WOOD, V.C. Nov. 13.

THE CATHOLIC PRINTING AND

read.

Where the Court refuses an interlocutory application with costs, without hearing the other side, affidavits, notice to read which in opposition has been given, and which have actually been briefed for that purpose, are to be entered as read, though not in fact read.

In this case one of the defendants had moved for the production of certain documents, and the motion had been refused with costs without hearing the other side. The consequence was, that certain affidavits which the plaintiffs and another of the defendants had given notice of reading upon the hearing of the motion, were not in fact read, and the Registrar had not entered them as read; the effect of which was that the successful parties would not be entitled to the costs of briefing these affidavits. Under these circumstances the defendant who had opposed the motion now moved that the minutes of the order might be varied by ordering the affidavits to be entered as read. The plaintiffs were served with notice of this motion.

Mr. W. M. James and Mr. Bevir, in support of the motion.

Mr. Rolt, for the plaintiffs, also supported the motion.

Mr. Willcock and Mr. Osborne opposed the motion. Where the affidavits have not been specially filed for the occasion and have not been read, it is not the practice to enter them as read. With regard to the plaintiffs, they have no right to appear at all, being represented by the same solicitor as the moving defendant, and neither opposing the motion nor moving on their own account.

Mr. James was heard in reply.

WOOD, V.C. (after conferring with the Registrar). The Registrar tells me that he considered that as these affidavits had not been filed expressly for the occasion, he did not think they ought to be entered as read. In that view I cannot concur. I take

come prepared to meet the case made by the motion, and that unless there is something which under the practice of the Court renders it wrong that affidavits should be filed at all, (as for instance where there is a motion for production of documents admitted by the answer, and affidavits are filed to prove the possession of those documents,) then, however absurd the motion may in fact be, still if the affidavits have been really briefed on the motion, they should be entered on the order as read, unless the Court should for any special reason order the contrary. I must, therefore, order these affidavits to be entered as read. The respondent must pay the costs of the moving defendant; but I do not think he ought to pay two sets of costs, and I shall not therefore give the plaintiff his costs unless he asks for them against the moving defendant. It is true I could not have varied the minutes to his prejudice in his absence, but nothing of the sort has been asked for here; he appears by the same solicitor as the defendant who has moved, and unless he chooses to ask for them against him, I shall give him no costs.

Mr. Rolt declined to ask for the costs.

Jurisdiction Committee of Lunatic's Estate-Fraudulent Dealings by-Suit in respect of Demurrer.

The Court of Chancery, in the exercise of its ordinary equitable jurisdiction, can entertain a suit against a committee of a lunatic's estate, asking for an account of his dealings therewith during the period of his committeeship.

Where, therefore, persons claiming under the will of a deceased lunatic, made prior to his lunacy, instituted a suit against the committee of his estate, whom he had appointed his executor, alleging fraudulent dealings on the part of the committee with the estate of the lunatic during his committeeship, and praying for the usual administration decree,

and for an account of his dealings with the lunatic's estate during such committeeship, a demurrer by the committee to so much of the bill as asked for the account as last mentioned, upon the ground that the Court of Chancery had not jurisdiction to take such account, and that it should be taken in lunacy, was overruled.

This was a demurrer.

The bill contained allegations to the effect that for some time previous and up to the issuing of a commission of lunacy, as after mentioned, against the late James Sign, he and the defendant John Light had been in partnership together as timber-merchants and in various other transactions, and that at the time of issuing such commission considerable balances were due from Light to Sign, in respect of their joint dealings and transactions; that on the 20th of January 1849 a commission was held, upon the petition of Light, to inquire of the lunacy of Sign, and Sign was, thereupon, found to be a lunatic; that at the time when such commission was issued, the defendants Light and Thomas Tate were aware, as the fact was, that Sign had made a will, whereby he had appointed the two defendants executors and trustees thereof; that the defendants, acting in concert together, procured the defendant Tate to be, and he was appointed committee of the person and estate of Sign; that Light had not paid the balances due from him to the lunatic at the date of the commission; that Tate had, after his appointment as committee of the lunatic, allowed Light to get in the lunatic's outstanding personal estate; that Tate did not pass any account in the matter of the said lunacy other than and except an account for the first year after his appointment, which account did not contain or in any manner refer to any of the capital sums received by Light on account of the lunatic; that the plaintiff had been unable to procure and the defendants refused to discover the particulars of such account, a copy of which was in the possession of the defendants; that Tate, as such committee as aforesaid, let the real property to which the lunatic was entitled, and received the rents for the same, but never accounted for such rents; that Tate had also received other sums of money on account of the lunatic's estate, and that

no part thereof, save as aforesaid, had been accounted for by him; that the income of the lunatic's estate was more than sufficient to pay the expenses of his maintenance, and a considerable balance or sum of money arising from such income remained in each year, and in the whole, in the hands of the defendants; that Sign, before he became lunatic, made his will, dated the 10th of August 1848, whereby he appointed the defendants Light and Tate executors and trustees thereof, and gave his real and personal estate to his trustees, the defendants, upon trust for the benefit of the plaintiffs and other persons; that the testator died on the 8th of May 1856, and his will was proved on the 12th of July 1858, by the defendant Thomas Tate alone; that upon the death of Sign both the defendants acted in the execution of the trusts of his will; that the defendants, acting fraudulently and in collusion together, resolved that the monies in the hands of Light as aforesaid, should be retained by him for their common benefit, and that, in order to avoid the necessity of Light accounting for the same, which they were aware he would be compelled to do if he proved Sign's will, such will should be proved by Tate alone, who had little or no property, and that Tate should not require Light to pay any part of the monies in his hands on account of the testator's estate; that in pursuance of such fraudulent arrangement, Tate, acting in collusion with. Light, refused to take any proceedings against Light to compel payment of the amount in his hands, on account of the testator's estate, or to procure an account of the monies received by Light in respect of such estate, and that very large sums of money arising from the testator's estate were now in the hands of the defendants, but they refused to pay the same or any part thereof. The bill prayed, first, for the administration of the estate of the testator; secondly, for an account of the dealings and transactions of the defendants respectively in respect of the testator's estate between the 11th of September 1848, the date of his lunacy, and his death, and of the monies received by the defendants in respect of such dealings and transactions; thirdly, that the clear residue of the testator's estate might be ascertained and secured in this Court for the benefit of the persons entitled

thereto; fourthly, that all proper accounts might be taken for effectuating the purposes aforesaid; and, fifthly, for a receiver.

The defendant Light put in an answer to the bill, and the defendant Tate answered so much of the bill as sought discovery and an account against him from the death of the testator; but he demurred to so much of the bill as prayed an account of the dealings and transactions with the testator's estate between the date of his lunacy and his death, on the ground that this Court had no jurisdiction, and that the proper jurisdiction was in lunacy.

Mr. Greene and Mr. Caldecott, for the defendant Tate, in support of the demurrer, contended that an account against a committee of an estate in lunacy, in respect of his committeeship, ought to be taken in lunacy and not in this Court. They referred to

Grosvenor v. Drax, 2 Knapp, 82.
Wigg v. Tiler, 2 Dick. 552.
Ex parte Gilbert, 1 B. & B. 297.
Ex parte Catton, 1 Ves. jun. 156.
Ex parte Hall, Jac. 160.

Ex parte Clarke, Ibid. 589.
In re Fitzgerald, 2 Sch. & Lef. 432.
Tharp v. Tharp, 3 Mer. 510.
Shelford on Lunacy, 417.
Elmer's Lunacy Practice, 74.
Mr. Bacon and Mr. Freeling, for the
plaintiffs, were not called upon.

STUART, V.C. (Nov. 20) said that the cases of Wigg v. Tiler, Grosvenor v. Drax and Ex parte Gilbert were distinct authorities in support of the proposition that the Court had jurisdiction in this case. This suit also asked for the administration of the testator's estate, and the accounts; the taking of which in Chancery was now resisted, could not be properly taken in lunacy, where all the proceedings were ex parte. For these reasons, and having regard to the allegations in the bill, in reference to the fraudulent dealings with the estate by the defendant Tate, and the collusion between him and the other defendant Light, he must overrule the demurrer, with costs.

This was an appeal from an order made by Vice Chancellor Stuart, on the 14th of November 1862, by which his Honour, in an administration suit, had given leave to Messrs. Clarke & Mead, claimants upon the estate of Mr. Hooper, to bring an action for the purpose of establishing their claim. The alleged debt arose upon a bill of costs for proceedings in the Divorce Court, instituted by them on behalf of the wife of Mr. Hooper for judicial separation on the ground of cruelty. The Vice Chancellor, on the hearing of a petition, ordered it to stand over, with the liberty before mentioned.

The executors of Mr. Hooper appealed.

Mr. Malins and Mr. Cracknall, for the appellants, argued that since the passing of the act, 25 & 26 Vict. c. 42. (Rolt's Act), the Court was not at liberty to send any question "of law or fact" arising in a case before it, and on the determination of which the title of any party to relief or remedy in equity must depend, to be determined in an action at law, but must itself enter on the consideration of and try the question.

Mr. Greene and Mr. Osborne Morgan, for the claimants, supported the Vice Chancellor's order.

LORD JUSTICE KNIGHT BRUCE (Dec. 4.)— Speaking only for myself, I should, if the act of parliament had not passed, have thought the order in the present suit right. But the act of parliament was not brought pointedly under the Vice Chancellor's attention, and we do not know what he would have done if it had been so. From the best consideration I have been able to give to this act of parliament while the Court was sitting yesterday, and since, I am of opinion that we are bound to read it as rendering it com

pulsory on this Court to decide the whole question. It is true the alleged creditor has in fact no option, for it was competent to him to sue at law during the life of the alleged debtor. He could then only have sued at law, and after the death of the alleged debtor he might have sued at law, but then the executor might have stopped him and required him to come in under an order or decree. But in the present case, the alleged creditor, without being compelled, did come in under the order or decree. Probably he was right in doing so. However that may be, we must, I think, under the compulsion of that act. of parliament, decide the whole matter. Probably the case will not be, in the opinion of one side or the other ripe, in the present state of the evidence for decision ; and therefore, subject to what the Lord Justice may say, I am for giving liberty to enter into further evidence.

LORD JUSTICE TURNER.--I should hesitate to give an opinion on the act had I not considered it last night. Having done so, I feel that no further delay will alter my conclusions. The first consideration in considering the act is this, what evil was the act intended to meet? It is clear that it was intended to meet this mischief. Parties who come to a Court of equity for relief, could not have their case wholly disposed of by the Court of equity, but were sent to a Court of law to determine other points on which their rights depended. I think the true construction of the act is to diminish this mischief, and extend the remedy. These principles we must consider as guiding us in the construction of the act. The act says in the preamble, "Whereas the High Court of Chancery has power in certain cases to refuse or postpone the application of remedies within its jurisdiction until questions of law and fact upon which the title to such remedies depends have been determined or ascertained in one of Her Majesty's Courts of common law." The act thus applies itself not merely to rights but to remedies given by Courts of equity. "And whereas it is expedient that the said power should no longer exist." What is the said power? The power of refusing or postponing the application of remedies within the jurisdiction of the Court." And that in all

such cases, every question of law and of fact cognizable in a Court of common law arising in the said Court of Chancery, on which the right of any party to any equitable relief or remedy depends, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right should be determined by or before the said Court itself." The only question which can arise on it is, what is the meaning of the words "any equitable relief or remedy"? The previous part of the act has spoken of remedies within the jurisdiction jurisdiction of the Court. The word "equitable" before the words "relief or remedy" does not therefore apply, except to cases where the equitable remedy depends on a legal right. The question here is, whether a creditor who comes in under a decree is not to be considered as seeking a remedy within the jurisdiction of the Court. What is the position of a creditor who comes in under a decree? There may be, on further consideration, a direction to take a further account. The plaintiff may not prosecute the suit, and the creditor who has come in may apply for leave to prosecute it. must be considered as a party who, when he comes in, is seeking a remedy under the jurisdiction of the Court. That this was the intention of the act is made more plain by the 4th section, which applies to the case of parties coming to a Court of equity on a purely legal title. There is no doubt that if a creditor filed a bill for administration, it would be the bounden duty of the Court to decide whether that purely legal debt on which the suit was founded was or was not a valid debt; and it is difficult to say that it was intended that a creditor suing on a purely legal debt should have the right to say that the Court should determine every question connected with the validity of that debt, while, when another creditor comes in under the decree on another purely legal right, the Court should have the right to insist on his going to law. I think we are, under the act of parliament, bound to determine the validity or nonvalidity of the debt, and I agree with the Lord Justice Knight Bruce, that the parties are entitled to have time to produce further evidence.

He

Joint-Stock Company-Winding upContributory-Directors-Paid-up Shares. Shares in a projected company, with limited liability, were allotted in payment of the purchase-money of property on which the intended company was about to carry on its business, and were accepted and treated by the vendor of such property as paid-up shares, and he afterwards transferred to each of the directors of the company 100 of them. One of the Commissioners of Bankruptcy in winding up the company placed the names of each of these directors on the list of contributories, and made a call upon them. On appeal, it was

held, that as the shares had been allotted to a stranger as paid-up shares, they must be so considered, and the directors' names be removed from the list in respect to them.

The directors of the company made an order awarding fees to those of their body who should attend their board-meetings, and afterwards allotted shares to those members who attended, according to the number of their attendances, which shares they deemed to be fully paid-up shares; and, on appeal, it was held, that the Court had no power to alter the agreement which had been come to, and that the shares having been issued as paidup shares must be so treated.

This was an appeal from a decision of Mr. Commissioner Goulburn, who, in the proceedings of the winding up of the abovenamed company, had placed the names of the appellants on the list of contributories, and had made an order for a call of 31. per share upon them.

The appeal was presented, by Capt. Currie, and Messrs. Hacker, Longcluse, Fitzpatrick and Parker, five of the seven subscribers to the articles and memorandum of association of the company, who had been placed upon the list of contributories and ordered to pay 31. per share on the shares after mentioned, viz., Currie on 8 shares, which, with 13 taken by him (and respectively transferred to persons named Morris, Whitaker and Waller), made up 21, the NEW SERIES, 32.--CHANO.

number subscribed for by him under the memorandum, and Hacker, Longcluse, Fitzpatrick and Parker for 21, under the same circumstances. The five appellants were also placed upon the list and ordered to pay as follows-Currie on 26 shares, Longcluse 24, Hacker 9, Fitzpatrick 11, and Parker 13, respectively appropriated to themselves as free or paid-up shares, and sought to be deducted from the 21 subscribed for, as payment or remuneration for their attendances as directors at meetings. They were also placed on the list and ordered to pay on 100 shares each taken by them from Mr. George Butcher. The sixteen months' history of the company was this. It was registered on the 31st of August 1860, and the petition for winding it up was presented in December 1861. The memorandum of association was signed by the appellants each for 21 shares. The assets of the company in December 1861, besides the plant &c. of the business, consisted of 187. at their bankers', and no more. By the articles of association every director was required to hold 100 shares in the company. The directors, the appellants, did not take or pay on any shares, except as to Capt. Currie, who alleged he took 13, which he claimed to be entitled to set off against the 21 for which he signed the memorandum. In January 1861 the appellants, in the name of the company, entered into an agreement with a Mr. Butcher for the purchase of a coal business carried on by him, with the plant and effects thereof, for 8,500l., 3,000l. to be paid in money and 5,5007. in 1,100 shares of 51. each fully paid up. This agreement was authorized by the articles of association. The appellants paid to Mr. Butcher a sum of 500l. on account of the purchase, and Mr. Butcher gave to the appellants, and transferred to them, 100 shares each of his fully paid-up shares, and the appellants were duly entered on the register of shareholders for those shares. In the same month of January 1861 the appellants passed a resolution at a board of directors that each of them should be entitled to one guinea for every attendance. They drew cheques on the bankers of the company for these fees, and took shares in the company to the amount, and paid in to the company's bankers the amount they had so received for fees. Only

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