of the debt so made would have formed a

lawful deduction in accounting. But how does the illegality of the contract make it competent for the other partner or his representative to object to this as a deduction? He would in substance be receiving an advantage from the illegality of the contract which he could not have claimed had it been legal.

"The Lord Ordinary throws out these views for the consideration of the parties, and will be glad to see them adverted to in the minutes of debate. He may add, that there does not appear to have been anything determined in the House of Lords in the case of Stewart v. Gibson, 3d Aug. 1840, Rob. App. Cases, p. 260, (on which the pursuer chiefly relied), inconsistent therewith. The Lord Ordinary admits the full authority of the doctrine, ex pacto illicito non oritur actio, so forcibly illustrated by Lord Brougham in that case, and on which the whole jugdment was rested. But, here, a contract of copartnery has been set aside as pactum illicitum by one partner, and he is now demanding an accounting from the other partner. Surely, in such accounting, he cannot insist that he has a greater advantage over the other partner than if the contract had been lawful. Both parties were, ex hypothesi, equally to blame in entering into the contract, and certainly there is no reason for imputing to Howden any desire to derive advantage from the contract in this matter of M'Leod's debt. For had he known of the illegality, (which the Court of Session did not consider to exist), he would of course have pleaded it most cheerfully, as it would have freed him from that debt. But being subjected in the debt as a company debt, and having paid it, he is not founding on the illegal contract to gain any advantage. He is ready to account as if it were legal, and the pursuer is pleading the illegal contract in order to enable him to get more than had it been legal. This case, therefore, differs entirely from that of Stewart v. Gibson."

In terms of the above interlocutor, minutes of debate were lodged, in which

The pursuer pleaded

Upon the facts determined by the interlocutor of the Lord Ordinary, what is the true position of parties as regards posses sion? Originally, the pursuer or his predecessor was in possession; then came the interlocutor of the Sheriff, by which the possession was inverted, and given to the defender. But the whole proceedings in the application to the Sheriff, under which the pursuer was deprived of the possession, and the defender was put in possession, have been swept away, and declared to be null and void. The case must, then, be argued on the footing that matters are in the same position as at the date of the defender's application to the Sheriff-as if, in short, the possession had never been disturbed, and as if the defender were here in petitorio in his application to the Sheriff or any other judge, and, founding on the illegal contract of partnership, were endeavouring to wrest from the pursuer, the trustee on Daniel Munro's sequestrated estate, the possession of the property of that estate. The pursuer must be held to be in possession of the estate and effects left by the late Daniel Munro, and the defender not in possession of any part of them, but entitled, if he can, to make good any claim he may think he has upon his partner's trustee. One partner (or his representative, which is the same thing) being thus in possession of the partnership funds and effects under an illegal contract, and the other partner having been sued by a creditor of the company, and compelled to pay his debt, can it be maintained that he is entitled to make good his claim of relief in a court of law? Assuredly not-and that because, the contract founded on being illegal, melior est conditio defendentis. It is clear, therefore, that the defender's claim of retention or deduction on account of his payment to M'Leod cannot be sustained. The legal position of parties is just the same as if M'Leod had compelled the defender to pay the money, the pursuer having all along been in possession of the stock and effects of Daniel Munro. The defender, as a partner who had drawn profits, was of course equally liable to M'Leod whether he was in possession or not. He must have paid whether he had funds of the business in his hands or not. decree of the Court was pronounced against him personally. But having been made to pay, how can he make good his relief against his partner, unless the rule of law is to be reversed, and action ex pacto illicito is to be supported. As to the two specialties noticed by the Lord Ordinary in his note-1. It is true the defender was put in possession by judicial authority; but the judgment which put him in possession is now recalled as illegal, and is null and void. The defender cannot take benefit by a judgment which must be held never to have existed. It is to

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be observed also that, in the proceedings before the Sheriff, the pursuer, being then actually in possession, did not require to found upon the contract at all to maintain him in possession, as no one could have disturbed him. It is said, that had the illegality of the contract been then known to the Sheriff, he would have put the property and effects into the hands of a third party. But no such judgment could have been pronounced. The party in petitorio, Mr. Howden, must just have lost his suit, as the Court could not have looked at the document on which he founded. Supposing, however, that a neutral third party had been so appointed, he might, had he paid a debt of the concern, have been entitled to credit. But such a party would be merely liable as an officer of Court, and would be in no respect personally bound for the debts of the company, or for anything beyond what he might realize in the fair and proper discharge of his duty. The defender's situation is totally different. He is personally liable to the last shilling of his private fortune, irrespectively altogether of the Court putting him in possession of the whole or any part of the stock. As to him, the principle of bona fide payment can have no place. He must have paid whether there were partnership funds or not. 2. Whether the contract was good or bad, as between Munro and Howden, Howden, who drew a share of the profits, was responsible to the public, or to a third party like M'Leod, who was a creditor of the business. The liability of partners, or parties who in the eye of law incur the responsibilities of partners by drawing a share of the profits, or otherwise acting or holding themselves out as partners, is in noways dependent on the existence of a valid deed of copartnership, or of a proper partnership at all inter se. In the preceding argument, the pursuer has pleaded his case no higher than if he were the personal representative of the late Daniel Munro. But, in truth, his position, as representing the creditors of Daniel Munro, in any accounting with Howden, is exactly the same as M'Leod's. There is no difference between the position of M'Leod and the other creditors of Daniel Munro, here represented by the pursuer. To allow Howden the retention which he here claims, would in truth be just to allow him to rank against his own creditors.

The defender answered

Up to the date of the decision in the House of Lords, the defender was in optima fide. Were he now making any claim under the reduced contract of partnership, he could have understood the doctrine which the pursuer has so learnedly discussed as to illegal contracts; and he has already given full effect to all that can fairly be deduced from that doctrine when he has paid over to the pursuer the balance of £1542: 5:5, and admits that he is to rank merely as an ordinary creditor of Munro for the capital advanced on the faith of the contract of partnership. But in regard to the point now at issue, the argument of the pursuer rests upon this fallacy, that, in demanding credit for the payment in question, when accounting for his intromissions, the defender is obliged to found upon the reduced contract of copartnership. What the defender maintains is, that whoever had been the manager of that business must, in the circumstances in which matters were then understood to stand, have been equally obliged, as he was, to pay M'Leod's debt out of the proceeds of that business, and would have been equally entitled, as he is, in accounting for his intromissions, to claim credit for the payment so made. In short, in the circumstances in which matters then stood, the payment to M'Leod out of the proceeds of the pawnbroking business was plainly a bona fide payment. During the whole proceedings in the action at M'Leod's instance, in which the pursuer himself was called as defender, he made no objection to the validity of the contract of partnership. But had he at this time announced that the contract was invalid, upon this being established, the defender must necessarily have been assoilzied from M'Leod's action. For it was solely on the contract of partnership that M'Leod rested his claim against the defender. But for that contract nothing would have been known of the defender's connection with the business, and the defender, who was sought to be made liable as a partner, must have been assoilzied. The pursuer, however, allowed both the Court and the defender to hold that the contract of partnership was valid and binding. On that footing he enabled M'Leod to obtain a personal decree against the defender, and thus, so far as regards the question with M'Leod, he is clearly barred, by personal exception, from maintaining that the defender, after having been obliged, by the decree of the Court, to pay M'Leod's debt, is bound notwithstanding to pay over again the same sum

to him, the pursuer. The whole doctrine of the law of Scotland as to bona fides stands opposed to such a plea. If the pursuer was the true creditor for this sum, why did he not interpel the payment to M'Leod? By permitting this, the pursuer clearly bound himself from demanding that the money so paid to M'Leod, with his knowledge and concurrence, should be again paid to himself-which is the demand now made. Suppose that in place of the defender a third party had been appointed by the Sheriff to the management of the business, such manager, as acting for the company, must have been called as a party in M'Leod's action, and decree must have gone out against him, as it did against the defender. But if this manager had, as the defender did, paid M'Leod's debt out of the funds realized by him, it is impossible to maintain that the pursuer could have demanded from him the whole funds with which he had intromitted without giving deduction for the payment so made. But the demand is no less unjust when it is directed against the defender, keeping in view that the payment to M'Leod was not ultroneously made, but that the defender was compelled to make it. Then, as to the plea that parties are now to be held as in the same position as if the defender had never been in possession, suppose that the pursuer or his predecessor had really been allowed to retain the exclusive possession of the pawnbroking business, then the pursuer, or whoever else was managing the pawnbroking business, must have paid out of the proceeds of that business the sums found due to M'Leod. Could he have made any claim of repetition against M'Leod, founded on the subsequent invalidity of the contract of partnership? Or rather, (for that is truly the claim he is now making in a disguised form), could he have made any claim against the defender in consequence of the payment he had made to M'Leod? But it seems no less extravagant to maintain, that because the defender, who happened to be appointed manager of the pawnbroking business by the Sheriff, made a payment in the course of that management which must have been made by the pursuer, or whoever else had been manager of that business, he must now, in the altered state of matters, account to the pursuer for his intromissions as if no such payment had been made.

The Lord Ordinary pronounced the following interlocutor:

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"24th February 1848.-The Lord Ordinary having considered the revised minutes of debate, in respect of the findings contained in the interlocutor of the 14th December 1847, now final, and specially in respect the claim of M'Leod was constituted by decree of this Court against the pawnbroking concern of Daniel Munro, and that the funds of the said concern were primarily liable therefor, and that the defender, being in possession of the said funds under judicial authority, was entitled and bound to pay the said debt, from which payment he was in no way interpelled by the pursuer or his predecessor in office-Finds that the defender is entitled, in accounting with the pursuer, to take credit for the sum £741: 4:03, now in question, and decerns; and appoints the cause to be enrolled, in order that the remaining point. of the cause may be disposed of; reserving all questions of expenses.

"Note.-The findings in point of fact in the interlocutor of 14th December 1847, now final, appear to the Lord Ordinary to be all that are necessary for the determination of this branch of the cause. The note subjoined to that interlocutor expresses the views which he then entertained, and they are in no way altered by the argument on behalf of the pursuer. The decree at M'Leod's instance was no doubt pronounced on the erroneous assumption, made by all parties, that the company of 'Daniel Munro' was a lawful concern. But unquestionably the present defender derived no advantage from that assumption, and had no interest so to state the matter. The contrary would have been a far more favourable view for him. Whether decree might have been obtained by Munro against him as a party deriving profit from an illegal concern, and one known to be so, is another question. The defender certainly did not omit to maintain the known illegality of the concern on any mala fide ground, for nobody then dreamt of such illegality. The Court assumed M'Leod's debt to be one which affected the pawnbroking concern primarily. On getting decree, M'Leod was of course entitled to recover out of the assets of that concern; and any illegality as between the partners could have formed no objection to his debt.

"In this situation, Howden held the funds of the company under judicial authority. No doubt that authority was obtained

on the footing, then pleaded on by all parties, of the legality of the contract. But whether the contract was legal or illegal, some person must have wound up the concern. Munro's estate was bankrupt, and therefore his representative was not a fit manager. The trustee on that estate objected to a neutral manager; and as the condition of appointing Howden, the sheriff properly imposed on him the necessity of finding caution-a condition arising out of the ordinary rules of judicial management, and not from any stipulation in the contract of copartnery. The defender being now called on to account, why should he not have credit out of the funds of the concern, be it legal or illegal, for a debt regularly constituted against these funds, and which were in his possession, certainly not in respect of any illegal act on his part, but by judicial authority, and under an appointment where he had found security."

The pursuer reclaimed.

At advising on 4th July 1849,

Lord Justice-General.-This is a case of a very serious and difficult nature. My great difficulty is, whether the contract, being now found to be illegal and null, any action at all in reference to the contract, or any accounting of any kind, can proceed.

Lord Mackenzie.-The pursuer now asks possession of everything in terms of his first plea in law.* What he says is, restore possession as it stood formerly, and then make your claim against me as trustee. The conclusions of the summons seem scarcely to include this demand. In fact it seems to me impossible to support this summons to the extent libelled. The judgment of the Lord Ordinary can scarcely stand; but what interlocutor are we to pronounce in place of it? It may be too late for the pursuer now to amend his conclusions. But the difficulty lies deeper than that. The summons actually concludes for a count and reckoning from 1833. Whereas he now only asks possession, and not count and reckoning, and by this means expects to defeat Howden's claim. Should not the action have been a possessory one?

Lord Fullerton.-The shape of the action certainly raises great difficulties.

Lord Mackenzie.-The Lord Ordinary's judgment certainly cannot stand, for he deals with the case as if Howden had been a judicial manager.

Lord Justice-General.-The pursuer had better give in a minute stating what it is he now asks under this summons. At the same time, there is a difficulty in allowing such a step at so late a stage of the case.

The Court pronounced the following interlocutor:"Before farther answer, allow the pursuer to put in a minute explaining how far he departs from the conclusions for count and reckoning in his summons, and what he now asks for under these conclusions."

The pursuer accordingly lodged the following minute: "DEAS and SHAND, in obedience to the prefixed interlocutor, stated, that, subsequent to the judgment of the House of Lords, the parties had agreed to hold the only sum in dispute in this action to be the sum of £2464: 5: 6, being the proceeds of stock belonging to the firm of Daniel Munro, realized by the defender after he took possession of that stock, in virtue of the Sheriff's interlocutor of 3d July 1837, with corresponding interest, as fixed by the Lord Ordinary's interlocutor of 7th July 1846; after which the defender paid over to the pursuer the sum of £1542 5 5 of an admitted balance; and a new record was made up, confined to the facts averred in support of the defender's claims of deduction, in terms of the Lord Ordinary's interlocutor of 28th January 1847; in which record the parties joined issue solely upon the defender's said claims, as embodied in the state No. 101 of process. That, in these circumstances, the pur

*The first plea was as follows:-" The interlocutor of the sheriff of Edinburgh, of date 3d July 1837, by which the pursuer's predecessor, the trustee on the sequestrated estate of Daniel Munro, was deprived of the possession of that estate, and the defender put into possession of the same, being now finally reduced and set aside by judgment of the Court of last resort, the defender is bound, ante omnia, to restore the possession thereby illegally inverted, leaving his own claims, and those of all the other creditors on the estate, to be lodged with the pursuer, as trustee, and disposed of in terms of law."

suer held the conclusions for count, reckoning and payment, contained in his summons, to be restricted to the foresaid sum of £2464: 5: 6, and interest, under deduction of the said interim payment, and held the said conclusions as departed from to any other or farther extent than giving effect to the statements and pleas embodied in the new record, prepared as aforesaid, which related exclusively to the defender's intromissions under, and subsequent to, the Sheriff's interlocutor of 3d July 1837.”

The defender lodged answers, in which he pleaded— In the event, which has happened, of the contract of partnership being set aside, the conclusions of the summons are, that the defender should exhibit a state both of the funds and of the debts of the pawnbroking establishment, and of his intromissions therewith, from the 15th November 1833, the date of the contract, till the date of the summons; and in regard to the debts, he is required to produce the proper vouchers and instructions of the same, so that the balance due upon his intromissions may be ascertained and paid to the pursuer. But now, instead of such a count and reckoning, the pursuer desires to convert his summons into a petitory action for payment of the gross amount of the defender's intromissions, without allowing any credit for the expenses incurred, or the debts of the pawnbroking establishment paid by the defender in the course of his management and intromissions. It has been admitted that the gross amount of the defender's intromissions, as embraced under the first conclusion of the summons, was £2464: 5: 6; and from the terms of his present minute, though very indefinite "as to what he now asks under the conclusions of his summons," it is presumed the pursuer means to maintain, that this sum, without any count and reckoning for expenses incurred or debts paid, should be instantly paid over to him. Such a demand is not only unjust in itself, but at utter variance with the conclusions of the summons. The defender is there called upon to produce the vouchers and instructions of the debts which he has paid, and for which he demands credit in his accounting; and yet it is now said that no question as to such credit can be entertained, but that the defender must pay over at once the whole of his gross intromissions to the pursuer. Though the defender may not be entitled to found on the judicial authority of the Sheriff, by which he was put in possession, he cannot, surely, in this action of count and reckoning, be in a worse situation than that in which he would have stood had no such authority been given. In July and August 1839, when Macleod's debt was paid out of the proceeds of the pawnbroking establishment, it is plain that, whoever had been managing and winding up this business, must, out of its proceeds, have paid this debt; and though the defender may not, on the one hand, be entitled to demand any benefit, from the position he then held, as the surviving partner, and as authorized to wind up the business, neither, on the other hand, can the pursuer take advantage of this, so as to expose the defender to any undue hardship on this account, and to hold that the payment made by him to Macleod, of a debt which was then on all hands held to be due by the pawnbroking establishment, and which was paid out of its funds, is one for which the defender is not to get credit in accounting for his intromissions.

This day the pursuer pleaded-It is a mistake to say the ground of action is shifted. The conclusions are only limited, not changed; besides, the defender is barred from stating such an objection, having joined issue with the pursuer on the new record, without stating any such objection.

Lord Mackenzie.-What is it that the summons asks? The conclusions are no doubt alternative. It asks, in the first place, that the defender should be ordained to exhibit an account "of the whole stock, funds, goods, gear, debts and effects, of the said pawnbroking establishment carried on by, or in name of, the said Daniel Munro, and of his intromissions therewith from the said 15th day of November 1833 till the date hereof, and of all sums received by him," &c.; and to make payment to the pursuer of the sum of £5000, or such sum as shall be found due to him thereon. Now, the contract has been set aside, and the summons accordingly takes us back to the very commencement of the partnership. Then the summons does not say that the pursuer is to keep what he had previous to the Sheriff's judgment, on the principle of melior est conditio possidentis; nor does it say that the defender is to give up what he got by the decision of the Sheriff, which was reduced by the House of Lords; but it asks

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