Q.B. Div.] OVERSEERS OF THE POOR OF CRAYFORD, &c. v. D. AND C. RUTTER. Dickens, Q.C. (Tassell with him) for the respondents. The order made at quarter sessions was perfectly right, and the case in the House of Lords of Thursby v. Churchwardens of Briercliffe (ubi sup.) is absolutely conclusive in favour of the respondents. In Peto v. West Ham Overseers (ubi sup.) Lord Campbell took the view that the distinction intended by the Legislature was land in which capital is invested for commercial purposes on one side, and land which remains in its natural state, or is used for agricultural purposes on the other side. This view as to the commercial purpose of the land was distinctly dissented from by the other judges in the Southavark, Neath, and Midland Railway cases (ubi sup.), where it was held that not only land in its natural state, but also in some cases, land used commercially as well, was land," and rateable at the lower rate; but all these cases still went on the doctrine of things ejusdem generis with houses and buildings. Then came the decision in the House of Lords in Thursby v. Briercliffe (Churchwardens) (ubi sup.), where this matter was -considered, and where it was laid down that the doctrine of construing this word "property" as ejusdem generis with houses and buildings was not warranted and could not be maintained. Our contention now is, that the Lighting and Watching Act did not extend the subject of rating, but that it took the existing basis of rating and merely extended the rating power given by the statute of Elizabeth, which was confined to a rate for the relief of the poor, to a rate for the purpose of lighting and watching. Therefore we are thrown back on the Act of Elizabeth, and we have to see whether this brickfield would have been "land" within that Act, because Lord Herschell says in the Briercliffe case (ubi sup.) that it is impossible not "to hold that the word 'land' is used in this enactment (the Lighting and Watching Act 1833) in the same sense in which it is used in the statute of Elizabeth;" and Lord Watson says that "the expressions in the proviso were intended by the Legislature, and must be taken to have the same meaning which they bear in the older statute." Under the Act of Elizabeth a brickfield could only have been rated as "land"; that was the only description under which it could have come or have been rated, and if not rateable as "land" it would not have been rateable at all. Therefore, under the Act of 1833 it can come under no other description than "land," and the whole of the judgment of Lord Herschell in the Briercliffe case-which was the converse case to the present -is the argument in favour of our contention. The argument that this brickfield is a manufactory and ought therefore to be rated as "property," is disposed of by the Southwark, Neath, and Midland Railway cases, which show that land may have capital invested upon it as a commercial undertaking and yet may not be property. The brickfield was therefore properly rated as a whole as land. As to the second point, this is a brickfield and nothing else, and there was nothing in the place except what was used solely for making the bricks, and therefore it was right not to make any separation. Morten Smith in reply. CAVE, J.-I think that the Court of Quarter Sessions has come to a right decision upon this case as it stands, because they had before them 66 [Q.B. DIV. only the assessment of this one thing as a whole, and I think, taking it as a whole, it undoubtedly was land and not buildings. The first Poor Law Act (the 43 Eliz. c. 2) provided that "the occupiers of lands, houses, tithes impropriate or propriations of tithes, coal mines, and saleable underwoods" should be rated; and so long as that Act had to be applied alone, there was no necessity to distinguish between lands and buildings, because lands were no less lands because they happened to be covered with buildings, though that might increase the value of the land as land covered with buildings. Therefore, so far as that statute of Elizabeth was alone in question, the question whether a particular subject of rateability was land or buildings did not matter, because, whether land or buildings, it was equally rateable as land. Then came the Lighting and Watching Act 1833 (3 & 4 Will. 4, c. 90), and the whole difficulty is caused by the insertion of the word "buildings " in sect. 33 of that Act. If the word "buildings" had not been inserted, that Act would have been extremely easy to construe, because "houses and property other than land" would have included houses, tithes, impropriations of tithes, coal mines, or saleable underwoods referred to in the Act of Elizabeth, and there would, consequently, have been no difficulty. The Lighting and Watching Act adds the word buildings," and that necessitates a consideration-which before had not to be attended towhether a particular subject of rateability was land or buildings. Whichever it might be, it would be a subject to be rated under the Act of Elizabeth, and remains liable to be rated under the Lighting and Watching Act; but whether it would be rated at the higher rate as a building, or at the lower rate as land, has to be considered. It is impossible not to see that the views of the judges on this subject have been somewhat fluctuating, and that they have sought to find some reason for the division made in the Lighting and Watching Act. At one time it was thought that there was a good ground of division by attributing the meaning of buildings to land used otherwise than for agricultural purposes, because it was thought that land used otherwise than for agricultural purposes was intended to be rated at a higher rate as deriving greater benefit from the application of the Lighting and Watching Act, than land in its ordinary agricultural condition did. That, however, would not hold good, because it was quite clear that coal mines were liable to be rated at the higher rate, being property other than land, but coal mines derived no benefit from the Act. So again it is clear that saleable underwood would be liable to be rated at the higher rate for the same reason, yet saleable underwood derived much less benefit from the Act than any other form in which land can exist for agricultural or similar purposes. It is difficult to find any principle, and in fact there is none. It is clear that when you get at what was rateable as land under the statute of Elizabeth, you have to see whether, although rated as land, it is really buildings or really land. If it is really buildings then it would be rated at the higher rate under the Lighting and Watching Act; but if it is really land then it would be rated at the lower rate. When we have a building alone, or land alone without a building no difficulty can arise; but when a particular subject of rateability is both Q.B. Div.] OVERSEERS OF THE POOR OF CRAYFORD, &c. v. D. AND C. RUTTER. land and buildings, that is, land with buildings upon it, then the question would be whether it ought to be considered as a building and rated at the higher rate, or as land and rated at the lower rate. It is not strictly speaking either solely land or solely buildings. It is composed of the two, and the only way to decide whether it should be rated at the higher or the lower rate is to consider whether the buildings are accessory to the land, or the land accessory to the buildings. If, for instance, we have a large warehouse with a small courtyard for the convenience of carts and waggons delivering goods at the warehouse, it is obvious that must be accessory to the building, and the whole would be rateable as a building. On the other hand, if we have a piece of land occupied as a farm and there happens to be on it, say, a shed for horses at night, then it is obvious that the subject of rateability taken as a whole is land and not buildings. In the present case the whole has been rated together as one subject of rateability, and so long as it was rated as a whole I do not see how the magistrates could have done otherwise than they have done. The engine-houses, mills, sheds, &c. are obviously put there for the more convenient Occupation and use of the land as a brickfield; and if we are to ask which is the principal and which the accessory, I have no doubt the land is the principal and the buildings are accessory to it. It may be that those who framed the rate were wrong, and that they ought to have divided up the different things; but so long as they rated it as one complete thing, I entertain no doubt the magistrates were right in their decision. If I am asked whether the officers were right in rating it as one complete thing, I am unable to give an answer upon the materials before us except as regards the house. The house is not "land," and consequently it falls to be rated at the higher rate under the express words of the statute as being a house, if it is to be taken separately. If it is to be lumped together with a large quantity of land then I must ask which is the principal and which is the accessory, and there can be do doubt that in this case the land would be the principal and this building on it, even though it is called a house, would be the accessory. But I think that is a wrong way of doing it, and if it did not give more trouble than it would be worth, the correct way would be to take the brickfield as one subject of rateability and the house as another. Taking them separately the house undoubtedly comes under the word "house" in the Lighting and "Watching Act, and is rateable at the higher rate. Then is the brickfield itself capable of still further sub-division, and can the engine house, mills, &c., be rated separately from the brickfield? We have not the materials to enable us to determine that question; but my own prima facie opinion is that they cannot, and that the engines, mills, and other buildings derive their value entirely from their capability of being used in connection with the brickfield, and that they have no other use to which they can be put. The attention of the Court of Quarter Sessions does not appear to have been drawn to this view of the case, and possibly there may be circumstances which would show some method of distinguishing them for rating purposes. That division, however, cannot be carried too far, because you may take one item and by separating it from [Q.B. DIV. the brickfield you may so reduce its rateable value, that taking it separately it is not worth a third of what it would be worth if it were taken. as forming part of the brickfield, and if it were rated separately, and not as forming part of the brickfield, it would not bring in any additional rate, but would tend to diminish the rate. Therefore there is no good trying to separate the things too much, because the part separated would be so reduced in value that the gain of being able to levy a rate threefold what would be levied if it were a part of the brickfield, would not compensate for what would be lost. I think, therefore, that the quarter sessions were right im their conclusion that, upon the matters stated in the case, this assessment is to be taken as a whole subject of rateability. With regard to the questions they put to us, as to whether the whole property shown on the plan and occupied by the respondents in connection with their brickfield, is to be rated as land at the lower rate, our answer must be in the affirmative, except as to the foreman's house, which I think ought to be rated separately and at the higher rate, provided it is worth while taking the trouble to separate it. With regard to the other matters, the facts stated hardly enable us to give a satisfactory answer as to whether they can be separately assessed and thereby shown to be buildings and buildings only. The inclination of my opinion is that the proper way is to rate them as being accessory to the brickfield and as forming part of it. If they are so dealt with, and are not rated separately, then they must be taken as forming part of the brickfield, and therefore rateable as land at the lower rate. Then the second question must certainly be answered in the negative, subject to what has been said as to the foreman's house, and to the possibility of some of these buildings being. separated from the brickfield and being made into separate subjects of assessment; but speaking generally, they ought to be rated at the lower and not at the higher rate. Then as to the third question, it may be worth while to rate the foreman's house at the higher rate and undoubtedly it is capable of being so rated; but with regard to the other things I am not able to say whether they are capable of being rated separately or not, that is, whether their whole value does not depend on their connection with the brickfield. That question must-in the words of Lord Blackburn in Reg. v Midland Railway Company (ubi. sup.) stand over for the parties to settle among themselves. If they cannot settle it, I may say that I do not entertain any doubt that the buildings are accessory to the brickfield, and that, consequently, if it has to be rated as a whole it is to be rated at the lower rate. LAWRANCE, J.—I agree. Appeal dismissed. Leave to appeal. Solicitors for the appellants, Pyke and Parrott, for J. and J. C. Hayward. Dartford. Solicitor for the respondents, H. P. Davies. (2-58) Supreme Court of Judicature. COURT OF APPEAL. Feb. 26, March 2, 4, 5, and 19. Company-Winding-up-Issue of paid-up shares -Registered contract-Consideration-Misfeasance- Contributories - Companies Act 1967 (30 & 31 Vict. c. 131), s. 25. W., M., and others, who carried on business as coach proprietors and livery-stable keepers, became desirous of turning their business into a limited company, and a contract was entered into between them as representing the vendors, and the company (in which all the vendors became shareholders), for the sale of the business, plant, &c., for 46,300l., of which 20,000l. was to be in fully paid-up shares of the company. This agreement was duly filed before the issue of any shares. The company was afterwards ordered to be wound-up compulsorily. The figure at which the coaches, horses, &c., were set down in the books of the company at its formation was about 11,000l. less than the sum allocated to this item in the agreement, and the official receiver sought to recover that amount from the vendors on the ground that to this extent the consideration was a sham. Held, that, although the technical doctrine, that payment by a debtor to his creditor of a less sum than was due did not discharge the debt, had been invoked in aid of the law which prevented the shares of a limited company from being issued at a discount, yet this technical doctrine would not suffice as a basis for the wider rule or principle that a company could not effectually release a shareholder from his statutory obligation to pay in money or money's worth the amount of his shares. Held also, that it had never yet been decided that a limited company could not buy property or pay for services at any price it thought proper, and pay for them in fully paid-up shares, and provided that it did so honestly and not colourably, and provided that it had not been so imposed upon as to be entitled to be relieved from its bargain, agreements by a limited company to pay for property or services in paid-up shares were valid and binding on the company and its creditors. Re The Heyford Company Limited; Pell's case (21 L. T. Rep. 412; L. Rep. 8 Eq. 222; L. Rep. 5 Ch. App. 11); Re The Wedgwood Coal and Iron Company Limited; Anderson's case (37 L. T. Rep. 560; 7 Ch. Div. 75), and similar decisions, considered and applied. Decision of Williams, J. (75 L. T. Rep. 652) affirmed. APPEAL by the official receiver from a decision of Williams, J., sitting as an additional judge of the Chancery Division (75 L. T. Rep. 652). The facts of the case sufficiently appear from the judgments of the Lords Justices. (a) Reported by W. C. Biss, Esq., Barrister-at-Law, [CT. OF APP. Sir Robert Finlay (S.-G.) and Buckley, Q.C. (with them Ingle Joyce) for the appellant.-The Companies Act of 1862 has not been complied with. This case does not rest on sect. 25 of the Act of 1867, but on sect. 38 of the Act of 1862, which was particularly referred to by Lord Herschell, in The Ooregum Gold Mining Company v. Roper, 66 L. T. Rep. 427; (1892) A. C. 125. Williams, J.'s attention was drawn to Smith v. Brown, 75 L. T. Rep. 213; (1856) A. C. 614, at p. 623. That case distinguished Re The Poole Firebrick and Blue Clay Company A company cannot preclude itself from requiring payment for its shares in money or money's worth: Re The Eddystone Marine Insurance Company. The decision of the Court of Appeal in Re The Almada and Tirito Company Limited (59 L. T. Rep. 159; 38 Ch. Div. 415) has nothing to do with the common law principle that a smaller sum cannot be taken in satisfaction of a larger : Lee v. The Neuchatel Asphalte Company Limited, 61 L. T. Rep. 11; 41 Ch. Div. 1 ; The Ooregum Gold Mining Company Limited v. Oakes v. Turquand, 16 L. T. Rep. 808; L. Rep. 2 The obligation of every person who takes shares in a company is that he must pay for them: (sects. 8, 12, and 38 of the Companies Act 1862). Neither by property nor by money can he pay less than the amount of the shares taken. If a company agrees to pay in cash a sum of 10,000l. for something worth only 50007., it is bound by that contract which is enforceable by the vendor. Although it may have entered into an improvident bargain, and agreed to give money in excess of the intrinsic value of the property, it can issue fully paid-up shares to the extent of that larger sum. There is nothing to prevent it from so doing. But, if the company agrees to give shares for that for which it has not agreed to give a cash price, and the shares are in excess of the real value of the property, that is tantamount to an issue of shares at a discount, and the company is not competent to do that. [LINDLEY, L.J. -I doubt if that is consistent with the old cases like Re The Richmond Hill Hotel Company Limited; Pellatt's case (16 L. T. Rep. 442; L. Rep. 2 Ch. App. 527) and Re The Richmond Hill Hotel Company Limited; Elkington's case (16 L. T. Rep. 301; L. Rep. 2 Ch. App. 511).] To hold that a company can issue shares at a discount as payment for property when it cannot do so for cash would be to drive a coach and horses through the statute. In the Ooregum Gold Mining Company v. Roper (ubi sup.) it was thought that a company could issue shares at a discount in payment for property: (see (1892) A. C. 125, at p. 140). But it is to be borne in mind that in the Ooregum case (ubi sup.) the company was not in liquidation. Herbert Reed, Q.C. (with him Ward Coldridge) for the respondent Wragg.-Where there is a contract by persons to sell their property to a company for fully paid-up shares in that company, and that contract is duly registered, it is impossible for the court to go behind it and look into evidence as to the value of the property. Unless the agreement for the sale can be impeached the shares must be treated as paid for in money's worth, and the value of the property given for the shares cannot be gone into: Re The Heyford Company Limited; Pell's case, Re The Baglan Hall Colliery Company Limited, The company could only acquire the business of Wragg and Martin at the contract price, and there is no attempt here to set aside the contract as not bona fide, as in Re The Wedgwood Coal and Iron Company Limited; Anderson's case, 37 L. T. Rep. 560; 7 Ch. Div. 75. LINDLEY, L.J. referred to Re The Theatrical Trust Limited; Chapman's case (72 L. T. Rep. 461; (1895) 1 Ch. 771).] In the various decided cases the court has always said that it will not inquire into the adequacy of the consideration. [RIGBY, L.J.-Can you reconcile that with the Ooregum case (ubi sup.)? LINDLEY, L.J.-In Re The Empire Assurance Corporation; Leeke's case (L. Rep. 11 Eq. 100, at p. 107), Stuart, V.C. criticised Pell's case (ubi sup.) and disapproved of the decision there of Giffard, L.J.] He referred also to The Hire-Purchase Furnishing Company Limited v. Richens, 58 L. T. Rep. 460; 20 Q. B. Div. 387. Eve, Q.C. (with him A. H. Carrington), for the respondent Martin, adopted the arguments adduced on behalf of the other respondent, so far as they were available. Sir Robert Finlay (S.-G.) replied. Cur. adv. vult. March 19.-The following written judgments were delivered: LINDLEY, L.J.-This is an appeal from a decision of Williams, J., refusing to hold two gentlemen, named Martin and Wragg, liable to pay up certain shares in the company held by them, and which are registered in their names as fully paid up. The question is whether these shares are fully paid up or not. Martin and Wragg were omnibus and coach proprietors, and livery. stable keepers. They were the owners of certain freehold and leasehold property, and of a considerable number of horses, carriages, and a quantity of harness and other things. Their business and the goodwill of it were worth something. They formed a limited company to buy their business and property for 46,300l. payable in cash debentures and fully paid-up shares, as will be more fully stated presently. The company was registered on the 9th Jan. 1896. Its capital was 20,000l. divided into 2000 shares of 101. each. The objects for which the company was established were stated in the memorandum of association to be to acquire and take over as a going concern the above-mentioned business and property, and with a view thereto to enter into [CT. OF APP. But and carry into effect (with such modifications as might be agreed upon) the agreement mentioned in art. 3 of the articles of association. The articles of association commenced with a statement to the same effect. [His Lordship read that statement and continued:] Art. 3 was to the effect that the directors should forthwith in the name of the company enter into and adopt the agreement referred to which had been already prepared, a copy of which was identified by being indorsed by two of the subscribers to the articles, but with power to make modifications therein. Arts. 71-93 relate to the appointment and powers and duties of directors. There were to be not less than two nor more than five. They were to be appointed by the subscribers to the memorandum of association. The directors had power by art. 81 to appoint one or more of their body to be managing director or directors at a remuneration. nothing turns on these articles. Suffice it to say that to enter into and carry into effect the agree ment referred to was not only within their powers, but was one of the first things they had to do. On the 10th Jan. 1894 an agreement was entered into between Wragg and Martin of the one part, and the company of the other part. [His Lordship read the material clauses of that agreement and continued:] There was a supplemental agreement of the same date relating to the debentures, but nothing turns on this document. The agreement which I have read was registered as required by the Companies Act 1867. The property in the schedule was transferred to the company, and the company paid the vendors 70001. in cash, and issued to them the debentures and fully paid-up shares as agreed. Martin and Wragg are respectively the registered holders of 891 and 94Î of these shares. The company is now in liquidation, and the liquidator contends that these shares were improperly issued as fully paid up, and cannot be properly so treated. No attempt has been made to impeach or set aside the agreement. Nor, having regard to the decision of the House of Lords in Salomon v. A. Salomon and Co. Limited (75 L. T. Rep. 426; (1897) A. C. 22), is it possible to hold that agreement invalid on the materials before us. The company, although a small one, promoted by the vendors and managed by them, must be treated as competent to buy the property which it was formed to acquire, and to take it at the price named by the vendors. The only question is whether the shares issued as fully paid up in part payment of the price can be treated as fully paid up. Before examining the law upon this point, I will state the grounds on which the appellant contends that they cannot. It appears from the books of the company that the stock-intrade, which by clause 3 of the agreement is taken to be worth 27,300l., was entered as of the value of 15,3751. only, and it is contended that the paid-up shares given to the vendors must be attributed in part at least to this difference of 11,000l. odd. In other words, it is contended that the company ought to be treated as having issued shares to the nominal amount of 20,000l. (the rest of the 27,3001. being cash or debentures) in payment of goods of much less value-viz., of the value of 15,000l. odd only-as both vendors and buyers well knew. I am quite unable tɔ take this view of the contract. I will assume that the stock-intrade was worth only 15,000l., i.e., that it would not have fetched more in the market. There was no agreement to buy the stock-in-trade at that price, and to pay for it in shares of a larger nominal amount. The third clause in the agreement was merely inserted for stamp purposes. It was absolutely useless and meaningless for any other purpose. No evidence is required to prove it. No lawyer accustomed to the preparation of deeds can fail to see why it was inserted or its legal effect. Stamp duty had to be paid on so much of the 46,300l. as was liable to duty, and duty was payable in respect of so much of this sum as was attributable to the goodwill, and of the freeholds and leaseholds, and of nothing else. These were valued at the respective sums mentioned in clause 3; 27,3001. remained, and the stock-in-trade remained, and the 27,300l. was attributed to that. I do not say that this was right, but whether right or wrong the third clause does not in any way alter the real agreement between the vendors and the company. The real agreement was, that the vendors should sell, and that the company should buy, the various properties mentioned in the schedule to the agreement for one sum of 46,300l., which apparently was 11,0007. odd more than could have been obtained from any other purchaser. But the parties did not appropriate any part of the purchase money to any definite part of the property purchased, nor is the court at liberty to do so. It would be wholly wrong to treat the agreement as one to pay 27,300l. for stock-in-trade, valued as between the vendors and the company at 15,3751. odd, and to attribute the whole of the share capital to the purchase of that particular item. To do this is to fasten on the parties a contract which they never made, and one, moreover, which would entirely defeat their intentions if the appellant is right in his contention. Such being the true agreement between the parties, I will endeavour to ascertain the law applicable to the case. In Leifchild's case (13 L. T. Rep. 267; L. Rep. 1 Eq. 231), a limited company bought a patent and paid for it in paid-up shares; the holder was held not to be a contributory. The agreement was not sought to be set aside, and no question as to the actual value of the patent was raised. No one apparently thought that question material. This case was decided in 1865 by Kindersley, V.C., and is valuable as showing that as early as that year it was taken for granted that shares in a limited company issued as paid up in consideration of property transferred to the company must be treated as paid up unless the whole transaction was set aside on the ground of fraud. In 1869 Drummond's case (21 L. T. Rep. 317; L. Rep. 4 Ch. App. 772) came before Giffard, L.J. sitting as the Court of Appeal, and it was then distinctly decided that even a subscriber of the memorandum of association could satisfy his liability in respect of the shares for which he subscribed by paying for them in money or money's worth, or, as Giffard, L.J. put it, in meal or in malt." This general proposition has never been doubted, but there was a difficulty in applying it to a subscriber of the memorandum of association. The difficulty was to identify the shares which he was to receive as vendor with those which he had bound himself to take and pay for by subscribing the memorandum of association. This difficulty always arises in similar cases. has never been doubted, so far as I know, that the obligation of every shareholder in a limited company to pay to the company the nominal It [CT. OF APP. amount of his shares could be satisfied by a transaction which amounted to accord and satisfaction or set off as distinguished from payment in cash. In 1867 the Legislature rendered all such transactions invalid unless they were made pursuant to a duly registered contract, but if there is such a contract the law is now what it always was. As regards the value of the property which a company can take from a shareholder in satisfaction of his liability to pay the amount of his shares there has been some difference of opinion. But it was ultimately decided by the Court of Appeal that, unless the agreement pursuant to which shares were to be paid for in property or services could be impeached for fraud, the value of the property or services could not be. inquired into. In other words, the value at which the company is content to accept the property must be treated as its value as between itself and the shareholder whose liability is charged by its means. The following are the decisions which established this doctrine. The point was first raised in 1869 in Pell's case (21 L. T. Rep. 412; L. Rep. 8 Eq. 222; L. Rep. 5 Ch. App. 11). Pell had agreed to sell his business to a limited company for a certain number of fully paid-up shares which were allotted to him, and were registered in his name. On the winding-up of the company Lord Romilly held him to be a contributory in respect of these shares, but to be entitled to an inquiry as to the value of the property given for them, and to be allowed such value but no more towards payment of them. This decision, however, was reversed on appeal by Giffard, L.J., on the ground that the agreement for the sale of the business for paid-up shares not being impeached, the shares ought to be treated as paid for in money's worth. In Forbes's and Judd's case, 1870 (21 L. T. Rep. 632; L. Rep. 5 Ch. App. 270) Lord Hatherley clearly intimated his concurrence with the view that, unless the agreement was impeached, the value of the property given for the shares could not be gone into. In Re The Baglan Hall Colliery Company, 1870 (23 L. T. Rep. 60; L. Rep. 5 Ch. App. 346) Giffard, L.J. again acted on the same principle, and there being, as he said, some confusion in the views entertained of cases of this nature," he went fully into the grounds of his decision, referring to the various sections of the Companies Act 1862, which were material. He fully recognised the obligation of a shareholder to pay for his shares, but he again held that this obligation could be satisfied otherwise than by payment in money. In that case the company had agreed to buy a colliery and to pay for it in shares, and the handing over of the colliery as the consideration for the shares was held to be payment in full: (see p. 357 of L. Rep. 5 Ch. App.). No question was raised as to the value of the colliery. In Leeke's case, 1870 (L. Rep. 11 Eq. 100) Stuart, V.C. criticised Pell's case, and evidently disapproved the decision of Giffard, L.J.; but, although Leeke's case was affirmed on appeal, the Vice-Chancellor's strictures on Pell's case were not approved: (see L. Rep. 6 Ch. App. 469). In Jones' case, 1870 (L. Rep. 6 Ch. App. 48) the Court of Appeal again adhered to the principle laid down in Pell's case (ubi sup.), Forbes and Judd's case (ubi sup.), and Re The Baglan Hall Colliery Company (ubi sup.). James, L.J. seems to have had some doubt whether he should have come |