Imatges de pàgina

an affidavit that it was not the custom, in the course of business, to require a written memorandum, where there was a deposit of shares, under the circumstances stated in the petition.

The only question on the petition was as to the costs.

Mr. Bacon, for the petitioners, contended that, although there was no written memorandum, the case did not come under the class of mortgagees' petitions without a written memorandum ; and that, by reason of the circumstances stated in the affidavit

as to custom and course of business, it came under the class of mortgagees' petitions with a written memorandum, the evidence of custom and course of business having the effect of a written memorandum. He cited Ex parte Sheppard (1).

Mr. Brodrick, for the assignees.

SIR J. L. Knight BRUCE said that he thought that the costs should be given as in the case of deposit with a written memorandum.

(1) 2 Mont. D. & D. 431.






Vol. XXVII.--XVIII. New Series.


Accumulations- By deed of settlement in 1817 R.

vested stock in trustees, and directed them to accumulate dividends during joint lives of A. and his wife, and upon decease of A, to pay dividend to his wife if she survived her husband for life, and upon her death, stock, with accumulations, to go to her daughter upon attaining twenty-one. Direction to accumulate good for so much of joint lives of A. and his wife as expired during life of settlor. Rosslyn's Trust, 98 - Testator devised real estate to trustees, upon trust for A. for life; and directed them, after death of A, to accumulate rents for twenty-one years from death of A, and, at end of that period, to divide accumulations in manner mentioned in will. Will did not contain any residuary devise or bequest. Testator died in 1824, and twenty-one years from his death expired in 1845. A. died in 1837, and twenty-one years from death of A. Would expire in 1858. Heir-at-law entitled to interest of fund accumulated between 1837 and 1845, and rents of property until 1858. Bequest of fund to be divided among children of A, children of B, children of D, and to E, if he should then be living, and, if not, E.'s share to be divided into four parts, and paid to children of A, B, C, and D. "in manner aforesaid." Fund divisible among children per stirpes and not

per capita. Netileton v. Stephenson, 191 Acquiescence. See Company. Administration of Estate-İn creditors' suit against

administrator of intestate and assignees of administrator, who afterwards became bankrupt, no costs of suit given to bankrupt or his assignees. Assignees not entitled to costs of petition served on them by equitable mortgagee, not party to suit, praying payment to him out of court of monies arising from sale of mortgaged estate, not sufficient to pay principal and interest monies, and to sale of which he had consented. Carr v. Henderson, 39 - Plaintiff, one of class of persons interested in testator's residuary personal estate, who files bill for its administration, entitled to costs of suit out of fund generally; but if some of parties beneficially interested have incumbered or absolutely assigned their portions of fund, costs of assignors only

Index, Chanc. of Bankr.

allowed, to be paid to their assignees respectively, and rest of costs incurred by assignees to be satisfied out of assigned shares respectively. Greedy v. La

vender, 62 -- Costs of proceedings in Ecclesiastical Court in

curred only for purpose of making suit complete, borne by general fund. Cotton v. Penrose, 128 - Fund settled on A. for life, with remainder to B.

and others. B. mortgaged his reversionary share to C, and was afterwards convicted of felony. In suit for administration of fund, to which Č. and Attorney General defendants, Attorney General not entitled to his costs out of general fund. Kitchener

v. Kitchener. 152 - Creditor, who without notice of decree in administration suit, had commenced action in Scotland against administratrix, and afterwards had come in under decree but declined to undertake to discontinue his action, fixed with costs of motion for injunction to restrain proceedings at law. After decree in administration suit, creditor not allowed, in first instance, to proceed at law to ascertain claim, on grounds that cause of action arose in Scotland, witnesses resident there, and questions of Scotch law involved. Graham v. Maxwell, 225 ---A, legatee under will, assigned interest to B. for benefit of creditors. Suit instituted for administration of testator's estate, to which A. and B. parties. A. joined with other legatees in his answer; B. an. swered separately. B. not entitled to costs out of testator's general estate. Heywood v. Grazebrook, 303

- In creditors' suit directed to try consideration of bond given by testator to his son, it being admitted that executor bad at time of transactions between himself and bond creditors sufficient assets of testator in his hands to satisfy amount of those debts, executor was entitled to prefer them to others of equal degree, and to be allowed payment of them in passing his accounts. Immaterial to consider whether assets converted into cash for purposes of those transactions; they not being invalidated by omission of actual payment of cash or delivery of goods of equivalent value by executor to those creditors. Executor defendant in suit, ordered to be privileged from arrest while attending registrar's
office on passing minutes of decree. Newton v.

Askew, 42
Articled Clerk. See Attorney.
Assignment. See Settlement.
Altorney-Plaintiff articled for five years at 2001. ;

attorney died three years before term expired, and
plaintiff filed bill against representatives for return
of proportionate part of premium. Debt established,
and plaintiff a right to proceed against assets of
deceased attorney. Master to inquire what part of
premium to be returned. Hirst v. Tolson, 308

See Orders of December 29, 1848, 503
Altorney General-When entitled to costs (see Ad-
ministration of Estate). Kitchener v, Kitchener, 152.

See Costs.

plaintiff at law in trial of issue. Motion by him,
that he might be examined and cross-examined as
witness at trial refused. Such motion should be
made, if at all, at time when issue directed. Hep-

worth v. Heslop, 352
Administration of Estate (continued)—A. on behalf
of the Crown, took out administration to estate of
B, who, it was alleged, had died without leaving any
next-of-kin; and, as such administrator, sold out
stock belonging to B, and paid proceeds into Trea-
sury. Some years after suit instituted by next-of-
kin of B. against A, and decree obtained in his
favour. Interest payable on proceeds of sale of

stock since time of sale. Turner v. Maule, 454
Affidarit-filed by plaintiff in support of amendments

in order to strengthen his case, cannot be used on
motion to dissolve an injunction granted on original
bill. Prince Albert v. Strange, 122, note (1)

Upon motion by way of appeal against an order
made by Master for enlarging publication, affidavits

filed after order cannot be read. Parkyn v. Cape, 392
Amendment--of bill under 65th Order of May 1845,

after order to take bill pro confesso, destroys effect
of order. Weighlman x. Powell, 71
- After order of Vice Chancellor, referring it to
Master to ascertain which of two bills would be
most for benefit of infant to prosecute, plaintiff in
one suit obtained common order, and amended his
bill. Order irregular, and discharged, but without
costs. Master of Rolls, upon application to dis-
charge order for irregularity, no jurisdiction to
order amendments to be taken off file, even with
consent. Fletcher v. Moore, 384
- If no time limited by special order for making
amendments, it is limited by General Orders
of Court. Cause not out of court by not acting
upon special order, and special application may be
made to Court for further time, and order of course

irregular. Bainbrigge v. Baddeley, 385
- Plaintiff, having obtained special injunction
against defendant, afterwards obtained order to
amend without prejudice to injunction, and amended
his bill after seven days, but before expiration of
fourteen days. Motion, by defendant, to dismiss
bill for want of prosecution, dismissed, without

costs. Kennedy v. Lewis, 455
- See Bill.
Annuity-Testator while domiciled in Jamaica, be-

queathed annuity of 1001. to his son for life, after
his death to be continued to his son's daughter ;
and afterwards gave other annuities in sterling mo-
ney. Annuity to be paid in Jamaica currency: also
a perpetual annuity to son's daughter, and sufficient
sum to be paid over to produce it. Yates v. Madden,
Answer. See Pleading.
Appearance - Defendant served with petition, al-

though no interest in subject-matter of it, entitled
to costs of appearance. Marks v. Marks, 171
- Suit against husband and wife, and husband,
residing in Scotland, served on behalf of himself and
wife with subpana and office copy of bill under 33rd
Order of May 1845, his wife then living apart from
him. Husband having entered appearance for him-
self alone, plaintiff entitled to enter appearance for
wife. Steele v. Plomer, 211
Appointment. See Power.
Arbitration-If parties to suit agree under order of

Court to submit all matters in difference to arbitra-
tion, under which award made, Court has jurisdiction
to sustain application to enforce it, though award
not made an order of Court. Wood v. Taunton,

- See Staying Proceedings.
Arrest-Party to suit interested in decree pronounced

Banker-At time of bankers suspending payment,

joint account of A. and B. indebted to them, but
they indebted to A. upon his separate account. A.
and B, by arrangement between themselves, gave
notice to bankers to transfer money standing to
separate account of A. to joint account of A. and B.
Bankers omitted to comply, and afterwards became
bankrupts; and assignees brought action against
A. and B. for balance due to bankers upon joint
account. Bill by A. and B. to restrain proceedings
at law. Bankers, after suspension of payment,
could not transfer or set off one account against
another; had no lien upon separate balance in their
hands for money due to them upon joint account;
A. and B. no right to be relieved from proceedings
at law; and bill dismissed, with costs. Watts v.

Christie, 173
Bankrupt. See Parties.
Baron anil Feme-Mere creditor of defendant lent
money to his wife while defendant abroad, for pur.
chase of necessaries for her maintenance and sup-
port, and produced letters to prove husband autho-
rized his wife to borrow money and authorized
his agent, to whom he had given power of at-
torney to sell his estates, to satisfy wife's debts out
of proceeds. Such creditor no equity against hus-
band's assets; and no lien established by letters and
power of attorney. May v. Skey, 306

Right of wife to jointure under deed of arrange-
ment, in priority of incumbrances. Mornington v.

Mornington, 442
-- See Appearance. Company Settlement.
Bill--If cause stands over at hearing, with liberty to

plaintiff to amend, and plaintiff fail to amend, pro-
per course is to move upon notice, that plaintiff
amend within stated time, or bill be dismissed;
during pendency of order to amend, common order
to dismiss for want of prosecution irregular. Emer-

son v. Emerson, 50
- In serving copy of bill under 23rd Order of

August 1841, plaintiff not compellable to omit in-

terrogatory part. Mason v. Brest, 105
- After bill filed and appearance entered defen-

dant became bankrupt, and plaintiff obtained com-
mon injunction for want of answer. No proceedings
in suit for two years, when defendant being declared
entitled to certificate, but not having taken it up,
put in answer and moved to dismiss bill for want of
prosecution. Bill dismissed, with costs. Blackmore
v. Smith, 271

- See Amendment. Costs. Parties,
Bill of Sale. See Insolvent.
Building Society. See Mortgage.

Cathedral. See School.
Charity-Estate vested in trustees in fee in trust for

charity, survivor of whom died intestate, leaving
numerous heirs. On petition by persons administering trust, Court ordered that (in default of heirs of intestate appearing in answer to advertisements to be inserted in certain newspapers) Master should appoint person to convey estate to acting trustees. Belke's Charitu, 152 - Exhibitions of free grammar school confined to poor boys on foundation, and boarders allowed to be taken by head master excluded from participating in them. Whether trustees of charity lands entitled as of right to be heard in support of Attorney General appearing for charity-quære. Information on behalf of charity against corporation claimed certain lands long since confounded by latter with its own property. and of which it had granted building leases : claims of charity only partially succeeded, and no fraud imputable to corporation : information also prayed for scheme in respect of charity. Court, to avoid expense and difficulty of apportioning and setting off costs, gave none to corporation, and ordered those of other defendants and of relators to be paid out of charity fund. Solicitor General v.

Bath and Allorney General v. Blair, 275 - See Mortmain. Power. Will. Charter. See Discovery. Chose in Action. See Will. Company - Shareholder in trading company filed bill

on behalf of himself and all other shareholders, except defendants, complaining of acts done by directors and others, injurious to interests of company. Suit not authorized by general meeting of shareholders; but acts complained of done in pursuance of resolution passed at general meeting, and within general powers of company. Demurrer on part of company for want of equity allowed, upon ground that individual shareholder not entitled to be plaintiff in suit for such object. Lord v. Copper Miners, 65 --- General demurrer to bill by three directors against company for repayment of money lent by them to company, allowed, such case being within sect. 29. of 7 & 8 Vict. c. 110, which invalidates contracts with company in which directors personally interested as contracting parties. Teversham v.

Cameron's Railway Co., 177 --- Winding-up Act, 11 & 12 Vict. c. 45.-Company,

incorporated by act of parliament in 1830, authorized to raise capital in shares, and empowered to make pier and works for landing passengers and goods, not within Winding-up Act. Herne Bay Pier Co., 71

-- Contributories not precluded from obtaining order for dissolution and winding up of company by pendency of suit instituted on behalf of shareholders in joint-stock banking company, for purpose of making directors personally liable for losses sustained, no decree having been obtained, and no debts of company remaining unpaid. St. Marylebone Banking Co., 81

-- Shares in joint-stock banking company were purchased for benefit and transferred into name of infant, but dividends received by father, who executed deed of covenant for payment of instalments and observance of covenants in deed of settlement, by son, and to indemnify bank against losses by reason of son being under twenty-one, or on account of payment of dividends. Father liable as “contributory." North of England Banking Co. ex parte Reavely, 110

- Purchaser of shares in joint-stock company transferred them into name of another, in trust for infants. That other accepted trust and received dividends, and afterwards signed instrument, whereby be declared himself trustee of shares, but was indemnified by purchaser. Purchaser not a “con

tributory." North of England Banking Co. ex parle Penurick, 112

Mining company on cost-book system, formed before passing of Winding-up Act, not within its operation. Although case within strict letter of act, yet if action arise out of dispute between shareholder and company, and not from their inability to pay, shareholder not entitled to order for winding up concern. If tests directed by act to be applied to try solvency of company, strictly and literally apply to particular company, but presumption arising therefrom is rebutted by evidence, so that there is no reason to believe company insolvent, Court will not

interfere. Wheal Lovell Mining Co., 139 - Order being made for winding up affairs of banking company, notice served upon party, that official manager proposed to insert his name as contributory, as representative of deceased brother who had no legal personal representative, but dividends had been paid to surviving brother. Under that notice Master only jurisdiction to decide whether party a contributory in character mentioned in notice. North of England Banking Co. ex parte Glaholm, 147

- Former member of joint-stock company, whose shares transferred within three years prior to date of order for winding-up, properly placed in list of contributories, to be settled by Master under sect. 74. of Winding-up Act. North of England Banking Co. ex parte Hawthorn, 179

-- Affidavit of service of petition for winding up affairs of company under Winding-up Act, served on one of members of company, necessary, although member served appear by counsel at hearing of petition. Tring, fc. Railway Co., 242

- In proceedings under Winding-up Act, Master made order appointing A. and B. official managers, and approved of Messrs. G. as solicitors, and directed Messrs. G. to attend him, and ordered all persons who had any writings relating to company to leave them at office of Messrs. G. Order discharged on motion, so far as related to Messrs. G, on ground that B. had not concurred with A. in appointment of Messrs. G. as solicitors. Master has authority at any time after commencement of proceedings in his office, to discharge petitioner from further attendance. Et parle

Bass, 245 - --- Liability of shareholder as contributory con

fined to losses occurring after contract to take shares. North of England Banking Co. ex parte Sanderson, 248

- A. died possessed of shares in banking company, and deed of company provided that executor of deceased shareholder should not be entitled to be shareholder until he had gone through certain formalities, and A. died possessed of shares in company. A.'s executor, who had taken no steps in respect of shares, properly put on list of contributories in character of executor. North of England

Banking Co. ex parte Thomas, 249 ---- By deed of settlement of banking company hus

band of female shareholder not entitled to be shareholder until he had gone through certain formali. ties. A. married B, female shareholder, and did not comply with formalities, but received dividends on shares, and signed warrants “ A. pro B." A. properly on list of contributories. North of England Banking Co. ex parte Burlinson, 250 ---- So also where A. married B, female shareholder, but took no steps whatever in respect of shares, and never received any dividend. But, semble, in such case name of B. should be on list with that of A.

North of England Banking Co.ex parle Sadler, 251 --- In 1842 A, previously to her marriage, by deed

assigned shares in banking company to H. in trust

for her, for her separate use. Bank stopped pay-
ment in 1847, and formalities required by deed of
settlement of company not complied with as to
transfer. Between 1842 and 1847 H.'s name not
returned to Stamp Office ; and in books of company
this entry with reference to shares, “ H. is appointed
trustee, and invested with the absolute controul over
them," made without H.'s authority. H. received
dividends between 1842 and 1847, and signed war-
rants in some of which his signature was " H, A.'s
trustee.” He also attended meetings of company.
H. properly on list of contributories. North of Eng.

land Banking Co. er parte Hall, 252
Company (continued)-D. allowed shares in company

to stand in his name, for purpose of being afterwards
disposed of, with understanding that he was to have
no advantage and to be under no liability; and after-
wards assigned shares to H, who covenanted with
registered officer of bank to pay calls, observe cove-
nants, &c. D. properly on list of contributories. Si.
Marylebone Banking Co. ex parte Davidson, 254

- Shareholder in steam packet company trans-
ferred shares to B. in books of company, and B. did
not execute deed of transfer nor comply with form-
alities required by deed of settlement as to transfer
of shares. By rules of company proprietors entitled
to free passage in company's boats; and in three
years B. made sixteen free passages, on each occa-
sion representing himself as proprietor, and signing
his name in ticket opposite to words “ Proprietor's
signature." B. properly on list of contributories. St.
George's Steam Packei Co. ex parte Maguire, 256
-- A. transferred forty shares in company into
names of B. and C, without knowledge of B, on
certain trusts, and died, having appointed B. his
executor, who proved will, and then became
acquainted with circumstance. Application made
by D, officer of company, to B, to give up forty
shares, and take forty other similar shares, to which
B. consented, and Þ. sent B. twenty-seven other
shares, undertaking to furnish thirteen more. B.
took no other steps. Application to put B. on list
of contributories refused. St. George's Steam Packet
Co. ex parte Pim, 258

---- So where A, in consideration of sum paid by B,
and by B.'s direction, transferred forty shares in
company to (, and D, without their knowledge ;
and B. died, having appointed C. his executor, who
proved will; and at request and on application of
officer of company, C. gave up shares to company,
and they were cancelled ; and C. did not act in any
other way in respect of these shares, application to
put C. on list of contributories, in his character of
executor of B, refused. St. George's Steam Packet

Co. ex parle Pim, 259
-- In 1845 railway company formed, and twenty

shares in it allotted to A, on which he paid deposit
at rate of 558. per share. Scheme soon after aban-
doned. In October 1846 directors paid back to A.
(with other shareholders) a sum at rate of 308. a
share, in respect of amount deposited, and in Febru-
ary 1847 directors paid also to A. (with other share-
holders) further sum at rate of 38. 3d. a share as
final dividend. Officers then discharged and place
of business abandoned. Petition by A. for winding
up company refused, facts stated being known to
him before February 1847. Murrell, ex parle, 260
- Court can only interfere under Winding-up Act

n proof of existence of some test of insolvency
prescribed by act, and not entitled to go into pecu-
niary accounts of company. Permitting number of
members to retire upon terms not amount to disso-
lution of company. Whether joint-stock company
for insurance of cattle within scope of Winding-up
Act--quare. Agriculturist Insurance Co., 261

- -- At extraordinary general meeting of joint-stock

company, resolution passed by majority of share-
holders present, that directors be at liberty to pur-
chase shares of any member desirous of withdraw.
ing from company. A. B, shareholder, sold his
shares to directors. Company afterwards becoming
embarrassed, order made for winding up. Objects
of resolution not authorized by deed of settlement,
and sale a nullity; and A. B. properly placed on
list of contributories, without qualification Share-
holders, not present at meeting, though cognizant
of transaction, not bound on ground of acqui-
escence. Vale of Neath Brewery Co., 265
-- Upon winding up of company, shareholder who
had received final dividend and signed agreement
to release directors from all further claims, properly
placed among contributories. Apps, ex parte, 409

- See Evidence. Lien. Railway.
Contempt-Defendant, being in contempt for want of
answer, filed demurrer and answer, and plaintiff
took office copy. Filing demurrer and answer
irregular and taken off file with costs. Taking
office copy no waiver. Attorney Gen. v. Shield, 176

- Bill against husband and wife; husband, after
sequestration executed for want of answer of him-
self and wife, answered separately without leave;
and then, on motion with notice, and supported by
affidavits that his wife lived apart from him, and
that he had no controul over her, obtained order to
discharge attachment and sequestration upon pay-
ment of costs of his contempt, and that his wife
should answer separately. On appeal by plaintiff,
Lord Chancellor refused to discharge order, on
ground that, as plaintiff did not apply to take irre-
gular answer off file, defendant would be without
any means of clearing his contempt; but order
varied so as to enable plaintiff to take up process of
contempt where it left off, in case answer should be

insufficient. Steele v. Plomer, 209
Contract. See Devise. Railway. Specific Perform-

Copyhold-Husband of copyholder no power to make

perfect title which he, as volunteer, and without
consideration, took imperfectly (by surrender from
wife without admittance), and no person claiming
under him could ask that his defective title should
be made complete. Sowerby v. Gulteridge, 9
Copyright - Bill filed by A. against C. stated that A.

and B. had together made various etchings for their
own amusement, without any view to publica-
tion, and that C. had improperly and surreptitiously
obtained impressions of those etchings, and printed
and advertised for sale catalogue thereof. Upon
affidavits in support of bill, injunction granted to
restrain C. from publishing catalogue. C. put in
answer, in which he stated that be believed impres-
sions had not been improperly obtained, but did not
suggest any mode in which they could have been
properly obtained. Upon motion by C, after an-
swer, for dissolving injunction, ordered that injunc-

tion be continued. Prince Albert v. Strange, 120
Corporation - Trustees, from very constitution of

their body and their powers, taken to be a corpo-
ration where trusts were to continue for unlimited
time, though act appointing them did not expressly
constitute them a corporation. Newport Marsh
Trustees, 49
-- See Costs.
Costs-Upon motion by defendant in creditors' suit to

dismiss upon payment of plaintiff's debt and costs,
the costs being in dispute, order made to dismiss,
but with special directions to taxing Master as to

certain classes of costs. Kenny v. Beavan, 64
- Taxing Masters, under common order, can tax

bill of costs for parliamentary business upon scale

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