ner as if the calls had been duly made." The plaintiff is entitled to the injunction she asks.

Russell and Chandless, for the defendants, were not called on.

protest, and without prejudice to the question in this cause, to pay the whole amount demanded within a week. Let the motion in all other respects stand over till the hearing of the cause or further order, with liberty to apply. I declare, that, if the bill shall be amended, although I do not give any leave to amend, yet, if the plaintiff shall obtain an order to amend, and shall amend such bill, such bill so amended shall be without prejudice to the motion, which I direct to stand over.

Ex parte YATES.-Dec. 4.

KNIGHT BRUCE, V. C.-Although I am of opinion that it is a hard case upon the plaintiff, I fear she must lose the 225/. interest. If, however, she wishes to take the opinion of a court of law, and asks leave to have a case, I will give her the opportunity, subject to any objection that may be urged to it by the counsel for the defendants; and decline for the present deciding this point. As at present advised, it would be more satisfactory to me that a case should be so sent. I cannot | Practice-Service of Petition—Stat. 11 Geo. 4 & 1 Will. 4, at present say that I feel inclined to adopt the construction contended for by the plaintiff; but, supposing a case to be sent at once, I think that the calls may be paid without prejudice, so as to prevent the forfeiture of the shares. All that I have stated, it must be remembered, is without having heard the counsel for the defendants.

Wigram. The plaintiff cannot safely pay the calls unless the Company will undertake to repay them in the event of it turning out that she has overpaid.

c. 60.

After a Reference to the Master, and a Report thereupon, on a Petition to confirm the Report, under the Provisions of the Stat. 11 Geo. 4 & 1 Will. 4, c. 60, and to transfer Funds to new Trustees,-Held, that all Parties interested in the Fund, whether in Reversion or otherwise, should be served with Notice of the Petition.

In this case, it appeared that David Yates, by his will, dated 16th December, 1826, devised and bequeathed his real and personal estate to John Webb, Russell.-The Company can give no undertaking. William Yates, and Henry Yates, their heirs, exeMore indulgence has been given than ought to have cutors, and administrators, upon trust to sell; and dibeen for the payment of the calls. All that the Com-rected that his trustees should stand possessed of the pany want is the payment of the calls. They have no monies to arise by such sale upon the trusts thereinwish to forfeit the shares. after declared. He then bequeathed various pecuniary Nov. 17.-Wigram asked for a case. legacies, and directed his trustees to place out 1000%. Russell.-The case is one more proper for a court of upon security, and to pay the interest to his grandson, law than of equity. If the construction of the plain- William Lee Yates, for his life, and after his decease to tiff is right, that, although she was for a time in de- pay the said sum of 1000l. to his children, as therein fault by not paying the call, still, when she pays up particularly mentioned. The testator then gave seven the 4010, and interest on it, she has a right to re-tenth parts of the residue of his estate and effects, subceive all the interest on the 10,0257., which from the ject to the deductions therein mentioned, for the benefit 24th January has not been paid, her remedy will be by of his children therein mentioned, for their respective action against the Company for the arrear. If, again, lives, and, after their respective deaths, for their childthe plaintiff has a right to set off, as she contends she ren respectively; and he bequeathed the remaining has, her claim for interest on the larger sum against three-tenths to three of his children absolutely. The the demand of the Company for the 107. call, any for- testator died in April, 1827, and, on the 20th of the feiture by the Company of her share will be void. same month, the will was proved by the three trustees, But it never can be held that a shareholder in a Com- who were thereby appointed executors. John Webb pany has a right to set off in respect of arrear of in- died in September, 1829, leaving his co-trustees surterest against calls duly made by the Company. This viving. In 1835, William Yates went to reside in Auswould lead to infinite inconvenience. In the present tralia; and, upon a petition presented by William Lee stage of the cause, the court could not properly direct a Yates, and others who were interested in the fund, then case for the opinion of a court of law. Such a course standing in the names of himself, John Webb, decannot properly be taken on a motion, unless with the ceased, and William Yates, an order of reference, dated consent of the defendants, and that consent cannot, on 6th March, 1846, was made for the Master to inquire the part of the Company, be given. and state whether William Yates was a trustee within the intent and meaning of the stat. 11 Geo. 4 & 1 Will. 4, c. 60, and whether he was out of the jurisdiction of the court. The Master, by his report, dated 20th November, 1846, stated, that he found that the said William Yates was a trustee within the meaning of the act, and that he was out of the jurisdiction of the court; and also, that he the Master was of opinion, that Benjamin Handforth and John Warhurst were fit and proper persons to be trustees of the fund in the place of the said William Yates and John Webb, deceased. A petition was now presented, praying the confirmation of the Master's report; and that the two persons named in it might be appointed trustees in the place of William Yates and John Webb; and for a transfer of the funds to the names of Henry Yates, Benjamin Handforth, and John Warhurst.

Wigram, in reply. The construction put on the act by the plaintiff is the proper one, and no reasonable doubt can exist but that she has a right of set-off. [Knight Bruce, V. C.-Is it contended, supposing a shareholder to be an ironmaster, for instance, and the Company having a call due to them, and he having a demand for iron supplied to the works, and then he demanding payment, and the Company pertinaciously and vexatiously refusing to pay him, that the shareholder had the right to set off his claim against the demand for calls? Set-off in such a case might lead to very many inconveniences; but I do not say that that case is like the one before the court.] The plaintiff has a right to set-off, and in the case put by the court, the shareholder would have such a right.

KNIGHT BRUCE, V. C.-The time may come when it may be the duty of the court to direct a case for the opinion of a court of law upon this point; but I have too much doubt, whether, in this stage of the cause, it would be regular to do it without the consent necessary to enable me to do it. Perhaps I may be surprised that such consent should be withheld; but as it is withheld, I rather think in strictness it ought not now to be done. The more strictly correct course seems to me to be this, to direct that the plaintiff shall be at liberty, under

KNIGHT BRUCE, V. C.-Have all parties interested in the fund been served with the petition?

Little, for the petition.-All parties have not been served, but only those immediately interested. The infants who are entitled in reversion have not been served. Under the 11th, 12th, and 22nd sections of the stat. 11 Geo. 4 & 1 Will. 4, c. 60, I submit that such a course is not necessary. The absolute owners of two of the tenths of the fund appear upon the petition,

as do also the tenants for life of the remaining eight tenths; but notice of the petition has not been served on the parties who are entitled in reversion to those Bacon and Hubback, for the defendants, the executors. eight tenths, because they are, in fact, most of them—The 100l. was given to Mason by the will, and was infants; and, under the true construction of the abovementioned clauses of the statute, it is needless to so. KNIGHT BRUCE, V. C.-If this is an open point, it is somewhat singular. Mr. Monro, the Registrar, will be good enough to communicate with other judges of the court, and learn from them what is their view of the practice to be observed in such cases.

testator became vested in the plaintiff as heir-at-law of Mary Bull under the words of the will; and praying for a conveyance thereof from the heir-at-law of the survivor of the trustees named in the will, and for an account of the rents and profits since the death of Mrs. Bull. On the 1st December, 1846, the case came on for hearing, when His Honor, thinking that the course of reasoning by which Lord Gifford had arrived at his conclusion in the former suit involved the expression of his opinion as to the construction of the will with reference to the real estate, and that the object of the plaintiff was, in effect, to have Lord Gifford's opinion reviewed, directed that the case should stand over, in order that the plaintiff might apply to the Lord Chancellor to hear it. The Lord Chancellor, however, upon being applied to to hear the case, thought it right that the Vice-Chancellor should exercise his judgment upon it, notwithstanding Lord Gifford's decision; and the case was therefore again set down for hearing before His Honor on the 11th December last.

Romilly and Heathfield, for the plaintiff, contended, that, upon the death of the testator, his granddaughter, Mary Bull, took a vested interest in fee (subject to her mother's life interest) in the premises devised by the will, with an executory devise over in case of her death under twenty-three without leaving issue; and that, as the executory devise over was void as too remote, the prior devise was absolute, and descended to the plaintiff as heir-at-law of Mary Bull. (Bland v. Williams, 3 My. & K. 411; Doe d. Dolley v. Ward, 9 Adol. & Eil. 582; 1 Per. & D. 568; Doe d. Hunt v. Moore, 14 East, 601; Phipps v. Ackers, 3 Cl. & Fin. 703; Festing v. Allen, 12 Mee. & W. 277, and the cases there referred to; Green v. Potter, 2 You. & C. 517). The words of the bequest to the children of Mrs. Bull, though in a grammatical sense implying a contingency, would, in the case of realty, be interpreted otherwise by lawyers, to effect the intention of the testator, which was presumed to be in favour of vesting.

heirs or assigns, for ever; and in case there shall be no such child or children, or, being such, all of them shall die under the said age of twenty-three years without lawful issue, then upon trust that my said trustees, or the survivors or survivor of them, or the heirs or assigns of such survivor, do, by such like good and sufficient conveyances and assurances in the law, convey and assure my said freehold estates unto and equally between and amongst all and every my brothers and sisters, namely, John Evans, Mary Spendlove, Elizabeth, the wife of John William Nevett, and Martha, the wife of John Millsom, and to his, her, and their respective heirs and assigns, for ever, as tenants in common." Then, after bequeathing a leasehold specifically, the testator gave all the residue of his estate and effects to his executors, upon trust to invest it in the public funds, and pay the dividends to his daughter, Mary Ball, during her life, for her separate use; "and from and after the decease of my said daughter, upon this further trust, to pay, assign, or transfer all and singular the rest, residue, and remainder of my said estate and effects, or the stock or funds in which the same shall or may have been laid out, unto and equally between and amongst all and every the child or children of my said daughter lawfully begotten or to be begotten, who shall live to attain the age of twenty-three years, share and share alike, with benefit of survivorship, in case of the death of any or either of them under the age of twentythree years, as tenants in common, and not as joint tenants; and in case there shall be but one child, then upon trust to pay, assign, or transfer the same unto such only child, his or her executors and administrators; and in case there shall be no such child or children, or, being such, all of them shall die under the age of twenty-three years without lawful issue, then upon trust to pay, assign, or transfer the same unto and equally between and amongst my said brother, John Evans, and my three sisters, Mary Spendlove, Elizabeth, the wife of John William Nevett, and Martha, the wife of the said John Millsom, share and share alike, as tenants in common." The three trustees Sidebottom, contra.-There is a difference between a were also appointed executors, "with power to lay devise to children "if" or "when" they shall attain a out and apply the interest of such child's respective particular age, and a devise to those "who" shall atshare, or so much thereof as they might deem ne- tain a particular age. In Newman v. Newman, (10 cessary, towards their maintenance, education, and Sim. 51), where a testator devised his real estates to bringing-up, notwithstanding such child's share should trustees, in trust for his son for life, and after his son's not be then absolutely vested." The testator died death in trust to sell, and stand possessed of the proin January, 1817. Mrs. Bull, who was his only child, ceeds for all his grandchildren, (the children of his son had at that time one daughter, Mary Bull, who was and three daughters, whom he named), who should atthen about fifteen years of age, and who died in Novem-tain the age of twenty-four years, the son and daughters ber, 1820, without issue. Mrs. Bull had no other child- had children living at the death of the testator, but ren. A considerable part of the testator's property none born afterwards; it was held, that the trust for consisted of leaseholds for years. In 1823, a bill was the grandchildren was void for remoteness. In that filed by Mr. and Mrs. Bull against the surviving exe- case, the Vice-Chancellor said, "In Boraston's case, cutor and the persons who claimed the ultimate be- and in the other cases of the same class, there was in quests and devises, praying that the limitations and the first case a gift to the party intended to take, and trusts created by the will concerning the freeholds, then followed the words, at, if,' or 'when' that leaseholds, and residuary personal estate of the testator, party shall attain a particular age; and it was held, might be declared to be void for remoteness. Upon that these words were used merely for the purpose of the hearing of that suit in 1826, Lord Gifford, M. R., pointing out the time at which the devisee was to take refused to decide, in the lifetime of the tenant for life, in possession. But, in the case now before me, there is no apon the rights of the parties under the will in the gift, except to such of the testator's grandchildren as shall freehold estates; but, being pressed for a decision con- sustain the character of attaining the age of twenty-four. cerning the leaseholds, he determined the question The attainment of that age is part of the constitution of which arose upon the words, so far only as it affected the character of the original taker." That decision is in that species of property. His opinion was, that the point in the present case. The attainment of the age attainment of the age of twenty-three years was made of twenty-three is part of the description of the dea condition precedent to the vesting of any interest in visee. In Duffield v. Duffield, (3 Bligh, N. S., 20), the the children, and that, therefore, the limitations over distinction was established, that, where the words of upon the death of Mrs. Bull were void for remoteness. contingency affected not merely the time of enjoyment, The propriety of that decision having on several occa- but the description of the individual to take, the devise sions been questioned, a fresh bill was filed upon the was contingent. Leake v. Robinson, (2 Mer. 363); Bull death of Mrs. Bull, by the heir-at-law of her deceased v. Pritchard, (1 Russ. 213); Jones v. Machilwain, (Id. daughter, Mary Bull, insisting, that, upon the death of 221); Phipps v. Ackers, (4 Man. & G. 1107; S. C., 3 Cl. the tenant for life, the freehold property left by the & Fin. 302; S. C., 9 CÍ. & Fin. 483; 5 Sim. 44); Rus

swered; and it was answered in the affirmative. There was other evidence to shew that the debt was in fact due from the husband of the defendant to Robert Clarke. It was objected, that there was no evidence of any accounting by the defendant in respect of money due from her to the female plaintiff; that the memorandum at most amounted to a promise, in respect of a supposed liability of the defendant to pay the debt of her husband; and that the declaration should have been specially on the agreement. Under the direction of the learned judge, the jury found a verdict for the defendant on the first issue, and for the plaintiff on the second, leave being reserved to move to enter a verdict for the plaintiff on the first issue for such sum as the court should think fit. In the following Easter Term, (April 16), a rule nisi accordingly, or for a new trial on the ground of the improper admission of evidence, was obtained; against which, in Trinity Term, (May 28),

PETCH and Wife v. LYON.-June 2. Debt by Husband and Wife. First Count for Interest on Money lent to Plaintiff, M. the Wife, while unmarried; second Count for Money due from Defendant to Plaintiff, M., on an Account stated. Plea, never indebted. The following Memorandum, signed by the Defendant, was given in Evidence:-" I beg you will not proceed against me for Mrs. M. C. for the 100% and Interest which I owe her, and I will pay her the Interest, amounting to 9l., due on the 23rd NovemBliss and Pashley shewed cause.-First, this was an ber next, and the Principal as soon as I am able." admission of a fact by an agent, within the scope of The attesting Witness stated, that he had heard Plain- his authority. (Peto v. Hague, 5 Esp. 133). The tiff's Attorney, in the Presence of Defendant's Attor- law infers, that the attorney in a cause has authority to ney, say that the Debt was owing by the deceased Hus- make an admission. (Gainsford v. Grammar, 2 Camp. band of Defendant to a former Husband of Plaintiff, 9; Marshall v. Cliff, 4 Camp. 133; Ashford v. Price, 3 M. He added, that it was said in casual Conversa- Stark. N. P. 185; S. C., as Ashbourne v. Price, D. & tion; but a Proposal had been made to dispense with R. N. P. 48). The admission by the attorney of a his Attendance as a Witness. There was other Evi- fact, and an admission made with the view to obviate dence that the Debt was not due from Defendant in her the necessity of proving a fact on the trial, are receivown Right, nor to Plaintiff, M., in her own Right:(Turner v. Railton, 2 Esp. 474; Young v. Held, first, that the Statement of Plaintiff's Attorney Wright, 1 Camp. 139, 140). There was no question was not receivable against Plaintiff, as an Admission; in this case as to whether the statement was without secondly, that the Memorandum was not Evidence of prejudice. Secondly, the memorandum was not eviDefendant being indebted to Plaintiff, M., on an Ac-dence of an account stated: it must be stated of and concerning an antecedent debt, which could be enforced Debt. The declaration stated that the defendant was against the party; and it may be shewn that the debt indebted to Mary, the plaintiff's wife, while sole and was not existing, (Thomas v. Hawkes, 8 Mee. & W. unmarried, in 50%, for interest upon, and for the for-140), or that the Statute of Frauds had not been combearance by the said Mary to the defendant, (at her plied with. It ought to appear that the account was request, of monies due and owing from the defendant stated with reference to former transactions between to the said Mary, and in 100l. for money due from the the parties. (Clarke v. Webb, 1 C., M., & R. 29). defendant to the said Mary, while sole and unmarried, Pierce v. Evans, (1 C., M., & R. 294; 5 Tyrw. 1042); [They also cited French v. French, (2 Man. & G. 644); on an account stated. Pleas, first, nunquam indebitatus; secondly, fraud. On the trial, before Coltman, J., at the spring assizes for Yorkshire, in 1845, the following memorandum was given in evidence by the plaintiffs:

count stated.

"Market Weighton, October 15, 1842. "Mr. Carr. Sir, I beg you will not proceed against me for Mrs. Mary Clarke for the 1007. and interest which I owe her, and I will pay her the interest, amounting to 97., due on the 23rd November next, and the principal as soon as I am able. I am, yours &c., "JANE LYON.

"Witness, CHARles Carr."

able.

Wells v.

Girling, (3 Moo. 79); Bartlett v. Dimond, (14 Mee. & W. 49, 56).] The cases which will be cited on the other side are distinguishable. Remon v. Haywood (2 Adol. & Ell. 666) and Roper v. Holland (3 Adol. & Ell. 99; 4 Nev. & M. 668) depend upon the same distinction as Barker v. Birt, (10 Mee. & W. 61), where the party was estopped from denying what he had represented in a letter. The plaintiff might have supposed that she owed on account of the collateral undertaking, on which she was not liable, and, therefore, she is not estopped.

Knowles, contra. First, the declaration of an attorMr. Carr, the attesting witness, who also drew up In Gainsford v. Grammar, (2 Camp. 9), the attorney ney is admissible or not, according to circumstances. the memorandum, was called to prove the defendant's for the defendant was sent by the defendant with spesignature, and he was asked in examination, whether cific proposals to the plaintiff, and the attorney was not he had not heard the plaintiff's attorney, in the pre- allowed to state them, being a privileged communicasence of the defendant's attorney, on the Thursday pre- tion, but a person who was present at the interview was ceding the trial, say that the debt was owing by the called as a witness, and stated them. In Young v. deceased husband of the defendant to Robert Clarke, Wright, (1 Camp. 140), it does not appear who the the former husband of the female plaintiff, who died in witness was with whom the attorney held the conver1842. This question was objected to on behalf of the sation; and Lord Ellenborough drew the distinction, plaintiffs. In answer to a question by the judge, the that an admission made for the purpose of saving the exwitness stated that it was said in mere casual conversa-pense of the attendance of a witness is admissible, but tion, but that a proposal had been made with a view of that whatever the attorney says in the course of converdispensing with his evidence. The learned judge was sation is not evidence in the cause. Here the admission of opinion, that the admission sought to be given in was made at a meeting held with a view of making an evidence was made in the course of a discussion whe-arrangement for the purpose of saving the expense of the ther the attendance of the witness should be dispensed with, and therefore allowed the question to be an* Wightman, J., was in the Bail Court; Coleridge, J., being absent on account of illness.

attendance of a witness, which did not succeed. If it had resulted in an arrangement that the witness should be dispensed with, the evidence might have been admissible. Proposals are not evidence unless something