there are some additional facts. I have gone through the case again as far as the facts have been produced without considering whether or not those facts were disclosed by the plaintiff's bill. It was insisted on on the occasion of the demurrer, and has been argued, though not so fully before me now as it was on that occasion, that the Court ought to hold its hand. I still adhere to the view I took in this particular case when it came on before me on demurrer, that it does not come within the principle of Ogden v. Fossick (6) nor of Nickels v. Hancock, where Turner, L.J. said, the Court would not perform the award unless it could perform the whole of it-that it must be in toto. the parties. Ogden's continuing to carry on the business was not a matter which the Court could see to, and without it Fossick's employment would not have been secured to him. But in the present case the keeping the railway in repair is merely a collateral matter, and by the lease directed under the award is made altogether dependent on the relative position of lessor and lessee. The plaintiff may, it is true, by giving twelve months' notice to the defendant, determine the lease; but so long as it continues to subsist, the defendant, as lessor, can insist upon the covenants contained in the lease.' The reasons I gave on demurrer for my judgment were these, and I will state them now as the grounds of my present judgment. I said, "It is objected that this is not a case in which specific performance should be decreed, as to which it is strongly urged that this Court cannot interfere either in respect of the right which the defendant is to have under the award of insisting on the supply and maintenance of haulage power for his use, or as to the keeping of the railway in repair. As to the first, no real difficulty exists, for if necessary the decree might be so modelled at the hearing as to secure the right in question to the defendant, by framing an injunction in the negative form, namely, restraining the plaintiff from preventing the defendant from using the haulage power on the railway. The other objection as to keeping the railway in repair has been much pressed as being fatal to the plaintiff's right to a decree, and it has been argued that an agreement to that effect is not one that can be enforced by this Court, and that the plaintiff is not entitled to specific perform ance of this award, on the ground that if a contract cannot be enforced as a whole, it cannot be enforced piecemeal, and for this position the case of Ogden v. Fossick has been cited, though the Court would not insist upon Ogden's continuing his business with a view to provide Fossick with employment, and unless it could have undertaken to do so the latter would not have had justice done him by a decree directing specific performance of the contract between (6) 32 Law J. Rep. (N.S.) Chanc. 73. NEW SERIES, 33.-CHANC. I said, "The Court has not always found the difficulty arising from a term providing for the execution of repairs insuperable. In a case before Knight Bruce, L.J., Storer v. the Great Western Railway Company (7), where the question was as to securing to the plaintiff the use of a railway bridge, he issued an injunction restraining the railway company from ceasing to maintain such archway." I said, "If the whole arrangement provided for in an agreement is one that is capable of being carried out as a whole, it will be done, though some one or more subordinate provisions might be such as would not be enforced independently. As an illustration, I may refer to the case of a contract for sale of an estate, including the usual provision, that the timber shall be taken at a valuation where specific performance of the whole will be enforced, although a reference to valuation generally I will not be decreed." Then I said, "Here this part as to the keeping in repair of the railway is a mere collateral and subordinate term. It would not even be necessary that the Court should see to the performance of the repairs by the plaintiff. That could be provided for by a collateral deed if necessary, binding the plaintiff to repair; or the lease itself might be directed to be so drawn as to determine on the non-performance of the covenant to repair." It appears to me that the proper decree will be: That the defendant be ordered to specifically perform the award on his part, and for that purpose to execute (7) 2 You. & C. C.C. 48; s. c. 12 Law J. Rep. (N.S.) Chanc. 45. 3 Y The main question in this case was decided on demurrer, and is fully reported in 33 Law J. Rep. (N.S.) Chanc. 484. The facts shortly were these: Charles Barrs, by his will, dated the 13th of July 1862, after directing his executor, Thomas Fewkes, to pay a certain annuity, and after bequeathing several pecuniary legacies, continued as follows: "As to the rest and residue of all my real and personal estates, I give, devise and bequeath the same unto the before-named T. Fewkes, to enable him to carry into effect the purposes of this my will and testament." The testator died in March 1863, and thereupon the executor, Fewkes, entered into possession of the testator's real estates, claiming to be entitled beneficially under the will. A bill was thereupon filed against Fewkes, by Walter Barrs, the testator's heir-at-law, asking for a declaration that the residue of the testator's real and personal estate was devised and bequeathed to T. Fewkes as a trustee for the purposes of the will, and that, subject thereto, the residue of the real estate had descended to and was vested in the plaintiff as heir-at-law. (8) An appeal from the decree of the Vice Chancellor is pending. To this bill the defendant demurred for want of equity; but the demurrer was overruled, the Vice Chancellor deciding that the executor did not take beneficially, and that, after satisfying the purposes of the will, there was a resulting trust as to the residue of the real estate for the testator's heir-at-law. The cause now came on for hearing. The only point calling for a report was as to whether parol evidence was admissible to shew that the testator intended T. Fewkes to take beneficially. Mr. Cracknall (Sir H. Cairns with him), for the executor, contended that the question was not merely one of construction, but one of presumption, and of presumption against the plain meaning of the words of the will. Parol evidence was always admissible to rebut such a presumption. On this point they cited Docksey v. Docksey, 3 Bro. P.C. 39. Mallabar v. Mallabar, Cas. t. Talb. 78. Buckley v. Littlebury, 3 Bro. P.C. 43. They also cited Gainsborough v. Gainsborough, 2 Vern. 252. The Duchess of Beaufort v. Lady Gran ville, 3 Bro. P.C. 37. Gladding v. Yapp, 5 Madd. 56. North v. Crompton, 1 Cas. in Ch. 196. Clennell v. Lewthwaite, 2 Ves. jun. 465, 644. Langham v. Sanford, 17 Ves. 435; s. c. 2 Mer. 6. Lynn v. Beaver, Turn. & R. 63. Evidence in Wills, 4th edit. 100. Mr. Willcock, Hayes, Serj. and Mr. Archibald Smith, for the heir-at-law, submitted that it was clear that on questions of construction merely parol evidence was not admissible; although to rebut a presumption of equity it was admissible. The only question was as to which class the present case came under. They cited Ellcock v. Mapp, 3 H.L. Cas. 492. Mr. Cracknall, in reply, citedBrown v. Selwin, Cas. t. Talb. 240. LORDS JUSTICES. In re THE ADELPHI HOTEL COMPANY, LIMITED. (BEST'S CASE.) Limited Company Contributory WOOD, V.C. said, that the rule was accurately expressed by Lord Thurlow in the case of Coote v. Boyd, in which he said: "The question whether by giving two legacies the testator did not intend the legatee to take both, is a question of presumption donec Shares-Application-Allotment. probetur in contrarium, and will let in all sorts of evidence. Where the presumption arises from the construction of words, simply quà words, no evidence can be admitted." The Court had held that equity could not be done without certain presumptions as to double portions, and as to legacies being intended as a satisfaction for a portion; and in such cases parol evidence was admissible to repel the presumption, and counterevidence was admissible in support of it. In Docksey v. Docksey, followed by Mallabar v. Mallabar, there was some confusion. Mixed real and personal estate was given to trustees, upon trust to pay certain legacies and debts, and nothing was said about the surplus. It was formerly held, that if an executor had personal estate, or mixed realty and personalty given him, it was all converted into personalty, and prima facie it was his own; and if a presumption of law was raised that it was not intended for him, parol evidence was admissible to rebut that presumption. Since the case of Ackroyd v. Smithson the rule of construction was, that all property not disposed of by the will was treated in equity as undisposed of altogether; and that rule was clearly expressed by Lord Eldon in King v. Denison (1). Before the rule was established, words giving the estate to a trustee were held to give him the beneficial interest, there being nothing to take it from him. In Mallabar v. Mallabar one circumstance pressed in argument against the claim of the heir was the fact, that under the will he took part of the proceeds of the sale, which shewed how different was then the rule followed by the Court; but even then parol evidence was not admissible to aid in the construction of the words of the will. His Honour could not therefore admit parol evidence in deciding on the construction of the words of this will. (1) 1 Ves. & B. 260. A. filled up a blank form of application, by which he agreed to accept a certain number of shares in a company, or any less number which might be allotted to him; and he paid a deposit, for which he received a banker's receipt. No shares were ever allotted; but he never made any formal claim for repayment of his deposit, which the company used. The company was wound up before it had commenced its intended operations, and A. was placed by the Master of the Rolls on the list of contributories. But on appeal,-Held, by the Lords Justices, that the contract was only to accept shares when an allotment of them should have been made, and that until allotment there was no complete contract, and consequently that A. was not a contributory. This was an appeal from an order made at chambers by the Master of the Rolls for placing the appellant, Mr. Best, on the list of contributories of the Adelphi Hotel Company. l., being a The Adelphi Hotel Company was a limited company, formed in 1862, and incorporated under the Joint-Stock Companies Acts, 1856 and 1857, with a capital of 150,000l. in 15,000 shares of 101. each. A prospectus was sent to Mr. Best, containing, among other things, the following blank form of application to the directors: "Gentlemen, having paid to the bankers of the company the sum of deposit of 10s. per share upon I request you will allot me the above company; and I agree to accept the same, or any less number that may be allotted to me, and to pay the calls thereon as they may be made; and I hereby authorize and empower you to insert my name in the register of shareholders of the company for the number of shares which you may allot to me," &c. shares, shares in Best, on the 10th of October 1862, filled up the form for twenty shares, and paid 107. on account. A banker's receipt was given to him, expressed to be for 107. pany retained and used the 107. paid by Best. He never received it back; and, till the winding up of the company, he never made any formal claim to receive it back. For some time previous to the winding up of the company it appeared that he had heard nothing of or from it; but, on the 7th of March 1865, when the proceedings for winding up had already been commenced, a notice was sent to Best from the official liquidator of an appointment, before the Master of the Rolls, for the 21st of March, 1865, to settle a supplemental list of the contributories, among whom he was informed that he was himself included in the character of a holder of twenty shares. The chief clerk declined to make any order; but the Master of the Rolls, after hearing counsel, made an order at chambers, dated the 24th of April 1865, placing Mr. Best on the list of contributories for the twenty shares. Mr. Best appealed. Mr. Daniel and Mr. Elderton, for Best, contended that this was a case, not of a contract, but of an offer merely unilateral, which was never accepted, and which, therefore, never became a contract. The payment of the 10s. a share, in the absence of allotment, could not be construed as binding the appellant, for such payment was a condition precedent to the application for shares being entertained, and did not in fact bind the company to allot any to an applicant. Otherwise, if the mere application, accompanied by the payment of a deposit, were enough, it might have happened that applicants for 30,000 shares would have had to be held liable in theory, though, as the capital was divided into 15,000 shares, the rights and liabilities of the company could never have affected more than half that number in fact. In Cookney's case (1) and in Bloxam's (1) 26 Beav. 6; s. c. 3 De Gex & J. 170; 28 Law J. Rep. (N.S.) Chanc. 12. case (2), which were relied on for the respondent, the Court had concluded that there had been a due allotment of the shares in dispute.-Beresford's case (3), Reynell v. Lewis (4), and Maddick v. Marshall (5), were also commented upon. Mr. Baggallay and Mr. Fry, for the official liquidator.-The principle of this Court was, that a person who had agreed to take shares was in the same position as though he had actually taken them. Neither by statute, nor at law, was any particular meaning attached to the word "allotment," which was satisfied by any appropriation of shares. There might, indeed, be some difficulty in cases where there had been an offer and payment of a deposit, not followed by formal allotment, in deciding when acquiescence began to operate for or against the parties, but not such a difficulty as to prevent the Court from giving effect to the acquiescence. And the Court would give effect to it, whether the result were in favour of, or adverse to the company's interest. The agreement to accept a specified or any less number of shares was nothing more than a reservation of a power in the nature of a proviso. After a company had had the use of a deposit for a certain time, it would be incompetent for it to exercise this power reservation; and it was equally incompetent for a shareholder, after having done acts and allowed the continuance of a state of things which bound the company to him, to claim exemption from corresponding liabilities on his side. The case, suggested by way of a reductio ad absurdum, of acquiescence in applications for double the legitimate number of shares, did not apply to this company, which had not exceeded its powers at all. Mr. Daniel, in reply. of LORD JUSTICE KNIGHT BRUCE said that, whether or not the law as administered on this subject were in an inconvenient state, it must be admitted that, to make Mr. (2) 33 Law J. Rep. (N.s.) Chanc. 519, 574. (3) 3 De Gex & Sm. 175; s. c. 2 Mac. & G. 197; 19 Law J. Rep. (N.S.) Chanc. 166, 332. (4) 4 Rail. Cas. 351. (5) 12 W. Rep. 687. Best liable, there must have been an acceptance of his offer, or an allotment to him by the directors involving an agreement. The mere circumstance of a receipt having been given, signed by a banker's clerk, did not amount to acceptance, appropriation, or allotment. Neither did the simple retention, which was, except for the receipt, a silent retention, of the deposit amount to it. And there was no other evidence of agreement, acceptance, appropriation, or allotment. Consequently his Lordship was of opinion that Mr. Best could not be held liable in the manner in which the application assumed him to be. LORD JUSTICE TURNER felt obliged to differ from his Honour the Master of the Rolls. In all former cases of the kind there had been an allotment. But here there was none. It had been urged that the application to take twenty, or any less number of shares, amounted to an agreement on the part of the appellant to accept the shares at once. But looking to the reference to the words expressing a readiness to take any number which the directors should think proper to allot, contained in the application signed by the appellant, he was of opinion that the appellant's agreement was only to accept such shares as should be allotted to him. One argument used for the respondent had been, that the expressions referring to allotment were satisfied if so many shares had been in fact appropriated to the appellant. But, whether appropriation could in any case be held equivalent to allotment must depend on all the circumstances. The word "allotment" prima facie had a well-understood signification, and one which certainly could not be satisfied in every case by anything which yet might be an appropriation. In particular, he could not allow that "allotment" (and the form of the expression, "may allot," might be noted) in the present case was not used in its technical sense. the whole, therefore, it was clear to him that here there had been no contract, except to accept shares at the time when the directors should have allotted them, and that, as there had been no allotment, there was no complete contract. His Honour's order must accordingly be discharged, and Mr. Best's name be struck out from the On A, upon his appointment as agent to a limited assurance company, agreed to take shares upon the terms that the payment for them should be deducted from his commission as agent, and no deposit was ever paid by him upon them, but he was registered as the holder of the shares. The company, very soon after his appointment, dismissed him; but as he contended wrongfully. On the winding up of the company,-Held, by the Lords Justices, reversing a decision of the Master of the Rolls to the contrary effect, that the company's cancellation of A.'s appointment as agent, whether justifiable or not, could not operate as a cancellation of A.'s agreement to become a shareholder, and that (subject to any question of account as to payment for the shares) A. was liable as a contributory. The question on this appeal was, whether the respondent, John Thomson, should be restored to the list of contributories to a limited life assurance company, in process of being wound up, called "The Life Association of England.' The company was established in July 1863. Thomson shortly afterwards made an application, which was acceded to on the part of the company, to be appointed one of its agents; and, on the 4th of September 1863, he filled up and sent to the secretary a printed form of application for an allotment of twenty shares, in compliance with the company's habit of requiring its agents to qualify by becoming shareholders. He did not in fact then, or afterwards, pay any deposit on these shares; but as, from some error, the application he had sent in referred to such deposit as having been paid, the secretary wrote a letter of inquiry, of which the material |