and, of course, therefore for the company. Acting in those two capacities they hold out these propositions:-They first expatiate on the value of the mine, stating that a careful investigation has shewn what the value of the mine is. I should state they have previously described the capital to be £150,000: that is stated, in large letters, at the top of the prospectus. Having described the capital as £150,000, they proceed to describe the value of the mines, and then comes this passage, "a contract has been entered into," &c. [His Honour read the passage, which has been already extracted (supra, p. 234), down to the words "from the day of allotment."] Then the prospectus proceeds to describe the character of the mine, and the numerous reports made favourable to its prospects, representing the whole concern, as prospectuses usually do, although it is not alleged, in this case, that it represents it erroneously, for everyone seems to agree that it is a very valuable and profitable investment.

The remarkable part of the case, and that on which the Defendants' counsel have mainly relied, is this: the committee, they say, have held out to the company that they [247] may buy, for £125,000, a mine which is fully of that value. Every person who, after this, becomes a shareholder in the concern becomes a purchaser at that price. The mine can be worked at a fair profit at that price. If so, how can any shareholder say he is defrauded in having to pay a fair price for a fair profit? There is no evidence, nor is it even alleged in the bill, that any representation was ever held out to any shareholder as to the amount of what the prospectus calls the "premium.” All, therefore, of which the Plaintiffs complain is simply this, that they have had to pay the sum they all agreed to pay for property which is well worth the money. But this argument, as it appears to me, does not meet the whole of the case. The real nature of the case rests on the circumstance of Carter and Twynam, who were conusant of all the transactions, undertaking to act as agents both for the company (which they do in holding themselves forth as the committee of management) and for the persons who (as the prospectus expresses it) "incurred the risk and responsibility of the original purchase." Standing in that position Carter and Twynam are not merely representing the mine as worth £125,000. Throughout the prospectus they are representing it as worth a great deal more, as a most advantageous speculation, which they, the committee of management, have secured on certain terms-those terms being £125,000; and that sum of £125,000, they say, we have named, because, in our judgment as to what was right and proper in the transaction, we could not estimate a less sum than that, regard being had to the necessity of providing for preliminary expenses, and for a premium to the parties who incurred the risk and responsibility of the original purchase. Dealing for the company, they would be bound to keep down that premium within as reasonable bounds as they well could. They had a right to sell high, but in bringing out this concern they were bound to make a reasonable [248] contract; and, in their judgment, the reasonable contract was that the premium should be £30,000. It is not stated on the face of the prospectus, but they all swear, although it hardly required their oaths, because the facts unquestionably proved it, that they thought they were to pay the whole £85,714 to the original proprietors. Of course, therefore, they thought the premium would be the difference, after deducting the preliminary expenses (about £9286), between that sum of £85,714 and the sum which they were about to fix for the company to pay; and they, exercising their best judgment on behalf of the company on the one hand, and of the vendors on the other, say to Kantorowicz and the other vendors, "We think it reasonable, as between you, the vendors, and the company (and we are both the company and also a portion of yourselves), that the premium should be fixed at £30,000; and, consequently, that the company should pay £125,000." Observe, when the passage occurs in which they fix that sum for the company to pay, they are explaining to those who are invited to become shareholders the justification of so large a capital. The explanation applies not merely to the £25,000 provided for working capital, but also to the amount of the purchase-money. "Among other things" (they say) "we put in £25,000 for working capital. It is believed, however, that £15,000 will be sufficient, and if so, we will save it you, and will not issue the shares." Why should they not, in pursuing the same just course of dealing between the company and the proprietors, say, "We believe this £30,000 premium is right and proper, we provide for it by fixing the purchase-money at £125,000; but if the

premium can be provided without raising so large a sum as £125,000, a smaller sum shall be raised, and the shares representing the difference shall not be issued, any more than the shares representing additional working capital, in the event of no such additional working capital becoming necessary?"

[249] It appears to me to be plain that, after the prospectus was issued, which was in November, the moment any person took shares in the company he became entitled to share in all the interest the purchasers might acquire under the contract, upon their making the declaration of complete acceptance. And for this reason I do not think it material whether the declaration was made in terms for this particular purchase, because, upon the issuing of the shares in November, the moment the mine. was acquired it was acquired of course for the benefit of the company, whoever the trustees might be that might so hold it. True, it was so acquired for their benefit upon their paying the apparent price of £125,000; but two of the parties who were to participate in the benefit believed that price to be necessary in order to provide for the premium and for preliminary expenses, and, in fixing that price, believed they were providing, and intended to provide, for a premium of £30,000, and no one of the parties ever had any notion of providing for a larger premium. Then, in January 1854, when the purchase is to be completed, and the residue of the purchase-money paid, it turns out that the original proprietors, the Hunsdieckers and the widow Merttens, have only to receive a trifling balance, representing some 665 shares; but for the fraudulent conduct of Kantorowicz the premium of £30,000, as well as all preliminary expenses, might have been provided for at a price less by £20,000 and upwards than that fixed by the prospectus as the price to be paid by the company for the purchase of the mines.

I know of no case, nor is it likely that I should find one, exactly like the present; but there is a case (although I thought it had more bearing upon the present than it has) which serves to shew that the mere circumstance of the company having got all that they bargained for does not affect the matter. It is the case of Fraser v. Jones (5 Hare, 475), [250] before Vice-Chancellor Wigram. A person was indebted to a banking company, and, the banking company pressing for a security, he gave them a security, reciting, but falsely, that he had deposited the deed, of which the security consisted, with one John Jones, to secure £1000 and interest due from him to John Jones; his object being not only to reserve to himself the benefit of the security to the extent of the £1000 and interest, but also to retain the deed for future emergencies. And, in fact, he went afterwards to the identical John Jones and borrowed money of him, depositing the deed as a security. The question was as to the priorities of the two mortgagees, John Jones and the banking company, both being equally innocent. The Vice-Chancellor decided in favour of the banking company. He said it was true that the banking company would have all they contracted for, even if they were postponed, and they were in truth contending for the benefit of a rule of law, which entitled them to a better security than they expected to obtain; but, on the other hand, he could not tell what terms they would have made had they known the truth: further than that, the legal interest had been conveyed to them subject to a nonentity. If John Jones had really taken the security which the mortgagor recited that he had, and the mortgagor had afterwards paid off that charge, the company would have taken the property.

The case was eventually determined upon this latter ground, viz., by reference to the legal interest of the parties; but it is an authority for the proposition that, even in the case of persons equally innocent, the circumstance that the one who comes into equity for relief will lose no part of his bargain if that relief is withheld is not an answer to a case of this description. Here the company get their whole bargain, even if they pay £125,000 for the mine; but they had a right, as against the members of the committee of management, to the best bargain that the latter, had they [251] known the facts, would have been in a position, acting fairly and rightly, to give them. The committee, one and all, distinctly depose, and Werninck and Moriarty depose, that their intent was thus to act. They comprise four of the five parties to the original contract for the purchase of the mine, and any three can sell. All of the parties, I may say, agreeing to the sale for this particular purpose, it is not competent to Kantorowicz to keep back the transaction by which he gets this bonus of £20,000 in

addition to his share of the premium. Having kept back that transaction, he must be taken to have joined with his co-vendors in contracting for the £30,000 premium, and no more. He has allowed them, in the exercise of their judgment as to what was a right premium to demand of the company, to contract with the company for the £30,000; and that contract, as it appears to me, is the one which ought to be performed as between the company and the Defendants, Carter and Twynam, and the other parties who concurred with him in the original purchase.

That being so, the assignment by Kantorowicz of the promesse d'actions, as it was a fraud against Carter and Twynam and the rest of his co-purchasers, so was it a fraud against the company, who had, through the agency of the vendors, a contract for the purchase.

The case is not free from difficulty, but I think that is the plain sense and honesty of the transaction.

Declare that the Defendants, Kantorowicz and Kalb, respectively, are not entitled, as against the Plaintiffs and the other shareholders in the company, to the benefit of any of the 10,725 shares contracted to be given by the promesse d'actions in the bill mentioned, for that such promesse d'actions is fraudulent and void as against the Plaintiffs and such other shareholders, except so far as the same relates to 665 shares in the company secured or promised to be allotted to the widows Hunsdiecker and Merttens, and Leopold Hunsdiecker, the original vendors of the mines in the bill mentioned.

[252] Declare that the Defendant, Harris, is entitled, under and by virtue of the letter of the 15th of June 1853, and the indenture of the 20th of July 1853, in the pleadings mentioned, to a charge on the 2425 shares in the company, and the sum of £802, 3s. 9d. now in the hands of the Defendants, Carter and Twynam, as a security for any moneys due to him under and by virtue of such letter and indenture; and that, subject to such charge, the Plaintiffs, on behalf of themselves and the other shareholders in the company, are entitled to a lien on the last-mentioned shares and sum of £802, 3s. 9d., by way of indemnity against any demand which may be made by the Defendants, Kantorowicz and Kalb, or either of them, for a transfer or allotment of shares in respect of the promesse d'actions, and also in respect of this suit, and the two suits of Kalb v. Kantorowicz and Kantorowicz v. Carter, but not including the costs of the suit in the Prussian Courts.

Dismiss the bill in Kantorowicz v. Carter, with costs.

[252] SMITH v. LIDIARD. Feb. 26, March 9, 1857.

[See In re Standley's Estate, 1868, L. R. 5 Eq. 310; Adney v. Greatrex, 1869, 38 L. J. Ch. 416; Wells v. Wells, 1874, L. R. 18 Eq. 506; Merrill v. Morton, 1881, 17 Ch. D. 387; In The Goods of Ashton [1892], P. 88; In re Cozens [1903], 1 Ch. 138.]

Will. Class. Nephews and Nieces.

A testatrix, having given legacies to several persons by name, describing each as her niece, bequeathed her residuary personal property upon trust for her respective "nephews and nieces," in equal shares. Two of the legatees in the will called nieces were nieces not of the testatrix, but of her late husband. Held, that the circumstance that the testatrix had, in her will, called these two her nieces did not enlarge the meaning of the words "nephews and nieces" in the residuary bequest, so as to make it include all the nephews and nieces of her husband living at her death, nor even to include the two legatees whom she had called her nieces in the will.

Anne Andrews, widow, by her will, dated in 1855, gave to the Plaintiffs, George Smith and James Andrews, all her personal estate, upon trust to get in and convert the same, and to stand possessed thereof, upon trust, for the payment of her debts, legacies and funeral and testamentary expenses; and the will then proceeded as

follows:-"I give and bequeath the following legacies, or sums of money, unto the several persons hereinafter mentioned: (that is to say) unto my three nieces Lucy Lidiard, Martha Beck, and Mary Burfitt, the sum of £1000 each, to and for their respective uses and benefits; unto my niece Emilie Andrews, daughter of Henry Andrews, of Windsor, the sum of £500, to and for her sole use and benefit; unto my niece Louisa Walters, another daughter of the said Henry Andrews, the [253] sum of £500, to and for her sole use and benefit; unto my four nieces, the daughters of John and Lucy Butler, residing at Swindon, Wiltshire, the sum of £200 each, to and for their respective use and benefit; unto Charles Andrews, of the High Street, Cheltenham, aforesaid, bookseller, the sum of £500, to and for his own use and benefit; and as to the residue of my said personal estate, consisting of money, upon trust, that my said trustees shall divide the same between my respective nephews and nieces, in equal shares and proportions, share and share alike; I give unto the said Mary Burfitt my diamond ring, with five stones, and my silver tea-service to match; unto the said Martha Beck I give my green and white ring, and my silver dressingcase; I give unto the said Lucy Lidiard my black and white ring, with brooch to match, a plain silver teapot, and my silver teaspoons; and to the said Mary Burfitt and Martha Beck I give the rest of my silver spoons; and as to the rest of my jewels, trinkets, and wearing apparel, I give the same to my several nieces, equally to be divided between them by my said trustees; and I nominate and appoint the said George Smith and James Andrews executors of this my last will and testament. give and bequeath all my linen to my nieces Lucy Lidiard, Martha Beck and Mary Burfitt, equally to be divided between them."

The bill in this suit was filed by the executors.

I

The questions were, whether the bequests of the residuary personal estate, and of the rest of the jewels, for the benefit of the nephews and nieces of the testatrix, intended to comprise as well the nephews and nieces of her husband as her own nephews and nieces. Emilie Andrews and Louisa Walters were children of a brother of the testatrix's late husband, and were not related by blood to the testatrix. Lucy Lidiard, Martha Beck, Mary Burfitt, Martha Jane Butler and John Butler were children of sisters and [254] of a brother of the testatrix, and were related to her by blood.

Mr. J. H. Law, for the Plaintiffs, the trustees and executors of the testatrix.
Mr. Amphlett, for some of the nephews and nieces of the testatrix.

Mr. Surrage, for others of the same class, referred to Shelley v. Bryer (Jac. 207). Mr. Brodrick, for nephews and nieces of the husband of the testatrix, some of whom were named in the will, argued that all were included, or, at any rate, those mentioned in the will, and whom the testatrix had thereby herself referred to as her nephews and nieces. He cited Hussey v. Berkeley (2 Eden, 194), James v. Smith (14 Sim. 214), Meredith v. Farr (2 Y. & C. C. C. 525), Evans v. Davies (7 Hare, 498), and Owen v. Bryant (2 De G. M'N. & G. 697).

Mr. Amphlett, in reply.

THE VICE-CHANCELLOR reserved judgment.

March 9. VICE-CHANCELLOR Sir W. PAGE WOOD. In this case the only point that remained to be determined was whether or not, under the residuary bequest to nephews and nieces of the testatrix, the nephews and nieces of the testatrix's husband could take.

The authority most in favour of the contention on behalf [255] of the nephews and nieces of the husband was the case of James v. Smith (14 Sim. 214), in which, a testatrix having described one grand-niece as her niece, and having subsequently made a gift to nephews and nieces, the Court held that grand-nephews were to take under the description of nephews, because the testatrix had indicated, by her will, who they were that she conceived were related to her in that degree. That by no means goes the whole length of the argument in this case, which would introduce entire strangers in blood, not only those born at the date of the will, but those who should come into existence subsequently to the date of her will and before her death, to equal participation with the testatrix's own nephews and nieces.

There is no case precisely like this; but the decision in The Corporation of Bridgnorth v. Collins (15 Sim. 541) assists in throwing some light on it, though it is not so

strong against the claim of the persons there called "cousins" as the circumstances here are against the claim of the nephews and nieces by marriage. A question arose in that case, as to whether first cousins once removed could be let in under the description of second cousins, and the Vice-Chancellor held that they could not. The argument in favour of the first cousins once removed was, that they were not only as nearly related as second cousins, but that the testator had, in one part of his will, called persons not related to him at all "cousins," raising an indication of his intention to include in that description a large class of persons. The Vice-Chancellor says, "The testator may have called some persons his cousins who were not so, but that only shews that he made a mistake as to them; my opinion is that those only who stood in the relationship of second cousins of the testator are entitled to share in the fund;" that is, he thought that naming persons "cousins" in the will, who [256] were not cousins, did not enlarge the operation of the word "cousins" in the gift to

them as a class.

Can it be safely inferred here, from the mere circumstance of some strangers in blood being described by terms of affection as the testatrix's own nieces, that it was her intention to let in all other strangers in blood, who stood in the same relationship to the husband as these persons? I think that I am not at liberty to let in a large class of persons, merely from the circumstance of her having selected some of the class as objects of her favour, and having bestowed on them, although her husband's nieces and not her own, the title of nieces.

The more difficult question was whether the specially favoured individuals described as nieces, who were only nieces of the husband, could claim to participate in the residue under that designation. I do not think I can so decide, because it is similar to those cases where there are gifts to illegitimate children by the description of children, and then a bequest to all the children of the reputed parent, and yet the illegitimate children previously named have been excluded. In one case, Owen v. Bryant (2 De G. M'N. & G. 697), where the word "said" occurred, which referred back to the children before designated, they were admitted; but in another (Meredith v. Farr, 2 Y. & C. C. 525), although there was an illegitimate child of a particular female named, yet it was held that a gift to "all her children" would not include illegitimate children, or apply to any but subsequently legitimate children. These decisions do not depend on the doctrine of an illegitimate child being filius nullius, because I take it, where the illegitimate child is described as the child of the mother, the parentage can be ascertained as that of the mother and not of the father. Here the testatrix has chosen to benefit particular persons, calling them her nieces, [257] who are not any blood relations at all; and then she has made a general bequest to nephews and nieces, not confining it to those named before (for no nephews had been named at all); and I cannot hold that under that general gift nephews and nieces of the husband can be included. I must therefore make a declaration in favour of the proper nephews and nieces of the testatrix.

[257] BENDING v. BENDING.(1) March 24, 26, 1857.

[S. C. 26 L. J. Ch. 469; 3 Jur. (N. S.) 535; 5 W. R. 435.]

Will. Dower. Election.

Powers of or trusts for sale, created by will over real estate, are not (as leasing powers have been held) inconsistent with a widow's right to dower.

Nor is her claim affected by any direction as to the distribution of the proceeds. There is no such rule as that, where a testator's widow is entitled under his will to what would exceed her dower, she is thereby put to her election. Where a testator, by his will, directed his trustees to sell "all his freehold and copyhold estates wheresoever situate," and gave his widow half of the proceeds, and also half of all his personal property (except certain articles specifically bequeathed to

(1) See 1 Jarm. on Wills, pp. 382 to 393.