tinued, "I desire my executors to invest the sum of 1,000l. British sterling currency in the funds, in the said will described as a separate and distinct fund, and to annually every year thereafter pay the interest or dividends arising or received therefrom to my said sister Jane Chipchase towards her support and enabling her the better to support, clothe and educate her children; and I desire that she may continue to receive such interest or dividends arising therefrom during her life, or until her youngest child then living shall attain the age of twenty-one years, at which period last mentioned her said children shall be entitled to receive the said fund of 1,000l., to be divided among them, share and share alike for ever;" and the testator desired that his codicil might be considered and taken as part of his will. The bill was filed by John Chipchase and his wife against the executors of the will of George Best, praying that the said sum of 1,000l. given by the will to Jane Chipchase, for her or for her children's sole use and benefit, might be paid to the plaintiffs absolutely; and that the 1,000l. given by the codicil might be settled according to the trusts therein contained. Mr. Bethell and Mr. Hallett appeared for the plaintiffs, and contended that the 1,000l. bequeathed by the will was given absolutely to Jane Chipchase; the money was directed to be given to her as soon as practicable, and the only meaning to be attributed to the word "or" was, that in case Jane Chipchase was not alive at the testator's death, then it was to go to her children; and this was made more clear by the terms in which the second 1,000l. was given by the codicil, as that sum was distinctly given so that the dividends only might be paid to her for life, and after her decease to her children. Mr. James Parker and Mr. Giffard appeared for the trustees of the will. Mr. Rolt and Mr. Roundell Palmer, for the children of Jane Chipchase born during the life of the testator, contended that the 1,000l. given by the will was intended to be for the benefit of the children; and that the word "or" should be read "and." The testator expressly declared by the codicil that he was desirous of making further bequests in relation to his sister and her family, which clearly indicated that both gifts were to be for the benefit of the children as well as of his sister-Newman v. Nightingale (1). Mr. Malins appeared for the children of Jane Chipchase born after the death of the testator. The VICE CHANCELLOR.-The question in this case is raised upon the construction of the will of George Best; but first, we must look at the codicil to the will, for it appears to me that there are words in that codicil which will enable me to construe the gift in the will. The testator says, 66 Secondly, in order to enable the said John Chipchase to properly stock and manage the said farm, I give and bequeath unto him the sum of 400l. British sterling currency, to be paid to him for his sole use and benefit for ever, or in case of his death to be paid to my said sister Jane Chipchase, or in case of her death then to be paid to her children, share and share alike." I read that to shew that the testator had a clear meaning of the word or; and that he there used it as disjunctive and not conjunctive, and to shew that a sum of money was to be paid on a particular event. I allow there are loose expressions in the will to a certain extent; but looking at the codicil to the will, the expressions used will enable me to translate the will itself. Now the words of the will are these: "Thirdly, I give and bequeath unto my sister Jane Chipchase 1,000l. British sterling currency for her or for her children's sole use, benefit and behoof for ever. I desire my executors to pay the same to her as soon as practicable." It is evident the testator considered his daughter in the light of an adult, since he speaks of her as the wife of a person named in the codicil. I think, moreover, that the testator has put an end to the question by using the words as soon as practicable," and that his intention was that if his daughter survived him she was to have the 1,000l. absolutely, but if not, then it was to be for her children. (1) 1 Cox, 341. L.C. Jan. 18. § In In re THE NORTH OF ENGLAND Joint-Stock Companies Winding up Act, 11 & 12 Vict. c. 45.-" Contributory." An order had been made under the JointStock Companies Winding-up Act for winding up the affairs of a banking company. A notice was served upon a party, under the act, that the official manager proposed to insert his name as a contributory in respect of some shares as the representative of his brother, who had died, and no one had become his legal personal representative, but the dividends had been paid to the surviving brother :-Held, that under that notice, the Master had only jurisdiction to decide whether the party was a contributory in the character mentioned in the notice. William Glaholm had executed the original deed of settlement of the North of England Joint-Stock Banking Company, which was dated in November 1832, as a proprietor of twelve shares; he continued to hold those shares until 1837, when he died. Mr. Thomas Glaholm, his brother, had been allowed by the directors to receive the dividends since that time; but the shares were never transferred into his name, nor was his name inserted in the share register list, or returned to the Stamp Office as a proprietor, and he was not the legal personal representative of his deceased brother. The receipts were given by him in respect of the dividends on "the paid-up capital stock of the company in his name;" and were signed by him as representative of the late William Glaholm. In November 1848, an order was made under the Joint-Stock Companies Windingup Act (11 & 12 Vict. c. 45), for the dissolution and winding up of the affairs of the Bank. After that order was made, T. Glaholm received a notice, in pursuance of the 78th section of the act, from the official managers, addressed to "Mr. T. Glaholm, representative of W. Glaholm, miller, Newcastle," stating that they had included him (T. Glaholm) in the list of contributories in the character and for the number of shares stated below. The number of the shares stated was "twelve," and the character was as "representative of W. Glaholm." He appeared before the Master, when the official manager proposed to insert his name as a contributory without any qualification. He contended, on the other hand, that he had, in point of fact, no title to those shares, and that if he was included at all, it ought only to be in a qualified character as a representative; and he raised the preliminary objection that, as the notice treated him as a representative, the Master ought only to inquire whether he was liable in that character. The Master determined that he ought to be included as a contributory for those shares, without any qualification. Mr. Glaholm moved before Vice Chancellor Knight Bruce, that that decision might be reversed, and his name struck out; or that if it should be included at all, his liability ought to be confined to the extent of the assets come to his hands as representative of W. Glaholm. The Vice Chancellor was of opinion that the notice was not sufficient to authorize the decision of the Master, and he referred it back to him to review his decision and certificate. A motion was now made before the Lord Chancellor, on behalf of the official managers, that his Honour's order might be discharged. Mr. Bacon, Mr. Lloyd and Mr. Headlam appeared in support of the motion. Mr. J. Russell and Mr. Manisty appeared to oppose the motion. The LORD CHANCELLOR.-The 78th section required the notice to mention the character in which it was proposed that a party should be included in the list; and this notice was framed in compliance with that direction, and the Master's duty was to decide whether this party was liable as a contributory in that character. When the Master had done that, his duty and his jurisdiction were ended. But it appeared that T. Glaholm was not liable in the character which was specified in the notice; if therefore the Master were to be at liberty to fix him with liability in any other character, the object of the 78th section would be entirely frustrated. The decision of the Vice Chancellor seems perfectly right, An The bill was filed by certain co-partners, the registered owners of twelve sixty-fourth parts of the ship Alligator, against Cook the master, also an owner of twenty-four sixty-fourths, and the other owners. injunction had been granted ex parte on the 9th of January 1849, to restrain the sailing of the ship. The defendant Cook having put in his answer, a motion was now made to dissolve the injunction. The facts of the case, so far as they are material in respect of the injunction, are stated in the judgment. Mr. Wood and Mr. Tripp, for the motion. The Solicitor General and Mr. Campbell, in support of the injunction. The following cases (collected in Abbott on Shipping, last edition, by Mr. Serjeant Shee) were cited Haly v. Goodson, 2 Mer. 77. The cases of the ships Guardian, WIGRAM, V.C.-The facts of the case are shortly these. The plaintiffs are entitled to twelve sixty-fourths of the ship, Cook at present is entitled to twenty-four sixty-fourths, Woods to twelve sixty fourths, and a person of the name of Siddel to the remaining sixteen sixty-fourths, except that he has made a contract in equity, which at law is unavailable, with a person of the name of Patey. In fact he is entitled to the remainder; there has been no transfer yet made of the ship upon the register, and therefore I shall treat him as the owner of the property. In 1841, Cook had not such an extensive interest as he has now, but was at that time the owner of twelve sixty-fourths. In 1841, the ship sailed to China, and it must be taken that she sailed at that time with the consent of the plaintiffs. From that time she never returned until now to this country, but has been trading in the China seas. Cook went out as master of the ship, as well as part owner; and under his direction the ship has been trading in the way mentioned. The ship has now returned, and the plaintiffs say that Cook has made large profits with the trading of the ship; that he has never accounted to them or any one else for them; that he is largely indebted to them; and that the ship is about to sail under the command of Cook. They therefore filed their bill praying an account, which it appears they are entitled to, as against Cook; and praying also that Cook may be restrained from so sailing in the ship, or allowing the ship to sail, until he shall give security for the value of their share of the ship. account prayed by the bill must be totally disconnected with the question of the sailing of the ship. The plaintiffs have a right to have the account taken; and if they could have made out an equitable title they would have had a right to a ne exeat regno against Cook; but there being no evidence of debt due on a balance of account or otherwise from Cook, that part of their motion has been refused. It is perfectly clear that the bill was filed on the principle that the question of account was to influence the judgment of the Court with regard to the sailing of the ship. excluding this account, it follows that in trying whether the plaintiffs are or are not entitled to restrain the sailing of the ship, this case must be treated, and the principle tried, precisely in the same way it would have been done if the bill had stated nothing about the account, but had simply The By stated the fact of Cook being about improperly to carry the ship in which the plaintiffs have an interest away from this country. Now, there is no doubt that Cook was about to do that improperly; but there being no dispute whatever about the number of shares belonging to each of the parties, the Court of Admiralty has a jurisdiction, and a very effective jurisdiction, to prevent one party from so improperly dealing with the property of another. It is said, however, that this Court has a concurrent jurisdiction. In considering this question, it is extremely important to consider the correct force of the word "concurrent," because if this Court has concurrent jurisdiction and nothing more, it is foreign to the question to consider whether the Court of Admiralty does perfect justice or not in the security it gives. If the jurisdiction is merely concurrent, the meaning is, that this Court will apply its process to do precisely the same thing which the Court of Admiralty would do, and nothing more. If, however, this Court is to take into account the insufficient relief which the Court of Admiralty gives, and is, on that account, to entertain jurisdiction, it would be on the principle, not that this Court has concurrent jurisdiction which would only entitle it to do the identical thing which the Court of Admiralty might itself do, but that the Court of Admiralty does not do enough, and that the plaintiffs have a right to ask this Court to do more than the Court of Admiralty will do. The insufficient relief which the Court of Admiralty gives has been pressed upon this Court, but not a single case has been produced nor argument adduced, to shew the existence of any equity to greater relief, or the power of this Court to do more than the Court of Admiralty will do. It is quite clear that in the case of Haly v. Goodson, Lord Eldon did nothing more than give the parties the same relief which the Court of Admiralty would have given; but he entertained jurisdiction because the Court of Admiralty was defective in the power of ascertaining what the shares of the parties were. In the present case it must be taken that the parties come here to ask only that which the Court of Admiralty would do. On that ground, the plaintiffs by the frame of the bill are placed in an insuperable difficulty. If they were to go to the Court of Admiralty, they might ask it to compel those parties who are about to take the ship away from this country to give security for its return; but this bill does not proceed on the ground that all those other shareholders who make up a majority by adding their shares to those of the defendant Cook to deprive the plaintiffs of the right to controul the ship, should also give security. It alleges that all those persons unnecessarily made defendants concur with the plaintiffs in the view which they take against Cook, and it prays no relief as against them. Praying no relief therefore, it is impossible that this Court could, at the hearing or now, give any as against them. What the Court, therefore, is asked to do is this, to compel Cook to do that which, according to the case shewn by the plaintiffs, and as it now appears in evidence, he is not bound to do. In fact, Cook displaces the whole case by saying that he is not about to sail with the ship, but is one among many who concur in thinking that the ship should go abroad; and by submitting to the ordinary terms of giving security if he is taken before a Court which has jurisdiction to give the relief asked. The way therefore the plaintiffs have framed the case compels the Court either to refuse the motion for an injunction, or to restrain Cook from taking away the ship, or allowing it to sail until he has done that which he is not liable in law to do. This is a bill seeking relief against Cook on the ground of misconduct; and the relief prayed against him is not relief confined to the point that, as a partial shareholder, he can have no right to take away the ship without security, but that he is a large debtor to the plaintiffs, and that until he has rendered an account, he ought not to be allowed to go out of the jurisdiction and take the ship with him. That is the way in which the bill is framed. Lord Cottenham, in Whitworth v. Gaugain (1), states that he was very strongly inclined to grant the injunction on another ground; but he said that when parties come on motion to restrain another from (1) Cr. & Ph. 337; s. c. 10 Law J. Rep. (N.S.) Chanc. 317. doing an act, they are bound to tell the Court what the case is on which they rely, and that when they bring forward one case prominently and rely upon a given case, the Court will not allow them, when they fail in that case, to make out another and say they might probably have framed their case so as to shew a title to relief. That was a much more favourable case than this. Everything there asked might have been granted on the facts there stated. Here the case is otherwise, for they ask against Cook exclusive relief to which, as against him alone, they are not entitled in the way in which the bill is framed. On that ground, therefore, assuming that the Court had jurisdiction, it would be bound to dissolve the injunction without prejudice to the plaintiffs moving for another if they could alter their case. The plaintiffs are asking relief to which they are entitled and which would oblige the defendant Cook to answer every charge in the bill; but they go on to ask that upon which the Court has no jurisdiction. The injunction must therefore be dissolved; and, as there is no case made for it, with costs. Practice.-125th Order of May 1845. Where an original bill was filed for relief, and a cross bill of discovery was filed by the defendant in aid of the defence to the original bill, which was heard in another branch of the court and dismissed, without costs, before the answer to the cross bill was filed, an order for the taxation of the costs of the cross bill obtained as of course, and without reference to the original bill, after the answer to the cross bill was put in, was held irregular, and was dismissed, without costs. This was a motion by the defendant, John Watts, to discharge, with costs, an order obtained as of course for the taxation of the costs of a cross bill. On the 15th of April 1846, John Penny filed the original bill against John Watts, to redeem a mortgage. On the 24th of May 1848, John Watts filed a cross bill against John Penny, for discovery in aid of the defence to the original suit. On the 20th of June 1848, the cross bill was amended. In August 1848, the original cause was heard by Vice Chancellor Knight Bruce, who dismissed the bill, without costs, but no notice was taken of the costs of the cross bill. On the 15th of September 1848, the answer to the cross bill was put in. On the 30th of January 1849, J. Penny, without stating that the cross bill was filed in aid of the defence to a bill for relief, obtained the order of course now sought to be discharged. Mr. Roupell and Mr. Rogers in support of the motion.-The 41st Order of August 1841 (1) altered the old practice, and made the costs of bills of discovery discretionary in the Court at the hearing of the original cause. By the 125th Order of May 1845 (2) the costs of a bill of discovery filed by a defendant to a bill for relief were made part of the costs of the original suit, unless otherwise ordered. The order now sought to be discharged was obtained as if the cross bill had been a bill of discovery merely, instead of a cross bill for discovery, in aid of the defence to a bill for relief. At that time also the original bill had been disposed of, and the costs of the cross bill should have then been disposed of as a part of the costs of the cause. Mr. Turner and Mr. Bazalgette, contrà. -It was impossible for this Court to exercise any discretion respecting the costs. The answer to the cross bill was not put in until the original bill had been disposed of; and assuming that the cause was reheard, could the answer to the cross bill be used as evidence, when it had not been used at the hearing? The case was not within the Orders of May 1845: it came within the rule existing previous to those Orders; the defendant to the cross bill was, therefore, entitled to his costs upon putting in his answer. |