such of them as have been, but are not now, in their possession, custody, or power, and when they last heard of the same respectively, and in whose possession, custody, or power the same were or was when they last heard thereof. The answer to these interrogatories was as follows: We are ready to make the usual affidavit as to documents in our possession, and to produce the same, when required to do so, according to the practice of the court. t The plts. excepted that the defts. had not by his answer answered the former of the above interrogatories, that they had not set forth a schedule, and that they had not in a schedule distinguished the several particulars. Baily, Q. C. and Renshaw, in support of the exceptions, cited Read v. Woodroffe, 24 Beav. 421. [V.C. K. only one exception or many; I do not think it makes any difference. There is, it is true, no decision on that point; but that is the view which Wood, V. C. seems to have taken. I think it depends on whether the deft. pretends to answer or not; if he does, the plt. ought to be allowed to except; but where he does not answer, and expresses his readiness to make an affidavit, as in this case, and an exception is taken, I think the court ought not to allow it. By this course I think I am carrying out the view of Wood, V. C. Overrule these exceptions. The costs to be costs in the cause. Solicitors: Walters; Taylor, Mason, and Co. Feb. 17, 18. HOARE v. Osborne. Charitable bequest-Perpetuity-Church windowMonument-Vault-Chancel-43 Eliz. c. 4, Cust, for the defts., maintained that the proper | A testatrix, after desiring her trustees to place an ornacourse under the new practice was to obtain production of documents in chambers, and that it was therefore unnecessary to answer these interrogatories. He cited Law v. The London Indisputable Life Policy Company, 10 Hare, app. xx.; Perry v. Turpin, Kay, app. xlix.; Baily, Q. C. in reply. The VICE-CHANCELLOR.-With respect to the general rule, there is no doubt. Wood, V. C. has referred to the new mode of getting that discovery which before could only be obtained by a charge and interrogatories founded upon it in the bill. There is now a new practice, by which you may do the same thing very summarily and more cheaply by an affidavit in chambers, which has this advantage, that in case a question arises as to the sufficiency of the discovery proposed to be given, that question can be dealt with much more summarily and cheaply in chambers than by excepting and arguing those exceptions in court. Another reason is, that if a considerable time has elapsed, as has been the case in some suits, between the time of the coming in of the answer and the time when the matter is to be dealt with finally by the court, it is sometimes necessary, after months, perhaps, that there should be an affidavit as to documents bringing the discovery of documents down to that time, because it may be that other documents have come into the deft.'s possession, and it is much better that they should be made the subject of an affidavit than of an answer, to say nothing of the risk, after having dealt with it by interrogatory and answer, of having to make an affidavit. I think I must say that the introduction of the new practice ought to be observed by draftsmen in drawing bills as well as answers, and that the bill should not embrace such an interrogatory. But supposing it is introduced, then comes the question, what ought the answering draftsman to do? should he answer it or not? He may profess to answer it sufficiently, but it appears to me, if he does so insufficiently, the plt. has a right to deal with it by exception, where it is part of a string of exceptions applicable to other charges of the bill. But where it is the single exception, and the deft. takes the course which I think he is justified in taking, saying, "I do not answer, because I am ready to give an answer by affidavit, which is a cheaper mode." I think that he is acting justifiably, in accordance with the view taken by Wood, V. Č., and the reason of the thing, founded on the change of practice, and, if so, the plt. ought not to take an exception on that ground. I confess I do not see what the difference in practice is, whether there is mental window in H. church, directed them to invest 6001. upon trust, that the minister and churchwardens of H. should apply the dividends thereof towards keeping, in good repair and condition for ever, the monument in H. church, the vault in H. in which her mother was interred, and the ornamental window; and if any surplus of such dividends should remain, should apply the same towards keeping in repair and ornamenting the chancel of H. church. The trustees erected the ornamental painted window. The vault was assumed, in the absence of evidence, to be in the churchyard and not in the church: Held that, on the decided cases, the gift to repair in perpetuity the vault was void, not being a charitable use: Held also, that the gift to repair the window (as being part of the fabric of the church) was good as a charitable bequest; that the gift to repair the monument was also good as a charitable bequest, it being for the public benefit that monuments in churches should not fall into decay; and that the gift to repair the chancel was also good as a charitable bequest : Held further, that the fund must be divided into thirds, of which one-third would fall into the testatrix's residuary estate; and the income of another third must go to the repair of the monument; and the income of the remaining third to the repair of the window, and any surplus that might remain to the repair of the chancel. The question upon this petition turned upon the validity of a bequest contained in the will of Mrs. Amelia Freeman, of 600l., the interest of which she directed should be applied towards keeping in repair a vault, a monument, and a window at Hungarton church. The suit of Hoare v. Osborne had been instituted for the administration of Mrs. Freeman's estate, and questions upon the construction of different portions of her will have been reported, 10 L. T. Rep. N. S. 20, 258. The bequest at present under consideration was as follows: I desire that an ornamental painted window may be placed in Hungarton church, the design and cost at the discretion of for the time being shall invest the sum of 6007. in Three per the trustees. And also I direct that my said trustees or trustee Cent. Consolidated Bank Annuities, in their or his names or name, upon trust to authorise and empower the minister and churchwardens for the time being of the parish of Hungarton aforesaid, to receive the dividends thereon from time to time, and apply the same in keeping in good repair, order, and condition for ever, the monument of my dear mother in Hungarton church, the vault in Hungarton aforesaid, in which she is interred, and the ornamental painted window; and if any surplus of such dividends should at any time remain, to apply the same towards the keeping in repair and ornamenting the chancel of the said church. The trustees had erected the window in com V.C. K.] HOARE v. Osborne. pliance with the directions in the will, but as it was doubtful whether the bequest of the 6007. was not void, they presented this petition for the determination of the question by the court. There was no evidence on the question whether the vault above referred to was situate in the church or in the churchyard, and the V. C. intimated, in the course of the argument, that he must assume that it was in the churchyard, unless the contrary were proved. Toller, Q. C. and C. C. Barber, for the petitioners, stated the terms of the gift, and submitted the question to the court. Schomberg, for the Messrs. Osborne, the residuary legatees, who, it was stated, did not personally wish to oppose the laying out of the 6007. in the manner directed, submitted to the court that the M. R. had in the two cases of Rickard v. Robson, 31 Beav. 244; 7 L. T. Rep. N. S. 87; and Fowler v. Fowler, 33 Beav. 616; 10 L. T. Rep. N. S. 682, held such a gift to be void as tending to a perpetuity. Bazalgette, Q. C. and C. Hall, for Mr. Freeman, the husband of the testatrix, in the same interest with the legatees, also submitted the question to the court, and referred to Lloyd v. Lloyd, 2 Sim. N. S. 255, as a decision that a gift to keep a tomb in repair was void. W. Pearson, for the Rev. Mr. Ashby, the lay impropriator of Hungarton church, insisted that the gift was good in its principal part, if not in its entirety. In the cases that had been cited, the gift had been to maintain a tomb, and the surplus to be given over; but here the dividends were to be applied towards keeping in repair a monument and an ornamental window, both of which were already erected. A gift to repair an ornamental window was good as a charitable bequest, a window being part of the fabric of the church, and gifts for the repair of churches were expressly mentioned in the 43 Eliz. c. 4. A gift to repair the ornaments of a church was good, and the monument being fixed in the wall of the church, had become a church ornamentation. A gift to repair the chimes of a church, and a gift to put up a gallery, had been held to be good as bequests to a charitable use within the statute. With respect to the repair of the vault, the point was not argued in Fowler v. Fowler, the counsel for the rector commencing his argument by admitting that the trust to repair the graves was void. In Rickard v. Robson the point was not much contested, and the case was decided on the authority of Lloyd v. Lloyd, which was distinguishable, inasmuch as it was a gift of real estate by will, and, whether charitable or not, was equally void. He maintained that, in the event of the gift for the repair of the vault being held not good, the entire gift was good as to the other trusts. He referred to the following cases and authorities: 85th Canon; 43rd Eliz. c. 4; Turner v. Ogden, 1 Cox. 316; [V.C. K. intention to constitute a charity. This is a peculiar case, although there is no difficulty as to the general principles of law on the subject. The question is, whether the bequest of 600%, the trusts of which are trusts which would require it to be kept in perpetuity for the perpetual reparation of three things, is valid. The objects are three: the monument in the church; the vault, which I think is assumed to be in the churchyard; and the ornamental window which has been erected; and the question is, whether the gift is valid as to any and which of these purposes; and then this question would follow, that, supposing it invalid as to all or any of them, what is the effect of the gift over of the surplus to be applied in ornamenting the chancel of the church. It has been clearly decided (and I do not mean to deviate from those decisions) that a gift of a sum of money for the perpetual repair of tombs or gravestones, without reference as to whether they are in the church or not, is void, as not being a charity, and that there could not be such a perpetual dedication. The first question, then, really is, are these gifts for charitable purposes? If so, they are good; if not, they cannot be, because they are in perpetuity. Now, with respect to the question as to what is a charity, a great many questions have been raised at different periods, and the ground on which they have been decided is, that whatever fairly is He comes within the terms of the statute of Elizabeth Attorney-General v. Oakaver, Feb. 1736, referred to monuments of Westminster Abbey. A gift of a 1 Ves. sen. 535; Adnam v. Cole, 6 Beav. 353; Attorney-General v. Ruper, 2 P. Wms. 125; Tudor on Charitable Trusts, p. 11; Doe dem. Thompson v. Pitcher, 3 Man. & S. 407; The VICE-CHANCELLOR.-I have no doubt that in sum of money to keep them in perpetual repair would be a public benefit and good, and to the advantage of the frequenters of that building for public worship. Such a gift as to an organ or bells is good; why not one as to a monument? have seen any probability of ascertaining upon any With regard to the division of the fund, if I could inquiry what portion of it ought to be attributed to each object, I would have directed an inquiry; but as I see no such probability, the fund must be divided into three equal parts; the one-third, in respect to the gift for the repair of the vault which is void, will fall into the residue, and the dividends V.C. S.] PRANKERD V. BAKER-DUDDELL v. SIMPSON. [V.C. S. profits. Swanston for trustees. of the other two-thirds must be paid as they accrue | children of John, claimed a moiety of the rents and to the minister and churchwardens, to be applied by them towards keeping in repair the window and monument of the church, and as to any surplus, towards keeping in repair and ornamenting the chancel. With respect to the chancel, no doubt at first sight there is the difficulty that the rector, impropriate or ecclesiastical, is bound to repair it; but still it is a charitable object, and stands much on the same footing as the window and the monument. Being for the public benefit, it is therefore good. Costs of all parties out of the fund as between party and party. The trustees' costs as between solicitor and client. Solicitors: Broderip and Wilde; Gregory and Rowcliffe; Rowth, Rowden, and Stacey; Skilbeck and Griffith. V. C. STUART'S COURT. Reported by EDWARD WINSLOW, Esq., Barrister-at-Law. Friday, Feb. 9. PRANKERD V. BAKER. Will-Construction-Rents and profits-Special case. Gift "to A. and B. equally for life, and after their death in trust for, and to the use of all and every, the child or children of A. and B., both or either of them, if more than one, share and share alike, and until the youngest should attain twenty-one :” Held, on the death of A. that his children living at his death were entitled in equal shares to his moiety of the rents and profits until the youngest of the children of A. and B. had attained twenty-one. This was a special case for the opinion of the court under the following circumstances: John Somers by his will, dated the 25th June 1847, after various other dispositions of part of his property, gave to his trustees certain real estate in trust for the use of the child or children of his son James, and in default of issue to the use of his son John and daughter Susan Baker equally for life, and after their decease in trust for, and to the use of all and every the child or children of John and Susan, both or either of them, if more than one share and share alike, and until the youngest should attain twenty-one, being a son, or twenty-one, or marrying being a daughter, and when the said event should happen upon trust to sell and divide the proceeds (less expenses) between all and every child and children of John and Susan who should then be living, or have died leaving lawful issue then living, share and share alike, if only one, to one such child, and on failure of all issue, then to the heirs of his son James. The testator died on the 13th Sep. 1848, and his son James, without issue, in 1860. John died in 1863, leaving two daughters and several infant grandchildren, the issue of a deceased daughter, surviving him. Susan Baker, who had several children, was still living, and the question was whether she was entitled to the whole or a moiety of the rents and profits of the testator's estate. Osler, for Susan Baker, contended that she was entitled to the whole of the rents and profits for life. There was no gift over until after the death of both Susan and John, and the words in the will implied a life-interest in the whole of the estate of the survivor. They cited Malcolm v. Martin, 3 Bro. C. C. 50; The VICE-CHANCELLOR.-In cases of this description the court must be guided by the will itself, and authority can afford very little assistance. The gift is to "John and Susan equally for life, and after their decease in trust for, and to the use of, all and every the child or children of John and Susan, both or either, if more than one share and share alike, and until the youngest should attain twenty-one." To my mind the "children of both or either of them" implies the children of each, and declaration that on the death of John such of his children who were living at his death are entitled in equal shares to his moiety of the rents and profits until the youngest of the children of John and Susan shall attain twenty-one. The costs of all parties, as between solicitor and client, must be paid by the trustees out of the rents and profits. in accordance with that construction there must be a Solicitor, Reid, for Reed and Cook, Bridgwater. Saturday, Feb. 10. DUDDELL V. SIMPSON. Specific performance-Vendor and purchaser-Conditions of sale-Requisition-Waiver—Damages. Where by conditions of sale it was provided that if the purchaser should insist on any objection or requisition which the vendor should be unable or unwilling to comply with, the vendor should be at liberty to annul the sale, and the vendor having undertaken to comply with a requisition made by the purchaser, subsequently, on discovering his inability to do so, refused to complete the contract: Held, on the purchaser offering to waive his requisition, that the contract must be specifically performed. This was a bill by a purchaser against a vendor for the specific performance of an agreement for the purchase of certain real estate. On the 12th July 1864 the property in question was offered for sale by auction, and knocked down to the plt. at 27001. By the conditions of sale it was provided that, if the purchaser should insist on any objections or requisitions which the vendor should be unable or unwilling to remove or comply with, the vendor should be at liberty to annul the sale. Part of the property was leasehold, and was de'held for an unexpired term of scribed as being twenty-four years," and it appeared that, as three days of this term were vested in a trustee, the purchaser required that he should join in the conveyance. The vendor accordingly undertook to obtain his concurrence, and a draft conveyance was prepared on that footing. In March 1865, the vendor having refused to complete, this bill was filed. Subsequently, the vendor gave the purchaser notice that he was unable to comply with his requisition, and that it would be therefore necessary to annul the contract. The purchaser thereupon waived his objection, but the vendor insisting on his right to annul the sale under the above condition, the bill was amended by a waiver of the requisition, and the cause came on for hearing. Malins, Q. C. and Amyot for the plt.-The requisition having been waived by the purchaser, the vendor had no option but to complete. The plt. had all along been willing to accept the best title Graham Hastings, for the daughters and grand- that the deft. was able to give, and upon finding Pearce v. Edmeades, 3 Y. & C. Ex. 246. V.C. S.] FERGUSON U. WILSON. [V.C. S. that the trustee would not join in the conveyance, | share on 500 shares, or any portion thereof, at the had not insisted upon his concurrence. They cited lender's discretion. Taylor v. Brown, 2 Beav. 180; Greaves v. Wilson, 25 Beav. 290. Bacon, Q. C. and Begg, for the deft., contended that the deft. was justified by the express terms of the contract in annulling the sale. The deft. had never been unwilling, but he was wholly unable, to meet the objection raised, and the plt., down to the time of filing his bill, and by the bill itself, had insisted upon his requisition being complied with. On the 17th June 1864, after the registration, the plt. advanced 5001. for the purposes of the company upon the terms of the above resolution, and upon the 1st July 1864 he made a further advance of 2004 On the 4th Oct. a call of 17. per share was made, and at a meeting of the directors on the same day it was resolved that the advances which had been made to the company in June and July should be repaid as required, and that cheques for the same should be given on application. In pursuance of this resolution the plt., on the 11th Nov. 1864, received from the company's secretary a cheque for 2047. 6s. 2d. and scrip for 1001. fully paid-up shares by way of repayment for his loan; and on the same day he returned to the secretary both the cheque and the scrip as having been sent without authority. The VICE-CHANCELLOR.-In this case the deft. resists an agreement to sell on the ground that the plt. has made a requisition as to title with which he, the deft., is both unwilling and unable to comply. It is admitted that when the original bill was filed, the deft. was not unwilling to comply with the requisition, and it is not clear that he was unable to do so. In order to bring the clause in The secretary thereupon, on the 15th Nov., sent question into operation, it is necessary that there the plt. a cheque for the full amount due to him. should have been both inability and unwillingness on This cheque the plt. kept until the 17th Nov., when the part of the vendor, and an insisting on the part he returned it, requesting at the same time an of the purchaser. In the present case, however, allotment of 700 shares upon which a deposit of 17. the evidence shows that the purchaser has never per share was to be considered as paid. The cominsisted. The fact of his filing a bill is no insist-pany, however, refused to comply with his request ance, for he has all along been willing to accept until they had first taken counsel's opinion as to the such a title as the deft. was able to give, and he has construction of the resolution of the 15th June, and relinquished the requisition he originally made. subsequently, on such opinion being taken and There must be a decree for specific performance, proving adverse to the plt.'s claim, the company with costs, and an inquiry as to the damage sus- declined altogether to accede to his demand. tained by the plt. Solicitors for the plt., Brooks and Du Bois. Company - Feb. 10, 12, and 13. FERGUSON V. WILSON. Resolution-Loan-Form of payment Option of lender-Acquiescence-Costs. Where it was optional with the plt. to receive payment for an advance to the defts., a company, either in shares or money, and a cheque was sent to him by the company's secretary in payment thereof, which, after keeping two days, he returned, requesting to be paid in shares; but, in the interim, attended a meeting of the company, where his conduct led to the inference that he accepted the cheque : Held, that such conduct amounted to an acquiescence in the payment, and debarred him from all further claim to the shares. It appeared that on the 16th Nov., the day before the last-mentioned cheque was returned, the plt. at a general meeting of the shareholders proposed a resolution that the unallotted shares in the company should not be disposed of without the consent of the shareholders. To this resolution an amendment was moved and carried to the effect that the unallotted shares should be offered to the shareholders pro ratâ according to their holdings. In accordance with the above amendment fifty shares, conditional with his paying 21. per share on an appointed day, were offered to the plt. on the 7th Dec., and on the same day a cheque for the amount of his advances was again sent to him by the secretary. In Dec. 1864 the plt. ceased to be a director of the company. The bill prayed that it might be declared that the plt., under the resolution of 15th June 1864, was entitled to 700 shares, upon each of which 17. had been paid, or to 500 shares and 200 shares, upon each of which 17. and 21. had respectively been paid, and that the directors might be ordered to allot such shares to the plt., or otherwise to pay him damages for the default. This suit was instituted against the Washoe United Consolidated Gold and Silver Mining Company (Limited) and its directors, for the purpose of Malins, Q. C. and E. K. Karslake, for the plt., conobtaining a declaration that the plt., George Fer-tended that it rested with the plt. to choose whether guson, was entitled to certain shares in the company. The facts were as follows: The company was registered on the 17th June 1864, and two days previously, viz., on the 15th June, at a meeting of its directors, of whom the plt. was one, a resolution was passed in these terms: That if any one should make an advance for two months for the purposes of the company, such advance should at any time after the expiration of two months from the period of the loan be repaid upon the application of the lender, with interest at 6 per cent.; and it was further resolved that the lender should have the option at any time while the amount remained unpaid of accepting paid-up shares in the company, or partly paid-up shares to the amount, or for such amount as the lender might desire, or of accepting a deposit receipt of 17. per his advances should be repaid in shares or money, and he had elected to take shares. There had been no legal tender of the cheque. Bacon, Q. C. and Elderton for the directors.-The demand of shares on the part of the plt. was a mere afterthought. He had kept the cheque by him without objecting at the time of its receipt, and had waived any right to election by so doing. The directors had acted throughout with perfect fairness, and had only resisted the plt.'s claim on discovering that they would not be authorised in acceding to it. Greene, Q. C. and W. C. Harvey, for the company, submitted that the terms of the resolution of the 15th June were not binding upon the company. There could be no borrowing except under the company's seal, and the plt. might consider himself fortunate in getting his money returned, with interest. V.C. W.] Re THE VALE OF NEATH RAILWAY ACT 1863. JERSEY V. JERSEY. The plt.'s conduct at the meeting of the 16th Nov., and his concurrence in the amendment to his own resolution then passed, entirely precluded his present claim. Malins, Q. C. in reply.-The right of option was with the plt., and he was entitled, on the receipt of the cheque, to a reasonable amount of time before making his choice. This was necessary, in order that he might elect with a full knowledge of the value of the shares. There was no proof that he had received the cheque before the meeting of the 16th Nov. The VICE-CHANCELLOR, after reviewing the facts of the case, said:-I am of opinion that the plt. has precluded himself from sustaining his present claim by the manner in which he acted during the time which intervened between the receipt and return of the cheque sent to him by the company's secretary. In the interval he attended a general meeting of the shareholders, and on that occasion not only refrained from asserting his right to the shares, but acquiesced in a resolution which proceeded on the footing of the debt due to him having been paid. I consider that the plt., when he received the cheque on the 15th Nov., was entitled to an option; and I have dealt with the case upon the ground that, having that option, he did not exercise it until, by his conduct at the meeting of the 16th Nov, he had given the company every reason to believe that he concurred in the payment which had been made to him by the cheque. The bill must be dismissed with costs. Solicitors for the plt., Stephens and Son. Friday, Feb. 16. Re THE VALE OF NEATH RAILWAY ACT 1863. JERSEY V. JERSEY. Practice-Fund in court-Petitioner's title-Affidavit -General Order 34. The Court will order a fund in Court to be paid to several petitioners on an affidavit by one of them sufficiently verifying the title of all of the petitioners to such fund. This was a petition by the Duke of Richmond and three other petitioners, asking for payment of a sum of 12,000l., which had been paid into court as the purchase-money for certain lands by the Neath Railway Company. The petitioners were the trustees of the money in question, and the affidavit verifying their title was made by one of them only. Kekewich, for the petitioners, asked that it might appear in the order that the court was satisfied with the affidavit of the one petitioner, otherwise there might be some difficulty in the registrar's office as to the other petitioners not having made one. He referred to Morgan's Ch. Acts and Orders, 3rd edit., p. 525. The VICE-CHANCELLOR.-I consider that the affidavit is sufficient, and the order may be drawn up to that effect. Solicitors, Freshfield and Newman. [V.C. W. Held, that under a winding-up order of such society those shareholders who had duly given such notice were entitled to compound interest on their subscriptions. This was a claim under an order to wind-up the Doncaster Permanent Benefit Building and Investment Society adjourned into court. Seventy-one of the shareholders of the society had succeeded in getting their names removed from the list of contributories on the ground that they had more than one month prior to the petition for winding-up given notice of their intention to withdraw, in accordance with the 17th rule of the society. This rule was headed "Shareholders withdrawing,' and provided that any shareholder who should be desirous of withdrawing from the society any share or shares on which an advance had been made might do so on giving one month's notice in writing to the directors at any monthly meeting of the society, and such shareholder should receive back the subscriptions then paid, with interest thereon at the rate of 5 per cent. per annum, as shown by Jones's tables (being compound interest), but all fines incurred previously to such application should be deducted therefrom. If more than one shareholder should give notice to withdraw at one time, they should be paid in rotation according to priority of notice, but widows and children of deceased shareholders should always have priority. The date of the winding-up order was the 11th March 1863. The official liquidator objected to the payment of any interest at all, or of anything beyond simple W. A. Clark appeared for the withdrawing shareholder, and contended that he was entitled to interest at the rate prescribed by the rule as given above, being compound interest from the 13th March 1863. Wickens, for the official liquidator, argued that a withdrawing shareholder must be considered in the light of an outgoing partner, or as a member of a dissolved partnership, and was not, as such, entitled to interest. But, even if he were a creditor, inasmuch as the partnership was dissolved, and the contract had come to an end, simple interest at 5 per cent. could only be allowed. The VICE-CHANCELLOR said, that the contention of the official liquidator could not be supported, and would be contrary to the whole scheme of the contract as defined by the rules of the society. The provision respecting repayment of subscriptions with compound interest was perfectly legal. There |