De G. & J. 372; 3 Jur., N. S., 803); for Liefchild insisting on the deed of assignment of the patent and plant as evidence that money's worth has been given for the shares, and that deed purporting to be for a mere nominal consideration, he cannot adduce evidence ultra to shew that some other consideration was given. (Peacock v. Monk, 1 Ves. sen. 127; Gale v. Williamson, 8 M. & W. 405). To admit a consideration so proved, would be a fraud on the Stamp Act.

Jessel, Q. C., and Mackeson, for Leifchild.-The only contract between Leifchild and the company is, on the one part to transfer, on the other to hold, paid-up shares. In the absence of any suggestion of fraud, the Court will look no further than the terms on the face of the contract. Leifchild is a trustee; but taking the case as if it were Messrs. Claypole who were concerned, the only question could be, was there a real equivalent given? You may refer to parol evidence to shew that there has been consideration other than, so long as it is not inconsistent with, the consideration expressed. (Clifford v. Turrell, 1 Y. & C. C. C. 138; S. C., on app., 9 Jur. 633; Ex parte Currie, 1 N. R. 71). There is no concealment of the amount of price, as in Maxwell v. Port Tennant Company (24 Beav. 495). Glasse, Q. C., in reply. The question is, what are Leifchild's rights as against creditors; they would be no higher than Messrs. Claypole's, if he were a purchaser for valuable consideration. (The Athenæum Life Insurance Society v. Pooley, 3 De G. & J. 294; 5 Jur., N.S., 129). The purchase of the patent was ultra vires, as not being one of the avowed objects of the company; though, on questions affecting the validity of a deed, you may look beyond the consideration expressed; where the deed is merely referred to as evidence of other matter, it must be used as it stands. (Tayl. Ev. 922).

the concurrence of the company, a transfer was made of the shares to him. The fact that Leifchild was a mere trustee is no reason why he should not be liable, because the company are not bound to regard a trust; and therefore, if he has otherwise made himself able to be put upon the list, the being a trustee will not exonerate him; and the case is on the same footing as though he had taken a voluntary transfer for or benefit.

Now, it is said, that one is precluded from g that these shares are to be considered as pa shares by the terms of the deed of assignment, te cause the deed specified only the nominal consideration of 10s., and that the Court must, therefore, shut its eyes to the arrangement on which, in fact, one of the clauses of the articles was founded; and Peacock v. Monk was cited as an authority that the Court will not inquire, in the absence of general words, if there is any other consideration than that stated in the deed. On the other side Clifford v. Turrell was cited, to shew that Lord Lyndhurst hesitated to accede to that proposition, observing that it was a mere dictum. This, it appears to me, at all events, may justly be considered to be a rule, viz. that Lord Hardwicke's dictum can only apply where the real consideration may be said to be inconsistent with that expressed in the deed; as, for instance, where natural love and affection are expressed in the deed, you cannot allege a pecuniary consideration. But in the present case there is nothing beyond a nominal cotsderation. Now, assuming Lord Hardwicke's doctrine to be law, I think it would not apply to the case of a nominal consideration; for that was originally introduced with reference to the creation of a use, and for no other purpose, and is, in fact, no consideration all. The question here is, not whether the deed is t

Sir R. T. KINDERSLEY, V. C.—In this case it ap-be upheld or set aside, but whether or not the share pears that a certain patent which, at the time of the formation of this company, had become vested in Messrs. Claypole, had been obtained in respect of a process for dressing corks, and, according to the fashion of the day, it was proposed that this patent should be worked by a limited company. The promoters of the company accordingly met together, the Messrs. Claypole being of the number, and the company was formed in May, 1860; and a memorandum of association, the immutable basis of the society, and special articles of association, analogous to articles of partnership, were framed. The memorandum purports to specify the objects of the company; and it does not specify among them the purchase as well as the working of the patent. Now, if in order to work it, it was necessary or expedient to purchase it, I think it was within the objects specified by this clause, although, no doubt, the result might have been attained by buying a privilege for exclusive use only.

However, the agreement was, that the Claypoles should assign to the trustees of the company their interest in this patent, and that in lieu of the company paying them money, Mr. J. S. Claypole, one of the partners, should have a certain number of shares. The transaction, in fact, was, that the company agreed to buy the patent for 42007., and Claypole agreed to subscribe for forty shares, of 51. each; the one not handing over the price of the patent, leaving the other to return the money as the price of the shares, but giving the shares in exchange for an assignment of the patent. This agreement was not only made, but actually formed one of the articles of association, so that the provision that Mr. Claypole should have 840 shares, to be treated as paid-up shares, was part of the foundation of the partnership. A portion of these 840 shares Mr. Claypole desired to vest in Mr. Leifchild, as a trustee for him; and with

were given as a consideration for the patent. If sa
it is immaterial whether this deed is invalid or not,
and I have only to consider whether I am precluded
from looking at the facts. This agreement was bind-
ing upon all the shareholders; there is no suggeste
of a fraud or trick by which the shareholders were
deluded, and, indeed, as far as I can see, the transte
tion was perfectly fair. How can I say, as agains
Leifchild and the Claypoles, that the shares are not
be treated as paid up, and that they are not to have
the benefit of the consideration given in lieu of the
51. per share for the shares? It appears to me that
there is no reason why Mr. Leifchild should be pat
upon the list, unless, according to the terms of the
act, he is "liable to contribute to the assets." Wit
do those words mean? Why, that the contribuy
is liable, with other persons, to pay a certain
bution to make good the liabilities; so far, no
this case, has a right to say that Mr. Leifchild is bound
to assist in paying the debts. But it is said that bat
does not apply to creditors. Now, under the original
act, the Court did not concern itself with creditors
now, these interests are to be consulted by means of
contribution; the Court is to make up, if it can, asses
to pay them. But, unless the creditors can say it is
a fraudulent transaction, they can have no remedy
anywhere; and if they have, the matter is not to be
decided upon a question whether a
party is to be
placed on the list of contributories or not? Their re-
medy would be by a bill seeking to set aside the whole
transaction. But Mr. Leifchild has been guilty of no
fraud; he was merely in the position of a person
taking shares represented by the articles of ass-
ciation to be paid up, and he takes them as the com
pany represented them in their articles, viz. as paid-
up shares. It appeared to me, therefore, that Mr.
Leifchild ought not to be put upon the list.

The official liquidator has only done his duty in | Henry M'Calla. And the said indenture contained coming here, and, therefore, he must have the costs of a proviso that the plaintiff should not be enthe application out of the assets, but he must pay Mr. Leifchild's costs, and add them to his own.

ficate for 1200l., payable on the 20th of this month. I need hardly state that my client is not a little surprised that Mr. M'Calla should have ventured to sign such a certificate in face of a notice sent to him claiming deductions and allowances for departures from the specifications, and having been informed by me that in consequence of my client's discovering that sundry bill transactions had taken place between Mr. Dabbs and Mr. M'Calla, he had reasonable ground for suspecting unfair collusion between them. This suspicion has now become certainty, and Mr. Nugent has instructed an eminent surveyor to go carefully over the buildings, examine the work by the specification, and estimate the deductions which ought to be made. In a few days I shall have his detailed report, and I will then inform you precisely the course which, under all the circumstances, I shall advise Mr. Nugent to pursue."

On the receipt of the said letter, the plaintiff requested M'Calla to ascertain the extent and value of the works done by the plaintiff, and the amount due from the defendant to the plaintiff under the contract, and to make a due and proper certificate of such amount as required under the contract, and to deliver such certificate to the defendant.

The said Henry M'Calla (as the plaintiff alleged) was willing to make such certificate, but was unable to do so by reason that the defendant took the contract and specification for the said works away from him, and refused to allow him to use or refer to the

same.

After a time M'Calla wrote to the defendant a letter, dated the 17th November, 1863, stating that the plaintiff had asked him for a certificate, and that he could not make up accounts, or give certificates, without having the indenture of the 4th August, 1862, and the specification, and all other papers referring to the said building business;" and he required accordingly that the defendant should return to him the said indenture and other documents within three days.

In answer to the said letter of Mr. M'Calla, the defendant's solicitor wrote a letter, dated the 18th November, 1863, requesting him to remember that he had settled accounts with the defendant, and was no longer his architect; charging him with fraud and culpable collusion, and denying his power to give any certificate which should be binding on the defendant. Shortly after the date of the last-mentioned letter, the defendant executed a deed-poll, dated the 21st November, 1863, purporting to revoke the appointment of the said Henry M'Calla as architect, and to appoint a Mr. Richard Henry Moore "architect, arbitrator, and referee, under the said deed of the 4th August, 1862, in the place and stead of the said Henry M'Calla."

The plaintiff was paid various sums by the defendant during the progress of the works at Penge: but there was still due and owing to the plaintiff (as alleged by him) the sum of 1557., on account of the said works at the commencement of this suit.

The plaintiff made application for the payet of the said sum of 155l.; but the defendant refusi to pay it. The plaintiff alleged that the defendant rested his refusal on the ground that he was not bound to pay it, except on the certificate of the said Hary M'Calla, and that he had revoked the authority the said Henry M'Calla, and refused to be bound by any certificate that he might make.

Under the circumstances above detailed, the plaintiff claimed from the defendant the payment of three several sums, viz. 11791. 19s., 75, and 1551.; and the plaintiff commenced three several actions in the Court of Exchequer for the recovery of the three said sums, which actions were respectively commenced the 8th October, the 8th October, and the 15th October, 1863. On the 27th October, 1863, the defendant obtained a judge's order to consolidate the said thres actions; and on the same day the defendant commenced two actions against the plaintiff in the said Cart of Exchequer to recover damages from the plaintif in respect of some alleged breaches of contract.

The plaintiff was advised that, for want of formal certificates from the architect, the said Henry Calla, he could not safely proceed in the said three actions commenced by him, and he, therefore, obtained a rule to discontinue the said actions, and the same were dis continued accordingly. He, therefore, remained with out any remedy, unless such remedy could be found in equity; and, accordingly, on the 11th January, 1864, he filed the present bill, setting forth the above-mentioned circumstances, and praying for, inter alia, an account of all sums due to him, as if the same had been certified by the said Henry M'Calla, and the payment of such sums to him by the defendant: or in the alternative, the cancellation of the deed-pol purporting to revoke the appointment of Henry M'Calla; and an injunction to restrain the two actions at law commenced against him by the defendant.

The defendant filed his answer on the 30th March, 1864, whereby he admitted the indenture of the August, 1862, but denied the fresh contract for pering the houses at Eastbourne. He also admira the contract as to the house at Penge, but stated t he had refused to pay the sum of 1551. claimed by the plaintiff, because he was informed by M'Calla that the works had not been properly completed. He stated that he received such information from Mall before he had revoked his appointment, but he decid that he had ever stated that MCalla's certificate was necessary under the Penge contract. He add that, at the date of his said answer, he had rende the authority of M'Calla, and refused to be bound by his certificate. As regards the certificate for 120 he stated that it was merely a letter given by M'Calla to the plaintiff without his knowledge or consent, by the production of which the plaintiff might be able to raise money from his bankers or elsewhere, and that Malla did not give the said letter as a certificate under the

Before proceeding to give a summary of the argument, it will be necessary to mention another agree ment or contract for completing a certain building at Penge, since the disputes arising out of it, as well as those arising out of the Eastbourne contract, formed a part of the questions to be decided in the present suit. The circumstances were as follows:-The plain tiff, through the agency of M'Calla, made a tender for completing a house at Penge for 6201.; and ulti, mately contracted with M'Calla (who, as the plain-contract. tiff alleged, was acting as agent for the defendant) to Numerous affidavits were filed on both sides; each do the work in question, on the understanding that party endeavouring to shew that the other had been he should be paid weekly 751. per cent. on the work engaged in questionable transactions with MCalla. done, "as the same should be certified by the said The object of the defendant in this contention was to Henry M'Calla." On the 7th May, 1863, the defend- shew that the plaintiff had, by entering into private ant wrote to the plaintiff, expressing surprise that the dealings (such as bill transactions) with M'Calla, work had not been begun, and requesting him to begin rendered it impossible for him to give a trust at once. Accordingly, the plaintiff immediately pro-worthy certificate. Consequently, the plaintiff ceeded with the works, which were (as he alleged) in court de son tort, and was not entitled to t completed in October, 1863. lief. The plaintiff, on the other hand, denied the in

D

ropriety of such transactions, and alleged that the efendant had had similar transactions with M'Calla. With respect to this part of the contention, the twentyecond paragraph of M'Calla's first affidavit was of Treat importance. It was there alleged, that in September, 1863, the defendant requested M'Calla to acept a bill of exchange for his accommodation, and hat, on his refusing to accept it, the defendant at nce, and for the first time, began to charge him with misconduct. The defendant, on the other hand, in the fortieth paragraph of his first affidavit, denied that e ever requested M'Calla to accept any bill for his accommodation; but in the thirty-ninth paragraph he admitted that, in September, 1863, the plaintiff having asked him (the defendant) for a bill for 125., he, the lefendant, requested M'Calla to give the plaintiff such bill, and M'Calla consented. Shortly afterwards Calla changed his mind, and refused to accept the ill; whereupon the defendant and M Calla went to gether to some wholesale houses, where M'Calla, with the defendant's permission, selected goods to the mount of nearly 2007., with which the defendant was lebited, and then M'Calla said, "Well, governor, I'll

ccept that bill for Dabbs.for the plaintiff.-The Court

Malins, Q. C., and Bevir, for

for the purpose of raising money. Moreover, as to the Penge contract, there was an untrue allegation; for, as to that, there was no certificate required. The plaintiff alleged that the defendant justified his refusal to pay the money under that contract, on the ground that there was no certificate from M'Calla; and that allegation was untrue. The effect of the bill transactions must obviously be this-that it would be the architect's interest to give a certificate, in order that the builder might get money so as to be able to pay him. The work was shewn, by the report of another architect, to have been badly done. This report was altogether unfavourable, and stated that the works could not now be put in a proper state for less than 20007. In short, there was collusion; the builder "scamped" the work, and the architect, for his own interest, allowed him to do it. As to the Penge contract, there was no condition as to a certificate there; the defendant did not resist payment on any such ground, and there could be no reason for coming to equity on that contract.

The question of the injunction was not argued; the defendant not having proceeded with the actions commenced by him against the plaintiff. No reply.

ad jurisdiction. The architect had been prevented Nov. 21.-Sir J. STUART, V, C.-This is a bill of a from giving a conclusive certificate, first, by the de- kind which has occurred in these courts only in mofendant having withheld from him certain plans, esti- dern times. No doubt, in The Duke of Marlborough's mates, &c., without which he had not sufficient mate- case (1 Bro. P. C. 175), a bill was filed in the Court of rials; and, secondly, by the defendant having revoked Exchequer, on the equity side, to recover the amount · his authority. The plaintiff was, therefore, in this po- due upon a building contract. I think it must now sition:-He was justly entitled to certain payments, be taken that, with reference to transactions of con-but those payments could not be enforced at law for tracts for the building and execution of large works, want of a certificate, and that certificate was withheld there is, to a great extent, a concurrent jurisdiction solely through the defendant's misconduct. It had between courts of law and courts of equity. In the been shewn by several decisions that this Court would case of The Toff Vale Railway Company v. Nixon (1 H. interfere to quash or invalidate a certificate impro- L. C. 111), the House of Lords decided what was, in perly granted; conversely, then, the Court would give a great measure, certainly new, and that was, that remedy when a certificate was improperly withheld. although a court of law was the proper jurisdiction, The bill was not multifarious, for the three actions yet where the transactions upon a building contract, had been consolidated, and that not by the plaintiff's or a contract to execute works, were very numerous acts, but by the defendant's. The litigation must be and very complicated, a bill in equity would hold. unproductive in a court of law, and the defendant, by Everybody knows that in an action of that kind, consolidating the actions, had "thrown the whole of any extent, from the way in which specifications thing into one basket." [Sir J. Stuart, V. C.-The of works are framed, and the way in which the reeffect of consolidating the actions is merely that they muneration of the contractors is conducted, there is are tried together; the declarations remain as distinct hardly any work, of any great extent, in which the acas ever.] There was a case, Scott v. The Corporation counts are not extremely complicated. However, the of Liverpool (1 Giff. 216; 4 Jur., N. S., 402), which House of Lords decided that, inasmuch as at law, in would be relied upon by the defendant, as shewing an action of that kind, the matter would certainly be that there was no jurisdiction; but that case was not referred to arbitration, and could not go as a simple in point, for there it was the plaintiff himself who had case to the jury, the court of equity would be the prevented the architect from acting. The true prin- more proper jurisdiction. Whoever traces the his ciple as to jurisdiction had been laid down in this tory of that case, I think will find it was not a court, and one of the cases had been affirmed on ap- very happy view of the law that was taken by the peal. [Cases cited:-Kemp v. Rose (1 Giff. 258); Pau- House of Lords, because the result of that case was, ley v. Turnbull (3 Giff. 70; aff, on app.); Waring v. that the equitable jurisdiction totally failed in doing The Manchester and Lincolnshire Railway Company (7 justice between the parties and I think there is Hare, 482); and Macintosh v. The Great Western Rail-in Hare's Reports (see 7 Hare, 136), a report of cay Company (3 Sm. & Giff. 146; 1 Jur., N. S., 969).] Jessel, Q. C., and Smart, for the defendant.-As to the Eastbourne contract, the plaintiff had no equity, the alterations not being such as to raise any; the ill was multifarious; and even apart from these questions, the plaintiff had lost his title to any renedy in this court by his own misconduct. The laintiff did not come into court with clean hands -first, he had done the work badly; secondly, he ad had bill transactions with the architect; and, hirdly, he had acted improperly in getting the inormal certificate for 12007, and taking it to a banker

Alluded to in his Honor's judgment as in the "sevenenth" paragraph...

the then state of that cause, which must be painful to any man who values the administration of justice. After the case had been seven or eight years in this court no justice was done, no relief was afforded. Nevertheless the decision of Lord Cottenham, in The South-eastern Railway Company v. Martin (5 Railw. Cas. 478, otherwise entitled North-eastern Railway Company v. Martin, 2 Ph. 758), shews that convenience must, in a great measure, determine the question whether the Court will exercise jurisdiction,

In the present case the plaintiff endeavoured to ob tain relief at law by three separate actions, which were consolidated; and there is now an action pending, on

certificate, that was not in proper form, and that he could not avail himself of it. That is true. But then immediately after, the plaintiff's solicitor writes & letter to the defendant, in which he insists on that very certificate (which the defendant avers is an improper one), and demands payment on the strength of it. The defendant's solicitor answers in a rather vitaentire letter, and he himself does not at that time seen to be aware of the informality of the certificate, but hes on to say that it has been improperly given the face of a notice claiming deductions, &c.," and tha has reasonable ground for suspecting unfair collusion Now, as the amount fairly recoverable is unase tained, and as there are counter demands for alleged breaches of contract, how can it be said that this cer tificate has any material bearing on the plaintifa right to relief, or even on the question of costs?

The case remains thus-The Court is asked to exercise its jurisdiction. The plaintiff says he is advised that he cannot safely proceed at law for want of the certificate. All the actions are consolidated at the instance of the defendant, and they are now rendered abortive. Assuming that Mr. Jessel is right in his contest as to the Penge contract; that there is no certificate required as to Penge; that it is a mere action for work and labour done, and the plaintiff might recover at once; and assuming the same thing as to the papering; yet here there are demands on three several contracts, and it would be disgraceful if they were not consolidated, and if this Court did not, as in Moris v. The Great Western Railway Company, deal with the whole, and have an inquiry, having regard to the circumstances under which the works were carried on, and having regard also to any breaches of cotract that may have been committed. If that is de I think the Court will have the means of doing tice between the parties. Any decree of that can, of course, only be made on the plaintiff und taking to pay what, if anything, shall be found due to the defendant on the result of the account. On fr ther consideration, the Court will be in a better posi tion to decide any question as to costs that may an between the parties. The decree will be the same di that in Macintosh v. The Great Western Railway Co

the part of the defendant, for breaches of contract. In such a case where proceedings at law have failed to do justice, this Court, in conformity with the spirit of modern legislation, ought not to shut its door. It has been said, and with some qualification it is certainly true, that where a certificate is made a condition precedent to obtaining payment, the want of a certificate is a fatal objection to recovery at law. I am not indeed, aware, whether the court of law will in every case peremptorily refuse relief; but this is not very material. Here the plaintiff says, that for want of a certificate he cannot, in fact, recover at law; and he comes to equity for an injunction to restrain actions at law, and asks the Court to exercise jurisdiction. The defendant, on the other hand, says that the inability to recover is due to the plaintiff's own conduct, and that consequently the Court should refuse to entertain the case; or at least should order the plaintiff to pay costs up to the hearing. As to the first point, it fails, according to the view of Lord Cottenham. Where this Court has a concurrent jurisdiction it ought not to refuse relief, although the particular circumstances of the case may raise difficulties as to the mode of relief and the question of costs. The second question, as to the plaintiff being ordered to pay costs, is entitled to great attention. But when it is properly looked at, the difficulty vanishes to a great extent. First, the defendant says, and shews by evidence, that there were bill transactions between the plaintiff and the architect, so that the architect was disqualified from properly acting as arbitrator by the plaintiff's own act. But, on the other hand, there is conflicting evidence as to the defendant's own conduct with regard to the architect. The defendant, in the thirty-ninth paragraph of his affidavit, makes a very extraordinary statement about his own conduct. He is there replying to an allegation made, I think, in the seventeenth paragraph of M'Calla's affidavit. In that paragraph M'Calla says, that in September, 1863, the defendant requested him to accept a bill of exchange, for his accommodation, but that he, M'Calla, refused, and that his refusal occasioned the ill-will which the defendant has shewn to him. Now, the statement of the defendant, in the thirty-ninth paragraph of his affidavit, is not an ab-pany (3 Sm. & Giff. 146; 1 Jur., N. S., 969), with the solute negation of that statement of M'Calla; it tells of a request by the defendant for a bill, though it alleges that it was for the accommodation of the plaintiff. M'Calla declined to give the bill; and after this, the defendant says he went with M'Calla, and bought goods on his own credit for M'Calla, but this, he says, was also for the accommodation of the plaintiff. In a certain sense, very likely, it may have been for the accommodation of the plaintiff. But, however that may be, the transaction is such that it must be considered to some extent for the defendant's benefit, and, therefore, M Calla's affidavit is not wholly contradicted. With all this before it, the Court cannot say that the mere fact of M'Calla's having accepted bills for the plaintiff's accommodation, should be a reason either for refusing relief or for ordering Re THE MANCHESTER FREE GRAMMAR SCHOOLthe plaintiff to pay costs.

But the defendant gives a second reason why the plaintiff, even if relieved, should have to pay costs. This has reference to the certificate given for 1200 I cannot say that this is of sufficient importance to affect the question of costs either now or at any later stage. M'Calla, for the accommodation of the plaintiff, in order to satisfy some banker, wrote an informal certificate in the form of a letter, certifying that 12007. was due to the plaintiff for work done. The plaintiff says, in the eleventh paragraph of the

* This should be "twenty-second" (vide supra):

addition of an inquiry, whether anything, and whit due from the plaintiff to the defendant in respect f the breaches of contract, without prejudice y question of waiver that may arise.

Note for reference-Set. Dec. 100. CORRIGENDUM.-In Ramsay v. Shelmerdine (ante, 905), col. 1, line 31 from the bottom, after the wor "Court" insert the words "I may here refer to the Beeton v. Vachell (5 Bro. P. C. 51), which, I confess pears to me rather a strong decision."

VICE-CHANCELLOR WOOD'S COURT.

Nov. 11.

Charity-Free grammar school-Diminished income-
Capitation fee-Boarders.
Where the revenue of a free grammar school proved,
through depreciation, wholly insufficient to carry out th
provisions of a scheme for an enlarged system of eds-
cation adopted by the Court of Chancery a few yours
previously, and insufficient also to benefit the whole num
ber of scholars for whom there was accommodation, the
Court sanctioned a proposal for the admission of scholars
in addition to the free scholars, on payment of a capit
tion fee, provision being made for the admission of the