Justices, in order to get rid of that order. There was no pretence of there being another creditor; the company impeached the validity of the debt of the person who obtained the winding-up order. The Lords Justices felt very strongly there was very great doubt whether the debt was a valid debt; and in order to do justice, they gave time to the creditor to make out his debt more satisfactorily, if he thought fit. He was not satisfied with that, and he appealed to the House of Lords. The House of Lords agreed with the Lords Justices, that there was very great doubt about the validity of the debt; but they thought the proper mode of trying that question was, not to impose upon the creditor the duty of proving the validity of the debt, upon which he had obtained the judgment, but they cast upon the company the obligation of questioning it; and therefore in that way they altered the order, and they directed it to stand over. The winding-up order was deemed to be good, unless within a limited time the company filed a bill to impeach it. That has no bearing upon the present question. The order will be for a voluntary winding up, subject to the supervision of the Court.

Debtor and Creditor-Assignment for Benefit of Creditors-Unclaimed Dividends -Rights of Trustees-Release.

Where the trustee of a deed of assignment, executed by a debtor for the benefit of his creditors, sixty-six years after the execution of the deed, still held in his hands a fund representing the accumulations of certain unclaimed dividends payable under the deed,-Held, that the representative of a creditor, who had assented to the deed of assignment and had received certain dividends thereunder, and had executed a deed of release to the trustees thereof with respect to the dividends puid by them, and thereby authorizing them to retain a certain balance

in their hands to meet unclaimed dividends, was nevertheless entitled to an inquiry who were the persons entitled to the fund remaining unclaimed in the hands of the trustee.

This suit was instituted by the personal representative of a creditor, on behalf of himself and all other persons entitled to the benefit of a deed of assignment, which had been executed by a debtor for the benefit of his creditors in 1800, against the personal representative of the last surviving trustee of the deed, for the purpose of obtaining the distribution amongst the persons entitled thereto, or such of them as could be ascertained, of certain accumula tions of dividends remaining undistributed in the hands of the defendant.

By an indenture, dated the 7th of January, 1800, and made between Charles Bunyon (the debtor) of the first part; three trustees, who were three of the principal creditors of Charles Bunyon, on behalf of themselves and his other creditors, of the second part; and certain creditors of the said Charles Bunyon of the third part, Bunyon, amongst other things, covenanted with the trustees that if he should recover and receive a certain debt of 2,000, to which he claimed to be entitled, he would pay the same into the hands of the trustees for the benefit of themselves and the others of his creditors who should come in and accept the benefit of the deed, in proportion to their respective debts, in addition to a certain dividend, which he had thereby agreed to pay to them.

By another indenture, dated the 23rd of April, 1838, and made between certain scheduled creditors of Charles Bunyon, who had assented to the deed of 1800, of the first part; and certain persons, who then represented the trustees of that deed, of the second part, reciting that certain sums had been recovered and received by and remained in the hands of the said persons, representing the trustees of the deed of 1800, to be divided amongst the persons entitled thereto, and also that there were difficulties in ascertaining who were entitled to participate in the said trust funds; and that, after paying a certain dividend, a surplus of about 271. would remain, which the trustees should retain to answer the expenses therein mentioned, it was wit

nessed that the parties thereto of the first part released the trustees and their representatives from all the dividends they might appropriate or pay to the creditors parties thereto, or to any other persons, in pursuance of a power therein contained and from the said surplus of 277., and the trustees were thereby empowered to pay or refuse to pay the said dividend therein mentioned to any person other than the scheduled creditors parties thereto as they, in their uncontrolled discretion, should think fit, and to retain all or any of the dividends which they or he should so refuse to pay, and to appropriate or apply the same to and for such person and purposes, and in such manner as they or he should think fit, without liability to account for all or any of the said discretionary powers or authorities.

The dividend mentioned in this lastmentioned deed was accordingly paid to all such of the creditors who had executed the deed of 1800 as could then be found, and the dividends which would have been payable to such of them as could not be found were retained by the trustees, and had been accumulated in their hands. These accumulations were now represented by a sum of 6251. new 31. per cent. Bank annuities.

The bill stated that no persons could now be found who were entitled to a dividend out of this fund, in pursuance of the trusts of the deed of 1838. The plaintiff, who had been a party to the deed of 1838, as the representative of his father, one of Bunyon's largest creditors, and also one of the three trustees of the deed of 1800, now claimed to have this fund applied in the payment of a further dividend to the creditors, who had received a dividend under the deed of 1838, or otherwise for the benefit of the creditors of Bunyon, or such of them as could now be ascertained.

Mr. Southgate and Mr. Robson, for the plaintiff, contended that the fund in the hands of the trustees must be applied in further satisfaction of the claims of the plaintiff and other creditors.

[The MASTER OF THE ROLLS referred to Williamson v. Naylor (1)].

(1) 3 You. & C. 208.

NEW SERIES, 35.-CHANC.

The creditors had not intended by the deed of 1838 to allow the trustees to retain any unclaimed dividends for their own benefit, and the Court will not allow the trustees to do so

Joel v. Mills, 3 Kay & J. 458.
Burgess v. Wheate,1 Eden, 177.

Mr. C. J. Simpson (with him Mr. Baggallay), on behalf of the defendant, argued that he was entitled to keep the fund. The creditors had parted with their rights in favour of the trustees.

Mr. Southgate, in reply.

The MASTER OF THE ROLLS said that, after having looked carefully at this deed, he was of opinion that the plaintiff was entitled to a decree. In cases of this description, it was settled by authority that, in the absence of any provision to the contrary, the creditors were entitled to divide among themselves any unclaimed sums, subject, of course, to the right of any persons who had not claimed to come in afterwards, and receive what was due to them. It was contended in this case that the creditors had parted with the right in favour of the trustees; but he thought that the true construction of the deed was merely that the trustees were not to be answerable for any misconduct whatever. There was here a sum of about 6007., which, if the construction sought to be put on the deed on the part of the trustees was right, ought to be given to the three trustees, or rather to the representatives of the deceased trustees, equally; but he was not of this opinion. There must be an inquiry who were the persons entitled to the fund, and in what proportions. The trustees, however, were entitled to the 27., and to such part of the accumulations as were attributable to that sum. Costs of all parties to be paid out of the fund.

Solicitors--Messrs. Andrew & Atkins, for plaintiff ; Mr. E. Jackson Barron, for defendant.

4 G

WOOD, V.C. In re GIBSON.
May 23.

MATHEWS v. FOULSHAM.

Specific Legacy-Ademption Subsequent Sale-Purchase of similar Subject-matterWills Act, s. 24.-" Contrary Intention."

A testator specifically bequeathed certain railway stock, which he afterwards sold. At his death he was entitled to certain similar stock which the description in the will was probably sufficient to comprise :-Held, that as there had been a specific thing existing at the date of his will to which the description applied, this circumstance was sufficient to exclude the application of the general rule contained in the 24th section of the Wills Act (1 Vict. c. 26), that a will shall be construed to speak from the time of the testator's decease.

This was an administration suit.

John Gibson, by his will, dated the 17th of June, 1856, gave the residue of his estate and effects, real and personal, to trustees, their heirs, &c., upon the trust, amongst others, expressed in the following words: "To assign, transfer and deliver unto my son Joseph, now residing in Upper Canada, my one thousand North British Railway preference shares, for his own use and benefit."

At the date of his will the testator had no property exactly answering to the above description, but he was the owner of 1,000l. No. 1. guaranteed stock in the North British Railway. This stock had been substituted for 200 57. guaranteed shares in the same company. He did not own any other stock, shares or debentures in the North British Railway, or in any railway amalgamated or connected therewith.

In December, 1858, the testator sold out this stock as follows: On the 3rd of December, 5431. 10s.; on the 10th, 807.; on the 14th, 927. 10s., and 2377. 10s.; and on the 31st, the remaining part of the stock, 467. 10s.

The testator died on the 10th of November, 1862, and at that time was possessed of the following stock or shares in a company then known as the North British Railway Company, and into which the companies of the old North British Railway and of the Edinburgh, Perth and Dundee Railway had been fused by act of

parliament: 1501., North British Railway Company, new guaranteed stock; 11 Border Union guaranteed shares, of 101. each, of the North British Railway Company; 4107. North British Railway, Edinburgh, Perth and Dundee Preference Stock; 9501. North British Railway Company, Edinburgh, Perth and Dundee Debenture Stock B These stocks and shares had been created at different times, and separate registers of them were kept.

The cause now came on for further consideration.

Mr. Giffard and Mr. Daniel Jones, for persons entitled beneficially to the ultimate residue. The expression, "my one thousand North British Railway preference shares," is clearly an inaccurate description of the 1,000l. No. 1. guaranteed stock, and would have passed that fund, had it been in existence at the testator's death

Trinder v. Trinder, 1 Law Rep. Eq. 695.

In other words, the testator, by these words, meant and referred to one specific thing; that thing was adeemed, and consequently the bequest fails of effect, and these circumstances afford that indication of contrary intention required by 1 Vict. c. 26. s. 24, which prevents the Court from construing the words with reference only to the state of things existing at the testator's death

Douglas v. Douglas, Kay, 400; s. c. 23 Law J. Rep. (N.s.) Chanc. 713. Goodlad v. Burnett, 1 Kay & J. 341. Mr. Willcock and Mr. Winterbotham, for Joseph Gibson.-The expression in question is not a false description of a specific corpus, but is a slightly inaccurate generic description, and presents the very case to which the section of the Wills Act applies. See, in addition to the cases cited on the other side,

Doe d. York v. Walker, 12 Mee, & W. 591; s. c. 13 Law J. Rep. (N.S.) Exch. 153.

In re Earl's Trust, 4 Kay & J. 673. Millard v. Bayley, 1 Law Rep. Eq. 378.

Lady Langdale v. Briggs, 3 Sm. & G. 255; s. c. 8 De Gex, M. & G. 391; 26 Law J. Rep. (N.S.) Chanc. 27. But if this legacy is specific, the new stock

which the testator purchased after selling out the old will be held to be substituted for it, and to pass, pro tanto at all events, to the specific legatee

Partridge v. Partridge, Forr. 226, cited in Avelyn v. Ward, 1 Ves. sen. 420, 426.

Drinkwater v. Falconer, 2 Ves. sen. 623. We claim therefore the right of selecting 1,000l. out of the stock and shares in the North British Railway which the testator had at his decease.

Mr. E. T. Simpson and Mr. F. T. White, for other parties.

WOOD, V.C.-I remain of the opinion which I have before this expressed as to the application of the 26th section of the Wills Act. Where you find one specific thing given, that is a sufficient indication of intention to exclude, so far as this specific gift is concerned, the operation of the rule which directs that a will is to speak from the testator's decease. A contrary view would lead to almost absurd results. Suppose a man has, at the date of his will, a picture called 'The Holy Family,' by some inferior artist; that he gives this by the words "my Holy Family," and that after the date of his will, he parts with it; and subsequently, by gift or purchase, became possessed of a Holy Family, by an eminent artist, would it not be monstrous to say that the latter passed to the legatee? The construction contended for, in fact, amounts to saying that, although it is clear that the testator, when he made his will, meant one particular thing and nothing else, yet you are to stretch his words so that they may sweep in everything which the words might be held to designate, if you had to construe the will as from the date of the death merely, without reference to the state of things existing at the date of the will. That I consider far too narrow an interpretation of the words "unless a contrary intention shall appear by the will. "

To come, then, to the facts of the present case. The testator has at the date of his will a certain property, to which his words clearly relate, though his description is not quite accurate. After the date of his will he sells out this stock, and then he does not invest the whole of the

produce uno ictu in some other stock or shares of the company, but at various intervals he purchases different stock or shares, to which the words of the will might possibly have applied, if there had been nothing at all to which they were properly applicable at the date of the will. The case, therefore, is not that which Lord Hardwicke had in his mind in the case of Avelyn v. Ward, namely, a substitution of one entire fund for another entire fund; but it is a gift of a specific thing, which the testator afterwards parts with. You have a distinct reference to a distinct thing; that and that only can be considered as the subject of the bequest. I must hold, therefore, that the claim of Joseph Gibson fails.

Nuisances Removal Acts, 1855 (18 & 19 Vict. c. 121.) and 1860 (23 & 24 Vict. c. 77.)-Highway Board acting as Local Authority-Board of Health-Parties.

An annual highway board, constituted under the 5 & 6 Will. 4. c. 50, acting as a local authority, under the Nuisances Removal Act, 1855, constructed in 1859 a system of sewers, which conveyed the sewage of their district into a stream, and thus occasioned a nuisance in the adjoining district-Held, that the highway board of 1865 could not be compelled to take any steps to remedy the existing nuisance, but that they could be restrained from exercising their statutory powers so as to increase the nuisance.

Semble, the injunction would not bind persons subsequently becoming members of the highway board.

Semble, the individual house-owners who passed their sewage into the stream might be restrained from so doing.

Held, also, that the local board of health of the district injured had no locus standi as plaintiffs in a suit in which the injunction above mentioned was the only proper relief,

and that such suit ought to be by the Attorney General alone.

This was an information and bill. The relator in the former, and plaintiff in the latter, was the clerk to the Local Board of Health for the Tottenham district, by whom the board were, under the 138th section of the Public Health Act, 1848 (11 & 12 Vict. c. 63), entitled to sue and be sued. The object of the suit was to restrain the defendants from causing, or permitting, or continuing to cause or permit, any sewage from the parish of Hornsey to flow or be discharged into the Moselle, a stream which flows down through Hornsey, by Tottenham, into the Lea, and from doing, or causing, or permitting, or continuing to cause or permit anything whatever whereby or by means whereof that portion of the stream which flows through the parish of Tottenham might be polluted. It was also asked that compensation might be made to the Tottenham board for any expenses they might have been put to in attempting to remedy or mitigate the nuisance plained of.

com

The defendants were the persons who, at the time when the information and bill was filed, constituted the local board for the repair of the highways in the parish of Hornsey, under the Highway Act, 1835 (5 & 6 Will. 4. c. 50).

There was no local board of health for the parish of Hornsey, nor any town council, nor any trustees or commissioners under an improvement act, and consequently the highway board, so long as it employed a sanitary inspector, was the local authority under the Nuisances Removal Act, 1855 (18 & 19 Vict. c. 121. s. 3). In 1859, the then highway board constructed and laid down a system of sewerage for part of their parish, which is contiguous to the parish of Tottenham, and they thereby conveyed the whole of the sewage through their sewers into the Moselle, a short distance before it reached the parish of Tottenham, without any attempt to deodorize it.

Prior to the construction of the lastmentioned sewers, the houses in Hornsey were supplied with common privies, which communicated with cesspools. The cesspools were occasionally emptied, and their contents spread over the adjoining lands.

The overflow from such cesspools, if any, found its way into the open ditches in the neighbourhood, and ultimately a portion of the fluid part of such overflow found its way from such ditches into the Moselle; but by exposure to the air, and the deodorizing influence of the soil as it passed along the ditches, such last-mentioned fluid portion became, before it reached the Moselle, comparatively innocuous, and no nuisance or annoyance was occasioned thereby.

The highway board had from time to time compelled the owners of various houses to drain them through the new system, and it appeared that the present board was proceeding to compel additional houseowners to do so.

The fact that the new system of sewerage occasioned a considerable nuisance to the inhabitants of Tottenham was clearly proved, and the only question was whether the defendants were the proper persons to be sued, and what relief could be had against them.

Their status principally depended upon the following enactments:

5 & 6 Will. 4. c. 50. s. 6. "And be it further enacted, That the inhabitants of every parish maintaining its own highways, at their first meeting in vestry for the nomination of overseers of the poor in every year, shall proceed to the election of one or more persons to serve the office of surveyor in the said parish for the year then next ensuing," &c.

Section 18. "And whereas it is expedient in large and populous parishes that the repairs of the highways should be under the direction and control of a certain number of inhabitants, to be chosen and appointed as a board for that purpose, with necessary powers: Be it therefore further enacted, that in any parish where the population by the then last census, taken from the returns made to parliament, exceeds the number of five thousand, if it shall be determined by a majority of two-thirds of the votes of the vestrymen present at such meeting as aforesaid, to form a board for the superintendence of the highways of the said parish, and for the purpose of carrying the provisions of this act into effect, it shall be lawful for the said vestry to nominate and elect any number of persons, not exceeding twenty