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April 28, 1866.]

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register of indefeasible titles. The object of that was to establish a charge upon the lots sold, into the hands The of whomsoever they might subsequently come. registrar refused to enter a notice of the proviso in the registry:

Held, that such refusal was correct.

Observations on the present inconvenient mode in which appeals from the Land Registry-office are brought before the appellate judge.

This was a summons taken out in chambers, under the provisions of the Land Transfer Act 1862, by way of an appeal from the decision of Mr. Follett, the registrar of the Land Registry-office. The question was whether the app. was entitled to have entered on the record of indefeasible titles a notice of a proviso in a deed, which, as he alleged, affected certain lands sought to be registered with such a title.

The facts were shortly these:

By an indenture, dated the 3rd Aug. 1863, and made between a Mr. Drew of the one part, and a Mr. Mason of the other part, and indorsed on the deed of conveyance, after reciting that Drew had sold to Mason two lots of land numbered 71 and 72 out of several lots numbered from 70 to 77 inclusive, as described on the plan annexed to the therewithin mentioned presents, Drew covenanted with Mason to make a road abutting on the said lots, and to keep it in repair until it should be taken to and repaired by the parish, Mason in the meantime paying a proportionate part of the cost of such repairs. The deed then contained the following proviso:

Provided always, and it is hereby agreed and declared, that, in addition to the covenants herein before contained, it is hereby intended that the costs, charges, and expenses of the proposed road shall be considered as a charge in equity (and, as far as the circumstances of the case will admit, at law also) upon the owners for the time being of the several closes or pieces of land numbered 71 to 77 inclusive in the plan annexed to these presents, to such an extent as that each such owner shall be chargeable with such a part of the costs, charges, and expenses of such repairs as shall bear the same proportion to the whole of the costs and expenses as the quantity of his land shall bear to the aggregate quantity of all the said closes or pieces of land.

on

Drew, the vendor, subsequently applied to the Land Transfer-office for the registration there of an indefeasible title to the said pieces of land numbered 71 and 72, and described the said plan. Mason, the purchaser, claimed that an entry or notice should be made upon the register of the above-mentioned proviso. Mr. Follett, the registrar, refused to enter it, on the ground that the proviso did not constitute such a charge upon the land intended to be registered with an indefeasible title as the purchaser had a right to have entered on the register.

Mason appealed from that decision of Mr. Follett. Fry, for the app., argued that the proviso created a charge in equity upon the land binding on any subsequent purchaser with notice, and ought, therefore, to be registered.

Lord ROMILLY.-This is an appeal from a decision of the registrar, under the provisions of the Land Transfer Act 1862. I am asked by it to make an order to the effect that the app. is entitled to have entered on the registry of indefeasible titles in that office, a proviso in a deed, which proviso the registrar, Mr. Follett, has declined so to register. The app. is the purchaser of the property in question. Before I proceed to consider the merits of the case, which I believe is a new one, I should observe that the mode in which this appeal, and therefore I presume appeals generally, in these cases, is brought oniont In the

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majority of instances the party in possession of the
property, that is the vendor, naturally considers that
his title to the property is valid; and that any
objection coming from the registrar to something
required to be done by the purchaser, is no
The result is, that
affair of the vendor's.
the vendor does not appear upon the application by
way of appeal to this court; and a one-sided case
only is presented to me, upon which I am compelled

Mr.

to come to some conclusion. That is the state of
things here. Mr. Drew, the vendor of the pro-
perty, an indefeasible title to which he wished
to have registered, thinks his title good.
Mason, the purchaser, desires to have a proviso
in a deed indorsed on the deed of conveyance
Mr. Drew has
entered on the registry, and the registrar thinks
it should not be so entered.
not been served with notice of, and does not
appear upon, this appeal; and no one has been
heard upon it but Mr. Mason's counsel. The object
of entering up the proviso on the registry is to
establish a charge on the land sold into the hands of
whomsoever it may subsequently come. In such a
case one would have supposed that an exception
would have been made to the general and incon-
venient practice to which I have referred; but that
is not the case; and I must dispose of this appeal
on what is really only, as I have said, a one-sided
statement of it. Now, the facts of the case are
these. In Aug. 1863 a Mr. Drew sold and conveyed,
by a deed duly executed by him, certain lots of
land, two out of eight others described in the
plan annexed to that deed, to a Mr. Mason.
that he would
Drew by another deed, indorsed on the convey-
ance, covenanted with Mason
within six months after the execution of that deed
enrol the plan; that he would make a road in front of
the houses built upon the lots, and keep it in repair
until it was taken to and finished by the parish;
and that if he did not do so, and Mason did in the
meantime expend any money on such road, Drew
would repay him a certain portion of it, as then
agreed upon. Then came the proviso in question,
which was to this effect: It was thereby provided
and agreed and declared between and by the parties
thereto and their representatives as in the deed
mentioned, that in addition to the covenants therein
charges, and expenses of the proposed road should
contained, it was thereby intended that the costs,
be and be considered as a charge in equity, and so
far as circumstances would admit, at law also,
upon the owners for the time being of the several
closes or pieces of land, numbered 70 to 77 inclu-
sive on the plan annexed to those presents, to such
an extent as that each such owner should be charge-
able with such a part of the costs, charges, and ex-
penses of such repairs as should bear the same propor-
tion to the whole of the costs and expenses as the
quantity of his land should bear to the aggregate
quantity of all the said closes or pieces of land. Now
that being the effect of the terms of the proviso,
the question is, whether it ought to have been
entered on the registry of indefeasible titles? I
must say that I think, as thought Mr. Follett, that
it ought not to be so entered. It is to be observed
that it is not a covenant running with the land; it
is not in that sense a charge upon the land. It is
simply a personal undertaking on the part of the
gentlemen who were the parties to the deed of
conveyance. It only has the effect, I think, of
declaring that the owner for the time being
of the respective lots shall have the same right
as Mr. Drew and Mr. Mason then had. The
not executed by any one
indorsed deed was
but those two gentlemen. In case of any breach
of the proviso the remedy would have been, not
against the land, but the covenantees under the
deed. I am of opinion that the fair and proj

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Re THE EXHALL COAL MINING COMPANY (LIMITED). BLECKLEY'S CASE.

view of the case is, that the proviso creates no charge on the land; that it is a mere personal undertaking, which binds only the parties to the indorsed deed, and no one else; and that the registrar was right in refusing to register it. I shall therefore make no order on this application. Solicitors: Lindsay; Mason.

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In this case a summons had been taken out in chambers for an order for the payment to a Mr. Bleckley of a sum of 10167., or so much thereof as might be necessary to recoup him certain expenses incurred as trustee of the above-named company. The fund arose from the sale of some fixtures, the property of the company, and the order asked for was resisted by the debenture-holders of the company.

The facts of the case will sufficiently appear from the judgment of the M. R., infra.

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issued debentures, dated the 6th Oct. 1860, and signed by two of the directors and the managing director of the company. By those debentures the company, in consideration of the sum of 100%, purported to assign to A. B. [i. e., to each of the holders of the debentures] all and every the undertaking, plant, mining and other fixtures of the company, to hold unto the said A. B. and his representatives until the sum of 1007., with interest at 6 per cent. per annum, was repaid to him or them, as therein mentioned. The assets of the company were also thereby charged and made chargeable with the sum so intended to be repaid. The debentures were not signed by the trustees, but only by those persons whom I have named. Prior to 1864 some actions were brought against the company; but in that year a winding-up order was made by this court. Some rent was then due upon the lease; but that has since been paid into court by Mr. Bleckley. The sum of 1016. has also been paid into court in the matter of the winding-up of the company. Mr. Bleckley claims it to indemnify him in respect of debts and other liabilities incurred by him as trustee of the mines; and that claim is resisted, as I have said, claim to be paid what is due to them out of the fund in by the unpaid debenture-holders. In other words, they court in priority to any payment to Mr. Bleckley. In that state of things I must say I think that Mr. Bleckley is entitled to be paid first. He was an original lessee of the mines, and as such was and is liable on the covenants for payment of the rent in the lease. He was and is entitled, as against the company, to deduct, as their trustee, the amount out of any of their property in his hands of expenses properly incurred by him as trustee. That right on his part creates a corresponding liability on the part of the company; and, in my opinion, that right constitutes a first charge on the I should here observe property of the company.

Jessel, Q. C. and W. W. Cooper appeared for Mr. that the 10167 now in court arose from the sale of Bleckley, and supported the summons.

Locock Webb for the debenture-holders. Southgate, Q. C. and Wickens for other parties. Lord ROMILLY.-This case came before me upon a summons taken out in chambers by a trustee and promoter of the Exhall Coal Mining Company (Limited), seeking to establish a claim on his behalf against a sum of 10167. which is now in court in the matter of the company. That claim is resisted by the debenture-holders of the company. Now the facts of the case are these: the company was formed in 1852 for the purpose of working the mines; and it was originally intended to work them on the cost-book principle. In June 1852 a lease of the mines was granted by the owner of them to a Mr. Bleckley and one other person, as the lessees, on payment by them of certain royalties, and on the reservation of a rent of 500l. for the first year, 700 for the second year, and 7501. for the third year. The lessees of the mines afterwards executed a declaration of trust of the lease granted to them for the benefit of the company, which was registered under the Act of 1856. In 1857 articles of association were drawn up, by the seventh of which it was provided that all the property of the company should be vested in the trustees of it; and by the eighth that the trustees should be indemsified against all liabilities affecting the partnership, other than and except what they might incur from their own wilful neglect or default. Two other trustees were afterwards appointed; but it does not appear that the property of the company was wholly assigned to them. That, however, is not material. Mr. Bleckley still remained one of the trustees. In 1860 the company was under the necessity of raising money; and accordingly they

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some of the fixtures belonging to the company. It was said, indeed, in the course of the argument, that the debentures were invalid; or, at all events, not effectual so as to bind the moneys arising from the sale of the fixtures. But in the view which I take of this matter I will assume the debentures to be valid. What then is the effect of them? clear that the holders of them could take no more than, and could only in fact take what, the company could give them. But, as I have said, the right of the trustees of the property of the company to be recouped their proper expenses was, when the debentures were granted, a charge on the property of the company. It was proved in the case that there are proper expenses due to Mr. Bleckley, such as I have mentioned, and therefore the debenture-holders take only by their securities a right to be repaid their money, subject to the satisfaction of Mr. Bleckley's debt, which they claim out of this fund. The first charge on this property operated in fact as an indemnity to the company's trustees. I do not rest my decision on the provisions in the articles, though I have adverted to them. I consider the right to be recouped their just expenses to have been the inherent right of the trustees of the company. Every person who took a mortgage or a security on the property of the company took subject to any such claim on the part of the company's trustees. Mr. Bleckley was and is, in my opinion, entitled to be recouped all his just and proper expenses and liabilities incurred by him as trustee for and on behalf of the company, out of any property belonging to the company; and the fact that this fund arises from the sale of fixtures belonging to the company makes not, I think, the least difference in the matter. I am therefore of opinion that Mr. Bleckley has the same rights upon

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The Attorney-General (Sir R. Palmer), Bacon, Q. C., and Little, for the plt., contended that it was essential to the validity of a release that all the parties releasing should be fully alive to the nature of the deed they were about to execute; but here the weak intellect of James Hargreaves precluded him from a proper appreciation of his own act.

ERRATUM — Waters v. Shaftesbury, p. 187; by an error of copyist The plt. wished to establish her own rights, and the the figures **56961. 4s. 4d" should be "59961. 4s. 3d."

March 12 and 13.

KAY. HARGREAVES.
Discovery-Exceptions to answer.

fact of the arrangement having been entered into by all the parties interested in the property could not affect her claim to relief. She was entitled to a full discovery, and if she was excluded now from inspecting the books and investigating the accounts, she would be unable at the hearing to bring before the court those facts essential to the establishment Where all the parties (including the plt.) interested under of her case. The discovery, instead of causing the will and in the partnership of a deceased relation delay and entailing expense, would have a contrary finally settled their respective claims by a deed of arrange-effect. As to the exceptions to the answer, the ment, and more than twenty-four years afterwards, question involved was one more of principle than the plt., as next of kin to one of the parties, and upon detail. They cited the ground of his mental incapacity at the time of the execution of the deed, filed a bill for a discovery of all the partnership accounts antecedent to the arrangement, and for a declaration that the deed was not binding as against such party:

Held, upon exceptions to answer, that the plt. was not entitled to the discovery sought.

This case came on upon exceptions to the deft.'s

answer.

The plt. was the widow of a Mr. Richard Kay, and the daughter of a Mr. Thomas Hargreaves, who up to the time of his death in 1822, was a partner in a firm of calico printers, &c. After the death of Thomas Hargreaves, a deed of release, dated the 12th April 1842, was executed by one James Hargreaves, the deft. John Hargreaves, the plt. and her husband, and all the persons interested under the will and in the partnership of Thomas Hargreaves, whereby (inter alia) it was arranged that James Hargreaves should receive the sum of 37,000l. in respect of his interest in the property. James Hargreaves died in 1863, and the deft. acted as the administrator of his estate.

The plt. was his sister, and one of his next of kin, and she alleged that at the time of the above release her brother's mind was in so weak a state as to render him incapable of understanding the partnership accounts, or the nature of the deed he was called upon to execute.

The bill prayed for a full and complete discovery of all the partnership dealings and accounts from 1822, and for a declaration that the deed of April 1842, and the accounts, agreement, and other transactions therein recited, ought not to be binding on James Hargreaves, nor upon the plt., as one of his next of kin, and that the amount of James Hargreaves' personal estate, and the plt.'s share therein, ought to be ascertained.

The deft. in his answer, after stating that all matters in connection with the deed of 1842 had been fully explained to James Hargreaves, and that he perfectly understood them, stated that he, the deft., could not answer certain interrogatories without making his answer very bulky and incurring great expense. He maintained that both James Hargreaves and the plt. were bound by the release of 1842; but that if it should be considered by the court that the plt. was entitled to reopen the accounts, then he submitted that inquiries could be directed at the hearing, by which the information now sought

Wedderburne v. Wedderburne, 2 Keen, 738, 749;
De La Rue v. Dickinson, 3 K. & J. 388;

Swabey v. Sutton, 1 H. & M. 514; 9 L. T. Rep. N. S.
711;

Lett v. Parry, Ibid. 517; 5 L. T. Rep. N. S. 416;
Cook v. Collingridge, Jac. 607;
Mazarredo v. Maitland, 3 Mad. 66;
Anon. v. Harrison, 4 Mad. 252;
Rowe v. Teed, 15 Ves. 372;
Freeman v. Fairlie, Mer. 24;
Clegg v. Edmonson, 22 Beav. 125;

His HONOUR referred to

Macdonald v. Richardson, 1 Giff. 81; 10 L. T. Rep.
N. S. 166.

Rolt, Q. C., Malins, Q. C., and E. E. Kay, for the deft., were not called upon.

The VICE-CHANCELLOR.-There is no doubt about the importance of this question. Generally speaking, the plt. is entitled to discovery if it appears material to the relief prayed, and the deft. has submitted to answer; but the question of materiality is one which the court must look at with reference to the constitution of the suit and the character of the proceedings. The present bill has been filed under most extraordinary circumstances. The plt., as one of the next of kin of her brother, seeks to disturb a deed of arrangement executed twenty-four years ago by all of the members of her family. This deed, which was prepared with great deliberation, and in the planning of which all who executed it had an opportunity of seeking professional advice, was intended to act as a final adjustment of the rights of all parties interested under the will and in the partnership of Thomas Hargreaves. Two of the parties to the deed were the plt. and her husband claiming in her right. It does not appear to have entered into the head of the husband, who is now dead, to take exception to the arrangement; but the plt. now, not in her individual character, but as next of kin to her brother, whom she alleges to have been of weak understanding, seeks to set aside the deed. It is said that a discovery is necessary in order to arrive at a balance of the accounts, and that the plt. is entitled to have all those dealings in the partnership which formed the basis of the deed of release reopened for her inspection. If this were allowed, it would have the effect of disturbing an arrangement entered into by the whole family, and I certainly should not be justified in extending the

V.C. S.]

FORSBROOK V. FORSBROOK-JOHNSTONE v. HAMILTON.

hard doctrine of discovery to such a case. exceptions must be overruled with costs.

Solicitor for the plt., W. Shaw.

[V.C. S.

The | Although the testator purported by his will to give a succession of life-estates, yet the context shows that it is necessary that the life-estate should be enlarged into an estate in tail male. The only

Solicitors for the deft., Norris and Allen, for question is whether the first two tenants for life, or C. Hall, Accrington.

Wednesday, March 21.

FORSBROOK V. FORSBROOK. Will-Construction-Limitation-Enlargement of life

estate.

Gift to C. F. and T. F. for life, and after their decease to their eldest sons for life, and so on, the eldest son of each of the two families of the name of F. to inherit the said property for ever:

their eldest sons, are to reap the benefit of the enlargement. I am of opinion that the first two can only take for life. The gift is to the testator's two nephews, Charles and Thomas for their lives, and then to the eldest son of each. Now these eldest sons must take by purchase, because each of them is clearly pointed out, a persona designata in existence, and certain at the time of the testator's death; and they are entitled to the enlarged estate by the words of the testator, who declares it to be his will "that the eldest son of the aforesaid Charles Forsbrook and the eldest son of the aforesaid Thomas Forsbrook should inherit the aforesaid pro

Held, that C. F. and T. F. took estates for life, and perty during their lives, and so on, the eldest son of their eldest sons estates tail.

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The passage in the will creating the difficulty was as follows:

It is my will, after the decease of my aforesaid brother William Forsbrook, and my aforesaid daughter Sarah Brown, that my aforesaid real and personal property be inherited by my nephew Charles Forsbrook, son of my late brother Mathew Forsbrook, and my nephew Thomas Forsbrook, son of Benjamin Forsbrook, and the sons of my late brother Thomas Forsbrook, during their lives; and after the decease of my aforesaid nephew Charles Forsbrook, and after the decease of my aforesaid nephew Thomas Forsbrook, it is my will that the eldest son of the aforesaid Charles Forsbrook, and the eldest son of the aforesaid Thomas Forsbrook, inherit the aforesaid property during their lives; and so on, the eldest son of each of the two families of the name of Forsbrook to inherit the aforesaid property for ever.

The testator died on the 12th May 1864, leaving all the above-named persons surviving him.

By an indenture dated the 8th May 1865, to which nearly all the members of the family were parties, the property was conveyed to one Joseph Bloomfield, to hold the same, discharged from the estates in tail male, or in tail of Charles Forsbrook and Thomas Forsbrook, the sons of testator's brothers, Matthew and Benjamin.

Subsequently, a doubt having arisen as to the respective interests of Charles and Thomas Forsbrook and their eldest sons under the will, this special case was prepared for the opinion of the court (in which Charles Forsbrook and Joseph Bloomfield were plts., and the eldest sons of Charles and Thomas defts.)

William Pearson, for the plts., contended that the testator clearly intended the issue male of Charles and Thomas to take for ever, and his wishes would best be carried into effect by allowing Charles and Thomas to have estates in tail male as tenants in common. It was the contention of the other side that the defts. (the eldest sons) took estates tail; but such an argument, he submitted, would not be in keeping with the authorities. He cited

Seaward v. Willock, 5 East, 198;
Wollen v. Andrewes, 2 Bing. 126;
Charlton v. Craven, cited in Mellish v. Mellish, 2 B. &
Cr. 524;

Lewis v. Puxley, 16 M. & W. 733;
Robinson v. Robinson, 1 Burr. 38;
Doe v. Garrod, 2 B. & A. 87; and
2 Fearne's Cont. Rem. 268 (Smith's edit.)
Eddis, for the defts., was not called upon.
The VICE-CHANCELLOR.-The doctrine of Seaward
Willock (supra) is excluded from the present case.

each of the two families of the name of Forsbrook should inherit the aforesaid property for ever." It intended to be objects of the testator's bounty, and is impossible to say that the eldest sons were not it is clear that they would not be if their parents view of the question, there must be a declaration were permitted to take estates tail. Such being my

that the two nephews Charles and Thomas take estates for life only, and that their eldest sons take estates tail. The costs must be paid out of the testator's estate.

Solicitor for the plts., Letts.

Solicitor for the defts., W. H. Reece.

Friday, March 23.

JOHNSTONE v. HAMILTON.

Practice-Costs of suit-Will-Secret trust for charity -Void bequest.

In a suit occasioned by a bequest, involving a secret trust, of leasehold and personal estate, and in which it was declared that the leaseholds belonged to the Crown: Held, on further consideration, that the costs must be paid rateably out of the leaseholds and personalty.

This cause came on for further consideration on a question of costs. The case at the hearing was fully reported 12 L. T. Rep. N. S. 822, and it will be therefore only necessary to mention the following facts:

William Brownley, who died in Feb. 1864, by his will dated 14th Feb. 1862, gave, devised, and be queathed the residue of his estate, both real and personal (after payment of legacies) to his five executors absolutely.

In June 1864, a suit was instituted by one of the above executors against the other four for the purpose of ascertaining the rights of the parties interested under the above will, in the freehold and leasehold estate, i. e., in the realty and personalty savouring of realty, without interfering with the pure personalty.

It appeared that the plt. and defts. were members of a Presbyterian College, an institution supported by voluntary contributions, and that the testator in his lifetime contributed liberally towards the expenses of the college, and was a great benefactor to the Presbyterian Church, of which he also was a member, and that shortly before the date and execution of his will he communicated to the defts, or some of them, his desire, if possible, to devote some portion of his property, after his death, for the benefit of the college.

It also appeared that it was the intention of the testator in making the residuary bequest above mentioned, that the residuary legatees should apply for the benefit of the college such portion of the

V.C. S.]

SMITH V. THE REESE RIVER SILVER MINING COMPANY.

residuary estate as was allowable in law; and further, that it was his expressed wish and hope that, so far as his residuary estate consisted of property which could not legally be given to charity, the devisees would nevertheless make use of the same for the benefit of the college.

The plt. alleged that the freehold and leasehold portions of the residuary estate were respectively devised and bequeathed to him and the defts., not upon any trust of the like purport as aforesaid, but by reason of the testator's knowledge of the sympathy of himself and the defts. with his (testator's) religious views, and his wishes in relation to the college.

The personal estate had been applied by the executors in accordance with the trusts of the testator's will.

The pleadings had been amended by making the Attorney-General a party to the suit, and although he set up no claim to the real estate he asserted the right of the Crown to the leaseholds.

At the hearing, on the 4th July 1864, a decree was made to the effect that the executors were

entitled to the freeholds, but that the gift of the leaseholds being void they passed to the Crown, and an inquiry was directed as to that portion of the property, and an account of the rents, &c., as well as an account of the pure personalty; and it was ordered that the debts, funeral expenses, and legacies should be apportioned between the leaseholds and the personal estate connected with land on the one hand, and the personal estate unconnected with land on the other; reserving further consideration.

[V.C. W.

V. C. WOOD'S COURT. Reported by W. H. BENNET and R. T. BOULT, Esqrs., Barristers-at-Law.

April 19 and 20.

SMITH V. THE REESE RIVER SILVER MINING
COMPANY.

Joint-stock company-False statements in prospectus-
Injunction.

The plt. was induced to take shares in a company on the
faith of statements in the prospectus. The statements
were wholly false, but it did not appear that the di-
rectors, when they issued the prospectus, were aware
of this, or that there had been any mala fides on their
part:

Held, that the plt. was entitled to an interlocutory injunction to restrain the directors from proceeding to enforce a call, without paying the amount of the call into court.

the 5th June 1865 under the Companies Act 1862. The company was incorporated and registered on On the 5th June 1865 the plt. received a prospectus from the company, which contained the following statements:

The property which this company has contracted for consists of about fifty acres of land, containing several very valuable mines, some of which are in full operation, and making large daily returns. It is situated between Austin Landor City and Amador, close to the river, and within half a mile of the already mentioned railroad. The success which has attended all the local companies, as also private ir dividuals working the silver ores on all sides, is verifled by official documents, and the proprietor (who has amassed a few of the mines upon the property contracted to be translarge fortune during the last eighteen months by working a ferred to this company) has, to show his confidence in the prosperity of the company, agreed to receive the purchasemoney in fully paid-up shares only, and to deposit them with the directors as a guarantee for the mines until returns are made enough to pay interest at the rate of 25 per cent. per The question now to be decided was, whether the annum, before which his shares are not to participate in any costs were to be paid rateably out of the pure perdividend whatever. The articles of association and an authentic and fully-detailed copy of the map of the district, sonalty and leaseholds, or solely out of the lease-recently taken by the Government surveyors, can be seen at holds.

The chief clerk certified the value of the leaseholds to be 14,8197, and that of the pure personalty 25,3871. 8s. 7d.; and he apportioned the amount to be paid for debts, &c., in respect of the leaseholds, at 3587. 16s. 3d., and in respect of the personalty at 6144. 14s. ld. There was no next of kin.

Malins, Q. C. and J. Napier Higgins, for the plt., contended that the costs ought to be borne wholly by the leaseholds, which were in fact the subject-matter of the suit. The plt. and the defts., as trustees, were entitled to expend the whole of the pure personalty on the object of the trust, and the ordinary doctrine of apportionment between realty and personalty did not apply to the peculiar circumstances of the present case. Moreover, the costs of the administration had already been paid out of the personalty. They cited

Taylor v. Bogg, 5 Jur. N. S. 137.

the company's offices, where further information can be obtained.

The prospectus also stated that the capital of the company would be 100,000l. in 20,000 shares of 51. each. The first issue to consist of 10,000 shares. That a deposit of 17. per share was to be paid on application, and 17. per share on allotment, and that subsequent calls were not to exceed 17. per share.

The memorandum of association was dated the 5th June 1865, and contained the following state

ment:

The objects for which the company is established are, to mine for the precious metals. the acquisition by purchasing, taking in exchange, or on lease, or by mining settlement, or licence, concession, grant, or otherwise, of any lands, mines,

Craig, Q. C. and R. Potter, for the defts., sup-buildings, easements, rights and privileges, machinery, plant, ported the plt.'s contention.

Wickens, for the Attorney-General, argued that the costs ought to be borne rateably by the leaseholds and personalty, and that there was nothing to justify the opposite contention.

The VICE-CHANCELLOR.-As the testator himself has originated the questions in the present suit, I cannot entertain the proposition that his pure personalty is to be exempted from the costs. There must be the ordinary rateable proportion.

Solicitors for the plt. and defts., Harrison and Lewis.

Solicitors for the Attorney-General, Raven and Bradley.

and other assets whatsoever, which the company from time to
time think proper to be acquired for any of their purposes
and generally the carrying on the business of a mining,
smelting, and crushing company.

Among the articles of association, which were of the same date as the memorandum of association, were the following:

110. The directors may, in their discretion, proceed to carry into effect all or any of the objects for which the company is established immediately upon the incorporation of the company, and notwithstanding a part only of the nominal capital of the company shall have been taken up or subscribed for.

111. The directors may adopt and carry into effect, or rescind upon terms or otherwise, any contract, whether already made, or hereafter to be made, by or on behalf of the company, as the directors may in their discretion deem expedient.

112. The directors may, in their absolute discretion, take, adopt, or prosecute any proceedings for the purpose of carrying into effect all or any of the objects mentioned in the memorandum of association.

On the faith of the statements in the prospectus the plt. applied for 100 shares and paid a deposit of 100. Shortly afterwards the plt. received from the

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