as such transmissible. The bonds also which had been given were personal estate, and such shares and securities had been held not so connected with land as to bring them within the provisions of the Mortmain Act, 9 Geo. 2. c. 36. Sparling v. Parker (1), Thompson v. Thompson (2), March v. Attorney General (3), The Commissioners of Charitable Donations V. Wybrants (4), Attorney General v. Giles (5), Doed. Myatt v. St. Helen's and Runcorn Gap Railway Company (6), Bligh v. Brent (7). Both the shares and bonds gave nothing but an interest in the company which entitled the holder to participate in the profits; they passed no interest in the lands or real estate of the company, and they gave no right at law which enabled the holder to obtain possession of the lands. Upon the closest construction, the bonds made the property of the company liable to pay; but nothing beyond making the rents and tolls liable was contemplated. In default of payment of interest, application could be made to a Justice of the Peace, who was empowered to appoint a receiver of the rates liable to pay such interest; by other process the holder of the bonds might possibly be able to obtain the lands. The purchase of a share in a mining company was not a purchase of land, or even of a share in the land in which the mines were carried on-Curling v. Flight (8). The cases which had arisen upon turnpike tolls, had no relation to trading companies: the form of security. was there made by a demise of the tollbars and toll-houses, so that an ejectment might be brought-Doe d. Banks v. Booth (9), Doe d. Thompson v. Lediard (10).

Mr. Purvis and Mr. Lewin.-An interest (1) 9 Beav. 450; s. c. 16 Law J. Rep. (N.s.) Chanc. 57.

(2) 1 Coll. 381; s. c. 13 Law J. Rep. (N.S.) Chanc. 455.

(3) 5 Beav.433; s. c. 12 Law J. Rep. (N.S.) Chanc. 31.

(4) 2 Jones & Lat. 182.

(5) 5 Law J. Rep. (N.S.) Chanc. 44.

(6) 2 Q.B. Rep. 364; s.c. 11 Law J. Rep. (N.s.) Q.B. 6.

(7) 2 You. & C. 268; s. c. 6 Law J. Rep. (N.S.) Exch. Eq. 58.

(8) 2 Ph.613; s. c. 17 Law J. Rep. (N.s.) Chanc.

359.

(9) 2 Bos. & P. 219.

(10) 4 B. & Ad. 137; s. c. 2 Law J. Rep. (N.S.) K.B. 12.

in land permanently held, not as an incident to trade, but as the essence of the company, was within the provisions of the 9 Geo. 2. c. 36. If a company, such as a gas company, purchased materials and held land for the conversion of those materials into an article for sale, it was a trading company, and might not have such an interest in land as brought it within the Mortmain Act; but both docks and canals were solely interests in lands, and the rents and tolls were the profits: the legal estate must be in the company, and the beneficial interest must reside somewhere. Trustees could not be beneficial owners, and a mere trustee must have some cestui que trust. A court of equity would inquire for whose benefit the trust was created, and it would determine the objects to have the interest in that which was the subject of the trust; consequently, when money was to be laid out in land, to be conveyed to a party, though there was no gift to him of the money, yet it was his in equity, and he might elect not to have it laid out in land; so when land was given upon trust to sell, and pay the produce to a party, though no interest in the land was given to him, he was the owner in equity, and the trustee must convey as he should direct. If any purpose required the trust property to be sold, the surplus would belong to the equitable owner, and he, upon providing for the specific purposes, might keep the estate unsold. There could in reason be no difference whether the benefit to arise from the sale was given in one shape or another, that of the money to be produced by the sale, or of other land to be produced with that money-Pearson v. Lane (11). In this case it was distinctly understood that the money raised was to be laid out in lands to be farmed in a particular way to produce an income or rent. Because these were corporations, it was said that the shareholders had no interest in the lands, but a shareholder was interested in the freehold, and he could not be compelled to sell his share. If the testator had directly devised the shares to the Institution of Civil Engineers, instead of directing them to be disposed of to pay the legacies, could it be said that the Institution should only

(11) 17 Ves. 101.

take the benefit of the gift by selling the shares? If allowed to take, the Institution could not be excluded from enjoying the profits of their shares: they would have a right to sue, and a right to an account: and where there was no remedy, or only an incomplete remedy at law, a court of equity had full jurisdiction to give them the full advantages of shareholdersAdley v. the Whitstable Company (12). A judgment debt affecting a creditor's estate could not pass to a charitable useCollinson v. Pater (13). Now, a judgment creditor was entitled to no immediate possession in the lands, it was necessary for him to sue out an elegit before his security could be made available, but still it was such an interest in land that it formed a lien, and, as opposed to a direct interest, might be worked out. In Tomlinson v. Tomlinson (14) shares in the Birmingham and Worcester Canal were considered by Sir John Leach to be within the provisions of the Mortmain Act. In The King v. Bates (15) parish bonds given and secured on parish rates had been held to be an interest in land, and it was the same with the rates and duties to be levied for the Liverpool Docks-The King v. Winstanley (16). In Buckeridge v. Ingram (17) shares in the Avon Navigation were held to be real estate, and subject to dower. And a specific disposition by will to sell and pay debts, and appropriate the residue of the money to the improvement of the city of Bath, was, as to a navigation share, held to be void under the 9 Geo. 2. e. 36, it being real estate-Howse V. Chapman (18). Turnpike tolls had also been held to be within the Mortmain Act-Knapp v. Williams (19); and it was the same with money secured upon the poor and county ratesFinch v. Squire (20). These companies were all rateable to the poor in proportion to their profits, and their property did not cease to be land because the profits were

increased tenfold-The King v. the Dock Company of Hull (21). In Hudleston v. Gouldsbury (22) a share in a canal company was not deemed property invested on security, and that it was not the security for money but the property itself that was bought and sold. Real estate also directed by a testator to be sold, though impressed with the character of personalty, was held not liable to probate dutyMatson v. Swift (23), Custance v. Bradshaw (24). The St. Katherine's Dock Act, 6 Geo. 4. c. cv., recognized the property of the company as land. It gave the shareholders power to raise money upon the rates, and also powers of distress to secure the payment of the rates. And the Birmingham and Liverpool Junction Canal Act, 7 Geo. 4. c. xcv., and 4 Will. 4. c. xxi., gave the company a power to raise money, and it gave the shareholders power to apply to the Justices for the appointment of a receiver in case of default in payment of interest. The form of the security for the money borrowed was an assignment of the rents and profits, and this passed an interest in the lands of the company: a person taking these securities was not bound to submit to a receiver appointed by a magistrate, he was entitled to every relief which this Court could give. It was argued that the bonds came within the modern authorities, but the rents and profits came from the stem, and were not the fruit of the undertaking, and they were not the property of the corporation, which was a mere machine to convey the benefits derived to the shareholders, and was a trustee for them, and was subject to all the liabilities of trustees. All that the modern cases had decided was, that where the land for the purpose of a trading company was small, the law would not notice it they had merely introduced a distinction, but had not broken down the old authorities.

Mr. Walpole and Mr. Phillips, for the plaintiffs, said their clients were interested in increasing the residue, and the question

(21) 1 Term Rep. 219.

(22) 10 Beav. 547.

(23) 9 Ibid. 368; s. c. 14 Law J. Rep. (N.S.) Chanc. 354.

(24) 4 Hare, 315; s. c. 14 Law J. Rep. (N.S.) Chanc. 358.

to be considered was how far the Mortmain Act extended in making land money, and money land. Lands belonging to a partnership passed inter se to their personal representatives, yet the gift by a partner of his share to a charity would be invalid, and this had been decided in Day v. Croft (25). And again, where a testatrix who had made some charitable bequests desired that her real estates might be managed so that the same might be sold at the discretion of her trustees, and converted into money, which was to form a part of her personal estate, it was held that the real estate was converted out and out into money, and subjected in common with the personal estate to the payment of debts and legacies, but that notwithstanding the charitable legacies must abate in the proportion which the proceeds of the real bore to the personal estate-Flint v. Warren (26). For some purposes also land tax redeemed still continued real estate, and was subject to the provisions of the Statute of Mortmain. In Crawshay v. Maule (27), where parties held leases of mines which they worked, it was considered to be not a mere joint interest in land, but a partnership in trade, in which the land was personal in enjoyment, but freehold in its nature and quality, and consequently subject to all its liabilities. The gift of the profit of the land was in fact a gift of the land itself, and in Negus v. Coulter (28) it was held that the profit arising from mooring chains in the river Thames was an interest within the Statute of Mortmain. And where a mortgagee in possession under a habere facias possessionem devised all his residuary estate to a charity, Sir John Strange considered it to be within the Mortmain Act, observing that the meaning of the Act was to prevent the giving to a charitable use that which was or might be a charge on land though it was not so at the time of the gift-The Attorney General v. Meyrick (29), The Attorney General v. Earl of Winchelsea (30).

(25) Referred to in 9 Beav. 455. (26) 14 Sim. 554.

(27) 1 Swanst. 495.

(28) Amb. 367; s. c. Duke, 434. (29) 2 Ves. sen. 44; s. c. Duke, 423. (30) 3 Bro. C.C. 373; s. c. Duke, 596.

Mr. Piggott appeared for the surviving executor of the testator, and for the personal representative of a deceased executor. Mr. Roupell, in reply.

The MASTER OF THE ROLLS did not think he ought to delay giving his judgment upon the chance of deriving further information, as he had previously considered the question upon different occasions. The testator gave a portion of his property in legacies, or applicable to the payment of legacies, in a way which induced the next-of-kin to think that the legacies were contrary to law, and consequently that the money intended for charitable objects ought to be paid to them. The Master reported that certain portions of the testator's personal estate were to be considered as chattels real, or otherwise that they arose from, or were connected with land. All property of this kind came before the Court under circumstances not in contemplation when the Mortmain Act was passed, neither were they in contemplation when some of the decisions under that act were made. The circumstances were now entirely different, and it was material to consider how far the provisions of the act were applicable to the present state of affairs. The question did not appear to arise from any difficulty in the construction of the act, but from the decisions under the act, which, if strictly applied to this case, would entitle the next-of-kin to the relief prayed. A new state of things had arisen, and it was asked that the act might be applied to jointstock companies, and to the division of property among parties, in a way and under rights different to those, which, until within a few years, had never been brought under the consideration of the Courts. The question was on the rights of parties in joint-stock companies, depending partly on the provisions of acts of parliament, and partly on the situation of the parties among themselves, arising from the powers given to them, and the way in which they had acted among themselves. There appeared no reason to depart from the opinion he had expressed in Sparling v. Parker, though that decision was made without a knowledge or recollection of the case of Tomlinson v. Tomlinson, which, as

regarded the present case, must be considered as an inconsistent decision. Had it been known he did not think it would have led to a different result, inasmuch as he should have been bound to apply his own judgment to the case then before him, and that particular case would not have been binding upon him. Though he must have felt great reluctance in departing from a decision of one of his predecessors, I still it would have induced him to consider the case with a great deal of caution. The difference between the former cases and the present arose upon the bonds: they came very near the principle laid down in March v. the Attorney General; and there did not appear to be any material difference. The principle laid down in Tomlinson v. Tomlinson was not a little affected by the decision in Doe d. Myatt v. St. Helen's and Runcorn Gap Railway Company. There it was contended that the instrument gave to the mortgagee a power of taking possession of the railway, which, it was observed, would put an end to the undertaking, as the power to take tolls would cease, no such power having been given to the mortgagee by the act. This the Judges seemed to think a monstrous and improbable supposition; but, without venturing to use words so strong, he could not but observe that these securities were given by authority of the acts of parliament plainly with a view to the continuation of the undertakings, and not with a view of having them broken up, and possession taken by a court of equity. He thought, therefore, the principles stated in the case of Sparling v. Parker applicable, not only to the shares, but also to the bonds; at the same time he was desirous that the question should be brought under the consideration of the Lord Chancellor, but under present circumstances he felt it was his duty to allow the exception, and refer it back to the Master to review his report.

mental bill containing statements and charges, which, if answered, would subject him to penalties. The demurrer was allowed, and under leave given the plaintiff amended the bill by striking out the interrogatories, and leaving the statements and charges upon which they were made. The defendant took exceptions to the amended bill for impertinence, but these were overruled by the Master :-Held, upon exceptions to the Master's report that the statements and charges were not impertinent, and that the plaintiff, though not entitled to discovery from the defendant, was not precluded from proving the charges.

Held, also, in answering the interrogatory about books and papers, that the defendant could except those which might subject him to penalties; and the exceptions were overruled.

A

This suit was instituted by the plaintiff to impeach an agreement, which he had entered into with the defendant for the purchase of his business of a dentist, the income of which was represented by the defendant to be very considerable. supplemental bill was afterwards filed by the plaintiff, stating that since the filing of the original bill he had discovered that the defendant, about the time the contract was made, had returned to the Income Tax Commissioners a statement, representing the income arising from the business to be much less than the amount which the defendant said he derived when the contract was entered into. And he made various charges relating to the return to the Income Tax Commissioners, and interrogated the defendant upon them. To this supplemental bill the defendant demurred, and it was insisted that he was not bound to make the discovery inquired after, as it might expose him to penalties, and the demurrer was allowed, but leave was given to the plaintiff to amend the bill. The supplemental bill was then amended by striking out the interrogatories relating to the return to the Income Tax Commissioners, but all the statements and charges, upon which they were grounded were retained. defendant then took exceptions to the bill, insisting that the statements and charges were impertinent, but they were disallowed

The

by the Master, upon which the defendant took exceptions to the Master's report.

Mr. Wright, on behalf of the defendant. -The bill as amended contained all the statements and charges relating to the return made by the defendant to the Income Tax Commissioners. It was a maxim of law that nothing should be alleged which, if proved, would not assist the case-Read v. Hambey (1). The statements and charges were altogether impertinent; they could avail nothing, since no evidence in support of them could be obtained without violating the provisions of the 5 & 6 Vict. c. 35. which authorized the raising a tax upon income; and even if the returns were produced, they would not be received by the Court. The exceptions ought therefore to be allowed.

Mr. Turner and Mr. Anderson, on behalf of the plaintiff.-The conviction of a person by the magistrates for not having a qualification to kill game was supported upon the fact of his having on a former day sworn before them while acting as Commissioners of the Income Tax Act that his estate was under 100l. a-year. -The King v. Clarke (2). The defendant could not be compelled to answer whether he had any copies of the return, neither was he asked. The confusion would seem to have arisen from not discriminating between discovery to be obtained from the defendant, and proof ultra.

Mr. Wright. The bill contains the usual interrogatory as to books and papers; but the defendant desired to put in a further

answer.

The MASTER OF THE ROLLS said-The plaintiff could produce evidence of facts. respecting which he could not obtain any discovery from the defendant, and the not discriminating between them had been the cause of the confusion. As to the inquiry about books, papers and documents, it was quite sufficient for the defendant to say that he had set forth all except those relating to the income tax. He must therefore overrule the exceptions, but he would allow a fortnight to put in a further

answer.

(1) Ch. Ca. 44.

(2) 8 Term Rep. 220.

A patentee, by deed, granted an exclusive licence to A, who covenanted to work the patent in a particular mode. A. then contracted to sell all his interest in the patent to B, C, and D. On bill filed by the patentee to restrain B, C, and D. from violating the covenants and conditions of the deed of licence, they, by their answer, denied the validity of the patent, and alleged that they had discontinued the use of it. A motion for an injunction was ordered to stand over, with liberty to the plaintiff to bring his action at law:-Held, that the plaintiff was not entitled to any admission from the defendants as to the validity of the patent, or as to their being licensees.

The original bill, which was filed on the 1st of March 1848, against five defendants, Franks, Millard, Baker, Lawrance, and Swinborne, stated, that in May 1846 the plaintiff obtained a patent for "an improved process for preserving the flavour of coffee and cocoa, or of any preparations thereof from the effects of the atmosphere;" that the method by which this object was effected was by the use of air-tight cases of a particular description; that, by a deed, dated the 21st of November 1846, the plaintiff granted to the defendant Swinborne an exclusive licence to use the patent, with power to grant any such licences, and Swinborne covenanted to use his utmost efforts to make the said invention profitable, and to pay a royalty or per-centage to the plaintiff on the gross amount of sales of coffee packed in pursuance of the invention, and to affix a particular label to each packet to denote that it was made up according to the plaintiff's invention, and to pay to the plaintiff a moiety of the premiums received for granting sub-licences; that Swinborne fitted up certain extensive premises for the manufacture of coffee, packed according to the plaintiff's invention, and carried on an extensive business therein, and granted several sublicences for which he received premiums, amounting altogether to the sum of 5,550l., and used labels according to the form pro