proceedings from the Lord Mayor's Court to the Court of Queen's Bench, but the deponent was advised that unless bail was put in to the said action on or before four o'clock the following day, the plaintiffs would be at liberty, notwithstanding the writ of certiorari, and by means of a writ of procedendo which would be granted as a matter of course by the said Court, to obtain and take possession of the funds of the said company; that the whole amount of the funds in the hands of the bankers of the company amounted to the sum of 3971. 10s., which constituted the entire assets of the company. Upon this statement the injunction was granted.

Mr. Bethell and Mr. Jessell, in support of the motion to dissolve, contended, that the Court had no jurisdiction to grant the injunction, where the proceedings had been commenced prior to the order for winding up the affairs of the company, and that the subsequent order and appointment of an interim manager did not alter the case.-The 22nd, 58th (1), and 118th sections of the act were particularly referred to.

Mr. Rolt and Mr. Hetherington, in support of the injunction, referred to the 17th, 19th, 61st, and 73rd sections of the act, and contended, that it was expressly provided that when a manager had been appointed, the funds of the company could not be attached by any creditor until his debt should have been proved before the Master. By the operation of this act the directors of the company had, in fact, been deprived of their property in the company, and it was but just that any proceedings against them should be stopped.

(1) Sect. 58. "That except as is by this act expressly provided, nothing in this act contained, nor any petition or order under the same for the dissolution and winding up, or for the winding up of any company, shall extend or enlarge, diminish, prejudice, or in anywise alter or affect the rights or remedies of creditors or other persons not being contributories of the company, or the rights or remedies of creditors being also contributories, but being creditors of the company upon a distinct and independent account, whether against the company or against any of the contributories of the same, nor the rights or remedies of the company against any contributories or other persons, nor shall alter or affect any contracts or engagements entered into by

or with the company, or any person acting on behalf of the same, previously to any such petition, nor any actions, suits, or other proceedings pending at the date of such petition."

The VICE CHANCELLOR.-I apprehend that these special injunctions must always stand or fall upon the merits which they possess at the time they are granted. When the application was made to me I recollect the substance of the case was stated, and I remember the observation was made that the greatest number of these companies were in the city of London. Never having had my attention however particularly directed to the provisions of this act, I did not feel sufficient confidence to say that this Court had not jurisdiction; and as I did not think any harm could arise from granting the injunction, I did not like to delay Mr. Hetherington when he applied to me, and I thought I might put it in this way, that if he believed he could sustain the order he

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might take it. Upon looking at the act now, I do not think that the Court has jurisdiction. The language of the 58th section is very strong, it is this:-"that except as is by this act expressly provided, nothing in this act contained, nor any petition or order under the same for the dissolution and winding up, or for the winding up of any company, shall extend or enlarge, diminish, prejudice, or in anywise alter or affect the rights or remedies of creditors, or other persons not being contributories of the company, or the rights or remedies of creditors being also contributories," &c.; and then it says, nor shall alter or affect any contracts or engagements entered into by or with the company, or any person acting on behalf of the same, previously to any such petition, nor any actions, suits, or other proceedings pending at the date of such petition." It is true that I do not find any express enactment applying to the case made before me when the special injunction was granted, that is, to the case of creditors suing in the Lord Mayor's Court, but the fact of an interim manager having been appointed since the date of the application does not appear to me to make the act apply, and I do not think that the injunction can be sustained, upon a supposed analogy between this case and that of a common creditors' suit depending in this court. therefore appears to me that upon the act there is nothing to justify the interference of this Court. The application was a mere experiment which has failed, and the injunction must be dissolved with costs.

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Mortmain, Statute of Conversion of Leaseholds-Payment of Debts.

A testatrix gave all her property, consisting of leaseholds and personally, to her brother, who died nine days after her, and by his will bequeathed the whole of his property to charities :-Held, that as it was the duty of the representatives of the testatrix to sell the leaseholds for payment of debts, &c., the brother who had made no election took the leaseholds as personalty, and the charities were, therefore, entitled to them under his will.

The bill stated that Harriet Noble, by her will, dated in January 1847, gave all her estate and effects to her brother, Frederick Noble, who died nine days after his sister, and by his will bequeathed certain annual sums for the benefit of the poor of St. Mark's, Kennington, and St. Mary's, Newington, and gave the residue of his estate to various other charities. The property of the testator, Frederick Noble, consisted entirely of personalty, but part of the property bequeathed to him by his sister, Harriet Noble, consisted of leaseholds, which were sold by the executors of Frederick Noble several months after his decease. The suit was instituted by the executors of Frederick Noble for the administration of his estate, and the only question now raised was, whether the charities to which the testator had given his property were entitled to the leasehold estate of Harriet Noble, which had not been converted into personalty at the death of Frederick Noble, or whether such leaseholds came within the Statute of Mortmain, in which case they would be undisposed of, and would go to the Crown in consequence of Frederick Noble having left no next-of-kin.

Mr. Amphlett appeared for the plaintiffs.

Mr. Bethell and Mr. Marett appeared for one of the charities entitled to part of the residue of Frederick Noble's estate, and claimed the leaseholds on the ground that the representatives of Harriet Noble

were bound to convert them into money for the general administration of her estate. If Frederick Noble had elected to take them as leaseholds the case would have been different, but he died without making any such election, and the leaseholds must therefore be considered as having been converted into money, as in fact they were three months after her death.

Mr. J. Parker, Mr. Leach, Mr. De Gex, Mr. Baggallay, Mr. Smythe, and Mr. Nichols appeared for other charities interested in the estate.

The

Mr. Wray appeared for the Crown, and Iclaimed the leaseholds in the absence of next-of-kin, on the ground that Frederick Noble not having made any election, the leaseholds came to him without conversion, and the gift of such leaseholds to charitable purposes was consequently void. personal property of Harriet Noble was sufficient for the payment of her debts and funeral and testamentary expenses; there was therefore no necessity for her representatives to have sold the leaseholds, and it could not be considered that they had done so for such purpose.

This was a motion, under the 13th sec

tion of the 3 & 4 Will. 4. c. 94. (1), by way of appeal against the decision of the Master who had made an order for enlarging publication in the cause.

Mr. Bethell and Mr. Kinglake supported the motion.

Mr. Stuart and Mr. Prior appeared in support of the order made by the Master, and proposed to read affidavits filed since the date of the order. This was opposed,

on the ground that as the motion was by way of appeal from the decision of the Master, no new evidence could be adduced. It was contended contrà, that there was no prohibition in the act against the production of fresh evidence in a case like the present, and as this decision was to be final, it would be unjust to exclude any evidence which might be relevant. Suppose the Master had refused to make any order, and the parties had then come to the court, it could not be said that in such a case fresh affidavits might not be used.

The VICE CHANCELLOR said, it was not necessary for him to decide whether, if the Master had made no order, the parties might have filed fresh affidavits. In this case the Master had made an order enlarging publication, and that order could only be disturbed by a motion by way of appeal from that order, and whether the Master was right or wrong could only be decided upon the evidence which was adduced before the Master: consequently no fresh affidavits could now be used.

(1) 3 & 4 Will. 4. c. 94. s. 13. enacts "That the Masters in Ordinary of the High Court of Chancery shall hear and determine all applications for time to plead, answer, or demur, and for leave to amend bills and for enlarging publication, and all such other matters relating to the conduct of suits in the said Court as the Lord Chancellor, with the advice and assistance of the Master of the Rolls, and Vice Chancellor, or one of them shall by any general order or orders direct, in such manner and under such rules and regulations as by any general order or orders to be also issued by the Lord Chancellor with the advice and assistance aforesaid shall

be directed; and that it shall be lawful for either party to appeal by motion from the order made on such application to the Lord Chancellor, Master of the Rolls or Vice Chancellor, and that the order made on such appeal shall be final and conclusive." NEW SERIES, XVIII.-CHANC.

The guardians of the poor of Southampton applied for an act of parliament to authorize the levying of poor-rates upon the owners instead of the occupiers of small tenements. The bill, which contained a proviso for payment of the costs incurred in promoting the same out of the poor-rates, was rejected. An injunction was granted to restrain the guardians from paying these expenses out of the rates.

This was an information filed by the Attorney General at the relation of Richard Andrews, Esq., an inhabitant of the town of Southampton, against the guardians of the poor of Southampton, and it stated that by a local act of parliament, the 13 Geo. 3. c. 50, it was enacted, that a body should be incorporated under the name of the guardians of the poor within the town and county of Southampton; and that such body should consist of the mayor and bailiffs, recorder, three senior aldermen and the resident Justices of the Peace, and eighteen other inhabitants of the town to be elected as therein mentioned; that the said guardians should have power from time to time to make and ordain bye-laws, rules, ordinances and regulations, and also to vary, alter, change, or repeal the same for the better governing such corporation, and the poor which should be under their care, and for other ends and purposes of the act; and that a certain house therein mentioned should be settled and vested in the said corporation for ever, to be used as a workhouse for the habitation and employment of the poor within the said district; that quarterly meetings of the said guardians should be held in manner therein mentioned, and at such meetings they should have power to rate and assess and to raise by taxation of every inhabitant, parson, vicar and others, and of every occupier or renter of any houses, lands, tenements and tithes, such sums of money as they should think necessary for defraying the expense of repairing, fitting up,

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altering and enlarging, the said workhouse, or for purchasing or erecting any other work house for the purposes in the said act mentioned, and for paying the interest of any money borrowed under the act, and for defraying the expenses of the current quarter, and for paying off the principal of any sums to be borrowed by them, and the money so to be raised should be from time to time paid to the treasurer of the said corporation; and that the said rates or assessments should be levied and recovered in such manner as the rates made for the relief of the poor were directed to be levied and recovered by the act of the 43 Eliz. c. 2. And it was thereby enacted, that it should be lawful for the overseers of the poor out of the monies to be by them collected, to pay and discharge the annual rate, commonly called the county rate, in and for the said town and county, in such and the same manner as they had theretofore done out of the rates by them respectively made for the relief of the poor, which sum so paid should be allowed to such overseers and deducted out of the money by them received; and it was thereby further enacted, that all sums of money which by any law then in being were directed to be paid out of the rates collected for the relief of the poor, should from and after the passing of the said act be paid out of and remain a charge upon the rates to be collected under and by virtue of that act.

That in the latter part of 1848 the defendants proposed to obtain an act of parliament to authorize the rating of the owners instead of the occupiers of small tenements in Southampton, the annual rent or rateable value of which did not exceed 127. per annum, alleging as the ground and reason for this proposition, that thereby 2,000l. and upwards a year would be gained, because the rates then assessed were payable by people who were unable to pay them, while by the proposed alteration the burden would be thrown on the richer class of the owners of property.

The information stated that a committee of the members of the court of guardians was appointed to superintend and direct the passing of the bill; that at a large and respectable meeting of the inhabitants of the town of Southampton, held on the

21st of November 1848, and presided over by the mayor, resolutions were passed condemning the intended measure, and appointing a committee to conduct the opposition to its further progress; that at a meeting of the town council, held in January last, a resolution strongly condemning the bill was passed, but notwithstanding these attempts to stop its progress, the bill was introduced into parliament and read a first time, but on the motion for the second reading it was rejected by a considerable majority; that the bill being thus lost, it only remained to provide for the payment of the expenses incurred in its promotion, amounting to about 500l., and the court of guardians decided to pay them out of the poor-rates, and resolutions were passed by them authorizing the payment of the said expenses by the treasurer out of the rates. The information prayed an injunction to restrain the defendants from paying the sum carried to their separate account, and any other monies in their hands in respect of the poor-rates, towards the expenses incurred in promoting the said bill.

The injunction was granted ex parte, on the 7th of March last, and the defendants having put in their answer, the case now came on upon motion to dissolve that injunction.

The answer of the defendants set forth the inconvenience and injustice occasioned by the present mode of levying the rates, by which so great a loss was yearly occasioned, and that it was for the benefit of the town and county of Southampton that a bill should be obtained authorizing the assessment of rates upon the owners instead of the occupiers of small tenements. That the same inconvenience and injustice had been felt by other large towns, and similar acts of parliament had been passed on their behalf. That under these circumstances the defendants determined upon taking such steps as might be necessary for the purpose of obtaining an act to effect their object. That in pursuance of such intention the defendants had applied to the poor law board requesting their sanction to the proceedings, so that the expenses incurred by the board of guardians in obtaining the act might be allowed by the district auditor out of the poor

rates. That in answer to this application the poor law board sent a letter stating that whenever acts of parliament had been obtained in other towns for the purpose of making landlords liable to be assessed to the poor-rate in respect of property of small annual value there had been almost invariably clauses introduced making the costs and expenses incurred in procuring the act a charge upon the poor-rates raised after its passing: and that as the principle of such an act was one fully recognized by the legislature, which had passed numerous acts to enforce it, the board did not anticipate that any opposition would be successful against an act for such an object in the case of Southampton. That the defendants believed the meetings alluded to in the information at which resolutions had been passed condemning the intended measure, were packed, and did not represent the general feeling of the rate-payers, and that the majority at such meetings were owners of property which would have been affected by the proposed measure, but they believed that the great majority of the rate-payers were favourable to the objects of the bill, and they submitted that the sums of money now in their hands which had been raised for the relief of the poor were properly applicable to the expenses incurred in prosecuting the said bill, and that such application would not be illegal and would be no breach of trust on the part of the defendants. It further appeared that the bill which had been introduced into parliament, and thrown out on the second reading, contained a clause providing for the payment of the expenses out of the

poor-rate.

Mr. Rolt and Mr. Giffard appeared in support of the motion to dissolve, and contended that under the 7 & 8 Vict. c. 101. and the 11 & 12 Vict. c. 91. the poor law board was the only competent authority to decide on the propriety of the expenses incurred in promoting the act being paid out of the rates, and that such payment had in fact been approved of by that board. That the attempt to procure the bill was fair and bona fide, and that if passed the bill would have produced results highly beneficial to the town, and that the opposition to it was composed only of

those interested as owners of small tenements in resisting the alteration of the law, and did not fairly represent the feelings and opinions of the town generally. It was also contended that these expenses were properly chargeable upon the poorrates, and that under the act of parliament instituting the corporation of guardians of the poor they had in fact the power to pay the expenses out of the rates, which were made liable to defray "the current expenses of the quarter." This expression must necessarily include all expenses of every kind which the guardians were justified in incurring; and that they were justified in applying for the bill in question was proved by the letter of the poor law board, who expressly sanctioned the measure, and stated that, as various large towns had procured similar acts of parliament, they did not suppose there would be any opposition to the same measure being adopted in respect to Southampton.

Mr. Bethell and Mr. Rogers, in support of the injunction, contended that the poorrates were not properly applicable to pay these expenses. The powers given to the guardians must be construed strictly, and the expression in the act alluded to as to defraying the current expenses of the quarter could never have been intended to mean expenses of this kind, but merely expenses attending the management of the poor. It had been urged that the poor law board had exclusive jurisdiction as to the allowance or not of these payments, but there was nothing in any of the acts referred to to take away the jurisdiction of this Court, and if the poor law board had jurisdiction, still it must be concurrent with that possessed by this Court. had been said that the poor law board had sanctioned the application to parliament, but this was not correct. They had only stated that similar acts had been obtained in regard to other towns, and they expressly alluded to the fact that in other acts of this nature a provision had been inserted authorizing the payment of such expenses out of the poor-rates. It was evidently their opinion that these costs could not be allowed without the authority of parliament; and the bill having been thrown out, the clause which had been inserted providing for the payment of the

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