Ex. CH.]

directors appeared from the evidence given by the plts.'| witnesses, the deft, was not therefore entitled to demand a nonsuit.

The deft. in this case, by leave of the Court of C. P. granted under the C. L. P. A. 1854, appealed from their decision refusing a rule to enter a nonsuit. The case as argued in the Court of C. P. is reported 10 L. T. Rep. N. S. 272.

The action was brought by the plts., advertising agents, to recover the amount of their account for advertising the Adelaide (North Arm) Port and Railway Extension and Land Company, of which the deft. was a director. The action was tried at Kingston before Erle, C.J., on the 1st April 1864.

The order for inserting the advertisements was given to the plts. by one Payne, who was a promoter of the company, and also secretary, and one Allan, who was the owner of the land in Australia upon which the company's works were to stand, and who had in fact got up the company. The evidence of Mr. Maddick, one of the plts., as set out in the case for appeal, so far as is material, was as follows:

In Jan. 1863, I made Mr. Payne's acquaintance-I saw him at the Royal Exchange about Easter. He said that the company would shortly be ready, and he would endeavour to get us appointed agents. I afterwards met him repeatedly, and asked him when he would want me. He said, "We are not quite ready yet." At first he said that advertisements would be required in a day or two; afterwards he said that the advertising would be suspended till after the holidays. I next saw him in June. He said, "Hold yourself in readiness." I then called at the company's offices, 36, Old Broad-street, and there saw Payne, who asked my opinion as to the papers. I said, "With regard to this account, who are to be the responsible parties?" He said, "The directors of course. The minutes are passed." He then handed me their prospectus now produced

to me.

I looked over the names and had a conversation with him. I said, "Have you any minutes passed?" He said, "Yes." I said, "I should like to see them." He said, that he had not the minute-book with, him but that I could see them and have a copy in the morning. I had seen Allan once. Mr. Payne, told me that Allan was to be the manager. I afterwards received the order produced, of the 10th June 1863, signed by Payne and Allan:

"36, Old Broad-street, June 10th, 1863.

Payne signed it first, and I said, “As Allan is the manager I may as well have his signature too." The first advertisement then appeared on the following day. On the 11th June I again saw Payne at the office of the company, when he produced the minute-book now shown to me. He pointed out the minutes dated 2nd April 1863, 2nd June and 5th June 1863. Copies of the resolution passed on the 2nd April and 2nd June 1863, as to advertising the prospectus, were handed to me by Mr. Payne on the 11th June, and I was constantly in attendance at the office of the company. The amount of our account is 13767. 58.

The minutes of the meetings of the directors, held on the 2nd April and 2nd and 5th June, signed by the deft. as chairman, were put in, and were, so far as related to the plts.' case, as follows:

April 2nd, 1863.-Resolved, that it is inexpedient to advertise the company pending the Easter holidays, but that the prospectus of the company be forwarded to the daily papers with a request to announce its issue, and that the prospectus be advertised in the necessary newspapers on Wednesday next, the 8th inst., and that in the meantime it be distributed and circulated by post and otherwise to such persons as are likely to become subscribers of capital.

June 2nd, 1863.-Resolved, that the prospectus be finally settled and revised by a committee, consisting of Mr. Marshall, Mr. Spicer and Mr. George L. Browne, with power to deal with any matters connected therewith, and that when approved by them the prospectus be printed and forthwith advertised.

June 5th, 1863.-Authority was given to the secretary to have the prospectus printed as finally revised.

Payne, who was called as a witness for the plts., stated that he had always understood that Allan would pay the preliminary expenses, and that when he wrote to the directors, asking them to become directors, he told them that they were not to be looked to for preliminary expenses.

[PROB.

The plts.' books showed that credit had been given to the company, and not to the directors, or any of them personally.

trial, applied for a nonsuit; but Erle. C. J., left the case to the jury, who found for the plts., the amount of damages being to be settled out of court.

The defts.' counsel at the trial, at the close of the

Lush (J. Brown with him) for the app.-The plts. ought to have been nonsuited. There was no evidence that the app. authorised Payne to pledge his credit, or that he held him out to the plts. as so authorised. He referred to

Swan v. The North British Australasian Company (Limited), 31 L. J. 425, Ex.; affirmed in Ex. Ch., 32 L. J. 273, Ex.

Lindley on Partnership, 45, 47;

Reynell v. Lewis, 15 M. & W. 517;

For v. Clifton, 6 Bing. 776.

M. Chambers (Murphy with him) appeared for the resps. He cited

Hearn v. Nicholls, 1 Salk. 289.

POLLOCK, C.B.-The whole of the court (a) are of opinion that the judgment of the Court of C. P. should be affirmed. One point above all is clear, that the resolution signed by the deft., directing advertisements to be ordered, could not be excluded from the consideration of the jury; and as far as that went, it was altogether unfettered and uncontrolled by any private agreement between Payne and the directors. If it was to have been met by any other evidence, there would have been a conflict between the apparent effect of the resolution of the directors and the complexion given to it by the agreement which made Payne exclusively liable. Therefore the case was essentially one for the jury. On this point we are all agreed, and therefore the judgment will be affirmed. For myself, I concur entirely with the reasons given by the judges in the court below. In fact, what was done was to set up a private agreement inconsistent with the general effect of what had been done, and done, too, for the purpose of being submitted to the public. There were to be published the names of the directors, secretary and manager. In opposition to that we are to be told that there was a private agreement, by which the position of the parties was to be entirely reversed. Such an agreement cannot be set up, at all events without going to the jury; and if so, the judgment of the court was right.

Judgment for the resps.

Attorney for the plts., Alfred Cox. Attorneys for the deft., Linklaters.

COURT OF PROBATE.
Reported by Dr. SWABEY, of Doctors'-commons.

Nov. 3 and 8.
NEWCOMBE V. Next of Kin of THOMAS ENGLISH.
In the Goods of THOS. ENGLISH (deceased).
Will-Parol evidence.

The testamentary character of a paper writing may be proved by parol evidence.

Thomas English died on the 12th March 1864, a bachelor, without any known relation. On the 10th March 1864 he duly executed as a will the following document: "I, Thomas English, tailor, give Dennis Newcombe, chandler, full authority to draw the amount of money with interest contained in my

bank-book."

A citation had been extracted by Dennis Newcombe, a creditor of the deceased, on his next of kin

(a) Pollock, C.B.; Crompton, Mellor, Shee, JJ.; Bramwell, Channell, Pigott, BB,

[CHAN.

It appeared from the affidavit of W. Cooper, one of the attesting witnesses, that, on the 10th March 1864, he was sent for by the deceased, who said that he wanted him to write out a paper to make the Newcombes all right, so that they could draw the money in the bank if anything should happen to him, and that he had given them the bank-book. The document was accordingly written by the witness from the dictation of the deceased, and was then duly executed. The deponent understood at the time that the deceased intended the document to take effect as his will in case of his death. The only property of the deceased was a sum of 531.9s. 2d. in the Halifax Mechanics' Institution Penny Savings

Bank.

Dr. Wambey moved the court to decree that letters of administration of the effects of the deceased, with the said paper writing as being his will, should be granted to Dennis Newcombe as a creditor of the deceased. Although the document on the face of it does not appear to be of a testamentary nature, inasmuch as it does not purport to take effect upon the deceased's death, and contains no words of disposition, parol evidence is admissible to show that it was intended to operate as a will:

The King's Proctor v. Daines, 3 Hagg. 220;
Jones v. Nicholay, 2 Rob. 292; and

In the Goods of Marsden, 2 L. T. Rep. N. S. 87. That the deceased meant it to be his will is proved by the affidavit of W. Cooper.

Sir J. P. WILDE.-The cases cited show that, in order to ascertain whether a paper writing is of a testamentary character, the court may admit parol evidence. The evidence satisfies me that the deceased intended the document to take effect as his will. It does not appear upon affidavit when the debt to D. Newcombe became due: when that omission has been supplied, letters of administration with the will annexed may be granted to D. Newcombe as a creditor.

Williamson, attorney.

Equity Courts.

COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and JAMES B. DAVIDSON, Esqrs., Barristers-at-Law.

Jan. 16 and 17.

(Before the LORDS JUSTICES.) LAUTOUR . THE ATTORNEY-GENERAL.

Demurrer-Contract between a subject and the Crown -Practice-Costs of demurrer.

Per Knight Bruce, L. J.-Where a question of great difficulty and delicacy arises between a subject plt. and the Crown deft., the court will not allow it to be decided upon demurrer, but an answer must be filed, and the benefit of the demurrer will be reserved to the deft.

Where, upon such an order, no costs are given, the
order itself ought expressly to state that fact.
This was an appeal by the deft. from an order of
Vol. XL, N.S., No. 273.

The Attorney-General and Wickens supported the appeal, and referred to

Viscount Canterbury v. The Attorney-General, 1 Ph. 305;

Tobin v. The Queen, 10 L. T. Rep. N. S. 763; s. c. 33 L. J. 199, C. P.

Sir Hugh Cairns, Q. C. and Jessel, in support of the bill, were not called on.

Lord Justice KNIGHT BRUCE said:--This bill is

filed by a subject against the Attorney-General representing the Crown, and it raises, or attempts to raise, considerations of so much difficulty and delicacy that it ought, in my opinion, to be answered. Whether the order of the V. C. overruling the demurrer ought to stand as it does, is another question; but, in my opinion, it will be the most proper course to follow the precedent of Lord Hardwicke in Brownsword v. Edwards, 2 Ves. sen. 244, and to reserve to the deft. the benefit of the demurrer at the hearing of the cause.

Lord Justice TURNER said:-The case is taken out of my hands by the opinion expressed by my learned brother; but my present impression, so far as the argument has proceeded, is that the demurrer ought to have been allowed. We have, however, not heard the argument in support of the bill, and I shall therefore withhold my reasons for the opinion

I have formed.

Order that the benefit of the demurrer be reserved to the deft. at the hearing, and that he be allowed three months to answer. No costs to be given on either side,' and this direction to appear on the order: (see The Attorney-General v. Hanmer, 4 De G. & J. 205.)

Solicitor for the plt., D. Keane.

Solicitors for the Crown, Raven and Bradley.

Jan. 11 and 18.

(Before the LORDS JUSTICES.)

Re THE UNITED KINGDOM SHIPOWNERS' COMPANY (LIMITED); FELGATE'S CASE.

Company-Articles of association-Important alteration in-Contributory.

The substitution of one sheet in the articles of association of a company for another, after they had been signed, is to be distinguished from such an alteration by erasure or otherwise as would be apparent on the instrument itself; and such a substitution throws upon the company the onus of proving that the two sheets were substantially the same, when a question arises whether a person who signed before the substitution is or is not a contributory. If the evidence in this respect fails, his name will be removed from the list. If a person signs the articles upon a promise that he shall be appointed the broker to the company, and that promise is broken, he will not be entitled to have his name removed from the list of contributories, but must look for relief to those who deceived him.

This was an appeal by Mr. Felgate, a stockbroker, from an order of the M. R., declining to remove that gentleman's name from the list of contributories of the company, now being wound-up, under circumstances which fully appear in the report, ante, 11 L. T. Rep. N. S. 293.

ment, it is immaterial whether the debtor was or was not solvent after making the settlement. But, if a voluntary settlement or deed of gift be impeached by subsequent creditors, whose debts had not been contracted at the date of the settlement, then it is necessary to show, either that the settlor made the settlement with express intent to "delay, hinder, or defraud creditors," or that after the settlement the settlor had not sufficient means or reasonable expectation of being able to pay his then existing debts-that is to say, was reduced to a state of insolvency-in which case the law infers that the settlement was made with intent to "delay, hinder, or defraud creditors," and is therefore fraudulent and void. It is obvious that the fact of a voluntary settlor retaining money enough to pay the debts which he owes at the time of making the settlement, but not actually paying them, cannot give a different character to the settlement, or take it out of the statute. It still remains a voluntary alienation or deed of gift, whereby, in the event, the remedies of creditors are "delayed, hindered, or defrauded." I am therefore of opinion that this settlement is void as against the plt. But then the question arises, what is the property which actually passed to the trustees of the settlement under the assignment made by the debtor? At the time of the marriage of the defts., Mr. and Mrs. Willows, Mrs. Willows, then Elizabeth Story, widow, was possessed of a sum of 4000l., secured on mortgage of real estates, and also of some other personal property. By a settlement made previously to the marriage, the mortgage-debt of 4000Z was assigned to trustees, and it was declared that they should stand possessed of one moiety of this sum, upon trusts which were, in effect, for the separate use of Mrs. Willows during her life, and after her decease for the children of the intended marriage; and in case there should be no children, upon trusts for the sister, brother and certain nephews and nieces of Mrs. Willows absolutely, and as to the other moiety of the said mortgage-debt or sum of 40007, it was declared that the same should not be in any way subject to the trusts of the marriage-settlement, but should, while the same remained on the existing security, be held by the trustees in trust only for the said Elizabeth Story, her executors, administrators and assigns, and when realised, he paid over to her and them in the same manner as she or they would have been entitled to receive the same, in case the assignment and marriage-settlement had not been executed. On this, the first argument was, that the word "only created a separate use in Mrs. Willows. No such conclusion can be maintained. For separate use there must be words referring to the event of marriage, and creating a separate character or directing an exclusive enjoyment. The last words of the clause are conclusive. The last-mentioned sum of 20001. is the subject of the voluntary settlement made by the defts. Willows and wife, by an indenture, dated the 15th Nov. 1861, and which is fully and correctly set forth in the 12th paragraph of the amended bill. The defts. contend that if this deed be set aside, Mrs. Willows has an equity to have an additional settlement made out of the 20007., especially as her husband is a bankrupt and unable to maintain her. At the hearing I doubted very much whether there was, under the circumstances of this case, any equity in the wife for an additional settlement, but on examination of the decided cases, I find they have gone so far that I cannot refuse an inquiry whether an additional settlement ought or ought not to be made. It appears to me, therefore, that the decree ought to be thus worded: "Declare that the deed of the 15th Nov. 1861 in the pleadings mentioned is fraudulent and void as against the plt., and that so

[ROLLS.

much of the 20007. mentioned in the said indenture, as shall not be required for the purposes of any settlement under the inquiry hereinafter directed, is applicable in payment of the plt.'s debt and interest thereon, and also of his costs of this suit, and refer it to the judge in chambers to inquire whether, having regard to the settlement made on the marriage of the defts. Mr. and Mrs. Willows, and to the present circumstances of the deft. Willows, any and what additional settlement ought to be made out of the last-mentioned sum of 20007. on the deft. Mrs. Willows, and the children, if any, of the marriage. Reserve further consideration." The deposit will be returned.

Solicitors for the plt., Blakeley and Beswick. Solicitors for the defts., F. W. Blake; Coverdale and Co.

ROLLS COURT,

Reported by H. R. YOUNG, Esq., Barrister-at-Law.

Dec. 20 and Jan. 11.

WHITEHEAD v. LYNES.

Receiver-Writ of fi. fa. against—Damages.

Where a writ of fi. fa. was wrongfully issued against a receiver in a cause, and he asked for an inquiry as to his damages:

The Court directed him (if he thought proper) to bring an action at law for them, and gave the deft. in the action leave to contest the opinion of this court as to the wrongful issue of the writ.

In this case a Mr. Burrell, solicitor for Messrs. Cross and Edens, to whom the chief clerk had certified that the receiver in the cause ought to pay certain sums of money, took out a writ of fi. fa. against the receiver, with respect to the sums. Execution was subsequently issued on the writ, whereby the receiver was put to some expense and his credit assailed. This Court expressed an opinion that the writ had been wrongfully taken out; for that the proper remedy to be resorted to against a receiver in a cause was the usual four-day order.

The receiver now applied by summons for an order, directing an inquiry to assess his damages for the wrongful taking out of the writ and issuing of the execution.

Baggallay, Q. C. and Hardy appeared for the receiver.

Selwyn, Q. C. for Messrs. Cross and Edens.
Hobhouse, Q. C. and Hemings for Mr. Burrell.
Baggallay, Q. C. in reply.

The following authorities were cited on the argu

ments:

Sowell v. Champion, 6 A. & E. 407;
Bates v. Pilling, 6 B. & C. 38;

1 Daniel's Chancery Prac. 361;
Bailey v. Devereux, 1 Vern. 269;
Arrowsmith v. Hill, 2 Phil. 609.
Cohen v. Morgan, 6 Dowl. & Ry. 8;
Carratt v. Morley, 1 Q. B. 19.

Jan. 11.-The MASTER of the ROLLS.-I think the present case is governed by that of Arrowsmith v. Hill. This court has power to direct an inquiry as to damages caused by the abuse of its own process; and, according to Arrowsmith v. Hill, if the party injured desires it, the case may be tried at law. I regard the present case as an application for leave to bring an action, and I will accordingly give the receiver leave to take that course, if he thinks proper so to do. The costs of the action must abide

the event of it. I may add, that one reason for my permitting an action to be brought is, that I think a jury a fit tribunal for such a case. I think, moreover, that the deft. in the action should be at liberty to contest my opinion that the fi. fa. was wrongfully issued.

Solicitors, Torr, Janeway and Tagart; Burrell.

Dec. 20, 21 and Jan. 12. Re FORSYTH.

Mortgagee-Solicitor-Costs-Taxation-Estoppel. A mortgage-deed contained a recital that a certain sum was due for costs. Those costs were not then ascertained; but, by arrangement, the mortgage-money and costs, as recited, were advanced by A., "the accounts to be thereafter adjusted." The mortgagee then transferred the property to A. The solicitor (who had acted for all parties) afterwards sent in the bill of costs, when it was found to be more than the amount paid, and to comprise items properly chargeable only to the mortgagor; but without which items it would not have amounted to the recited sum. The mortgagee then took out a summons for the taxation of the bill of

costs:

Held, that the summons must be dismissed, as the mortgagee was estopped by the recital in the mortgagedeed.

This case was an application for an order to tax a solicitor's bill of costs. The facts will suffi

ciently appear from the judgment of the M. R., infra.

Selwyn, Q. C. appeared for Mr. Greenwood, and cited

6 & 7 Vict. c. 73, s. 39.

Hobhouse, Q. C., for Mrs. Forsyth, cited the same statute, sect. 38.

Selwyn, Q. C. in reply.

Jan. 11.-The MASTER of the ROLLS.-This application is in form one for an order directing the taxing master of this court to tax a solicitor's bill of costs; but it is, in substance, an application for an order to reform a mortgage-deed. By indentures dated the 19th July 1861 and the 19th Dec. 1862 certain property was mortgaged by a Mr. Jackson to Messrs. Hall and Armstrong for 3000l. By indentures dated the 8th Jan. 1863 and the 7th Jan. 1864, Jackson gave a second mortgage on the same property to King and Riley for 570l, and by an indenture dated the 19th May 1864 he gave a third mortgage to a Mr. Greenwood for 500l. The property was advertised for sale by auction by the first and second mortgagees on the 17th June 1864; but Greenwood, in order to stop the sale, offered to pay them off. Mr. Forsyth, who was solicitor for both the first and second mortgagees, and had likewise acted as solicitor for the mortgagor, had not made out his bill of costs, and proposed to take 450l. on account. After some dispute it was agreed that 425l. 11s. 8d. (which, together with the principal and interest due to the mortgagees, made up the total sum of 43007.) should be advanced in respect of the costs. The 4300l. was paid and a receipt was signed dated the 14th June 1864. That receipt specified the sums due to the respective mortgagees and the sum paid for costs; and contained the words "the accounts to be hereafter adjusted." By an indenture, dated the same day, the first and second mortgagees transferred their debts and securities to Greenwood. The money required for the payments was advanced by a Mr.

[ROLLS.

Cowland; and by an indenture dated the day following the date of the receipt, in consideration of 4300l., Greenwood assigned the mortgage debt and mortgage property to him. Mr. Forsyth afterwards sent in his bill of costs; it amounted to 80%. 16s. 8d. more, than the sum already paid, and contained charges which were due to him only as solicitor for the mortgagor, and without which charges it would not have amounted to 425l. 11s. 8d. Greenwood accordingly made the present application to tax the bill, excluding the items for which the mortgagor alone was properly liable. Mr. Forsyth contended that, inasmuch as he would have been paid the whole of the bill out of the proceeds of the sale if the sale had taken place, he was entitled to charge it against Mr. Greenwood's security. These are the short facts although in form one to tax a solicitor's bill of costs, of the case. As I have already said, this application, is in substance one to reform a mortgage-deed. It ments (and said, I think, with some force), that Mr. was said, on behalf of Mr. Greenwood, in the arguGreenwood had been deceived in the matter; but that relief could not be granted him on this application. He seeks to have the bill taxed, and to exclude the items which can be properly charged would be allowed on an ordinary taxation, if the against the mortgagor only. Those costs, however, work has been done; and if the intention be to reduce the sum due on the mortgage, I cannot see how that can be done on an application to tax this bill. Jackson was bound by the deed; he has not admitted the propriety of the charges, and has a clear right to have the bill taxed. It may be that Mr. Greenwood out taking any security. If he has taken upon has paid a debt due from Jackson to Forsyth withhimself to pay Jackson's bill, he has a right to have it taxed. But his object is to exclude the items not chargeable against the mortgagees. Ever assuming that could be done on the present application, this difficulty still remains-that Mr. Greenwood is a party to a deed under seal, which recites that the sum due on the mortgage for principal, interest and costs was 43001. He is therefore estopped from saying that it was of a smaller amount. I think that, so long as that recital stands in the deed, I cannot allow it to be contested. It might have been different if there had been a written or, indeed, a parol, agreement that notwithstanding the deed the amount paid in respect of costs should be a sum to be afterwards determined: but the receipt was not such an agreement. Even if it were, the proper remedy would be by a bill for the specific performance of it. As the case at present stands, if there is a remedy at all (as to which I give no opinion), it should be by a bill. The summons must therefore be dismissed, but without costs on either side. Solicitors: Greenwood and Forsyth.

Jan. 14 and 18. AUSTIN v. AUSTIN. Infant-Custody of.

A father, a Roman Catholic, married a Protestant, and died intestate in 1862, leaving his widow and one child, an infant only a few months old. The father had caused a draft will to be prepared, in which he had directed his children to be educated as Roman Catholics. That draft was never executed. The infant, a delicate child, was in the care of its mother. Upon the question being raised whether the paternal uncle of the infant, who was a Roman Catholic, or its mother, who was a Protestant, should be appointed guardian of its estate and person, it was

Held, that the infant should not be removed from the