Practice-Contempt-Waiver -Taking Office Copy-Demurrer and Answer irregularly filed.

A defendant, being in contempt for want of an answer, filed a demurrer and answer, and the plaintiff took an office copy :-Held, that the filing the demurrer and answer being irregular they ought to be taken off the file with costs, and that the taking an office copy was no waiver of the irregularity.

Mr. Purvis and Mr. Glasse, on behalf of the relators, moved that a demurrer and answer, filed by the defendant, Robert Shield, to the supplemental information and bill, might be taken off the file for irregularity, with costs.

On the 20th of November 1848 R. Shield entered his appearance to the supplemental information. On the 3rd of January 1849, no answer having been filed, notice in writing was given to the defendant that unless an answer was immediately filed an attachment must be sealed. On the 9th of January an attachment was issued, and on the same day notice was given to the defendant. To this writ the sheriff returned non est inventus. On the 17th of January the demurrer and answer were sworn by the defendant, and left with the clerk of records and writs to be filed, and notice was given to the plaintiffs' solicitor that they had been filed; but the clerk of records and writs refused to file them in consequence of the omission to state that it was the answer to the "supplemental" information and bill. On the 18th of January the plaintiffs' solicitor became aware of these facts. On the 19th of January the demurrer and answer were resworn by the defendant and filed; and on the following day notice of the filing was again given to the plaintiffs. On the 24th of January the plaintiffs' solicitor received an office copy of the demurrer and answer, which he had bespoken on the 22nd. On the 27th of January the plaintiffs, under the advice of counsel, served the present notice of motion.

Curzon v. De la Zouch, 1 Swanst. 185.

Vigers v. Lord Audley, 2 Myl. & Cr. 49.
Woodward v. Twinaine, 9 Sim. 301;

s. c. 9 Law J. Rep. (N.s.) Chanc. 52. Mr. Turner and Mr. Cankrien, contrà.— In the cases of Sidgier v. Tyte (1), Yates v. Hardy (2), Anonymous (3), and Fry v. Mantell (4), the taking an office copy of an answer was held to be a waiver of the contempt. In this case a demurrer and answer have been filed. The plaintiffs were at liberty to waive any irregularity, and by taking an office copy they have waived the contempt; and cannot now move to have the demurrer and answer taken off the file.

Taylor v. Milner, 10 Ves. 444.
Tarleton v. Dyer, 1 Russ. & M. 1.

Mr. Purvis, in reply.-Due attention has not been paid to the rule of the Court that a party in contempt cannot demur. The defendant, by putting in a demurrer and answer, had placed a dilatory on the file, and after the demurrer was disposed of here, he might appeal, first to the Lord Chancellor, and then to the House of Lords. The practice was not to allow the answer and demurrer to remain upon the file1 Dan. Ch. Prac. 547, 2nd ed.

March 14.-The MASTER OF THE ROLLS. -The defendant insisted that the irregularity was waived by the plaintiffs taking an office copy. The plaintiffs admitted that would have been so if they had taken an office copy of the answer alone, but that it was not so where a copy of the demurrer and answer was taken. I have not been able to find any case besides that of Curzon v. De la Zouch, and there it appears to have been decided that the taking an office copy of the demurrer and answer was not a waiver of the objection, and both the demurrer and answer were taken off the file. The same order must, therefore, be made in this case, and the defendant must pay the costs of this motion, but not any of the collateral charges, and he must have a fortnight's time to answer.

(1) 11 Ves. 202. (2) Jac. 223. (3) 15 Ves. 174. (4) 4 Beav. 485.

Messrs. Teversham, Lund & Hart were three of the directors of a company called "Cameron's Coalbrook Steam Coal and Swansea and Lougher Railway Company," which was formed and registered in pursuance of the 7 & 8 Vict. c. 110. By a general resolution of the company passed in July 1847, the directors were authorized to borrow, on mortgage, bond, or other assurance, such sums, at such periods and rates, as they should deem expedient. After this resolution was passed, Messrs. Teversham, Lund & Hart lent the company certain sums on the security of a promissory note, and a lien on certain calls which were to be made. The bill, which was filed by Messrs. Teversham, Lund & Hart against the company, stated the above circumstances, and prayed for an account of the sums due to the plaintiffs, and of the monies received in respect of the calls; and for payment to the plaintiffs of the sums due to them, and for an injunction to restrain the company from receiving the monies payable in respect of the calls.

By the 7 & 8 Vict. c. 110. s. 29, it is enacted that if any director be either directly or indirectly concerned or interested in any contract proposed to be made by or on behalf of the company, whether for land, materials, work to be done, or for any purpose whatsoever, during the time he shall be a director, he shall, on the subject of any such contract, be precluded from acting as a director; and NEW SERIES, XVIII-CHANC.

that, if any contract or dealing shall be entered into, in which any director shall be interested, then the terms of such contract or dealing shall be submitted to the next general or special meeting of the shareholders to be summoned for that purpose, and that no such contract shall have force until approved and confirmed by the majority of votes of the shareholders present at such meeting.

The bill did not allege that the contract as to the loan had been submitted to any general or special meeting of the shareholders as required by the 29th section.

To this bill the company put in a general demurrer.

Mr. Russell and Mr. W. W. Cooper, for the demurrer, contended that, under the 29th section of the act, the contract mentioned in the bill was invalid.

The sum of 5,000l. stock was settled upon A. for life, with remainder for her children as she should by deed or will appoint, and in default of appointment, for her children equally. A. had two children -E. R. an unmarried lady, and M. S. the wife of R. S. By a deed dated in June 1839, A. appointed 4,800l. stock to E. R. absolutely; and by a deed dated the following day, E. R. settled 2,300l. on M. S. and her children. The latter deed was not communicated to M. S. until 1845, and

2 A

evidence was given that the former deed was executed with an understanding that E. R. should execute the latter. In a suit instituted by R. S, both deeds were set aside, as being a fraud upon the power.

J. H. Lambe, who died in 1828, by his will bequeathed the sum of 5,000l. 34 per cent. Bank annuities to trustees, and directed them to pay the dividends to Mrs. Rider for life, and, after her death, to stand possessed of the capital upon trust for the children of Mrs. Rider in such manner as she should by deed or will appoint; and, in default of such appointment, upon trust for all her children equally; the shares of sons to vest at twenty-one years, and the shares of daughters to vest at twenty-one years or marriage.

Mrs. Rider had four children, two sons who died in their infancy, and two daughters Elizabeth Rider and Mercy Salmon, the wife of Robert Salmon.

By a deed-poll, dated the 17th of June 1839, Mrs. Rider appointed 4,8001. stock, part of the 5,000l. stock, subject to her own life interest, to her daughter Elizabeth Rider absolutely.

By an indenture dated the 18th of June 1839 (the day after the appointment to Miss Rider by her mother), and expressed to be made between Elizabeth Rider of the first part, Mrs. Salmon of the second part, and H. Thompson and W. Northcote of the third part, it was witnessed that, in consideration of natural love and affection, Elizabeth Rider assigned to H. Thompson and W. Northcote the sum of 2,300l. stock, part of the above-mentioned sum of 4,800l. stock, upon trust, after Mrs. Rider's death, to pay the dividends to Mrs. Salmon for her life, for her separate use, without power of anticipation, and after her decease to stand possessed of the capital on the trusts therein mentioned for the benefit of the children of Mrs. Salmon. The deed contained a power for the appointment of new trustees to be exercised by Mrs. Salmon.

This deed was not executed by Mrs. Salmon, and no communication respecting it was made to her until 1845. In the early part of 1845, Mrs. Salmon was asked to execute a deed for the appointment of a new trustee of the deed of the 18th of June

1839 in the place of Mr. H. Thompson. This was the first time she ever heard of the deed. She at first declined to have anything to do with it, but, on a representation made to her by Mrs. Rider's solicitor as to the nature of the transaction, she executed it.

Mrs. Rider, by her will, appointed the remaining 2001. stock for the separate use of Mrs. Salmon, and died on the 6th of November 1846.

The bill, which was filed by Robert Salmon against his wife and children, Miss Rider and the two sets of trustees, stated the above circumstances, and that he had only recently discovered them, and prayed that the deeds of June 1839 might be declared to be void, as being a fraud upon the power.

The solicitors who were employed in the above transactions were examined in the cause on the part of the plaintiff, and stated that the deed of the 17th of June was executed with the understanding that Miss Rider should appoint a part of the fund for Mrs. Salmon and her children.

Mr. Wigram and Mr. Southgate, for the plaintiff, contended that the deeds of the 17th and 18th of June 1839, were a fraud on the power and ought to be set aside; and cited

Daubeny v. Cockburn, 1 Mer. 626.
Tucker v. Sanger, 13 Pri. 607; s. c.
M'Clel. 424.

Jackson v. Jackson, 1 Dru. 91.

Mr. Russell and Mr. Terrell, for Miss Rider, and Mr. Speed, for Mrs. Salmon.— First, the appointment by Mrs. Rider in favour of her daughter is absolute, and cannot be impeached. After that appointment was made, Miss Rider was at liberty to do what she pleased with the fund, and was under no trust or obligation to dispose of it in any particular way. Of her own free will, she directed that a part should go for the benefit of her sister and her sister's children. Both deeds then are valid

M'Queen v. Farquhar (1), Doe d. Chadwick v. Jackson (2), Jackson v. Jackson (3), Campbell v. Home (4). Secondly, there is an

(1) 11 Ves. 467.

(2) 1 Moo. & Rob. 553. (3) 7 Cl. & F. 977. (4) 1 You. & C. C.C. 664.

other view which may be taken of the transaction. It may be regarded as an appointment by Mrs. Rider in favour of Mrs. Salmon absolutely for her separate use, and a re-settlement by Mrs. Salmon on herself and her children - Langston v. Blackmore (5), Routledge v. Dorril (6), Limbard v. Grote (7), Thompson v. Simpson (8), Goldsmid v. Goldsmid (9). Thirdly, if neither of these views should be adopted, and the deeds should be set aside, the Court has power to direct that the whole fund should be settled on Mrs. Salmon and her children, exclusively of the husband. In any reference to the Master as to Mrs. Salmon's equity of settlement, this point should be kept open. They also cited

Kenworthy v. Bate, 6 Ves. 793.
Kampf v. Jones, 2 Keen, 756; s. c. 7
Law J. Rep. (N.s.) Chanc. 63.
Bailey v. Lloyd, 5 Russ. 330; s. c.
7 Law J. Rep. Chanc. 98.

Mr. Freeling and Mr. Glasse, for the

trustees.

KNIGHT BRUCE, V.C.-Some of the cases mentioned during the argument are undoubtedly binding authorities; and upon other cases cited at the bar it is not necessary to express an opinion, as the decree which I find it my duty to pronounce is consistent with all of them. If the transactions could have been treated as the settlement of a moiety, by way of appointment by Mrs. Rider under her power, on Mrs. Salmon for her separate use absolutely, and then a re-assignment for the benefit of Mrs. Salmon and her children, it is probable or certain that the transaction of 1839 might have been supported. It is however not proved that Mrs. Salmon knew, or ever heard, of the matter until 1845. She was a married woman during the whole of that time, and her husband it is quite clear never approved of it. It is an appointment of the greater part of the

fund to Miss Rider, with an understanding that she was to settle a part upon her sister and her children, and there is nothing to shew that the sister knew anything of it. The right way will be to avoid the whole, and I shall declare that the appointment and settlement are void, and shall refer it to the Master to approve of a proper settlement in respect of one moiety on Mrs. Salmon; and care must be taken as to the form of the decree, so as to leave the Master at liberty to exercise his discretion as to whether he will give Mr. Salmon anything. The other moiety will be paid to Miss Rider.

In November 1848, an order was made under the Joint-Stock Companies Windingup Act, 11 & 12 Vict. c. 45, for winding up the affairs of the North of England JointStock Banking Company. R. Hawthorn had been the holder of eighteen shares in the above company in the latter part of the year 1846, when he sold the same to one Cowens, and the transfer to Cowens was allowed by the directors and completed on the 2nd of January 1847. In the list of contributories made out by the official manager under the 76th section of the act, the name of Cowens alone was inserted in respect of these eighteen shares; and such list was so afterwards settled by the Master. Subsequently, at the instance of one of the other contributories, the Master inserted in the list the name of Hawthorn also, in respect of the same eighteen shares, as a person liable to contribute to the debts, &c. of the company up to the 1st of January 1847.

Mr. Hawthorn thereupon moved before Knight Bruce, V.C. that the decision of the Master might be reversed, and his name struck out of the list of contributories. The Vice Chancellor was of opinion that the Master had come to a right decision. Mr. R. Hawthorn now renewed his motion before the Lord Chancellor.

Mr. Russell and Mr. Bates, in support of the motion, contended that Hawthorn's name ought not to have been included in the list of contributories at all, for he was not primarily liable to the debts of the company, but only in case all the present members were exhausted.

Steward v. Greaves, 10 Mee. & W. 711;

s.c. 12 Law J. Rep. (N.s.) Exch. 109. Barker v. Buttress, 7 Beav. 134; s. c. 13 Law J. Rep. (N.s.) Chanc. 58. Eardley v. Law, 12 Ad. & E. 802;

s. c. 10 Law J. Rep. (N.s.) Q.B. 46. Field v. M'Kenzie, 4 C.B. Rep. 705; s. c. 17 Law J. Rep. (N.s.) C.P. 98.

Mr. Bacon, Mr. Lloyd and Mr. Headlam, contrà.

The LORD CHANCELLOR.-The act declares that "the word '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." The official manager is bound to make out a list of the members and other persons contributories; the Master is then to settle that list and determine the amount to be raised; then under the 84th section the Master is to apportion the amount among the several contributories according to their respective liabilities. Thus every person who may eventually be liable is to be included in the list, without determining at this time whether he is liable in equal degree with the others or only in default of the others. After the Master has got before him all the persons liable, in any event, he has then to decide in what order and to what extent they are liable. Hawthorn was a shareholder on and before the

1st of January 1847; and therefore is a party liable within the meaning of the act, and his name is properly put upon the list of contributories. The Master, therefore, has come to a correct decision, and the application must be refused with costs.

WIGRAM, V.C. March 6, 7. S

EVANS V. DAVIES.

Illegitimate

Legacy Construction sharing with Legitimate Children.

A testator gave specific legacies and the residue of his personal estate to his children nominatim, payable to them at twentyone or on marriage. He also gave the residue of his real estate, subject to the payment of an annuity to his wife and other trusts, between all his said children (not naming them) share and share alike; and directed in case any of his children by his second wife should die without issue before he or she should attain twenty-one, that the interest of each in his, the testator's lastmentioned real and personal estate, together with the thereinbefore mentioned legacies bequeathed to them respectively, should go between his said second wife and such of his children by her as should be living, &c. :— Held, that one of the said legatees, who was an illegitimate daughter of the testator by his second wife, was entitled to share with their legitimate children in the residue of the testator's property.

A testator, by his will, dated the 15th of December 1840, gave all his personal and part of his real estate to trustees for sale, and declared that they should stand possessed of the proceeds upon trust, after discharging debts, funeral expenses, &c. to pay 1,000l. to each of his children, Martha, Sarah, Joseph, Robert, and William, and 700l. to his son Noah; and to divide the remainder if any (there was none) equally between all his, the testator's, children of his first and second marriages, share and share alike. The trustees were directed to pay the several legacies of 1,000l. a piece to the testator's said children, Martha, Sarah, Joseph, Robert and William, on their respectively attaining the age of twenty-one years, or being married with