not have been entitled to the use of the words "New Sarum Bank;" but provided there was then no Bank in Salisbury called the "Old Sarum Bank," he might have changed the word "new" into "old," and carried on his business under that name and exactly in the same place. It is therefore easy to see, that the price which could have been obtained by a sale of the goodwill, that is, for the right to carry on the business under the name of the "New Sarum Bank," with the chance of retaining the customers of the former Bank, was exceeding small, not to say infinitesimal.

But that would not conclude the question; because if, in point of fact, the business has been sold, a portion of the purchase-money may be attributable to that particular right, which did not exclusively survive to Mr. Everett, and one-half of this would belong to the estate *of the testator. It follows therefore that it would be necessary to ascertain, by inquiry, what portion of the 10,000l. was properly attributable to the goodwill of the business, but having regard to the fact, that Mr. Everett could, after the sale, carry on the same business alone, with a very slight alteration in the title of the firm, and that he could have done so on the same premises, and, in addition, that he alone had the right to continue to issue bank notes, and that he alone could confer that right upon any other person. How much of the 10,000l., after estimating the value of all those rights, would remain to divide between Mr. Everett and the estate of the testator it is impossible for me to state.

I am of opinion, that this would be the right of the plaintiff, and, if there were nothing further in the case, I should simply make a declaration to that effect. But it appears that, the testator having died in July, 1856, his capital in the concern was retained until November following, when it was paid to two of his executors with interest from the death of testator down to that time. I am of opinion, that the interest must be taken as paid in lieu of the profits made by the testator's capital during that interval, and that it must be treated as having been accepted as such, and the persons who accepted it cannot now give it up, and require a share of the profits in lieu of it. I also find, that the business was sold by Mr. Everett to Messrs. Pinckney in January, 1857, and that this was known to the plaintiff and to the executors not later than March, 1857, and in that month a balance sheet, including the profits down to the death of the testator, was sent by Mr. Everett to the executors, who appointed a person to examine the accounts. The books at the Bank were examined in May, for the purpose of ascertaining whether the account was correct, and in November the two executors *adopted

the account, and it was settled by Mr. Everett's paying them the testator's capital and share of the profits due at his death, and interest from that time in lieu of profits.

I am of opinion that the settlement in November, 1857, followed by the payment of the balance with interest on it, finally concluded the account between the estate of Mr. Smith and Mr. Everett, in respect of the testator's capital, and share of the profits up to that day.

That settlement of accounts was made by the two executors alone, but I am of opinion that it concludes the plaintiff, and for this reason: two out of the three executors joined in that transaction, and it is a settled principle with respect to the power of executors, that any one of several executors may settle an account with a person accountable to the estate, and that such settlement is binding on the other executors. In Herbert v. Pigott (1), executors brought an action against a debtor to the testator's estate; two of the executors released the debt; and it was held to be binding. Although a question, which I apprehend is now settled, has been raised, whether the same principle extends to one of several administrators, still there can be no question that one of several executors has power to act so as to bind the estate, subject of course to any question of his liability to the parties interested in the estate for any impropriety of conduct, and subject to this also, that if there be any fraud or gross error in the settlement of the account it may be a ground for reopening it.

I am of opinion, that the two executors had power to bind the plaintiff in his settlement of accounts in November, 1857, and that she is bound thereby; but I wish to read the evidence, in order to ascertain whether that settlement of account included or was intended to include that portion, however small it may have been, of the good-will which belonged to the estate of the testator. If the two executors considered they were settling all the claims of the estate of the testator, including everything relating to the partnership, I should be of opinion that it concluded the matter.

THE MASTER OF THE ROLLS:

The perusal of the evidence does not satisfy me that the good-will of the business, or so much of it as belonged to Mr. Smith, was included in the settlement of accounts of November, 1857. It is clear that the solicitors of the two executors thought there was nothing more to be settled, and they probably thought that the good-will was worth nothing, and probably it was (1) 2 Cr. & M. 384.

SMITH

v.

EVERETT.

[455]

June 20.

worth but little, after making the deductions and with the qualifications which, on a former occasion, I stated must be made. I consider that the burthen of proof lies on Mr. Everett to show that the value of the good-will was included, and, at present, he has not done it. I shall therefore direct the following inquiries:

First. Whether the settlement of the 5th of November, 1859, included the good-will belonging to the testator in the business? And if it shall appear that it was not so included, I shall declare that the estate of Smith is entitled to so much of the 10,000l. as was paid in respect of Smith's share in the good-will of the business.

I must then direct an inquiry how much of the 10,000l. was paid in respect of the share of Mr. Smith *in the good-will of the business, having regard, in making such inquiries, to the following facts:

1. That the premises in which the partnership business was carried on belonged to the defendant Mr. Everett.

2. That the defendant Mr. Everett was entitled to carry on the business of a banker at Salisbury, in the same premises, after the good-will had been sold.

3. That there survived to Mr. Everett the sole and exclusive right of issuing notes.

NOTE. By the certificate, dated the 22nd of December, 1859, it was found, first, that the settlement did not include the goodwill; and secondly, that, having regard to the facts stated in the decree, 2,000l. was paid in respect of the share of Mr. Smith in the good-will of the business.

MACLAREN v. STAINTON.
(27 Beav. 460---464.)

[Reversed on appeal, as reported in 3 D. F. & J. 202.]

1859. March 4.

LUND'S CASE.

IN RE THE MEXICAN AND SOUTH AMERICAN
MINING COMPANY.

(27 Beav. 465-471; S. C. 28 L. J. Ch. 628; 5 Jur. N. S. 400; 7 W. R. 333.)

The shares of a Company were transferable by delivery. After the Company was in difficulties and a few days before an order was made to wind it up, a shareholder transferred 100 107. shares out and out at a nominal price to his foreman in order to escape from applications for future calls. The shares were fully paid and there was no reservation of any interest in the shares to the transferor, and no agreement by him to indemnify the transferee, who was informed of the transferor's object and intention, and who was willing to accept the shares

as absolute owner: Held, that a transfer thus made to escape future liability could not be sustained as a bona fide transfer, and that the transferor remained liable as a contributory in respect of the shares. [Fully stated by PARKER, J., in In re Discoverers Finance Corporation [1908] 1 Ch. p. 148, and expressly overruled by the Court of Appeal in In re Discoverers Finance Corporation, Lindlar's case [1910] 1 Ch. 312, 79 L. J. Ch. 193, 102 L. T. 150. In the principal case both the transferor and the transferee swore that the transfer was intended to pass the whole beneficial interest to the transferee.-O. A. S.]

LUND'S

CASE.

ARMSTRONG r. STORER.
BAZALGETTE

. ARMSTRONG.

(27 Beav. 471-473.)

The costs of all parties were, in 1857, ordered to be taxed and paid out of a fund in Court, and the residue was directed to be paid to the parties entitled. Solicitors, who had acted for some defendants down to 1840, had no notice of the order, and their costs had been omitted in the taxation. Upon their petition, these costs were ordered to be taxed and paid by the parties to whom the residue of the fund had been paid over.

MESSRS. KINDERSLEY & Co. acted as solicitors in these suits for William Gordon (one of the executors of the testator) down to his death in May, 1837, but they were not concerned for his administrator Jeffreys, against whom the suits had been revived. They also acted as solicitors in the suit for Anthony Morris Storer, Elizabeth Storer, Ann Storer and Margaret Storer, down to August, 1840, but they took *no proceedings for them after that time, though they were not formally discharged.

By the decree for further directions, made on the 2nd of August, 1858, the costs of all parties of the said suits were ordered to be taxed and paid out of the funds in Court.

The costs of the defendants Anthony Morris Storer, Elizabeth Storer, Ann Storer, Margaret Storer and Evelyn Bazalgette were ordered to be paid to Mr. George Burrow Gregory (who was stated in the decree to be their solicitor); but no direction was given as to the payment of William Gordon's costs; and the residue of the funds in Court were ordered to be paid to the plaintiff Armstrong and the defendant Bazalgette; and any of the parties were to be at liberty to apply to this Court as they might be advised.

The costs were taxed and paid, but they did not include the costs of Messrs. Kindersley & Co., who were not aware of the proceeding. The residue was paid over, as directed by the

order, to Armstrong and Bazalgette.

Until November, 1858, Messrs. Kindersley & Co. had not become aware of the proceedings which had taken place in the suits, but they then ascertained that one of the firm of Messrs. Gregory (the solicitors of Mr. Bazalgette) had acted as solicitors

1859. March 24.

Rolls Court.
ROMILLY,
M.R.

[ 471 ]

[ 472 ]

ARMSTRONG for the four Storers, though no order had been obtained to change solicitors.

V.

STORER.

[ *473 ]

1859. May 12.

1859. Nor. 18.

Rolls Court.

ROMILLY,
M.R.
[486]

Messrs. Kindersley presented the present petition, praying a reference to the taxing Master to tax, as between solicitor and client, the costs of the late defendant William Gordon of the first and second above-mentioned *suits, and the costs of the defendants Anthony Morris Storer, Elizabeth Fanny Storer, Ann Storer and Margaret Storer incurred in the second abovementioned suit in and prior to the month of August, 1840; and that the amount of such costs, when taxed, might be paid to them by Armstrong and Bazalgette.

Mr. Osborne and Mr. Wolstenholme, in support of the petition, cited Ezart v. Lister (1).

Mr. Lloyd and Mr. Stevens, contrà.

The MASTER OF THE ROLLS ordered the taxation, as between solicitor and client, of the costs of the defendants Anthony Morris Storer, Elizabeth Storer, Ann Storer and Margaret Storer incurred in the second suit in and prior to the month of April, 1840, and the costs of this application, and that the amount should be paid by Armstrong and Bazalgette out of the funds in their hands. But no order was made as to the costs of William Gordon, the decree not having made provision for the payment of his costs to any solicitor (2).

IN RE THE MEXICAN AND SOUTH AMERICAN

COMPANY.

IN RE ASTON.

(27 Beav. 474-485.)

[Affirmed on appeal, as reported in 4 De G. & J. 320.]

THOMPSON v. ROBINSON (3).

(27 Beav. 486-487; S. C. 29 L. J. Ch. 280; 5 Jur. N. S. 1196; 1 L. T. N. S. 121; 8 W. R. 34.)

A testator devised an estate to one for life, and afterwards to be gold, and the proceeds equally divided between "his surviving nephews and nieces." He had, in another part of his will, designated A. and B., (who were really his great-nephew and great-niece,) as his nephews and nieces: Held, that A. and B. did not participate in the proceeds. THE testator devised some hereditaments at Fell Dyke and at Moorfield to his sisters Mary and Ann, successively, for life, and afterwards to his nephew Joseph Pearson. But if Joseph

(1) 59 R. R. 570 (5 Beav. 585).
(2) Reg. Lib. 1858, A., fol. 1272.
(3) In re Standley's Estate (1868)
L. R. 5 Eq. 303; Merrill v. Morton
(1881) 17 Ch. D. 382, 50 L. J. Ch. 249,

43 L. T. 750; In re Cuzens, Miles V. Wilson [1903] 1 Ch. 138. But see contra, In re Jodrell, Jodrell v. Seale (1890) 44 Ch. D. 590; affirmed [1891] A. C. 304.