FERRAO'S CASE. In re PARAGUASSU STEAM TRAMROAD COMPANY (Companies Act, 1867, s. 25—Manner in which Shares are to be held-Payment "in Cash ") GOODSON v. RICHARDSON (Highway-Trespass-Injunction) V.-C. M. 4 V.-C. B. 5 L. C. & L. JJ. 1 HUDDERSFIELD (CORPORATION OF) AND JACOMB (Award-Arbitration-Limit of Period for Objection-Last Day of Term9 & 10 Wm. 3, c. 15) LATHAM v. CHARTERED BANK OF INDIA (Mercantile Law - Letter of Hypothecation of Bill of Lading-Insurance Policy Moneys -Bill of Exchange-Effect of giving Time to the Acceptor upon the Liability of the Drawer) V.-C. B. 6 MENIER v. HOOPER'S TELEGRAPH WORKS, LIMITED (CompanyRight of Shareholder to support his private Interest against the Interests of the Company-Frame of Suit) V.-C. B. 5 MOON v. ORIGINAL HARTLEPOOL COLLIERIES COMPANY (Demurrer -Cross Bill-Different Relief). L. C. & L. JJ. 1 O'REARDON, In re (Bankruptcy-Joint and Separate-Irish Bankruptcy) . L. C. & L. J. M. 1 POLINI . GRAY. LANE v. GRAY. PRANDO v. GRAY (Adminis tration Summons-Treasury Solicitor Defendant-Decree in three Suits) V.-C. M. 3 POOLE FIRE BRICK AND BLUE CLAY COMPANY, In re (Company -Voluntary Winding-up-Action · Costs Companies Act, 1862, 8. 138) M. R. 2 RICHARDS v. GODDARD (Cross-examination-Payment of Witnesses' Expenses in the first instance-Practice). V. C. H. 6 STONE'S SETTLEMENT TRUSTS, In re (Practice-" Opinion, Advice, or Direction" Clause-22 & 23 Vict. c. 35, s. 30) V.-C. B. 4 SYNGE v. SYNGE (Will-Election) L. C. & L. J. M. 1 TREACHER & CO., LIMITED v. TREACHER (Covenant-Construction -"Retail" Business) V.-C. B. 4 Bankruptcy-Joint and Separate-Irish Bankruptcy. D. O'Reardon and Mrs. Murphy were partners in business, O'Reardon in London and Mrs. Murphy in Dublin. In November, 1872, O'Reardon was adjudicated bankrupt in London. On the 3rd of February, 1873, Mrs. Murphy was adjudicated bankrupt in Dublin, and on the 10th of February they were jointly adjudicated bankrupts in Dublin. The assignees in the joint bankruptcy applied to have the proceeds of the sale of property in England remitted to them in Ireland. The registrar in bankruptcy refused to make the order, and the joint assignees appealed. Winslow, for the appellants. De Gex, Q.C., Warmington, and Henriques, opposed. Gill, for the stakeholder. This was an appeal from a decision of Lord Justice James, sitting for Vice-Chancellor Wickens. The case is reported Law Rep. 15 Eq. 389. The testatrix advanced to the defendant 9007. on an assignment by him of a covenant by F. H. Synge to transfer to the defendant a sum of 1000l. stock, and to pay interest in the meantime. By her will she gave F. H. Synge 30007., and all sums due to her from him, and directed her executors not to require payment of the 9007. from the defendant, but out of the 30001. given to F. H. Synge to retain enough to purchase 10007. stock, in satisfaction of F. H. Synge's covenant, and to pay the surplus thereof beyond the 900l. to the defendant. F. having predeceased her, she by a codicil directed the 3000l. to form part of her residuary estate, but directed her executors not to call on F. H. Synge's representative for transfer of the 1000l. stock, nor to enforce payment by the defendant of the 9007. A special case was filed in order to ascertain the rights of the defendant and the representative of F. H. Synge, and the Lord Justice James decided that the defendant was not at liberty to sue the representative of F. H. Synge for any part of the 1000. stock. From this decision the defendant appealed. Dickinson, Q.C., and Cookson, for the appellant. Hlemming, for F. H. Synge's representative. THE LORD CHANCELLOR was of opinion that the decision of the Lord Justice was correct, except as to the trifling difference between the sum of 9001. and the value of the 1000. stock, the payment of which the defendant ought to be at liberty to enforce against the respondent. LORD JUSTICE MELLISH Concurred. L. C. & L. JJ. Jan. 13. MOON v. ORIGINAL HARTLEPOOL COLLIERIES COMPANY. This was a demurrer to a cross bill, and the Vice-Chancellor Bacon allowed the demurrer, being of opinion that by means of an undertaking given by the company in the original suit Mrs. Moon could get all she asked for in the cross suit. The company appealed. Swanston, Q.C., and Waller, for the appellants. Kay, Q.C., and Caldecott, in support of the demurrer. THEIR LORDSHIPS said that even assuming that on this demurrer they had before them the proceedings in the original suit, and that such an objection was a good ground for a demurrer-even then it did not appear that Mrs. Moon could through the undertaking get all that by the cross bill she asked for, and might be entitled to if the bill in the original suit was dismissed. The demurrer must be overruled. Solicitors: J. W. Hickin; Harcourt & Macarthur. The defendant in this case had, with the leave of the Highway Board at Ramsgate, laid down along the highway pipes for the supply of water to certain houses belonging to him. The THEIR LORDSHIPS said that separate commissions were in owner of a piece of land adjoining the highway, and of the soil No. 1.-1874. of the highway, filed the bill in this suit to restrain the defendant. | funeral and testamentary expenses and debts of the testator The Master of the Rolls granted an injunction, and the defendant were all paid previously to June, 1830. appealed. Jackson, Q.C., and Beaumont, for the defendant. THEIR LORDSHIPS considered that the defendant had without any excuse put pipes in the plaintiff's land and intended to send water through them, thereby committing a continued trespass. There was no occasion to make the plaintiff establish his right at law, and as he could not go upon the highway and remove the pipes, he was entitled to the interference of the Court. The appeal must be dismissed. Solicitors: Paterson, Snow, & Burney; Wright & Pilley. M. R. By indentures of lease and release, dated the 5th and 6th of June, 1830, the trustees conveyed the real estate to William Collier and his assigns for his life. In the same month William Collier conveyed the estate to a tenant to the præcipe, and suffered a common recovery. In 1840 William Collier mortgaged the estate in fee to the defendant, William Walters. In 1861 William Walters and William Collier (the mortgagor) filed a bill against the then trustee of the testator's will, and the plaintiff in the present suit (who was the eldest son of William Collier), praying for a declaration that William Collier became, under the testator's will, entitled to the real estate for an estate tail in equity, subject only to the payment of debts and legacies, Dec. 18. and that the trustee might be directed to convey all his estate and interest in the property to William Collier, and William Walters his mortgagee. The present plaintiff put in an answer, by which he submitted that William Collier took only a life estate under In re POOLE FIRE BRICK AND BLUE CLAY COMPANY. Company-Voluntary Winding-up-Action-Costs-Companies Act, 1862, s. 138. The above company being in voluntary liquidation, was applied to by certain creditors, whose claim was disputed, to have the claim settled by summons in chambers; but the liquidators refused. Thereupon the creditors brought an action to recover the amount of their claim. The company defended the action, which came into the paper for trial on the 10th of December. On the 11th of December, a motion was made on behalf of the company that the action should be restrained, and the claim should be decided on in chambers, but the creditors objected on the ground that the dispute could be better settled in the action; and the motion the action was tried; the company did not appear, and the credi was ordered to stand over for a week. On the 12th of December, tors recovered a verdict. Hadley, now renewed the motion, and asked that the creditors might be restrained from issuing execution, with liberty to prove for the amount of their judgment in the winding-up. Jason Smith asked that the creditors might be at liberty to issue execution for costs on the ground that the action had not been defended bonâ fide. THE MASTER OF THE ROLLS held that both on principle and authority the creditors could only add their costs to their debt. Solicitors: Randall & Angier; Plunkett. Will-Construction-Estate of Trustees-Rule in Shelley's Case Contingent Remainder-Effect of Decree to bind Remainderman. James Collier, by his will, dated the 23rd of May, 1827, gave certain real estate therein described to James Collier and Hannah Collier, their heirs and assigns, upon trust that they and their heirs, and the survivor of them, and his or her heirs, should stand seised of the same during the life of William Collier, and also until the whole of his just debts and all interest due thereon, together with certain legacies, should be fully paid, upon the trusts thereinafter mentioned, that is to say, upon trust to let the same, and to pay and apply the rents and profits thereof, and the value of whatever timber might be considered at its best growth, from time to time in discharge of his debts, and the interest thereon, until the same should be fully paid off and satisfied, and then upon further trust to pay and apply the rents and profits in discharge of and until the whole of the legacies should be paid, and from thenceforth upon further trust to pay over from time to time the rents and profits to William Collier during his life, and from and immediately after the decease of William Collier and the payment of all his just debts as aforesaid and also the said legacies, together with all expenses incurred by his trustees in the execution of his will, the testator gave and devised all his said real estate unto the heirs of the body of William Collier. The testator died shortly after the date of his will. The the will. A decree was made on the 3rd of June, 1862, which contained no declaration, but directed that the trustee should liam Walters, his heirs and assigns, subject to such equity of convey all his estate and interest in the hereditaments to Wilredemption as might be subsisting therein in the said William Collier, his heirs, executors, administrators, and assigns under the mortgage. This decree had been inrolled. William Collier died in 1871. praying for a declaration that William Collier took under the The plaintiff filed the bill in this suit in February, 1873, will an equitable estate for life only, and that the demise to the right heirs of his body operated as a legal contingent remainder, and that the joining of the trustees in the indentures of June, 1830, so as to enable William Collier to destroy such contingent remainder, was a breach of trust, and that under these circumstances William Walters was a trustee for the plaintiff and the heirs of his body, and that a conveyance from Walters to the use of the plaintiff and the heirs of his body might be decreed accordingly. Southgate, Q.C., and Budnall, for the plaintiffs. THE MASTER OF THE ROLLS held that the trustees took a legal fee under the will, and, consequently, that William Collier took an equitable estate tail; that the trustees were not trustees to preserve contingent remainders, and consequently were not guilty of a breach of trust in joining in the indentures of June, 1830; and, further, that the plaintiff was bound by the decree of June, 1862; and that the bill must be dismissed with costs. Solicitors: Henry Tyrrell; Tucker & Lake. M. R. - Jan. 12. ATTORNEY-GENERAL v. WIDNES RAILWAY COMPANY. Highway Nuisance User by Railway Company. Railways Clauses Consolidation Act, 1845, s. 53-Railways Construction Facilities Act, 1864 (27 & 28 Vict. c. 121) s. 5. The defendant company are incorporated by a certificate of the Board of Trade, made in pursuance of the Railways Construction Facilities Act, 1864, and confirmed by Act of Parliament (36 & 37 Vict. c. LXXXIV.). The certificate incorporated the Railways Clauses Consolidation Act, 1845, and provided (clause 5) that subject to the provisions contained in the certificate and in the Railways Construction Facilities Act, 1864, the company might enter upon, take, and use such of the lands delineated on the deposited plans and described in the deposited books of reference as might be required by them for the construction of their railway, and for the purchase, possession, or user of which they had already contracted. The deposited plans comprised part of a highway under the control of the Widnes Local Board, and shewed that it was intended that the railway should pass along that highway. In December, 1873, the company proceeded to lay down sleepers and lines of rail along part of the highway, but without crossing it. Such lines of rail were intended to be used for the construction of the line and not as part of the permanent way. In January, 1874, the present information was filed at the relation of the Widnes Local Board, alleging that the defendants ran locomotives on the rails so laid down by them; and that such user of the road rendered it dangerous and extraordinarily inconvenient to passengers and carriages, and made it incapable of use as a highway; and praying for an injunction to restrain the defendant company from laying down or continuing any line of rails on the road, and from using the same, until they should have provided for the use of the public a sufficient road in substitution for that taken by the company in accordance with s. 53 of the Railways Clauses Consolidation Act, 1845. A motion was now made for an injunction accordingly. There was no evidence that the defendant company had contracted for the purchase, possession, or user of the road. Fry, Q.C., and North, for the motion. Hemming, for the defendant company, contended that the road was not made dangerous or extraordinarily inconvenient within the meaning of s. 53, but offered to abandon the use of steam, and insisted that the injunction could not at any rate go further than that. THE MASTER OF THE ROLLS held that the 5th clause of the certificate did not entitle the company to take the road; that the 5th section of the Railways Construction Facilities Act, 1861, conferred no power on the company, but was a mere direction to the Board of Trade as to how they should exercise the legislative powers conferred on them; that the user of the road by the company was dangerous, and extraordinarily inconvenient to passengers, within the meaning of the 53rd section of the Railways Clauses Consolidation Act, 1845, and consequently that the company were not entitled to interfere with the road until they had provided another road in substitution; and he granted an injunction to restrain the company from using the road until they had provided such substituted road, or until the hearing of the cause, or until further order. Solicitors: W. W. Wynne, for Beasley & Oppenheim, St Helen's; E. Reddish. by inadvertence. The effect of the affidavit in Prando v. Gray, was to displace all title in the plaintiffs in the other suits. One decree was never made in several suits except where each of the plaintiffs had some interest. THE VICE-CHANCELLOR held that an administration suit of this kind against the Crown could properly be instituted by summons, and stated that the decree would be worked out by taking an inquiry first of all as to the plaintiff in Prando v. Gray and then, if required, as to the plaintiffs in the other suits in succession. The decree would be for the inquiry as to the next of kin of the intestate, and if it appeared that the plaintiffs or any of them were the next of kin, an administration decree. Solicitors: Deane & Lickorish; J. T. A. Patrick; Ewbank & Partington; Raven & Bradley. Construction of Will-Illegitimate Children. The testator in the cause made his will, dated the 30th of April, 1861, in these terms: "I bequeath all I possess, real and personal property, to my wife M. C. Dorin in trust that she shall apply the same to her own personal use during the term of her natural life. And I leave her at liberty to direct the disposal of the property amongst our children by will at her death in such manner as she shall think fit, and should she make no will, I desire that the property existing at her death shall be divided, so far as it may be practicable to do so, equally between my children by her. And I nominate my said wife to be the sole executrix of this my will." The testator had had two illegitimate children by his wife M. C. Dorin, whom he married on the 29th of April, 1864, the day before he made his will. The children were always acknowledged by him to be his children, and they were baptised as such in a Roman Catholic chapel in London. No other children were born of this marriage, and the testator died in December, 1872. The testator had been previously married in 1823, and by that marriage he had two children, both of whom were dead, but one of them had left an only son. A question was now raised in an administration suit whether Dec. 19. the two illegitimate children of the testator could take under the words of the will. Administration Summons-Treasury Solicitor Defendant-Decree in three Suits. These were three suits, two of them instituted by bills and the remaining one by administration summons in chambers. The defendant in all of them was the solicitor to the Treasury as administrator of a Mrs. Maria Mangin Brown, who had died intestate leaving a large personal estate. The plaintiff in the suit of Prando v. Gray claimed to be a next of kin and related to the intestate in the fifth degree, the plaintiffs in Polini v. Gray claimed to be all the next of kin related in the sixth degree, and the plaintiff in the remaining suit claimed as next of kin in the seventh degree. The suits were put in the paper to be heard short on the 13th of December, but stood over on the application of Mr. Hemming, on behalf of the Crown. The plaintiffs in each of the suits had shewn a primâ facie case of relationship on affidavits supporting a pedigree. It was now proposed to take one decree in all the suits, directing inquiries who were the next of kin of the intestate. Glasse, Q.C., and Maidlow, for the plaintiffs in Polini v. Gray. Cotton, Q.C., and E. Ford, for the plaintiffs in Lane v. Gray. Higgins, Q.C., and G. Murray, for the plaintiff in Prando v. Gray. Hemming, for the Crown, submitted that a decree such as proposed would not be proper in form. It was now admitted not to be the practice to institute a suit of this kind against the Crown by summons, and where this had been done it was only Cotton, Q.C., and Kekewich, for the plaintiff the widow. Glasse, Q.C., and Vaughan Hawkins, for the illegitimate children. Pearson, Q.C., and Millar, for the personal representative. THE VICE-CHANCELLOR said the general rule that a bequest to the children of a testator or of any other person must primâ facie be taken to mean legitimate children could not be disputed; whether illegitimate children could take under that description must depend upon the language of the will itself, or upon that language as interpreted by surrounding circumstances. It could not be doubted that the intention of the testator was to benefit the two illegitimate children whom he had already had, and it was the duty of the Court to carry out that intention if it could be done without infringing any principle or settled rule of law. In his opinion the language of the will clearly pointed to existing children and not to future children, though such children might well be included in the gift. It was clearly established by the authorities that illegitimate children might take under the description of the children of a particular person when they had acquired the representation or character of being so, and the Court was satisfied of the intention of the testator that they should take. Both these requisites were in his opinion completely fulfilled in the present case, and he should therefore decide that the illegitimate children of the testator by the plaintiff answered the description of "our children " and " my children by her." He was also of opinion that there was no rule which prevented illegitimate children and legal children taking together as a class where it was intended that they should do so, |