Page:The English Reports v1 1900.pdf/379

of setting down the cause, and obtained a report as shewed by him, but that on respondent's exceptions it appeared, that not only appellant was served with a subpoena to hear judgment, but also [441] that his two clerks in court had notice that the cause was in that day's paper, and neither of his clerks had denied it, though appellant himself had made a bold affidavit; and therefore the Chancellor allowed respondent's exceptions, and afterwards made the decree absolute; which respondent submitted was a just decree, and ought not to be reversed. (R. Raymond. S. Mead.)

Die Veneris, 19 Junii, 1713. After hearing council upon this appeal, it was adjudged that the same should be dismissed, and the decree and proceedings complained of affirmed; and that appellant should pay respondent forty pounds for his costs. Lords Journ. vol. xix. p. 580.

Appellant made this case: Walter Stuart, Cornelius Dean, appellant, and respondent, by deed, 30th April, 1709, agreed to be partners for nine years, in the trade of catching and curing of fish in and about the islands of Boot, Aran and Kintire, on the western coasts of North Britain, or such other coasts or places as any three of the partners should think fit, and to deposit 2400l. joint stock, and to increase it occasionally; appellant was appointed to be sole manager in North Britain, and reside there at a salary of 200l. and to keep books and transmit copies yearly to Stewart and Denn, who were appointed managers in London; all parties to be equally concerned in profit and loss, and accounts to be balanced yearly in London; and after the deed executed, respondent and Denn proposed to erect another fishery, between the Fyfe point and New-Castle, including the Fyrth of Forth, under the covenants in the said deed, and to add 1000l. more to the joint stock, appellant to be sole manager, and have 50l. per annum additional more, which was agreed to, and a declaration thereof executed by all the parties 5th May, 1700; and 17th of that month appellant arrived at Edinburgh, and went forthwith to the western coasts, and with great expedition provided fishermen, boats, collars, casks, salt, and all other materials necessary at Boot, Greenock, and other parts, and began to fish the latter end of June, and some of the men and boats continued fishing till March or April following, and bought a large boat, and hired a marque at 9l. a month, which he sent to the western isles, with money and all necessaries to catch and buy fish; and caught and bought several quantities of cod and herrings, which were afterwards sent to foreign markets, and sent an account of all his transactions, with invoyces, &c. to the partners in London, and received their answers from time to time, acknowledging the receipt thereof; and in July, 1709, appellant, by orders from the partners at London, met Stewart at Edinburgh, who told appellant, respondent and Denn were resolved to erect a fishery on the north coast of North Britain, and left [443] every thing to his management, and then produced and read a letter signed by them, dated at London, July 23d, to that purport. Appellant and Stewart accordingly entered into measures for erecting such fishery, but finding it hazardous and difficult, unless some gentlemen residing in North Britain were likewise concerned therein, agreed to take in partners for one moiety of the new undertaking, and keep the other for the joint use and benefit of the old partnership, and accordingly executed an agreement, dated Sept. 21st, 1709, between Stewart and appellant of the one part, and James Gorden, James Moodie, John Sinclair of Barrack, John Sinclair of Lybster, Patrick Dunbar, and John Innes, of the other part, to trade jointly in buying, selling, catching and packing of fish on the coasts of Caithness and Strathnaver, and fresh rivers adjacent; and Stewart and appellant to advance half the money necessary, and the other partners the other half; and appellant received a letter dated 9th October, 1709, at London, subscribed by Stewart, Denn, and respondent, acknowledging Stewart's return to London, and acquainting them with the new agreement, and directing appellant how to proceed as to the fishing on the coasts of Fife and East