one; and if but one, then the whole to such one child absolutely. And the testator directed that in case either of his grandchildren by his son George Goring should depart this life without leaving lawful issue at the time of his or their decease, and without having obtained a vested interest, then he directed that the share or shares of him, her or them so dying should go to and belong to the survivors or survivor of them upon the same trusts as were therein before declared, and to be payable and transferable as therein before mentioned. And as to all his freehold estates the testator gave and devised the same unto his said trustees upon trusts corresponding with those of his personal

estate.

The testator's grandson, George Goring, died in October 1847 without having been married, and the petitioners were the only children of the said George Goring the elder, who were living at the decease of George Goring the younger. The petition prayed that the dividends and interest of the said sum of 1,000l. Bank annuities accrued due since the decease of the said George Goring the younger, and which might thereafter accrue due during the respective lives of the petitioners, might be paid to them for their equal benefit during their lives, and that the said petitioners might be at liberty to receive the rents and profits of the said freehold estates of the testator accrued or become due since the decease of the said George Goring the younger, and thereafter to become due during their respective lives for their equal benefit during their lives.

The following cases were cited :-
Vawdry v. Geddes, 1 Russ. & M. 203;
s. c. 8 Law J. Rep. Chanc. 63.
Leake v. Robinson, 2 Mer. 363.
Bull v. Pritchard, 1 Russ. 213.
Newman v. Newman, 8 Law J. Rep.
(N.S.) Chanc. 354.

Dodd v. Wake, 8 Sim. 615.
Davies v. Fisher, 5 Beav. 201; s. c.

11 Law J. Rep. (N.s.) Chanc. 338.

Dec. 18.-The VICE CHANCELLOR.-The question is, whether the petition is right in what it asks. Several questions seem to have arisen on the will. What has happened is, that George Goring the younger, the grandson, in whose favour this limitation was made, was the eldest son of G. Goring the elder, who was the only son of the testator, and very lately G. Goring died, without leaving any issue at the time of his death; and the four other grandchildren, who were named to take on the particular contingency of G. Goring the younger dying without leaving children at his death, have presented this petition, praying to have that fund which represented the personal estate so bequeathed applied in this way by way of giving to them the interest during their lives; and the only question in this case is, whether the limitation made to G. Goring the younger for life, with remainder to his children who should attain twenty-five, but if he shall die. without having any children, whether the limitation over is good in the event that has happened.

I remember at the time the case was argued it struck me it was good. I have read it carefully, and it appears to me this is

Mr. Bethell and Mr. Younge appeared for George Goring, the son and sole nextof-kin of the testator, and contended that the bequest as to the stock and the residue and the devise of the real estates were all void for remoteness, being a gift to a class, some of whom might not become entitled during a life in being and twenty-one years afterwards; and that George Goring, the son of the testator, who was his heir at law and sole next-of-kin, was therefore entitled to the property left by the testator.

laid down in Longhead d. Hopkins v. Phelps (1), and which amounted only to this, that where there is a limitation, and that does not take effect at all, then another limitation in lieu of it, though the first might be bad, yet the second is good. The case is a very remarkable case, because it seems that the validity of the title was argued with reference to the trust of a term. Now, how the validity of the legal title could depend on the trust of a term, except in certain cases, as, for

(1) 2 W. Black. 704.

instance, on trusts like the devise to a charity of land, where if the trust is void, the devise of the legal estate is also void, one does not exactly see, but so it was, that the trust of the term in this particular case was, that "in case John Phelps should happen to die without issue male of his body, or if all the issue male should die without issue, and there should be issue female," and so on, then there was a clause by way of substitution, and what the Court said was this: "The Court, without hearing counsel for the defendants, were clear that the first part of the contingency was good, viz., in case John and Mary died without leaving issue male, and as that happened in fact to be the case, they would not enter into the consideration how far the other branch of the contingency might have been supported, which could only come in question in case Richard had survived both his parents." It appears that the case was so decided, and there is that observation to be made on it which I just now made, yet I know that that case is considered as a ruling authority, because I had a conversation with the late Lord Chancellor of Ireland on this very case, and he took the same view of it as I took myself; and in the very case of Leake V. Robinson there was a similar devise in that case of the residue in two moieties, with limitations very much like

those which are here contained, one moiety was given to the Mitfords, and the other to the Robinsons; and, in conclusion, Sir William Grant says (2), "the consequence is, that, subject to Mr. Mitford's life interest, it belongs to the testator's next-of-kin. The fate of the other half rests in contingency." The Mitford moiety was that which was given for life, but then with remainder to such a class as could only take by living to the age of twenty-five; and it was held that though some might take separately, yet as they would take as a class, none could take, because none could have taken except all had attained twenty-five. But then, he says, "the fate of the other half rests in contingency. If Mrs. Robinson should die without leaving issue, it is well given over to the children of Mrs. Mitford." That is in the alternative. It appears to me to be exactly the present case, because the thing though given in its original form is given in a manner to make the gift void; yet the particular contingency did happen within lawful limits, namely by the death of George Goring, jun., without having issue living at his death; and my opinion is, that the petition is right, both in what it asks with respect to the real estate and with respect to the personal estate.

(2) 2 Mer. 394.

Examination as to Credit after Publication - Irregularity-Order of CourseNotice-Form of Order.

Order obtained as of course after publication, to examine witnesses as to the credit of a witness examined in the cause:-Held, to be regular.

If under such an order witnesses should be examined as to matters that are in issue in the cause between the parties, the depositions would, on application to the Court, be ordered to be suppressed.

The case of Russel v. Atkinson, 2 Dick. 532, approved of by the Court.

Mr. Bazalgette moved to discharge for irregularity an order which had been obtained as of course after publication passed in the cause, giving leave to examine witnesses to credit. The objections to the order were that it ought not to have been made as of course, and without previous notice to the opposite party; and that the order was not limited to matters not put in issue between the parties to the cause. The petition seeking the order was presented on the 29th of July 1848, and stated that

publication passed in the cause on the 24th of that month; office copies of the depositions were obtained on the 27th of July; articles were exhibited on the 29th of July; and the order of the Court, made on the petition, was dated the 31st of the same month. In support of the application, Lord Bacon's Order directing that leave to examine witnesses in cases like the present, should be "by special order of the Court, which is sparingly to be granted," and Lord Clarendon's Order on the same subject, were cited, as also the following other authorities, viz. :

Purcell v. M'Namara, 8 Ves. 324.
Mill v. Mill, 12 Ves. 406.
Watmore v. Dickinson, 2 Ves. & B.
267.

White v. Fussell, 19 Ves. 127, and
1 Ves. & B. 153.

Gill v. Watson, 3 Atk. 522.
Callaghan v. Rochfort, Ibid. 643.
Carlos v. Brook, 10 Ves. 50.
Piggott v. Croxhall, 1 Sim. & St. 467;
s. c. 1 Law J. Rep. Chanc. 225.
Gresley on Evidence, p. 140.

Mr. Roupell and Mr. Rogers, contrà, argued that notwithstanding the authorities that had been cited on the other side, the order which had been obtained was perfectly regular; that in Purcell v. M'Namara the application was necessarily a special one, because in that case it was

sought to examine witnesses as to particular facts; that in Mill v. Mill, where the articles were filed, the examination to credit was before publication, and was mixed up with the examination of witnesses in chief; that in White v. Fussell, there had been great delay, which made the application a special one; and in the other cases cited in support of the motion where notice had been given, something was to be found to make the motion special; that Russel v. Atkinson (1) was an express authority in favour of the order being one of course, and had been followed by the Court, and the precedents in the possession of the officer of the court were in favour of the order being one of course; that the Orders of Lord Bacon and Lord Clarendon might be understood to mean that a proper discretion should be exercised although in an order of course; that the notice contended for by the other side as necessary, might be satisfied by notice of the order after it had been made; and that Hinde's Practice of the Court of Chancery (2), which was a valuable work on the old practice, was in favour of the order being one of course.

[The MASTER OF THE ROLLS observed, that scarcely a better book existed on the old practice of the Court, and it had been his fate to be very familiar with the work.] Mr. Bazalgette, in reply.

The MASTER OF THE ROLLS, after stating the object of the motion, proceeded as follows. It was said that such an order as the present could only be obtained on special motion after notice served on the opposite party. I have made inquiries as well at the Registrar's Office and Office of the Secretary at the Rolls, and it appears that orders in cases like the present are granted as of course whenever applied for, and passed in both those offices. In the year 1777 application was made in the case of Russel v. Atkinson, (which was cited to me) to Lord Chancellor Bathurst to discharge an order of course to examine to the credit of a witness after publication had passed and after the cause was set down for hearing, for irregularity, because

(1) 2 Dick. 532. (2) Page 377.

it was not founded upon an affidavit, and was after publication, and was not moved for specially upon notice according to Lord Bacon's Order; but Lord Bathurst, assisted by the Master of the Rolls, Sir Thomas Sewell, was of opinion that the order was regularly obtained. It is then said to be irregular, as being contrary to Lord Bacon's Order, which directs that orders to examine to the credit of a witness are to be granted sparingly and upon special application. As to this, I shall only observe that when the case of Russel v. Atkinson was before Lord Chancellor Bathurst, his attention was called to Lord Bacon's Order, and yet he held an order of course quite regular. It was then said that the case of Russel v. Atkinson had been overruled by subsequent authorities; but in none of the cases cited did the question arise so satisfactorily as in Russel v. Atkinson. I find no other case prior in date to Purcell v. M'Namara, and there the motion was for leave to exhibit articles as to the credit of a witness. But there it was asked to interrogate the witness to particular facts, which, upon cross-examination, he had answered in the negative; and the case, after other observations had fallen from Lord Eldon, ended by his Lordship saying that all he could find was that the party was at liberty to examine by general interrogatories as to credit, and as to such particular facts only as were not material to what was in issue in the cause. That is no authority for making the order in question on special motion with notice. In Mill v. Mill, the parties went into evidence, and the defendant examined his witnesses in chief to the character and credit of the plaintiff's witnesses; and a motion was made by the plaintiff for a reference to the Master to look into the interrogatories exhibited by the defendant before the Commissioners and Examiner for the examination of the defendant's witnesses in the cause, and into the depositions thereupon taken, and to certify if any of such interrogatories and depositions. were leading, scandalous, or impertinent, or sought to impeach the credibility of the plaintiff's witnesses. If Lord Erskine on that occasion had considered the point material, he would have consulted the Registrars of the court or the Secretary of

the Rolls on the subject. Russel v. Atkinson was not cited in that case, and the idea of a special order being connected with notice to the party might be that which gave rise to the mistake; and I think Mill v. Mill no authority for the order to examine to credit, being a special order, the character and credit of witnesses not being in issue in the cause; but Lord Erskine in that case clearly looked upon the practice as settled, and did nothing contrary thereto; neither was the case of Russel v. Atkinson cited there. I am of opinion, therefore, that the order in this case was regularly obtained and according to the practice; and if a new practice is to be introduced, it must proceed from a higher authority than mine.

It has been said, however, that the order was obtained after too great delay. It appears that publication passed on the 24th of July; office copies of the depositions were taken out on the 27th; and on the 29th articles were exhibited, and the petition presented; there was therefore no delay.

It was further alleged, that the order was irregular because it was too extensive, and ought to have been limited so as not to embrace matters in issue in the cause; but such a clause is not required by the ordinary practice of the court; and if the examination should extend further than to matters which are not in issue in the cause, the depositions would be suppressed on application to the Court.

Motion refused, with costs.

pay all instalments which might

son should be required on the shares, and should keep all covenants and stipulations contained in the deed of settlement of the bank, and that he (the father) would indemnify the bank against all losses which they might incur by reason of the son being under twenty-one, or on account of the dividends paid to the father :-Held, that the father was liable as a contributory within the meaning of the Joint-Stock Companies Winding-up Act.

By an order made on a petition presented under the 11 & 12 Vict. c. 45, it was ordered, that the North of England JointStock Banking Company should be dissolved, and proper. directions were given for winding-up the affairs of the company.

In the prosecution of the order a question arose in the Master's office, whether Mr. Thomas Reavely, sen. was a contributory (1), under the following circumstances:

Sixty-six shares had been at different times purchased by Thomas Reavely, sen., in the name of his son Thomas Reavely, jun., who at the times of such purchases, and at the hearing of this motion, was an infant, with money belonging to the infant's grandmother. The shares were regularly transferred to Thomas Reavely, jun.; he executed the deed of transfer and covenant; the transfer was allowed; he was registered and returned to the Stamp Office as the proprietor of the shares; all the circulars relating to the affairs of the bank were addressed to him, and he acted and was treated in all respects as if he had been of age-with the exception only that Mr. Thomas Reavely, sen. received all the dividends, and gave receipts for them.

An indenture, dated in 1842, was made between Thomas Reavely, sen. of the first part, one of the public registered officers of the company of the second part, and two of the managing directors of the third part,

(1) The 3rd section of the act (the interpretation clause) contains the following definition of the word "contributory." "Contributory shall include every member of a company, and also every other person liable to contribute to the payment of any of the debts, liabilities, or losses thereof; whether as heir, devisee, executor, or administrator of a deceased member, or as a former member of the same, or as heir, devisee, executor, or administrator of a former member of the same, deceased, or otherwise howsoever."