At a meeting of the board of directors held on the 19th of September, 1872, at which Mr. Barnett was present, it was resolved that each shareholder should have the option of taking the remaining shares at 17. each pro ratâ to his holding, and in case of any shareholder declining to take them, the shares then remaining to be offered to the other shareholders at the same price.

Sir J. D. Le Marchant, by his will, dated the 5th of August, 1871, made a gift to his wife in the following words:-"all property whatsoever that I may die possessed of for her sole use and benefit, in the full confidence that she will so bestow it on her decease to my children in a just and equitable spirit, and in such manner and way as she feels would meet with my ap

The bill was filed by an infant child of the testator against the widow and other parties interested in the estate to have the trusts of the will declared and administered by the Court. In order to raise the question whether there was an absolute gift or a trust the widow demrured.

J. Pearson, Q.C., and Kekewich, for the demurrer.

Cotton, Q.C., and V. Hawkins, for the plaintiff, were not called on.

THE VICE-CHANCELLOR held that a trust was created in which the children were interested, and that its exact nature and extent must be determined at the hearing of the cause, and the demurrer was consequently overruled.

Solicitors: Freshfields & Williams; Farrer, Ouvry, & Farrer.

M. R. In re PENYSYFLOG IRON MINING COMPANY. July 11. Company-Voluntary Winding-up-Summons to examine Officer of Company-Application by Contributories-Companies Act, 1862 (25 & 26 Vict. c. 89), ss. 115, 138.

This company was being wound up voluntarily. The majority of the shares were said to be held by the late manager of the company and his nominees. Some of the shares held by the manager were registered as fully paid up, and certain of the contributories were desirous of ascertaining how they came to be so registered, and also under what circumstances the company acquired certain property which had been sold to it. The manager would give no information, and the contributories applied to the liquidator to take out a summons to examine the late manager, but he paid no attention to the application. The contributories thereupon took out a summons for that purpose; and this summons was adjourned into Court, and now came on to be heard.

Cozens-Hardy, in support of the application, referred to the Companies Act, 1862, ss. 115, 138.

THE MASTER OF THE ROLLS said that the applicants were entitled to an order to examine the manager as to the shares held by him, and as to the sale to the company; but it would not be right to make a general order for his examination, as the applicants occupied no official position, and consequently were not under the control of the Court.

Solicitors: Sharp & Turner.

Bill of Review-Petition for leave-Affidavit in support-Infant Petitioner.

This was a petition for leave to file a bill or supplemental bill in the nature of a bill of review.

The petitioner was one of the infant children of Dame Harriet Sarah de Hoghton, and as such was under her will entitled to a share of her estate.

On the 21th of October, 1867, a bill was filed in the name of the infant children of Lady de Hoghton seeking to charge Charles Fiddey, one of her executors, with having misappropriated some parts of her estate, but in December, 1867, an order was made to stay proceedings in the suit as not being for the benefit of the infants, it appearing amongst other things that a summons had then been instituted for the administration of December, 1867. This decree was never prosecuted. the estate, and the usual decretal order made on the 18th of

Charles Fiddey died on the 23rd of October, 1872, and the petition stated in effect that it was then for the first time discovered that his co-executor had allowed him to get possession of the estate of Lady de Hoghton, and that he had misappropriated it and died insolvent.

The object of reviving the suit was to charge the co-executor with the loss occasioned by Fiddey's default.

Glasse, Q.C., and Ingle Joyce, for the petitioner. Cotton, Q.C., and L. Field, for the surviving executor of Lady de Hoghton, contended that if leave was required to file such a bill, the petition ought to be accompanied by an affidavit of some one concerned in the suit to the effect that the facts relied on were not known at the time the original bill was filed.

Torriano, for the executors of Fiddey.

Glasse, in reply:-It is doubtful whether the petition is necessary. But the petitioner being an infant cannot be prejudiced by any previous neglect, and such an affidavit as suggested is quite unnecessary.

THE VICE-CHANCELLOR held that the rule as to requiring an affidavit such as suggested did not apply where the petitioner was an infant, and leave was given accordingly.

Solicitors: Gregory, Rowcliffes, & Rawle; Field, Roscoe, & Co.; Pitman & Lane.

V.-C. M.
SCOTT v. CUMBERLAND.
July 11.
Costs-Administration Suit—Lapsed Share of Real Estate-General
Personal Estate.

On this suit, which was an ordinary administration suit, coming on for further consideration a question arose on the minutes as to how the costs were to be borne.

In re BONELLI'S ELECTRIC TELEGRAPH COMPANY. COOK'S CLAIM.

It was admitted that the undisposed of personalty was the primary fund for payment of costs, but it was insufficient, and the question was, whether the lapsed shares of real estate should be resorted to in priority to the general personal estate.

J. Pearson, Q.C, and Angelo Lewis, for the heir-at-law, contended that there was a difference between realty which descended to the heir because the testator had never attempted to dispose of it, and that which descended to him by lapse. In the former case it was liable for costs, and not in the latter.

Cotton, Q.C., and Caldecott, for the plaintiff, and Glasse, Q.C., and Langworthy, for other parties interested, contended that that there was no such distinction.

THE VICE-CHANCELLOR held that there was no distinction between an intestacy by lapse and one by non-disposal of real estate, but if there were any distinction, it was in principle rather in favour of charging the costs in the former than in the latter case.

Solicitors: Shum, Crossman, & Crossman; Parkers; S. J. Debenham.

July 9.

V.-C. B. SMITH V. DANIELL. Practice Discovery-Privilege-Cases and Opinions of Counsel. The suit was instituted by a plaintiff who disputed the validity of an award or apportionment of a sum of 50,000. which had been paid by the Secretary of State in Council to the directors of the East India Irrigation and Canal Company for the purchase of their undertaking. The award was purported to have been made by four persons, named Repton, Wood, Daniell, and Peters, and amongst the questions were; 1, whether the award was invalid by reason of one of the four members of the committee not having concurred in it; and, 2, whether the plaintiff, Colonel Smith, was properly speaking an officer of the company.

The plaintiff having been called upon to make an affidavit as to documents, omitted to state, and afterwards objected on the ground of privilege to produce, 1, certain cases and opinions of counsel, which from letters written by the plaintiff to the defendant Peters appeared to have been prepared and taken by the plaintiff, "on the subject of three members of the committee forming a legal award," and "on various points connected with" the plaintiff's case, and which were also referred to in a letter from Peters to the plaintiff; and, 2, a case or statement referred to in a letter written by the plaintiff to Peters as having been submitted to the late Lord Westbury, and Lord Westbury's opinion thereon. It appeared that Lord Westbury was consulted in the matter as a friend.

This was a summons on behalf of the defendant Westwood, the secretary of the company (the members of which were defendants), that notwithstanding such objection the plaintiff might be ordered to produce these documents.

Jackson, Q.C., and Millar, for the summons.
Eddis, Q.C., and Speed, contrà.

THE VICE-CHANCELLOR observed that the plaintiff did not say that these documents were confidential communications, but claimed to have them privileged from production, "on the ground that they were written in anticipation of, and in reference to," the litigation. Their materiality to the subjectmatter of the suit could not therefore be doubted; and was otherwise sufficiently apparent. The plaintiff, therefore, must

diction.

Petition in the matter of the Trustee Relief Act, 10 & 11 Vict. c. 96, and of the claim of Henry Cook in the winding-up of the above company for advances to the company.

The petitioner moved the Court for leave to serve a copy of the petition upon the respondent, Louis Copin, at Paris or elsewhere in France. Copin was the syndic or assignee in bankruptcy of Cook.

In an affidavit filed on behalf of the petitioner, a clerk of the petitioner's solicitors stated his belief that an order for substituted service on a solicitor whom he named in the city of London would come to the knowledge of the respondent.

Macnayhten, supported the motion:-The power of the Court to order service of copy of a bill out of the jurisdiction is regulated by Order X., rule 7; but the order does not in terms extend to petitions. Some difficulty exists in consequence of a remark attributed to the Master of the Rolls in In re Maugham (22 W. R. 748).

THE VICE-CHANCELLOR said that the petitioner might take an order for substituted service, and also for service upon the respondent abroad.

Solicitors: Parkin & Pagden.

V.-C. B.

July 11.

PARKER V. MCKENNA. Practice-Evidence-Answer-Cross-examination-Order of the 5th of February, 1861, rule 19.

In the course of the hearing of this cause, Davey (Fry, Q.C., and Hawkins, Q.C., with him), for Harvey Lewis, one of the defendants, proposed to read his answers as evidence on his behalf.

G. Hastings (Kay, Q.C., Sir II. James, Q.C., Lindley, Q.C., and Armstrong, with him), for the plaintiff, objected to the answers being read, on the ground that the plaintiff's solicitors had received notice that the defendant would not be tendered for crossexamination, and a medical certificate was read in Court to the effect that the defendant was unable to attend and be crossexamined. He referred to rule 19 of the Order as to Evidence of the 5th of February, 1861, Morgan, 4th Ed., p. 626, and to a decision of Vice-Chancellor Malins in Parker v. Lewis (Weekly Notes, 1873, p. 27), following Bingley v. Marshall (6 L. T. (N.S.) 682).

Davey, in reply.

Glasse, Q.C., Sir J. B. Karslake, Q.C., H. Fox Bristowe, Q.C., Everitt, North, and Tahourdin, for other defendants.

THE VICE-CHANCELLOR said that about reading the answer there was no difficulty. The question was, as to reading it as evidence. The rule which had been referred to was plain and distinct in its terms, and the cases in which it had been dispensed with were cases of necessity, such as the death or incapacity of a witness. No such necessity existed in this instance. The defendant with the assistance of counsel had put in a long pleading, a small part of which consisted of statements of fact. Of that part which consisted of pleading, argument, and explanation, the defendant would have the full benefit. But inasmuch as he did not submit to cross-examination, that which he had stated as matter of fact would not be received in evidence. His Honour considered himself guided, if not bound, by the decision in Parker v. Lewis, and as nothing short of absolute necessity justified a relaxation of the rule-which necessity did not here exist,

Motion for decree.

By an agreement made in October, 1872, the defendants, R. F. & C. A. Piper (in the suit Bailey v. Piper), agreed to sell the whole of the fee simple in possession free from incumbrances of the freehold property in the bill mentioned for the sum of 60007. to the plaintiff Bailey. The vendors were to make out a good marketable title. The plaintiff paid 4007., and the residue of the purchase-money (less a sum of 1057. as commission to the parties who negotiated the sale) was to be paid on completion of the purchase. The plaintiff Bailey entered into possession, and laid out the property for building purposes.

Questions arose in reference to the title, and in consequence of the great delay on the part of the defendants Piper in completing, the plaintiff Bailey filed his bill for specific performance. The defendants Piper having become bankrupt, there was a supplemental order making their trustees in bankruptcy defendants.

In January, 1874, a decree in Bailey v. Piper was made, declaring that the agreement ought to be specifically performed and carried into execution in case a good title could be made to the premises. Certain inquiries were directed in reference to the title and the chief clerk certified that a good title could not be made to the entirety, and that the title to an undivided moiety of the property was the subject matter of a suit, Hooper v. Smart." In the cause of Hooper v. Smart which, by order of the Court, came on to be heard immediately before the cause of Bailey V. Piper, the Vice-Chancellor decided that the plaintiff Martha Hooper was entitled to a moiety of the property.

Bagshawe, Q.C., and Wiglesworth, for the plaintiff Hooper. Chitty, Q.C., and Lemon, and Alfred Bailey, for the defendants

Brand and Slaters.

Macnaghten, and Northmore Lawrence, for] the defendants-the trustees in bankrupty of the Pipers.

Dickinson, Q.C., and Horton Smith, for the plaintiff Bailey. THE VICE CHANCELLOR, after referring to Barnes v. Wood (Law Rep. 8 Eq. 424), and Castle v. Wilkinson (Law Rep. 5 Ch. 534) made a decree for specific performance by the trustees in bankruptcy of the defendants the Pipers, as to a moiety of the estate, and held that the trustees of the Pipers were entitled to only one-half of the purchase-money; and said that no injustice would be done to the vendors as they had got the full price of their interest in the property-probably more than they would have got if they had sold an undivided moiety of it.

Solicitors: Kidsdale, Craddock, & Ridsdale; Aldridge & Thorn; Ravenscroft & Hills; É. F. & B. Davis; F. W. Denny; J. T. N.

Burnand.

V.-C. H.

July 11. In re NORWICH AND NORFOLK PROVIDENT PERMANENT BUILDING SOCIETY.

Joint Retainer by three, change of Solicitor by two, PetitionersOrder at Rolls.

Shortly before the 3rd of July, John Miller, T. W. Burrows, and Joseph Restieaux presented a petition to wind up the above company. The solicitor on the record acting for the three petitioners was Mr. Warner Wright of Norwich, whose agent was G. Cheesman of No. 1 Serjeants' Inn, Chancery Lane. On the 3rd of July, the Vice-Chancellor made the usual order to wind-up. On the 6th of July, 1864, Messrs. Miller and Restieaux presented their petition at the Rolls, on which they obtained

liberty to change their solicitor by appointing Mr. Emerson in place of Mr. Warner Wright, and that Messrs. Whites, Renard, & Co., be appointed agents for the petitioners in place of Mr. Cheesman.

Dickinson, Q.C., and Cozens-Hardy, now moved to discharge the order which had been obtained at the Rolls on the ground that where there was a joint retainer it was not competent solicitor and so compel the persons associated with them to for one or two of the plaintiffs or petitioners to change their forego the benefit of the litigation.

Langworthy submitted that the objection was premature; it might be of some weight where the question was who was to have the carriage of the petition, but that case did not arise here. THE VICE-CHANCELLOR said when parties agreed to act together they could not be allowed to bring matters to a dead lock by separating. The order must be discharged, with costs. Solicitors: G. Cheesman; Whites, Renard, & Co.

Common Law.

July 7.

P. & M.
IN THE GOODS OF SARAH SAYER EUSTACE.
Married Woman's Will-Made under a Power given to her by her
Settlement-A subsequent Will referring to such Power and con-
taining general revocatory Words-Revocation.

By a marriage settlement the property of Mrs. Eustace, consisting of a freehold house, certain moneys, and household furniture, was vested in trustees, in trust as to the two former for Mr. Eustace for life, and then in case Mrs. Eustace died in her husband's lifetime for such persons as she should by will appoint. The household effects were settled upon her for her separate use. By a will dated the 24th of October, 1859, after referring to the power given to her by her settlement, she devised the whole of her property, real and personal, to her husband. By another will, dated the 22nd of June, 1863, she again referred to the power given to her by her marriage settlement, and then devised the freehold house to her cousin Richard Eales, and gave the moneys in trust to certain persons for the payment of legacies. The household furniture and effects were not disposed of by this will. Executors were appointed, and the will concluded, "I revoke all former wills by me heretofore made."

Inderwick, Q.C., moved the Court to order probate to issue of both these documents as together containing the will of the deceased. General revocatory words in a will will not revoke a previous will made under a power unless the later one shews clearly an intention to do so. In this case as the second will does not dispose of the whole property subject to the settlement, the two instruments ought to be admitted to probate. He referred to Hughes v. Turner (4 Hagg. Eccl. 30); In the Goods of Meredith (29 L. J. (P. M. & A ), 155); In the Goods of Merritt (1-Sw. & Tr. 112); In the Goods of Joys (30 L. J. (P. M. & A.), 169); Jarman on Wills, 3rd Ed., 159.

SIR J. HANNEN held that as in the last will there was a direct reference to the power under the marriage settlement, the inference to be drawn from it was that the testatrix intended the language of the whole instrument of 1863, including the revocatary clause, to be applicable to the will of 1859 made under the power recited. He decreed probate of the will of 1863 alone. Proctors: Toller & Son.

ERRATUM.

DRINKWATER, PET.; DEAKIN, RESP., ante, p. 163. Attorneys for respondents :—for Phelps & Goddard, read Pe icock & Goddard.

ASHWORTH, Ex parte. In re HOARE (Adjudication of Bankruptcy pending Proceedings for Liquidation-Liquidation resolved on after Adjudication—Annulling Adjudication—Jurisdiction— Ultra vires Resolutions-Registration-Proof-Secured Creditor-Non-production of Securities-Validity of Vote-Adjournment of Meeting-Bankruptcy Act, 1869, ss. 16, 28, 80 (sub-8. 10), 84, 125—Bankruptcy Rules, 1870, rr. 260, 266, 271, 275, 295) BANKCY. ASKEW'S CASE. In re RUBY CONSOLIDATED MINING COMPANY (Contributory-Fraud-Removing Name-Recovery of Money

PACE

169

169

172

L. JJ. 170

The decree in this case was pronounced by the Court of Teinds on the 14th of May, 1868, but no appeal to the House of Lords was taken till the 7th of February, 1873, that is to say, after an interval of nearly five years. The respondent objected to the reception of the appeal; and the preliminary question of competency was argued by one counsel on each side at the Bar of the House.

Mr. J. Pearson, Q.C., for the respondent, maintained that the cause was finally decided below by the judgment of the 14th of May, 1868, and that the question of competency was governed by the Statute of 1825; citing a decision of the House (4 Macq. 352) that even an appeal by concert will not be allowed after the expiration of the statutory period.

The Lord Advocate (Mr. Gordon, Q.C.), in support of the appeal, pointed out that proceedings of a formal nature had been continued in the Court below down to the 2nd of March, 1871. He further suggested that an appeal from the Court of Teinds was not governed absolutely by the rules which applied to the Court of Session.

But, it appearing that the whole conclusions of the action were exhausted by the judgment of the 14th of May, 1868,

THE LAW PEERS, LORD CHANCELLOR CAIRNS, Lord HatherLEY, and LORD SELBORNE, were clear that the appeal was too late. It was therefore dismissed, as incompetent, with costs. Appellant's agents: Grahames & Wardlaw. Respondent's agent: John Graham.

Richard Vyse was the head partner in the firm of Vyse & Co., of Ludgate Hill, which had branch establishments in Italy and New York. The capital of the firm was large, and the share of Richard Vyse, the testator, very considerable. The articles of partnership provided for the surviving partners taking the share of a deceased partner. The testator made a will, to which he appointed one of his partners together with two other persons his executors. The will directed that his real estate should be sold, and the proceeds treated as part of his personal estate, and his children were to have that in equal shares, the shares of the daughters not vesting indefeasibly till they attained 25. The executors did not call in the whole estate of the testator, but a considerable portion of it remained in the business, and interest was paid on it. All the testator's children except the appellant seemed to have acquiesced in the arrangements made by the executors, but she, after attaining the age of 25, filed a bill against the executors praying for an account of profits or compound interest at 5 per cent. on her share. There was a piece of but, believing they could make a greater profit of it, built, at a land belonging to the testator, which the executors did not sell,. cost of 1600., a villa residence upon it, in the hope that the rest of the land could then be sold at great advantage. This was by the appellant's bill alleged as a breach of trust, and on this, as well as on the other parts of the bill, the decree of the Vice-Chancellor Bacon was in favour of the plaintiff. On appeal, the Lords Justices varied the order so far as it directed an account of profits, and as to the villa the trustees were to be allowed to take it to themselves at the price of 1600l., and to pay for the value of the land unbuilt upon, this value to be ascertained upon affidavit (as reported Law Rep. 8 Ch. 309). The plaintiff appealed against this decision.

Mr. Kay, Q.C., Mr. Marten, Q.C., and Mr. Romer, for the appellant.

Mr. Cotton, Q.C., Mr. Fry, Q.C., and Mr. Kekewich, for the respondents.

THE LORDS affirmed the decision of the Lords Justices.
Solicitor for the appellant: S. J. Robinson.

Solicitors for the respondents: Gregory, Rowcliffes, & Rawle.