have his shares cancelled, on the ground that the condition on which he had consented to become a shareholder, viz., the limitation of the shareholders' liability by an act of incorporation, had never been fulfilled. The directors agreed to cancel his shares in consideration of a sum of 40%., and on the 17th of April, 1849, they passed a resolution to that effect.

This resolution was never submitted to any meeting of the shareholders, but in the balance-sheet presented to the general annual meeting held on the 23rd of November, 1849, one of the items was a sum received on account of "shares cancelled." The 401. paid by Mr. Dixon formed part of this sum.

The only clause of the deed of settlement under which the directors could claim power to make such a compromise was the 164th, worded as follows:

"That it shall be lawful for the board of directors to pay or discharge any debts or claims owing by or made against the company upon any evidence they shall think proper, and to enter into or make any compromise or composition with respect to any claims made against or owing to the company, and to accept any security, real or personal, for any debt or debts owing to or made by the company, as the board shall think proper; and in case any question or dispute shall arise between the company and any other person or persons, body or bodies politic or corporate, either to refer the same to arbitration, or to settle it in such manner as the board of directors shall think proper."

The company was wound up in the year 1861.

The MASTER OF THE ROLLS said that his opinions on these cases were well known, and that he could not with propriety now recede from the opinions he had expressed in the House of Lords. The decisions of the House of Lords seemed to him to be irreconcilable, and he must determine the present case as he would have done if none of those decisions had been given.

The MASTER OF THE ROLLS (July 26) said that the case was not free from difficulty, but he thought that Mr. Dixon's name ought not to be on the list of contributories. In his opinion the compromise was not an absolutely void transaction, only voidable; and after so many years it could not be set aside.

Solicitors-Messrs. Horn & Murray, for official manager; Messrs. Kingsford & Dorman, agents for Messrs. Wilson & Farrar, Cranbrook, for Mr. Dixon; Messrs. Warry, Robins & Co., for other parties interested.

C. gave to the trustees of his marriage settlement a bond to secure the payment, three months after his death, of a sum which was settled on trust for his widow for life, with remainder to his children. C. died, and his estate was insufficient to pay even the principal due on the bond, in addition to which there was a large amount for interest due thereon:-Held, that there must be a calculation what sum, received and invested when the principal debt secured by bond had become due, would, together with the interest thereon, have equalled the amount recovered from C.'s estate at the time of such last-mentioned amount being paid, and an apportionment must be made between the tenant for life and remaindermen on that basis.

In re Grabowski's Settlement, 37 Law J. Rep. (N.s.) Chanc. 926, not followed.

SPECIAL CASE. G. H. R. Cox, in contemplation of his marriage, in 1859, gave a bond to the trustees of his marriage settlement to secure to them the payment, within three months after his death, of a sum of 6,000l. and interest at 5l. per cent. from that date.

By his marriage settlement the same trustees were to invest the said sum of 6,000l. upon receipt thereof, and were to pay the annual produce of the investments to the wife of G. H. R. Cox, if she should survive him, for her life, with remainder, in the events which happened, to the children of the marriage.

G. H. R. Cox died intestate in July, 1862, and letters of administration to his estate and effects were granted to his widow. A suit was shortly afterwards instituted, by a simple contract creditor, for the administration of his estate, and a decree made in that suit in July, 1863.

Upon taking the accounts under the decree, the chief clerk found that the trustees of the said settlement were the only specialty creditors of the intestate, and NEW SERIES, 38.-CHANC.

that there was due to them on the bond the principal sum of 6,000l. and 1,6257. 12s. 8d. arrears of interest up to the 31st of January, 1868, and that the only assets of the intestate amounted to about 5,7007. Under these circumstances the questions arose, first, whether the 5,700l. recoverable by the trustees of the settlement ought to be apportioned as between principal and interest; and, secondly, if so, upon what principle such apportionment was to be carried out. The object of this special case was to have these questions determined.

Mr. Phear, for the plaintiffs, argued that there could be no apportionment, but the whole of the 5,700l. must be treated as principal.

In re Grabowski's Settlement, 37 Law J.
Rep. (N.s.) Chanc. 926; s. c. Law
Rep. 6 Eq. 12,

was on all fours with this case.

[JAMES, V.C. said it was clear there must be an apportionment; the only question was, as to the principle upon which it was to be made. There must have been some slip in In re Grabowski's Settlement.] Mr. Speed, for the defendants, cited Turner v. Newport, 2 Phil. 14. The notion of the tenant for life being entitled to interest at 41. per cent. only, which had prevailed in that case, had no application here; for here, by the settlement, the rate of interest was named at 51. per cent. The widow was entitled to the actual proceeds of the testator's estate since the time when the bond debt became payable.

JAMES, V.C. said the true principle was, that neither the tenant for life nor the remaindermen ought to suffer any loss or receive any benefit from the delay in the administration of the estate of the deceased obligor, except so far as this was inseparable from the fact of the obligor's having made default in payment of the debt. The principal debt ought to have been paid three months after the death of the intestate obligor. The amount received would then have been invested, say at 47. per cent., and the tenant for life would have been entitled to the interim income of such investments.

4 D

This was the further consideration of a suit for the administration of the estate of a Mr. Kirkmann, whose will contained a bequest by which the testator directed his residuary personal estate to be applied in the construction of a well and in the erection of a public pump and a tank in any suitable place in the parish of Llangorse, after which the surplus, if any, was to be paid to the rector, to be expended by him for the benefit of a school in the parish.

The question was whether this was to any and what extent a good charitable bequest.

Sir R. Baggallay and Mr. Bagshawe, for the plaintiffs the executors.

Mr. Wickens, for the Attorney General, contended that this was, at any rate, a good charitable bequest to the extent of the surplus. The cost of sinking a well was

ascertainable, since persons with local knowledge could always be found who would contract for a fixed price to sink a well in a particular locality until water was reached. Such persons could therefore accurately fix what the cost of sinking a well would be; and an accurate estimate of the cost of erecting a tank and pump could also be made. Supposing, therefore, that the gift of money to sink a well and to build a tank was void, yet its amount, being ascertainable, could be deducted from the amount of the residuary personal estate, and the surplus be thus ascertained; and of this surplus there was a valid bequest to the school. He referred to

Philpott v. St. George's Hospital, 2 H.L. Cas. 338; s. c. 27 Law J. Rep. (N.S.) Chanc. 74.

Fisk v. the Attorney General, Law Rep. 4 Eq. 521.

Mr. Jessel and Mr. Bury, contra, contended that the surplus could not possibly be ascertained unless the void bequest was first carried into effect. The gift of surplus was therefore void for uncertainty. They cited

Chapman v. Brown, 6 Ves. 404.
Fowler v. Fowler, 33 Beav. 616; s. c.

35 Law J. Rep. (N.S.) Chanc. 574. Mr. Southgate, Mr. Kingdon, Mr. Edwin Cutler and Mr. Sladen, for other parties.

The MASTER OF THE ROLLS.-The gift to make a well and tank is void under the Statutes of Mortmain, as involving the purchase of land on which to do the work. I think, also, that the cost of making a well cannot be ascertained without actually sinking it. The amount of the surplus is therefore unascertainable, and the bequest of it is void for uncertainty. I must therefore declare the whole bequest of residue void.

Solicitors-Messrs. Lewis & Watson, for plaintiffs; Messrs. Raven & Bradley, for the Crown ; Messrs. Cutler & Turner, for the next-of-kin; Mr. J. Kynaston, Mr. G. H. Oliver and Messrs. J. & R. Gole, for other parties interested.

Practice-Partition Act, 1868-Service of Decree-15 & 16 Vict. c. 86. s. 42. r. 8.– Consolidated Orders, XXXV. r. 18.

The Court will not allow a sale, which has been decreed under the Partition Act, 31 & 32 Vict. c. 40, to be proceeded with until all persons interested in the suit have been served with notice of the decree, but will allow such service to be effected by advertisement upon persons out of the jurisdiction, and who cannot be found, with liberty for the plaintiffs to apply as to proceeding with the sale in case the absent parties do not come in after advertisement.

Adjourned summons. Edward Tann, by his will, gave the rents and profits of certain leaseholds to be divided equally amongst all his grandchildren. The testator, in other gifts contained in his will, proceeded to enumerate his grandchildren as the children of his various named sons and daughters, but he omitted from this list the name of one son, Edward Tann, who had emigrated to California and was believed to have died there, leaving children of whom nothing certain was known, but who were believed to have outlived the testator.

This was a suit by some against others of the grandchildren of the testator for a sale or partition, and one question raised in the suit was, whether the children of Edward Tann would be entitled. This question was still pending, but on the 30th of January, 1869, a decree was made under the Partition Act (31 & 32 Vict. c. 40.) for a sale instead of partition, and it was referred to chambers to settle the parties to be served with the decree.

The present summons had been taken out in chambers by the plaintiffs, asking that leave might be given to serve notice of the decree and of the order to be made on the summons upon the children of Edward Tann by advertisement in certain specified newspapers, and that in the mean time the sale directed by the decree might be proceeded with.

Injunction-Chancery Practice Amendment Act, 15 & 16 Vict. c. 86. s. 20.Affidavit of Plaintiff Cross-Examination -Production of Documents.

Where a plaintiff files an affidavit in support of an interlocutory motion for an injunction, and is cross-examined upon the affidavit, if he has been served with a notice to produce, on the cross-examination, all documents in his possession relating to the subjectmatter of the injunction, he may be ordered, at the request of a defendant, to produce any documents referred to in the affidavit, or which are material to the motion; although such defendant may not have had time to put in an answer to the bill, as directed by the 15 & 16 Vict. c. 86. s. 20.

The object of this suit was to ascertain the rights and interests of the plaintiff and of the defendants William Bull, Stephen James Green and the Alliance Bank (Limited), in some leasehold waterworks, at Colney Hatch Park, in the county of Middlesex, and in the machinery, pipes and appurtenances thereto belonging.

The bill, therefore, prayed (inter alia) for an injunction to restrain the Alliance Bank (who claimed to be mortgagees of certain of the pipes) from using, selling or disposing of those pipes; and for an account of the various dealings and transactions between the parties.

The facts of the case were these:

The bill in the suit was filed on the 11th of May, 1869. Interrogatories to the bill were filed on the 21st of May, and served on the solicitors of the Alliance Bank on that day. Other interrogatories were served on the solicitors of the other defendants on the 28th of May; but none of the defendants had answered the bill.

The plaintiff, however, served the defendants with notice of a motion for an injunction, in the terms of the prayer of his bill, and filed an affidavit in support of the motion. To that affidavit certain documents therein referred to were appended as exhibits.

On the 1st of June an order was made for the appointment of Mr. A. G. Langley, as special examiner in the cause. The defendants, the Alliance Bank, then took out a summons, and obtained an order for the cross-examination of witnesses before the examiner.

On the 4th of June they served the plaintiff, as one of the witnesses, with a notice to produce on the cross-examination, which was to take place on the 8th of June, "All books of account, invoices, papers and writings in his possession or power, containing any entry or entries concerning the pipes in the bill in the cause mentioned, or any or either of them; and also all letters and copies of letters in his possession or power, written by him or his solicitor to, or received by him or his solicitor from, the defendants in the cause, or any or either of them, or the solicitors of them, or any or either of them."

The plaintiff attended before the examiner and was duly cross-examined, offering no objection to the cross-examination itself, or to give any parol answers required of him. In the course of the cross-examination, however, it appeared that some documents other than the exhibits to the affidavit were thus slightly referred to in it: "This I depose to from communications received from them, and particularly from the said

William Bull." The plaintiff then said that some of those communications were verbal, and some of them written; and he admitted that he had received numerous letters from the defendants Bull and Green. Those letters and the purport of them he refused to disclose. Upon that the Alliance Bank called for all such letters pursuant to their notice; but the plaintiff declined to produce them, on the ground that the defendants had not put in their answers to his bill. The defendants also called upon the plaintiff to produce his books and invoices, which, however, were not referred to in his affidavit in any way, but such production was refused by him for the same reason. The examiner expressed his opinion to be that the documents asked for ought to be produced. The Alliance Bank thereupon applied for an adjournment of the cross-examination, and it was adjourned generally.

The cause now came on to be heard upon a motion, on behalf of the Alliance Bank, for an order directing the plaintiff to attend again before the examiner, and to produce the documents which, on his attendance before such examiner on the 8th of June, 1869, he had refused to produce; and to pay the said defendants all the costs occasioned by his refusal.

Mr. Eddis, for the Alliance Bank.—The question is whether a plaintiff, who intends to bring on an interlocutory motion, and supports it by an affidavit of his own, is not to be treated, in all respects, as an ordinary witness? Whether, in such a case, the defendants have not a right to crossexamine him upon the affidavit, and to the production by him of all documents in his possession which relate to the matters in question? I say that the defendants have such a right; and I therefore ask for an order in the terms of the notice of motion.

Mr. Greene and Mr. Nalder, for the plaintiff. This motion must be refused, with costs. By the 15 & 16 Vict. c. 86. s. 20. no order for the production of documents by a plaintiff in a suit can be made on the application of a defendant until such defendant has put in a full and sufficient answer to the bill

Halliday v. Temple, 8 De Gex, M. &
G. 96.

Turner v. Burkinshaw, 4 Giff. 399.