I confirmed, and the directors were appointed liquidators under | was led to believe that the plaintiff's legacy had been long since the voluntary winding-up. The petitioner, who was a shareholder in the company, not being able to obtain an inspection of the accounts, had presented this petition. Amphlett, Q.C., and Bagshawe, in support of the petition. THE VICE-CHANCELLOR held that the clause in the articles giving the shareholders a right to inspect the accounts did not apply after the company was placed under liquidation, and, upɔn an undertaking by the liquidators to call a meeting and lay the accounts before it within a fortnight, made no further order as to costs or otherwise. [His Honour refused to put the liquidators under any terms as to giving inspection of the accounts.] Solicitors: W. A. Norvall; J. Harwood. Susanna Maguire by her will, dated the 12th of February, 1855, bequeathed unto the Church Education Society in Ireland, 2007.; the Additional Curates Aid Society in Ireland, 2007; the Society for the Propagation of the Gospel, 2007.; the Society for Employment of Additional Curates in England, 300/.; the Church Pastoral Aid Society in England, 3007.; the Church Pastoral Aid Society in Ireland, 2007. Miss Maguire died on the 5th of November, 1866. It appeared that there was no society called the Church Pastoral Aid Society in Ireland. A society called the Additional Curates Fund Society for Ireland was formed in 1839, and in March, 1865, the name was changed to "The Spiritual Aid Society for Ireland." The legacy to the Church Pastoral Aid Society in Ireland was claimed by the Spiritual Aid Society, on the ground that the objects and rules were identical with those of the Church Pastoral Aid Society of England, and consequently that the Court might direct a cy-près application of the legacy. W. Pearson, for the residuary legatees, contended that the legacy had failed. T. C. Wright, on behalf of The Spiritual Aid Society, claimed the legacy. Wickens, for the Attorney-General, submitted that there was sufficient indication of a general charitable purpose to induce the Court to apply the legacy cy-près. THE VICE-CHANCELLOR said that a clear intention to devote this sum to charity was sufficiently indicated, and that the particular object of the charity-pastoral aid in Ireland- -was also clearly indicated. The legacy, therefore, took effect, and there would be a direction (the Attorney-General not objecting) that it be paid to the Spiritual Aid Society for Ireland, to be applied for the purposes of Church pastoral aid in Ireland. Solicitors: Bothamleys & Freeman; Raven & Bradley. V.-C. J. March 14. PADDON v. WINCH. Practice-Production of Documents. Adjourned summons for production of certain letters to and from the defendant's solicitor before the institution of the suit. The bill was filed in October, 1869, by a legatee, whose testator died in 1848, for the purpose of obtaining a declaration that her legacy was charged upon certain freehold hereditaments which had been sold to the defendant Winch by the West of England and South Wales District Bank, as mortgagees, with power of sale from the testator's son to whom the property was devised (charged, as the bill alleged, with payment of legacies and interest). The defendant by his answer insisted that he was purchaser of the property for valuable consideration without notice; that he paid, though out of abundant caution the bank had given him an indemnity against any claim in respect of such legacy. A summons having been taken out for production of documents by the defendant, the defendant claimed privilege (amongst other documents) for certain letters which had passed between the solicitors and agents for the bank and his solicitors between August, 1867, and February, 1868, during the negotiations for his purchase. The defendant's affidavit stated that these letters were "letters referring to the plaintiff's claim for her legacy, which is the subject matter of dispute in this suit-my solicitor Mr. Downing having as my solicitor corresponded with Messrs. Chanter & Finch, and other the agents of the said bank, concerning the same. Such letters were written in anticipation of proceedings being taken in reference to the said legacy.' Graham Hastings, for the plaintiff, contended that the letters in question were not privileged, and must be produced. Ince, for the defendant, contended that the letters were privileged communications, as they were written for the purpose of obtaining, and contained, information with a view to resisting the plaintiff's claim, which was then contemplated, though it had not actually ripened into a suit. The privilege was now extended to documents before the litigation had commenced. THE VICE-CHANCELLOR said that these letters must be produced. They were not written with a view to defence, but in reference to a contract of purchase, and could not be said to have been letters written in anticipation of the plaintiff's claim for the purposes of this suit. Solicitors: G. Dillon Webb; W. A. Downing. for a winding-up order. Bartlett effected a policy with the association, then carrying 500l., in October, 1860. on business at 77 King Street, Manchester, on his own life, for In February, 1862, the business and assets of the association were transferred to the Western Life Assurance Society. The receipt given for the premium paid in October, 1862, was headed Manchester and London Life Assurance Association," after which was printed in smaller type and red ink, "Incorporated with the Western Life Office of London. Established 1842. Manchester Office, 77 King Street." And in the body of the receipt the premium was described as "for the renewal of an assurance effected by the above-named policy in the Manchester and London Life Assurance Association." The receipts for 1863 and 1864 were headed : WESTERN LIFE ASSURANCE SOCIETY.—ESTABLished 1842. With which are united THE MANCHESTER AND LONDON LIFE ASSURANCE SOCIETY AND THE METROPOLITAN COMPANY'S LIFE ASSURANCE SOCIETY. Chief Offices:-3 Parliament Street, and 77 King Street, Manchester. In these receipts the policy was described by the number simply. In July, 1865, the Western became amalgamated with the Albert, and the receipt for the premium paid in October, 1865, was in the following form: WESTERN, MANCHESTER, AND LONDON LIFE ASSURANCE COMPANY. | which eight years ago was the registered place of business of the Chief Offices:-3 Parliament Street, London, and 77 King Street, Manchester. Incorporated with the ALBERT LIFE ASSURANCE COMPANY, 7 Waterloo Place, London. The remaining receipts were headed- "ALBERT LIFE ASSURANCE COMPANY. Bartlett died on the 7th of February, 1869, and this petition was presented by his executors. No indorsement of the transfers had been made upon the policy, nor had any bonus been received. A. Bailey (Morgan, Q.C., with him), in support of the petition. Everitt, for the two remaining directors of the Manchester Company. Kay, Q.C., and Higgins, for the liquidators of the Albert. Eddis, Q.C., and Cracknall, for the Western Society. THE VICE-CHANCELLOR said that the petitioners were entitled to a winding-up order. The policy-holder did not appear to have been a party to the arrangement between the Manchester and the Western, and he was in no way affected by any notice of the change, unless from the form of the receipts, but those were not calculated to give any notice that the Manchester Association had been dissolved and ceased to exist. On the contrary, the premiums were still payable at the office of the association (77 King Street, Manchester); and the heading of the receipts conveyed no indication of a dissolution of the Manchester, or of a transfer of its business. There was no novation between the policy-holder and the Western, and it was difficult to say how any novation could afterwards occur as between a policy-holder in the Manchester and the Albert from any dealings between the Western and the Albert to which the Manchester was no party. The premiums, no doubt, were paid at the Albert office after 1865, but that was the place where the policy-holder was told to pay them. The Western and the Albert were mere agents to receive the premiums for the Manchester. There had been no novation, and the case being entirely governed by the Family Endowment Case (Law Rep. 5 Ch. 118) there must be the usual order for a winding-up. His Honour added, that, independently of any difference in the circumstances, it was to be observed that in the National Provincial Case (ante, p. 31), which had been relied on in opposition to this petition, there was no actual decision by Vice-Chancellor Malins, as it appeared that he declined to dismiss the petition, thinking that the more proper course would be to decide the question on a claim to be brought in under the winding-up. PIKE AND SHAYLER'S PETITION. This was also a petition for winding up the Manchester ciation by a policy-holder and a shareholder. BIRCH-WOLFE V. BIRCH. Tenant for Life impeachable for Waste-Timber-Ground of inter ference of Court of Equity-Collusive Waste. Lands were limited by the will of a testator, dated in 1823, to the use of A. for life, remainder to the use of trustees during the life of A. to preserve contingent remainders, remainder to the use of A.'s first and other sons in tail male; remainder to similar uses in favour of B., C., and D., successively, remainder to the testator's right heirs. The tenants for life were not made unimpeachable for waste, but power was given to them to "fell and convert" such timber as might be necessary for the repairs" of the estate. Testator died in 1827, leaving A. his heir-at-law. A. went into possession, and died in 1859 without issue, having made B. his devisee in fee. B. went into possession, and died in! 1861, without issue, having made X. his devisee in fee. C. then went into possession. 66 The bill was filed by C. in 1869 against X. and D., alleging that A. and B. had cut timber during their respective periods of possession; and praying for a declaration that A. and B. were liable to account for the proceeds of all timber felled by the respectively which was not necessary for repairs; and that their respective estates were responsible for such proceeds; for at account and payment of what should be found due out of Es personal estate; and, unless X. should admit assets, for admins tration of B.'s estate, that such amount might be paid in Court; and consequential relief. The defences were: that the plaintiff himself had cut timb and was a wrongdoer; that the demand, if sustainable, was to trifling in amount to require the assistance of the Court; an that the claim was barred by the Statute of Limitations. Kay, Q.C., and C. Hall, for the plaintiff. Goren, for the defendant D., in the same interest. Chitty, for the defendant X. Kay, in reply. THE VICE-CHANCELLOR observed that the plaintiff's equity lay in this, that during the lives of A. and B. there was nobody to bring an action, as each tenant for life was also owner of the freehold. The Lill was based on the authority of Garth v. Coffe (1 Dick. 204) and other cases, where the Court, by its own inhere jurisdiction to repress fraud, stepped in to interfere when it for collusive waste going on between the tenant for life and the re mainderman, who alone had the legal right of interfering. T doctrine had been extended to the case of where the estates it life and in remainder happened to meet in the same perse but here His Honour had to be satisfied that there was collus. between the tenants A. and B. during A.'s lifetime. Now, appeared that during A.'s life a comparatively small amourt timber was cut; and A. was, moreover, laying out very larg sums in improvements on the estate. Collusion, therefore, B.'s part, with a view to spoiling the inheritance, was out the question. His Honour, moreover, held that the Statute Asso-Limitations would apply. The bill would, therefore, be dismiss as against A.'s representatives. As to B.'s estate, certain su had been admitted by the answer to have been realized cuttings of timber not used for repairs. There would be inquiry, therefore, as to the net value of all timber trees felled B., and whether any and what sums had been properly laid out expended by him and his representatives in respect of repairs As a large portion of the bill had failed, there would be no cos up to the hearing; liberty to apply as to the balance, if any, chambers. Fry, Q.C., and F. Waller, in support. Everitt, for the two remaining directors, took the objection that there had been no proper service. The only service upon the company had been upon a workman who was employed upon the premises in King Street, Manchester, where the office, now pulled down, had formerly stood. THE VICE-CHANCELLOR allowed the objection, and made no order upon the petition. It ought to have been served on some of the directors, and it was not sufficient to go to a place Solicitors: Fladgate, Clark, & Finch; Probert & Wade. TABLE OF CASES. Equity. PAGE ACCIDENTAL AND MARINE INSURANCE CORPORATION, In re (Winding- V.-C. J. 95 ATKINSON, Ex parte. In re BROOKSBANK (Bankruptcy Act, 1861, BURDICK v. GARRICK (Practice Appeal-Costs). M. R. 91 CASTLE v. WILKINSON (Specific Performance CHICHESTER v. MARQUIS OF DONEGALL (Production of Deed by Mortgagee) L. C. & L. J. GIFFARD. Equity. WALTERS v. WEBB. March 23. The plaintiff in this case claimed against the lords of a manor Glasse, Q.C., Cotton, Q.C., and Bradford, for the plaintiff. COMPANY OF PROPRIETORS OF THE BRADFORD NAVIGATION, In re EXCHANGE COMPANY (Winding-up Companies Act, 1862, THEIR LORDSHIPS held that this was a suit to recover land within the Statute; and that the right to possession could not be deemed to have accrued only when the fine was tendered. They dismissed the bill with costs. In 1860, one Richardson and his wife agreed to sell to the plaintiff certain real estate, which was the property of the wife, and was expressed to be so in the agreement. Richardson and his wife subsequently sold and conveyed the same estate to one Wilkinson. The plaintiff then filed the bill in this suit, stating that the agreement had not been acknowledged by the wife, and praying that Wilkinson might be ordered to give effect to the agreement by conveying all the estate of Richardson, with an abatement in price. The Vice-Chancellor Stuart made a decree accordingly, and Wilkinson appealed. Greene, Q.C., and C. Russell, for the appellant. H. A. Giffard for a mortgagee. THEIR LORDSHIPS said, that no doubt where a purchaser CHICHESTER V. MARQUIS OF DONEGALL. Production of Deed by Mortgagee. believed that he was purchasing the whole estate, and it after- | L. J. GIFFARD. Marchi By a settlement made in 1851, certain estates were convey by the Marquis of Donegall and the Earl of Belfast to such s as they should jointly appoint, and subject thereto to use Solicitors: Edwards, Layton, & Joques; C. G. Rushworth; R. strict settlement, under which the plaintiff in this case took a.. Lambert & Son. L. J. GIFFARD. BURDICK. GARRICK. March 18. Practice-Staying Proceedings pending Appeal-Costs. This case which is noted anté, p. 83, was mentioned again this day, when the counsel for the plaintiffs, stated that the plaintiffs' solicitor was willing to give security for the repayment of the costs of the suit in case the decree should be reversed on appeal; but that the plaintiffs were not prepared to give security for the money which would be payable to them. The order, therefore, made by the Court was, that the costs of the suit, when taxed, should be paid to the plaintiffs' solicitor on his giving security; but that the money found due to the plaintiffs on taking the accounts should be paid into Court, the defendants submitting to abide by any order that might be made as to interest. Dickinson, Q.C., and G. W. Collins, for the defendants, again applied for the costs of the application, and referred to Walford v. Walford (Law Rep. 3 Ch. 812, and 16 W. R. 1161), as shewing that there was no settled rule that the applicant should pay the costs. Greene, Q.C., and Hanson, for the plaintiffs, contended that as Walford v. Walford was an appeal motion, and depended on very special circumstances, it ought not to be held to overrule Topham v. Duke of Portland (1 D. J. & S. 603), which had been decided after consultation with the registrar. THE LORD JUSTICE GIFFARD said that his opinion was, that the most reasonable rule would be, that the costs of such applications as the present should abide the result of the appeal; and as the Court of Appeal in Walford v. Walford appeared to have considered that, notwithstanding Topham v. Duke of Portland, the costs were in the discretion of the Court, he thought he was free to act upon that opinion, and he should, therefore, make the order in this case that the costs should abide the result of the appeal. Solicitors: Helsham; Monckton & Monckton. The bill in this case was filed by a plaintiff, on behalf of himself and all others the freehold and copyhold tenants of a manor, claiming rights of common against the lord. The time for amending was enlarged, and before the enlarged time had expired the plaintiff obtained a special order from the Master of the Rolls, giving leave to amend by adding another person as plaintiff, and otherwise, with a view to add a claim on behalf of enfranchised copyholders, and to add an enfranchised copyholder as plaintiff to represent them. estate in remainder. The Marquis and the Earl, in exercise their power of appointment, mortgaged the estates. The pa tiff filed a bill to redeem, and obtained from the Vice-Chance » James an order for production of the deed of settlement, mortgagees being at liberty to seal up all but the parcels and t limitations to the plaintiff. The mortgagees appealed. Amphlett, Q.C., and M. Cookson, for the appellants. better position than if he had been one of the persons to whon THE LORD JUSTICE Considered that the plaintiff was in deed, and in such a case he could not ask to see the deed. I. an equity of redemption had been reserved by the mortgage made no difference whether he wanted to see the whole or a part. and the usual rule as to a mortgagor's rights must apply. In order for production must be discharged. Solicitors: C. Appleyard; Cookson, Wainewright, & Co. March 1 L. J. GIFFARD. In re ESTATE COMPANY. Reduction of Capital of Company-Time for discontinuance of e word "Reduced." Chancellor Stuart (anté, p. 57), so far as it obliged them to eThis was an appeal by the company from a decision of Vice tinue the use of the word "reduced " until their dissolution & winding-up. Greene, Q.C., and Wickens, for the company. the word "reduced " to be discontinued after the expiration a THE LORD JUSTICE varied the order, by allowing the used three months from the date of the Vice-Chancellor's order. Solicitors: Walters & Gush. Roxburgh, Q.C., and Higgins, for the Times; Kay, Q.C., and Whitehorne, for the Albert; and Fry, Q.C., and Smithett, for a shareholder, were not called upon THE LORD JUSTICE dismissed the appeal, with costs, except as regards the shareholder, against whom it was dismissed with out costs. Solicitors: Burton, Yeates, & Hart; Edwards & Edwards : Lewis, Munns, & Co.; Kingsford & Dorman. The defendant now moved, by way of appeal, to discharge the order and to expunge the amendments, on the ground that the L. J. GIFFARD. title of the plaintiff now added was quite different from that of the original plaintiff, and that the existence of enfranchised copyholders was known to the original plaintiff when he filed his bill. Jessel, Q.C., and Simpson, for the motion. Joshua Williams, Q.C., and Whately, for the plaintiff. THE LORD JUSTICE discharged the order allowing the new plaintiff to be added, but allowed the amendments enlarging the class on whose behalf the bill was filed. Solicitors: Frere, Cholmeley, & Co.; Fawcett, Horne, & Hunter. Counsel's Fees-Claim by Counsel against Client-Part Payment. This was an application by Mr. W. W. Barry, a barrister, to carry in a claim for 446., due to him for fees, against the estate of the testator in the cause. Mr. Barry had received his instructions from Mr. Westmacott, the testator's solicitor, who was now dead, and had been paid by him a part of the amount due, leaving the balance now claimed. After Mr. Westmacott's death his executors had received pay 1 ent of his bill of costs, which included Mr. Barry's fees, from e testator's estate. All the fees due were for conveyancing, t for Court business. Vice-Chancellor James refused to admit e claim, and Mr. Barry appealed. Mr. Barry appeared in person, and contended that the part yment by the solicitor constituted a promise to pay the fees, on hich a legal demand might be founded, and that the client was ound by the solicitor's promise, who, for the purpose of emloying and paying counsel, was his agent. Jones-Bateman, and G. Law, for the parties in the suit, were ot called on. THE LORD JUSTICE GIFFARD dismissed the appeal with costs. Solicitors: A. Rawlinson; Darley. Practice Direction of Issues-25 & 26 Vict. c. 42. This was a motion by the defendant by way of appeal from a ecision of Vice-Chancellor James (anté, p. 80). Little, Q.C., and Lindley, for the appeal motion. Kay, Q.C., and Hamilton Humphreys, for the plaintiff. THE LORD JUSTICE said that it was competent to the Court > grant an application of this kind, but that it was made at an convenient time, and as, in His Lordship's opinion, it was not hewn that the case could not be satisfactorily tried in Chancery, e should not interfere with the discretion of the Vice-Chancellor. The appeal motion must be refused, with costs. Solicitors: Cunliffe & Beaumont; J. Elliott Fox. GUEST v. SMYTHE. I. R. Mar 17. šile by Court-Purchase by Solicitor-Fiduciary RelationshipSetting aside Sale. In November, 1866, the company commenced to be wound up. The liquidator now applied that Mr. Breach might be settled on the list of contributories in respect of the 65 shares transferred to Battie; and he alleged two reasons in support of his application: first, that the transfer was a fraud on the company, inasmuch as a valuable consideration was stated therein, and false descriptions were given of the transferee and the attesting witness, so that on the face of it the transfer appeared to be a bona fide transfer for value, whereas in reality it was a transfer to escape liability, and no consideration was paid by the transferee; second, that the transfer was not out and out. The directors had power to reject a transfer only in the case of the transferor being indebted to the company, or refusing to produce the certificate of title to the shares. Sir R. Baggallay, Q.C., and Lindley, for the liquidator. THE MASTER OF THE ROLLS said that if the directors had had power to reject a transferee the transaction would have been a fraud on the company and must have been set aside; but inasmuch as they had no such power, and, on the evidence, he was of opinion that the transfer was out and out, the summons must be refused; but no costs would be given to Breach. Solicitors: Ashurst, Morris, & Co.; Mayhew. In re ANGLO-ROMANO WATER COMPANY. Ex parte WRIGHT. Company-Winding-up under Supervision-Liquidator-Passing Accounts-Rights of Contributory. The above-named company was formed and registered, under the Companies Act, 1862, for the purpose of supplying Rome of the shareholders consisted of Englishmen, and that the comwith water; but in consequence of the fact that a large majority This was a suit by Guest, the sub-mortgagee of certain real state, against the representatives of one Smythe, the original nortgagee and sub-mortgagor, and the representatives of Pid-pany had a foreign domicil, great difficulty was experienced in locke, the original mortgagor of the property. By the decree he property was ordered to be sold. The sale took place on the 29th of July, 1869, and the purhaser was a Mr. Wight, a solicitor, who had acted as solicitor or the plaintiff in a creditors' suit for the administration of Smythe's estate, and whose name appeared on the particulars of sale as one of the persons from whom copies might be procured. He had also, previously to the sale, made an application in the resent suit for liberty to attend the proceedings on behalf of Smythe's creditors. On the 4th of August the sale was confirmed. On the 5th of August liberty was given to Wight to attend the proceedings in his suit. An application was now made on behalf of persons claiming under Piddocke, the mortgagor, that the sale might be set aside. Southgate, Q.C., Speed, and Simmonds, for the applicants. Jessel, Q.C., and Bagshawe, for the purchaser. Swanston, Q.C., and Bovill, for the plaintiffs. THE MASTER OF THE ROLLS held that the position of Wight was such as to preclude him from becoming a purchaser without in the first place obtaining the leave of the Court, and made an order similar to that in Lister v. Lister (6 Ves. 631). Solicitors: Field & Co.; Palmer, Eland, & Nettleship; Combe & Wainwright. carrying the purposes of the company into effect. In December, 1867, resolutions were passed by the company that the assets and liabilities of the company should be transthat the company should be wound up under supervision, and ferred to an Italian company, called the Acqua Marcia Company, in consideration of certain shares in that company, which were to be handed over to the liquidator, and, after payment of expenses, transferred to the shareholders in proportion to their respective interests in the undertaking. In January, 1868, a supervision order was made. Marcia Company for the purpose of forfeiting the shares in that In May, 1868, proceedings were about to be taken by the Acqua company, which were to be handed over to the liquidator of the proceedings a fund was raised by means of a call in the windingAnglo-Romano Company, and with the view of averting these up, and in the result a considerable number of shares in the Italian Company were handed over to the liquidator. Wright, a former shareholder in the Anglo-Romano Company, accounts. The liquidator resisted the application on the ground now applied that the liquidator might be ordered to pass his that certain shares in the Italian Company had been transferred to Wright and accepted by him as an equivalent to the shares had ceased to be a contributory. formerly held by him in the Anglo-Romano Company, and so he Jessel, Q.C., and Higgins, for Wright. Sir R. Baggallay, Q.C., and Langley, for the liquidator. THE MASTER OF THE ROLLS said that every contributory was entitled to call on the liquidator to pass his accounts, provided the applications were bona fide, and not for purposes of vexation. It was said that Wright was not a contributory, but he had formerly been one, and was entitled at least to have an account rendered; whether the Court would order vouchers to be produced would depend on the nature of the account. Solicitors: Mercer & Mercer; Flux, Argles, & Rawlins. |