first thereinbefore recited deed of appointment contained, except so much and such part or parts thereof as had been revoked or altered by the secondly thereinbefore recited deed of appointment, or by the present deed, and that she did thereby ratify and confirm the several directions, limitations and appointments in the secondly thereinbefore recited deed of appointment contained, except so much and such part or parts thereof as were revoked or altered by the present deed. This deed also contained a power to the said Sarah Carver of revocation and new appointment. Sarah Carver has since died without having exercised this power. The question as to the validity of these appointments, more particularly of the appointment made by Sarah Carver by deed-poll of 1829, now caine on for argument. Palmer, Q.C. and Cotton for the plaintiffs. [ROLLS: tention to dispose of it under or by virtue of the power is not shown, still equity will give effect to the disposition, and hold that the property passes under the power. This proposition seems to have been expressly decided in the case of Wade v. Faget, 1 Bro. C. C. 363, although the report of that case seems in many respects to be in perfect; and Lord St. Leonards, in considering the cases, states, I think correctly, that it is the intention which governs them, and that if the intention be not to execute the power, the power is not executed; but if the intention be to pass the property by all the means in the power of and at the disposal of the donce, then the property passes, and the appointment will take effect, even although the existence of the power under which it operates was not present to the mind of the person who exercised it. I admit that this leads to very nice distinctions, and that it is very often extremely difficult to distinguish or define between an intention Selwyn, Q.C., W. D. Lewis, Q.C., and Lewin, for not to execute a power, and the case of no knowledge the defendants. Follett, Q.C. for other defendants. of the existence of the power, and therefore, strictly speaking, no intention to execute the power; and that Dec. 6.-The MASTER of the ROLLS.-The ques- the facts from which such intention is to be inferred tion which arises in this cause is, whether a good title may often run very close to each other, and possibly can be made to certain hereditaments contracted to be lead in some cases to technical distinctions. But the sold by the defendant Richard Carver to Richard principle I have stated appears to me to be clearly Richards, deceased, which depends on the validity of established by the authorities. In this case this lady the appointments made by Sarah Carver in exer- intended to give the property according to the limitacise of the power created by the deed of settlement of tions contained in the deed of 1820, as altered by the the 20th March 1807. It was not, and could not be deed of 1826, subject to the alterations which she contended, at the bar, that any part of the transaction introduced into them by the deed of 1829. She had of 1813 is valid in equity. The appointment in favour at the time complete power to do this, and she uses of Richard Carver was clearly a fraud upon the power, words which are sufficient to refer to all the powers and the whole thing remained, in equity at least, ex- which she had, which inferentially, though not in actly as if those deeds had never been executed. In like express terms, include the powers contained in the setmanner the appointments professed to be made by the tlement of 1807. It is important to remark in that deeds-poll of Feb. 1820 and July 1826 were a fraud respect, that she not merely uses general words, "all on the power in equity, and the interests thereby re- the powers contained in the several deeds," but also, spectively given could not have been sustained in this "the power contained in the indentures therein recourt. Daniel Carver the husband, having died in cited, and all and every other power," and in the deed 1827, Mrs. Carver, by deed-pell bearing date 16th May of 1820 the settlement of 1807 is recited. I think 1829, made a fresh disposition of the property, that I must give effect to that intention. If it and the question is, whether this is a valid exercise of could be shown that she intended to execute no the original power of appointment. She took no power except that contained in the deed of 1826, interest herself under that instrument; it is a proper I should then hold the opposite, and think that and legitimate exercise of the power of appointment to give effect to the appointment would be contrary to originally given, if then subsisting, and if intended to her intention; but the mere absence of the recital be then exercised. There can be no question that if of the deed of 1807 in this instrument, or the absence she had recited in this deed that doubts had arisen as of a recital expressly as to the invalidity of the deeds of to the validity of the previous appointments in 1813, 1820 and 1826, under which she was acting, do not 1820 and 1826, and that in consequence thereof she lead me to that conclusion. The cases, in my opinion, had executed the deed-poll in question, the appoint- bring me to the same conclusion. Aschum v. Barker, ment would have been perfectly good. Such, however, 12 Beav. 499, is, in my opinion, a wholly different case; is not the case, and the deed in question expressly and Lord Langdale, in that case, expressly says that he exercised the power of revocation and reappointment expressed no opinion as to what the effect would be if contained in the deed-poll of the 10th July 1826. It the corrupt bargain which vitiated the original transis argued that it must fall with the previous appoint-action had been put an end to-to use his own words, ments; and that, although the deed contains general words "if the matter had been set quite free again, altogether sufficient to include the power created by the settle-level and fair." There the corrupt bargain had been ment of 1807, still that the whole scope and purport of put an end to by the predecease of the husband. the deed is based on the validity of the deeds of 1820 Jackson v. Jackson, 1 Dru. 91, the case, to some extent, and 1826; that it proceeds solely on the authority of involved the same consideration. The original appointthem, and the power thereby reserved, and that accord-ment was clearly fraudulent and void, having been made ingly these instruments are confirmed by this deed. by the father for his own benefit. He obtained the benefit It is urged further that Mrs. Carver was acting solely on of that fraudulent appointment; he never restored it; he the supposition that she had a complete title under deeds never returned the benefit derived under it; and consewhich were void, and that she only sought to perform quently so far from desiring to impeach that original acts under them and by virtue of the power therein con- transaction, or having any intention to derive a benefit tained. Upon the whole consideration of this case I think from a power which was destroyed, if that transaction this appointment is valid for the reason I am about to were a valid one, it was obvious that he intended to It is important in these cases to consider the abide by and support it. Under these circumstances manner in which equity gives effect to the intention of the father made an appointment of the estate by his the donee of a power to pass the property subject to the will, and Lord St. Leonards decided in these words: power, even although the power is not properly ex- "If, therefore, this will were now to be held to be an ercised. It is, as I consider, the rule of this court, execution of the power of the testator, it would certhat if the intention to pass the property subject to the tainly be contrary to the intention," that is, the power be clearly established, even although the in-intention of the donce of the power. Nothing of state. In ROLLS.] [ROLLS. sell for a much larger amount (and far beyond the intrinsic value of the timber) if sold with the timber standing thereon, than if the same should be felled and severed from the said estate, and that it was therefore considered that it would be greatly for the benefit of all the persons entitled to the said estate in remainder expectant upon the decease of the said Sir John George Woodford that the timber should be allowed to remain upon the said estate; and also reciting an agreement between the said parties thereto that the plaintifs William Conway Gorden and Arthur Wellesley Torrens, since deceased, should purchase of the said defendant Sir John George Woodford all his right and interest in the timber then growing on the hereditaments com that sort occurs here. Mrs. Carver took nothing under | the appointment; she had no interest in supporting it; she intended by all means in her power to give effect to the deed of 1829. The case of Farmer v. Martin, 2 Sim. 502, is more difficult, which case is supposed to decide that if the deed of appointment in the recitals refers solely to an invalid deed, although it contains general words which are sufficient to include all powers, it must be inferred that the appointor intended not to execute the original power. But I think that such is not the effect of that case, and that the V.C. relied rather on the other facts connected with it, such as the concurrence of the daughter Eleanor, who joined in the deed, and who took 50007. under the invalid or fraudulent appointment. Her joining with her father in the deed dis-prised in the said recited indenture of settlement for posing of it showed that the parties must have considered that the transaction proceeded solely on the footing of Eleanor having the right to 2500%, which was part of the 5000l. appointed to her under the invalid appointment, and a power to dispose of it as she pleased. This, however, was erroneous; if the appointment to her was invalid—and the V. C. seems to me to have considered that it was-as the whole transaction was founded on that supposition, the whole of it must fall with that error. It is clear, however, that Lord St. Leonards, in his book on Powers, considers that the deed-poll executed by the father and his daughter Eleanor might have been supported as an execution of the original power of appointment by the father alone. In this case I repeat that, in my opinion, it is not contrary to the intention of Sarah Carver to execute by the deed-poll of 1829 the power contained in the settlement of 1807; on the contrary, I find an indirect reference to that power, by a reference to powers recited in a deed recited in this, and also by a general reference to all the powers which she had; and I am of opinion, therefore, that this ought to be supported as a valid execution of the power contained in the deed of 1807, and that a good title can be made so far as this point is concerned. Dec. 14 and 19. Sale of timber and timber-like trees-Thinnings of woods. A sale of timber and timber-like tees, "growing and being, or thereafter to grow and be" upon land: Held to include the thinnings of the wood. Under a settlement dated in 1834, an estate situate near Keswick, Cumberland, was settled to the use of the defendant Sir J. G. Woodford for life, without impeachment of waste, with remainders to his issue male in tail, with remainder to his brother for life, in like manner, with remainder to his issue male in tail, with all ultimate remainder to the use of the defendant, his heirs and assigns for ever. The settlement contained the usual power of sale of the trust-estate, and a trust for reinvestment of the proceeds in other lands, to be vested in the trustees to the same uses. the sum of five thousand pounds, for the benefit of the persons interested under such settlement; and in consideration of the sum of five thousand pounds, the said Sir John George Woodford granted and assigned unto the plaintiff Willian Conway Gordon and the said Arthur Wellesley Torrens, their heirs and assigns, “all and singular the timber and timber-like trees then growing and being, and which should thereafter grow and be upon" the said lands and hereditaments comprised in the said settlement, or upon any other lands which might for the time being be subject to the uses of the said indenture of settlement, and which the said defendant Sir John George Woodford had, or after the execution of that indenture would have as tenant for life without impeachment of waste power, to cut or fell and dispose of for his own use and benefit; to be held by them to and upon the same or the like uses, trusts, intents and purposes, &c., as were by the said settlement declared concerning the hereditaments thereby settled. And the said Sir John George Woodford thereby covenanted with the plaintiff William Conway Gordon, and the said Arthur Wellesley Torrens, "that he the said Sir John George Woodford would not at any time or times thereafter fell or cut any part of the said timber or timber-like trees then growing and being, or which might thereafter grow and be upon the said hereditaments comprised in the said settlement, or on any other lands which should for the time being be subject to the uses of the said indenture of settlement, but would to the utmost of his power protect and preserve the same from injury.” Sir John Woodford has since cut certain trees growing on the estate, and also a quantity of thinnings of the woods. This suit was consequently instituted by the present trustees to restrain him from so doing. timber-like trees. Judicious thinning was necessary to make room for timber and timber-like trees to grow; and he contended that such thinnings could not come under the description of timber or timber-like trees. The case was heard on a motion for an injunction. Palmer, Q.C. and Speed for the plaintiffs. Jessel for the parties in remainder. Sir J. Woodford (in person) went into a lengthened statement of circumstances to show that he was justified in cutting the trees; and with regard to the thinnings he contended that they did not come within the words of the conveyance of 1854, or within the intention and spirit of that deed. If the woods were not By an indenture dated 25th March 1854, and made properly thinned, the young wood would grow up so between the defendant, the parties entitled in re-thickly as to prevent their ever becoming timber or mainder, and the plaintiff Gordon and A. W. Torrens, since deceased, the then trustees of the settlement, after reciting the limitations of the said settlement, and that Sir John George Woodford had abstained for several years then past from felling | any part of the timber growing on the unsold part of the said settled estate, which timber was of considerable intrinsic value, far exceeding the sum of 5000, and that the sale of such timber formed the chief and nearly the only source of income derivable from the said estate, and that the said timber had consequently grown up into ornamental and valuable timber, which nd greatly enhanced the value of the said estate, nd that it was believed that from the ornamental nd picturesque character of the said estate it would The MASTER of the ROLLS.-This is a suit instituted for the purpose of restraining the tenant for life of certain property at Keswick from cutting down certain timber and also dealing with other wood upon the estate. The state of the case is this:-Sir J. Woodford being tenant for life without impeachment of waste, it was in his power to cut down the whole of the timber on the estate. It does not appear, however, as far as I can judge from the proceedings, that such was ever his intention; but that, on the contrary, he seems to have taken a considerable pride and plea ROLLS.] HARDINGE v. WERSTER. [V.C. K. V. C. KINDERSLEY'S COURT. Barristers-at-Law. Dec. 2 and 3. HARDINGE v. WEBSTER. 7 & 8 Vict. c. 110, s. 68-Proceedings at law-Injunction refused-Jurisdiction. Where a creditor of a company, and who was also a shareholder in it, took proceedings under the 7 & 8 Vict. c. 110, s. 68, against another individual shareholder in the same company, to recover the whole of a debt due from the company, this court refused an injunction to restrain such proceedings, considering that the judge at common law had full jurisdiction to deal with the case. This was a motion for an injunction to restrain proceedings at law under 7 & 8 Vict., c. 110, s. 68. The facts of the case will fully appear from the ViceChancellor's judgment. Baily, Q.C. (T. Stevens with him), for the plaintiffs, cited 7 & 8 Vict. c. 110, ss. 67, 68. Glasse, Q.C. (Shebbeare with him), for the defendant, cited Hammond v. Ward, 3 Dr. 103. sure in the timber itself. However, he got into a state | the validity of it, or to prevent the trustees from of circumstances in which money was a matter of im- enjoying the right which they are entitled to, to call on portance to him and accordingly on the 25th March this court to enforce the performance of it by the defen1854 he executed a deed by which he conveyed to certain dant. Therefore, it is with considerable regret that I trustees for the persons interested in remainder, in con- am bound to say that the injunction in this case must sideration of 50007, the timber and timber-like trees upon be made perpetual; but it must be altered by turning the estate. Now, with respect to the timber and timber- it into timber-like trees, instead of other trees, which like trees, the first question is, what is included in that? Sir John justly observes is going beyond the deed. It includes, necessarily, all that species of wood which is timber everywhere, such as oak, ash and elm. But it also includes all that species of wood which by the custom of the country is timber; and evidence is given to show Reported by P. M. LEONARD and II. R. YOUNG, Esqrs., that certain wood, which ordinarily would not be timber in other places, is by the custom of the country timber in this place. There appears to be no contradiction of that, and therefore the timber and timber-like trees must be made to include these. The next question is one of very considerable nicety, and certainly of very considerable importance to Sir John Woodford- that is, the question with respect to the thinnings. The principal part of this estate seems to consist of timber; and, no doubt, it is a matter of very considerable importance for Sir John Woodford, not only that the wood should be properly thinned, but that the thinnings of the wood should be employed where necessary for fencing and the like, and in other matters upon the estate; and that is the legitimate and proper use, in fact, to which the thinnings of all woods are applied. But the question is here, to whom the thinnings belong, and who is to have the right of judging what ought and what ought not to be cut. I am of opinion that it is impossible to get out of the words "shall hereafter grow on the lands;" and that the words, "the timber and the timber-like trees now growing and being, The VICE-CHANCELLOR.-Although I had formed and which shall hereafter grow and be upon the a very strong impression respecting this case before I said lands," not only include the trees which were then heard the learned counsel for the defendant, I hesitated in existence, but the trees which were to grow in future; about expressing my opinion, and I am glad I did so, and that, accordingly, everything growing, however because now I have a more distinct and clear view of young, in the shape of a sapling, was in fact conveyed what the facts are; and moreover, a more distinct and by this deed. Now I express no opinion whether it clear view of what is the point in controversy and what was the intention of this deed to convey these or not are the enactments applicable to this case. This is a -that is not in question before me. As long as motion simply asking to restrain Mr. Webster, the dethis deed stands I have only to construe it and fendant, from any further proceedings at law against to carry it into effect; and, accordingly, my the plaintiff Dr. Hardinge, under or in respect of a opinion is, that it is for the trustees to determine judgment recovered against the Anglo-Australian what the proper thinnings are with respect to these Company, and from prosecuting or commencing any woods for the future; and though I should hope, con- other proceeding at law against the plaintiff in respect sidering the material interest that Sir John Woodford of any debt or demand due to the defendant from the has in this question, with respect to his own enjoyment company. Now the proceeding sought to be restrained, of the property, and the circumstance that as the parties as I understand it, is this: Mr. Webster, the defendant, are all related some arrangements might be made be- is confessedly ascertained to be, and indeed is confessed tween them which, at the same time that it secured their to be, a creditor of this Anglo-Australian Company to interests, might be satisfactory to Sir John Woodford, the extent of a sum of nearly 20001. The actual amount is that is not the matter which I adjudicate upon. My iminaterial; but, at all events, he is a creditor to a consideradjudication simply is, that in fact these thinnings able amount. He being then a creditor, and being also belong to the trustees, and that it is by them that these himself a shareholder in the Anglo-Australian Company, matters are to be determined. Now Sir John Woodford and a director of that company, brought his action pointed out the extreme hardship to himself, the against the company. That action was defended by extreme peculiarity of the situation in which he is placed the company. The company pleaded three pleas: as owner of the property, to be so fettered in the en- first, that they were not indebted; secondly, joyment of it as this would amount to, and he makes a that they had discharged the plaintiff's claim by great number of statements for the purpose of showing payment; thirdly, that they had a set-off. I that he is justified in the course which he has adopted think I may assume that every defence which it was in cutting some of the timber. But assuming all that competent to the company to make was raised in that to be so, it cannot possibly alter the judgment which I action. The result of the action was, that a verdict must give upon this subject. Assuming, as he states, passed for the plaintiff, subject to an arbitration and the agreement not to have been performed by the defen-award of Mr. Raymond, a gentleman at the bar who dants, and that they have improperly dealt with Sir John Woodford in this matter, two courses are open to him-either to have the agreement specifically performed on their part, or if in fact the deed was framed under a mistake or fraud, to have the deed rectified or set aside. But neither of these things can be done in this suit. This is a suit merely to enforce that deed. There is nothing in the shape of defence upon this deed which can enable this court in the slightest decree to affect had ample powers. He had power, I think, to say that there should be a verdict for the defendant, and that there should be a nonsuit; and moreover he was armed with this power-he was to be at liberty, if he thought fit, to say what was fair and just between the parties; and he was to be at liberty, it he thought fit, to state a case for the opinion of the Court of C. P.; if there were any questions of law about which he thought there was sufficient difficulty, he might do that. The shall not go before a judge of a court of law; you shall not go before him for the purpose of asking him, as a judge of a court of law, to exercise his discretion and his judgment upon the subject?" What equity is there? Now, let us see what the equity is. First of all, it is said, "Why the defendant here, Mr. Webster himself, is one of the shareholders as well as Dr. Hardinge, and this is a partnership, therefore it is in fact one partner or one co-shareholder trying to take legal proceedings to recover the debt from another shareholder or partner." That seems unreasonable if it be so; if it be unreasonablethat is to say, if it be not the law that he is entitled to do so-that is a defence to the proceeding at law. It is not necessary to say it is against the law that one partner should sue another, supposing it to be sofor supposing it to be against the law in this particular case, a court of law is perfectly competent to judge of that matter; and to come here to a court of equity and to ask a court of equity to stay proceedings at law in such a case, will not do. But then in connection with that circumstance there is another suggestion which certainly has much more at first sight of the semblance of an equitable ground. It is this: "Not only you Mr. Webster are a partner with me Dr. Hardinge in this concern, there you V.C. K.] HARDINGE U. WEBSTER. [V.C. K. matter was argued before Mr. Raymond, and Mr. Ray- | portion of the debt under the circumstances-it would mond, as it appears, was pressed with the very same be competent for him to do that. What then arguments-that is, arguments founded on the same is his equity for coming here and asking—as in grounds as the arguments now before me- to avail effect he does ask this court to say, . You himself of this ample power which the arbitration conferred upon him. He was pressed to award that it was fair and just between the parties that Mr. Webster should not be at liberty to have execution against one of the individual shareholders in the company, in case the assets of the company should be insufficient to satisfy the claim. Mr. Rayinond, as I think, very properly declined (although he had the power to say what was just and fair between the parties) so to exercise his authority; and the result was, that he determined that it was just and fair that the verdict found for the plaintiff should stand, but that it should be reduced to 1642. 3s. 9d., and that the costs of Mr. Webster should be paid by the company, and that the company should pay their own costs of the reference. That was his determination, and the result was a verdict for that amount, and judgment accordingly. Upon that, by virtue of the Act of Parliament, the plaintiff in the action gave notice that at the end of ten days, which is the period prescribed by the Act, he would apply that execution should issue against Dr. Hardinge, as being one of the shareholders in the Anglo-Australian Company. The notice, after referring to the judgment being obtained against the company, and referring to the statute of the 7 & 8 Vict. and reciting that he had used due diligence to obtain satisfaction of the judgment against the pro-fore it seems contrary to law that you should be suing perty of the company, but that there was no property ine; but considering this is a debt due from the comof the company; and also reciting that Dr. Hardinge pany of which we are all members, an associawas a shareholder, informed the plaintiff that upon the tion in which we all concerned, you ought to conexpiration of ten days from the date of the service of the tribute your proportion of that debt, and I ought to notice, or so soon after the expiration of that period as contribute mine; therefore it is against justice that conveniently might be, a motion would be made in the should take proceedings, the result of which is or may Court of C.P., or an application to one of the judges, be that you will recover the whole debt from me." Now for a summons, calling upon Dr. Hardinge to show in the first place that begs the whole question, for it is cause why execution should not issue against him assuming that a judge of a court of law or a court of upon that judgment. Now what does the Act of Par- common law, before which or whom these proceedings liament say upon that subject? The 68th section pre- will come in regular course under the Act of Parliament, scribes a course, the first step of which had been taken must necessarily determine that Dr. Hardinge should by giving that notice. That section, after mentioning pay Mr. Webster the whole of the debt. But if that is a court of law, or a judge of a court of law, prescribes the result, then the Act of Parliament has imposed that that it shall be lawful for such court or judge to make result. That such should be the result I cannnot imagine, absolute or discharge such rule, or wholly to dismiss the because, I apprehend, the very purpose and intent of the motion, as the case may be, and direct the costs Act of Parliament is to enable a court of law to determine of the application to be paid by either party; to what extent, and whether or not at all, there should or to make such other order thereon as to the be this particular proceeding by way of substitute for court or judge may seem fit. That is the applica- scire facias, that is, execution against a particular tion that would take place unless the plaintiff in this individual who is sought to be made liable. suit should succeed in obtaining an injunction to us look a little further. It is true the defendant is restrain that proceeding. Now this bill is a bill simply liable (I mean Mr. Webster) as a shareholder who confined to a prayer for an injunction. It is not a bill ought to pay the debts, and liable, too, to a larger extent by which Dr. Hardinge says, "I admit you are a cre- in a larger proportion than Dr. Hardinge; because Mr. ditor of the company; I admit that I ain a shareholder Webster's shares, I think, are 500, and Dr. Hardinge's of the company; but so are you, and so are a great are only twenty-therefore he is liable to a greater many other persons; and therefore, although it is just proportion. Well, true it is, all that, as I have said, that your debt should be paid, it is just we should all will come before the judge or the court of law-at least, contribute pro rata, according to the number of our it will be Dr. Hardinge's fault if he does not bring it shares, to pay up the debt, and I am willing to make before the judge or the court of law-and if the judge my contribution towards it." He does not say a word should take this view and say, "This is what the Act about that. This bill is not adapted to that sort of of Parliament has imposed upon me-the necessity of relief; but it says simply this, "Don't let Mr. Webster making Dr. Hardinge liable to Mr. Webster for the recover the debt against Dr. Hardinge, or any portion whole amount of this debt; and although Mr. Webster of this debt, under this proceeding, or under any pro- is liable to even a greater extent than Dr. Hardinge to ceeding of a court of law." Well, what is the ground pay this debt, yet the Act of Parliament imposes that for coming into this court? Of course it must be an on me -all that I can say is, if that should be the equitable ground. If there is a good defence to a pro-result, if I am to suppose that, then that is a resalt ceeding at law; or if at law Dr. Hardinge can show to the learned judge, or to the court who would have cognisance of the proceeding, that he ought not to be made liable, for good reasons, for the whole of the debt, but only for a portion of it-and that perhaps a very small portion, or perhaps not liable to any But let imposed by an Act of Parliament, and you cannot come into a court of equity and say, although the Act of Parliament has said that shall be the case, and has left Dr. Hardinge to his remedy such as it may be, a court of equity is to interfere, and say the Legislature ought not to have passed such a law. That is not the V.C. K.] HARDINGE v. WEBSTER. [V.C. K. function of a court of equity. If the Legislature meant tary, or some competent person, should first examine that that should be the case, whatever opinion we may the affairs of the company, and see whether it is solvent have as to the propriety and justice of it, it is not for this-whether it is right for us to do so." That was his court to set aside the Act of the Legislature. But, as view, but he was overruled; and the result was, as I I have said, I cannot conceive the possibility of such a understand, a resolution or agreement between the result. There is justice in law as well as justice in equity; | Anglo-Australian Company and the Provident Comand in this instance it is justice to be administered ex-pany that all the assets and all the liabilities of pressly by a court of law, under the terms of an Act of the Anglo-Australian Company should be transferred Parliament which directs a particular proceeding to and handed over to the British Provident Company. issue. I have not the smallest doubt that a court of To what extent Mr. Webster concurred in that ultilaw, or a judge of a court of law, will exercise his mate act does not appear to be distinctly in evidence. judgment or discretion as to whether or not Dr. Har- But we have this in evidence-that Mr. Webster says dinge shall be made liable at all, or, if liable, to what he objected to it unless the company's affairs extent; and will only allow execution to issue were investigated by their own competent officer. to that extent. That seems to be the very fune- So that, if it turns upon this, it does not appear tion imposed upon the judge by the Act of that Mr. Webster did in fact specifically concur in this Parliament. Bat there is this further suggestion, particular transfer. It is said, however, that although and this also has at first sight certainly somewhat of there is not evidence that he concurred in it specia semblance of equitable ground, which is this-the fically before it was done, at least after it was debt of Mr. Webster ought to be paid out of the assets done he concurred in it; that is to say, he took steps of the Anglo-Australian Company. No doubt it which were for the purpose of confirming and carrying ought; but the Anglo-Australian Company has no it into effect-because he filed, or caused to be filed, a assets. Why? Because all the assets of that company bill in the name of the Anglo-Australian Company have been handed over, assigned and transferred, to against the British Provident Company, to compel a the British Provident Company. That British Provi-specific performance of that very agreement. It apdent Company has had handed over to it, not only all pears to me that, if that were the case, which I believe the assets and property of the Anglo-Australian Com-it was, Mr. Webster did what was quite consistent pany, but all the liabilities and engagements of the with his having objected to the amalgamation with Anglo-Australian Company; and therefore the British this particular company. When the amalgamaProvident Company ought to pay the debt. And then tion was made, he could not help it; whatthe plaintiff says: "You, Mr. Webster, concurred in ever resistance he might have offered, and whatthe transter of the property, and therefore you ought not ever objection he might feel to the amalgamation, he (as you have concurred in the transfer of that property could not prevent it when it was once done-he could which ought to have been applied in paying this debt) not recall it; and then his best and wisest and most to come upon me as an individual shareholder to pay legitimate course would be to reason thus: "Well, as you any portion of it." Now, at first sight here is à I cannot undo what has been done, I will make the best semblance of what may be called an equitable ground; of it; at all events I will endeavour to enforce the perbut when it comes to be examined, it appears to ine that formance of it, much as I object to the contract.' it is entirely untenable. In the first place, with regard Therefore there is no inconsistency between that act to what Mr. Webster did (according to the evidence and his having entirely objected until the amalgamabefore me), it amounts to this. By the original con- tion was actually carried into effect against his wish. stitution of this Anglo-Australian Company, although Now, if that was the position of Mr. Webster, what is considerable powers were given to general meetings, the position of Dr. Hardinge? Why, Dr. Hardinge under certain restrictions, of altering the rules and was in this position: he entirely concurred in the whole regulations of the company, and of doing various other arrangement, and not only concurred in the arrangeacts, there was no power, according to the originalment, but adopted that portion of the arrangement constitution, to form an amalgamation with another which enabled all the existing shareholders in the company. That is, I believe, there was power Anglo-Australian Company to become shareholders in for the Anglo- Australian Company to take in and absorb any other company into itself, but not to hand its own property over to another company, so that to us, this Provident Company, that is, in the British Provident Company after the amalgamation. He has become a shareholder in that new company, and he is it should be absorbed and received into that other com- one of the persons constituting that body to whom all pany. It was, however, thought desirable, according the assets of the Anglo-Australian Company have been to the opinion of the parties, that some such arrangement handed over, and who have undertaken the obligation should be made; for this company, like many other of paying all the liabilities of the Anglo-Australian companies, after struggling for a few years, got into Company. He is one of the body who have undertaken difficulties, and its property was gone-the common the obligation of paying that among the other debts. fate of this sort of speculation. But, finding they were What the arrangements were with regard to those of going down the hill-or, perhaps, were at the bottom the shareholders of the Anglo-Australian Company who of the hill-they thought, The only way for us, as should not think fit to adopt it, I do not very clearly we can't get any company to hand over their business see, nor is it at all material. All that I know is, that is to get some company to take our business to Mr. Webster has not become a shareholder in this themselves; but we have not got the power." Accordingly amalgamated company; he has not become such, and a resolution was passed, in pursuance of the deed of set-therefore Dr. Hardinge is in this position-he is one tlement, by a general meeting, confirmed by a subse- of the persons beneficially interested in, or beneficially quent meeting, the result of which was that it gave entitled to take, as a member of the amalgamated compower to form such an amalgamation. In this reso-pany, all the property which ought in the first instance lution I think I understood that Mr. Webster con- to have paid this debt. He is a member of this curred. I had got an impression that the purpose of the resolution was to enable the company to elicet this particular amalgamation; but that notion has been corrected during the argument of the case. It appears that when the suggestion was made to amalgainate with the British Provident Company, Mr. Webster objected to it, to this extent: he said, "I should Jike, before I concur in this, that our officer or secre company, which has undertaken the obligation of |