SCULLY V. EARL OF DUNDONALD.

New Zealand Times, Volume XXXIII, Issue 5366, 8 June 1878, Page 1 (Supplement)

SCULLY V. EARL OF DUNDONALD.

(From the Home News, April 12.)

The plaintiff, Mr. Scully,.in this case, which has been before the Chancery Division of the High Court of Justice, is.a gentleman who has lived for a long time in Kio, and is editor of the Anglo-Brazilian Times. In.the year ; 1870 the Earl of Dundonald engaged the plaintiff's services to endesvor to come to an arrangement with the Brazilian Government in respect of his late father’s claims. A sum of .£-10,000 was obtained from that Government, and in April, 1875, the plaintiff brought an- action' against Lord Dundonald in the Common Pleas to recover a Sum of £5,000, alleged to-be due to him .in respect of commission; at 121 per cent, for his assistance in obtaiuing the money. A: suit was . also instituted In the .Chancery Court for the purpose of having , the funds so obtained from the Brazilian ■ Government divided among Lord Duudonald’s family, and subsequently a writ was issued by the plaintiff upon' which an order .was made that a sum of £SOOO should be deposited in a bank, to abide" the decision of the Common Law-action, andfor- . then proceedings were stayed until that action should have .been tried. ; 1 In December - ,*1877, a i correspondence' passed . between-; the sobcitors on both sides, and an offer of; compromise was madg' by; Lord Duudonald’s solicitor, to pay,to: the' plaintiff; a sum of £2OOO and the costa incurred by .him. ; This was accepted by the. plaintiff,' but subsequently the offer was repudiated by - Lord.Dundonald, ,and l a motion was now made on behalf of the plaintiff that tho compromise so effected might be ordered to'be ‘ carried, into effect, that an order might be made for the 1 payment to the plaintiff of the £2OOO and costs out of the £SOOO deposited as a security' to answer the amount which should be found due to the plaintiff inthe Common Law action, and that the surplus might be paid oyer to the; defendant. The Vice-Chancellor said there, was distinct evidence to show that a sum of £2OOO and costs had been offered to the plaintiff by Lord Dundonald’s solicitor by of compromise of his claim. His lordship also came to the conclusion from the evidence that Lord Dundonald, if ho did not actually offer these terms himself, was,, at any rate, well, aware that the 1 offer had-been made‘on hisbehalf; and had been accepted by the plaintiff; Whether Lord Dundonald had given; his ; solicitor only -a general power or-a 'Special power,- he. was .decidedly of;;opinion thatthat, icompromise ■: ought tobecarried; out.. - His lordship could; not understand how Lord Dundonald could have brought,himself to repudiate the compromise, and to try and get put of a bargain entered into on his behalf,;unless he had been led by some malign influence. Such an arrangement could not be repudiated ’without incurring the greatest disapprobation of the Court. It he 'had mow to - decide ■ whether-the 1 compromise should be carried out' his decision would be in favor of the plaintiff ; but Lord Dundonald now endeavored to escape from his; liability upon - a technical .question. The order made by,tho Court was to stay, further proceedings; in • the present action Until the trial of the action in the Court of Common Pleas. The compromise agreed upon was not a compromise of this action, but of the action in the Oommou'Eleas. The Court of .Common. Pleas could enforce this compromise, but it ■ was not in the power of this Court to make such an order in respect of ■ an in another.; ■ Courttherefore, - upon technical grounds he could not accede to the present application. If .the Court 1 of. Common Pleas should , make an order to enforce thecompromise, then the plaintiff could come here-, again and ask for. the money tp.be paid.to him. ;