1841, for Fitzgerald's property. By his will, dated the 12th of January, 1859, Scott devised all his real and personal estate to the plaintiffs and two other persons who disclaimed, upon trust, to make certain payments, which have all since been satisfied, and, subject thereto, he empowered them to sell any parts of his estate, and directed them to convey the residue to the trustees of a certain settlement dated the 17th of February, 1851. The testator was, at the time of his death, owner of all the copy holds to which he was so admitted, except the small portions, which he had disposed of as I have mentioned. Since his death, no one has been admitted to any part thereof. The property consists of many different tenements. The plaintiffs have recently contracted to sell part thereof, not including Fitzgerald's tenement, and the trustees of the settlement of 1851 bave called upon them to convey, and the plaintiffs are desirous of conveying, the rest of the copy holds, including Fitzgerald's tenement, to those trustees. Before they can carry out the sale and conveyance respectively, they must be admitted. They now call upon the lord to admit them to Fitzgerald's tenement only, and offer to pay the customary fine in respect thereof; and they propose, according to their pleadings, to take admission to the rest subsequently, as may be convenient. The defendant declines to admit them to Fitzgerald's tenement alone, upon the ground that, according to the custom of the manor, he can require them to be admitted at the same time to all the copy. hold tenements comprised in the devise to them. The cause of the contest between them is that, according to the custom of the manor, every new purchaser (in the legal sense of the word) of customary land pays a fine on his first admission, but does not pay any fine upon any subsequent admission to any other customary lands. No one of the plaintiffs is a copyhold tenant of the manor. If, therefore, they can succeed in procuring admittance to Fitzgerald's tenement alone on payment of the small fiue due in respect thereof, they will saber quently claim to be admitted to the remaining tenements without paying any further fine, whereas, if they are admitted to all the tenements at the same time, the amount payable for fines will be considerably larger. I need hardly say that the thing in dispute is the sum to be paid by the plaintiffs in respect of fines. If that question were once settled, the lord of the manor would be ready to meet the views of the plaintiffs as to time and order of admittance, and the plaintiffs, would no longer have any reason to wish to take admittances at different times. The ruling which the plaintiff ask is a declaration of their right to be admitted to Fitzgerald's tenement without being admitted, at the same time, to the other copyhold tenements comprised in the same devise, and a mandamus to the defendant to compel him so to admit them. The plaintiffs' first proposition is that, by the general law, a person who is entitled to several copyhold tenements within a manor has a right to be admitted to them in any order he pleases; and a right, if he pleases, to be admitted to one or more without being admitted to all or any of the others. It is not disputed that the lord may have some right of forfeiture or seizure quousque in respect of copyholds to which a person entitled to be admitted will not take admittance; but that may be left out of consideration in the present case, because there is no evidence that the defendant has ever threatened any such proceeding. So much of the plaintiffs' pleadings as bear upon that was not even opened to me, and I only refer to it now that the plaintiffe' first proposition, as stated, may not be misunder stood. In considering what the general copyhold law is, it must be borne in mind that in most manors the fine paid by a purchaser on admittance is the same, whether such purchaser is already a tenant of the manor or not; and HIGH COURT. that the question now raised is of little or no importance in such manors, and is only material in those (comparatively few in number) in which the custom is like that of the manor of Wimbledon in this respect. And it must be remembered, further, that the defendant's contention only goes to this, that when a man is entitled to be admitted to several copyhold tenements under one disposition in one instrument, the lord is entitled to require the tenant to be admitted to all together. To put it in another way, the tenant is not entitled to split his admittances so as to take separate admittances at different times of the several tenements comprised in one disposition in his favour. It is surprising to find how little authority there is upon the subject. Taverner's case, 4 Co. 274, shows how a copyholder seised of several tenements holds them under several distinct tenures, each having its separate fine, rent, heriot, &c., a forfeiture of one being no forfeiture of the others; the essence being that each tenement is held under a separate holding, though several tenements may be comprised in one copy. The counsel for the plaintiffs also relied upon the 3rd and 4th points resolved in Hobart and Hammond's case, in the same volume, which wera as follows:-"3. It was resolved that where a. copyholder has several lands severally held by several services by copy, there the lord ought to assess and demand the fines severally for any parcel which is so severally held. For the tenant may refuse to pay the fiue for one parcel, and forfeit that, aud pay the fines for the others; and, as it was agreed in Taverner's case, every several tenure has a several condition in law tacite annexed to it, and therefore the lord ought for every several tenure to assess and demand a several fiue; so, if all the said several copyholds are surrendered to the use of another and his heirs, and the lord admits him tenendum per antiqua servitia inde prius debita et de jure consueta, there, as it was also resolved in Taverner's case, the teuures are several, and therefore the fines ought to be severally assessed and demanded. 4. Popham, CJ., said it was adjudged in Sindes' case that no fine is due to the lord either upon surrender or descent until admittance; for the admittance is the cause of the fine, and if, after, the tenant denies to pay the fine, it is a forfeiture." But these cases afford little help to the plaintiff, for they merely relate to the position of a tenant after he has been admitted to several tenements, and throw no light upon the question whether he can be compelled to take admittance to all at once or not. Moreover, they are dealing with cases where fines are payable for every tenement, and a tenant might prefer to forfeit by refusing to pay the fine and yet take the others; and do not refer to cases in which a fiue is only payable in respect of the tenement to which admittance is first taken. In Rex v. Boughey, 1 B. & O. 565, the custom of the manor was, that the purchaser of a copy hold tenement who was not already a tenant of the manor, paid on admittance a larger fine than if he was such tenaut. One Stewart contracted to purchase the equity of redemption in several tenements from Littler, not being already a tenant of the manor. After that, Stewart purchased from Boker a small copy hold tenement of half an acre only, of trifling value, and sought to be admitted to that before he was admitted to the more valuable tenements purchased from Littler, and, indeed, before the time for admittance thereto had arrived; the avowed object being that he might obtain admittance to Littler's tenements after he had already become a tenant of the manor, and thus reduce the amount of fine payable therefor. The tenant having obtained a mandamus to the lord to admit him to Boker's tenement, the return to this mandamus stated the above matters. It, was held that the return was not good; and that Stewart was entitled to be admitted to Boker's tenement at once in the absence of anything to show that the purchase of that tenement was colourable only, and therefore fraudulent. But in that case it will be observed that the titles to the several tenements were not all derived under one disposition. The tendered surrender was by Boker and wife of Boker's tenement only, and there was not any surrender of Littler's tenement, the time for which had not arrived. The titles to the two properties were different, coming by separate dispositions by different persons at different times, and the purchaser had not even become entitled to get in the legal estate in Littler's tenement, without which he could not be admitted. That case, therefore, does not throw any light upon the present; though it might have done so if, after the mortgage had been paid off, the question had been as to the right of the tenant to be admitted to one only of the tenements bought from Littler without taking admission to the others also. The case of Traherne v. Gardner, 4 W. R. 281, 5 E. & B. 913, was also relied on by the plaintiffs. In that case a copyhold tenant died seised of four copyhold tenements, to which he had been admitted by four different surrenders at different dates, and which had never been held as one tenement. His devisees claimed to be admitted to all four tenements by one admittance, with one heriot, on paying one set of fees; and they afterwards proposed two admittances instead of one. The lord's steward insisted on four admittances, with separate fees on each, and the tenant ultimately took❘ four admittances and paid four sets of fees under protest; and the action was to recover back the excess paid. It was held that the fees required were too large, and that the plaintiffs were entitled to recover back a part; but, in the course of the judgment, it was laid down by Lord Campbell that, where four tenements were united in one person, he was not entitled to be admitted to all by a single admittance, but that, in the absence of any special custom, there must be four admittances, as, by copyhold law, there must be an admittance for each separate tenement, and that whether the tenements were originally separate or had become so by sub-division was not material; but that a special custom to the contrary might be good. It was said by the defendant's counsel that all that was decided in that case was that a tenant could not insist on a consolidation of several tenements against the will of the lord to his prejudice; but Coleridge, J., points out that such an admittance would be against the principles of copyhoid law. But it will be noticed that no question arose as to whether the admittances should be made at the same time or not, and the judge's remarks were not addressed to that point. Coleridge, J., remarked in that case that there might be a special custom under which the lord was not entitled to more than one admittance still; a custom so much in derogation of the principles of copyhold law ought to be made out very clearly. And Mr. Elton pressed this upon me as a reason why I should require any special custom set up by the defendant to be clearly proved in the present case. I willingly give due weight to this remark, but it must not be forgotten that, by the principles of the general copyhold law, general rules are, in many cases, relaxed in favour of the lord, when the non-relaxation thereof would work unfairly to him. For instance, by the general law, the reasonable amount payable for arbitrary fine on admittance is two years' improved value; but, when the admittance is of joint tenants or tenants for lives, the law sanctions a larger fine; and, by analogy, it appears to me that any argument from an alleged general law that a tenant may take his admittances at such times and in such order as he pleases, founded on the customs of the large number of manors where fines are payable on each admittance, and where it is therefore immaterial to the lord whether the admittances are at the same time or not, ought not to have more than due weight given to it with respect to HIGH COURT. those exceptional manors in which no fine is payable by a purchaser who is already a tenant; and, therefore, the question what he is entitled and bound to be admitted to on his first admittance is of very great importance. The only other case bearing upon the general law is Evelyn v. Worsfold, cited on behalf of the defendant, a case decided by the Court of Queen's Bench in 1849, but reported only in 15 L. T. O. S. 4. In a manor in which by special custom the admittance of a tenant for life did not inure for the benefit of the remainderman-but he also had to be admitted and pay a fine-a tenant for life and a remainderman agreed to sell to a purchaser part of a tenement surrendered to them for their estates, and to effect that the remainderman was required by the lord to be, and was, in fact, admitted. He refused, however, to pay his fine, and was sued for it, and it was held to be reasonable that he should be required to pay it during the life of the tenant for life, if during that time he wished to surrender his estate in remainder. It was also contended that he ought to be compelled to pay a fine only in respect of that part of the tenement with which he was dealing, and one such instance was found in the court rolls. But it was held that one instance was not sufficient to prove a customary right for the copyholder to split his admittance, and that it must have been done by consent of, and arrangement with, the lord, and that the lord was therefore justified in his refusal to admit the remainderman to part only of his copyhold tenement. It was argued before me that in that case the parts were not portions of one tenement, but were different tenements; but the rolls of the manor of Westcot were produced to me in court, and upon examination I satisfied myself that the copyhold premises which gave rise to that action formed together one tenement only. The defendant's counsel, however, insisted that even then the case was an authority in their favour. But I do not think it helps them, for the decision was that a person who claimed to be admitted to part of a tenement could not refuse to pay the whole fine due in respect of that tenement. It is quite a different thing to say that a person entitled to be admitted to one entire tenement, and who offered to pay the whole fine due for that tenement, could not be admitted to it unless he at the same time took admittance to another separate tenement. On the other hand, I do not consider it decided by the case of Traherne v. Gardner that there is any general copyhold law that in manors in which a fine is only payable on the first admittance of a tenant, a purchaser who takes several distinct tenements under one disposition, one surrender, one devise, can compel the lord to admit him to one of such tenements when the tenaut refuses at the same time to take admittance to the other tenements also. It is now necessary to consider what the rights of the plaintiffs and defendant respectively are, having regard to the special customs of the manor of Wimbledon. [The learned judge then went through the court rolls and custumals of the manor, from which the custom appeared to be that a new purchaser paid a fine for his first admission, but that when he became a tenant no fine was due for any subsequent admission. The court rolls also showed a uniform practice that a purchaser who is not already a tenant is, on his first admission, admitted to, and pays a fine or fines in respect of, all the tenements to which he is entitled under the disposition in pursuance of which he requires admittance.] The question remains whether the plaintiffs have made out a right to the relief they asked. If they are right, and the fines paid upon admittance to several tenements under one disposition have in every case for 400 years been excessive and contrary to the custom, and, therefore, illegally demanded and wrongly paid, it is not too late for the plaintiffs to have redress, so far as they are concerned, even at the eleventh hour and fifty-ninth minute. But not one single instance has been found in the court rolls in HIGH COURT. JOHNSTONE V. EARL SPENCER.-NORTON v. JOHNSTON. which that has been done which the plaintiffs ask me to decide that they are entitled to do; and no such claim as the plaintiffs now make has been made in the time or to the knowledge of the present steward, nor can a trace of such a claim at any time be found. I cannot believe that what has been done for so many years was mere mistake by persons ignorant of their rights, or that such large payments would have been made in successive generations without objection, unless the payments had been, to the knowledge of the tenants, according to the custom of the manor. If such a claim ever had been made, some record of it would probably have appeared on the court rolls, where notes are found of many acts done contrary to the customs, and penalties enforced therefor; and if it were made and rejected, the case is still stronger against the plaintiffs. It was suggested in reply that these fines were only got from purchasers who were not tenants, and who, therefore, were ignorant of the customs, and that persons who were already tenants did not pay them. But what is here suggested would be a gross fraud, and I see no ground upoa which I can come to the conclusion that such payments were fraudulent, even in their inception. Moreover, the purchasers must often have been advised and represented by persons thoroughly conversant with the customs of the manor. And, further, the suitors at the customary court were themselves all owners of copyhold property, the value of which on any subsequent disposition would be impaired if claims by the lord to larger fines than the customs warranted were insisted on and acquiesced in. And I can come to no other conclusion than that the course of admittances and payment of fines which has so long existed is in accordance with the law. It is immaterial whether it is a special custom of the manor, strictly so called, or whether it is a usage of the manor, putting a construction upon the custom expressly contained in the custumals; except with reference to the argument urged on behalf of the plaintiffs, that it cannot be a special custom, because it is not found in any custumal; in support of which were cited the cases of The Marquis of Anglesey v. Lord Hatherton, 10 M. & W. 218, and The Duke of Portland v. Hill, 15 W. R. 38, L. R. 2 Eq. 765. It is said that, if there was any such custom as alleged, it would certainly have found its way into some custumal. However forcible this argument would be if there were any complete custumal, it is of infinitely less weight when it is remembered that there is not any such thing as an exhaustive custumal. The one to which I have referred does not profess to be a consolidated edition of all the customs of the manor, but rather a settlement of differences which had been stirred up as to divers articles concerning the customs. Moreover, there is nothing in the custumal to negative, or which is inconsistent with, the alleged special custom, which might be written into the custumal immediately after the article I bave quoted, and it would not be in any way contradictory to any of the articles already there. Under these circumstances, I come to the conclusion that there has been a course of practice in the manor of Wimbledon with respect to the mode of taking admittances in the case of dispositions to death uses so long continued, so clear, and so uniform as to be abundant evidence of such a special custom as the defendant alleges. And, looking at the number of such instances, which occurred very soon after the date of the custumal which I have quoted, in the same form as those which had shortly preceded it, I am satisfied that no one believed at the time that such admittances were in any way at variance with the customs of the manor or the rights of the copyholders. If such practice had admittedly been at variance with the custom of the manor, I cannot doubt that, when discovered, it would have been discontinued. Variances or discord had been stirred up on the subject If any HIGH COURT. (to use the language of the custumal), I feel assured that when the books of the old rentals, customaries, and court rolls were diligently examined and inspected after mature deliberation, when the points were looked up as to which knowledge had become important, the premises would have been reformed and the differences adjusted, and a full record thereof entered in the custumal. As none of these events occurred, I can only come to the conclusion that there was nothing to reform in this respect, and that the practice then in vogue was correct and in accordance with the customs shown by those earlier documents. It is impossible for me to alter the footing upon which copyholds have been bought, sold, and settled in this manor for hundreds of years, without its being made clear that what has been done is contrary to law; the plaintiffs' contention to that effect is, in my opinion, not well founded. The plaintiffs' experiment to reduce the fines they have to pay having failed, the action must be dismissed, and there will be judgment for the defendant, with costs. Solicitors for the plaintiffs, Janson, Cobb, & Pearson. Solicitor for the defendant, J. Plaskilt. Chan. Div. Pearson, J. Aug. 1, 11. NORTON v. JOHNSTON. (a.) Will-Tenant for life and remaindermen-Direction to accumulate rents until amount of accumulation sufficient to pay off mortgage debts—Sale of morty ged estutes by mortgagees-Discharge of remainder of mortgage debt out of accumulations. A testator, who died in 1875, devised his estates to trustees, and directed that the rents should be accumulated until the amount of the accumulations was sufficient to discharge the principal money due on mortgages on the estute, and that thereupon the trustees should pay off the And he declared that the tenant for life should not be entitled to any portion of the rents until the mortgages had been paid off. same. There were two mortgages on the estate. The trustees accumulated the rents and paid off one mortgage. The mortgagees of the other mortgage in 1884 sold the part of the estutes subject to it for less than the amount of their mor guge debt, and the residue was paid off out of the accumulations, of which a surplus still remained. Held, that the tenant for life was entitled to be let into possession of the rest of the estates, and to payment of the remainder of the accumulations. By his will, dated the 10th of August, 1863, Fletcher, Lord Grantley, devised all his real estates to trustees in fee to the uses, in the events which happened, of Richard Brinsley Norton (afterwards Lord Grantley) for life, with remainder to the use of his first and other sons successively in tail male, with remainder to the use of Charles Grantley Campbell Norton in fee. And the testator directed that the trustees should receive and take the rents, issues, and profits of his estates, and after paying thereout from time to time the interest payable in respect of the mortgages and incumbrances affecting the same, should invest the residue as therein mentioned, so that it might accumulate in the nature of compound interest until the amount of such accumula tions should be sufficient to discharge the principal (a.) Reported by J. TRUSTRAM, Esq., Barrister-at-Law. HIGH COURT. NORTON V. JOHNSTON.-IN RB LEICESTER Club and County Race Course Co. money due in respect of the mortgages and incumbrances, and that thereupon the trustees should forthwith pay off and discharge the same. And he declared that R. B. Norton, or the person or persons for the time being entitled for life or in tail to the estates, should not be entitled to the receipt of any part of the rents and profits until the mortgages and incumbrances had been paid off and discharged. The testator died on the 27th of August, 1875. At his death there were two mortgages, one for £75,000, and the other for £1,000, upon certain portions of his estates. An action was brought by R. B. Norton, who attained the age of twenty-one on the 1st of October, 1876, for the determination of certain questions upon the will. The trustees accumulated the surplus rents and profits, and in 1880 paid off the mortgage for £1,000 out of the accumulations. In January, 1884, the mortgagees for £75,000 gave notice to the plaintiff, the trustees of the will, and C. G. C. Norton, to pay off the principal money and interest due on their mortgage, and that in default they intended to sell under their power of sale. By an order of the 15th of February, 1884, made in the action, the judge expressed an opinion that the trustees ought not to take any steps in respect to the mortgagees' notice, but to allow them to act upon it. The mortgagees accordingly sold the property, subject to the mortgage, for £67,872. The balance of the mortgage debt of £75,000 was, under an order dated the 3rd of January, 1885, paid to the mortgagees out of the accumulations. Thus all the mortgages and incumbrances affecting the estates were discharged. The surplus of the accumulations was paid into court. The plaintiff now asked that he might be let into possession of the estates remaining unsol3, and that the residue of the fund in court arising from the accumulations, after payment of coste, might be paid out to him. W. W. Karslake, Q.T., and E. S. Ford, for the tenant for life.-The tenant for life is entitled to the possession of the unsold estates. The testator directed the accumulation of rents for the purpose of paying off the mortgages, not to recoup the inheritance if the estates should be sold to pay off the mortgage debts. The remainderman has no such right against the tenant for life: Tewart v. Lawson, 22 W. R 822, L. R. 18 Eq. 490; Bateman v. Hotchkin, 10 Beav. 426. Cozens-Hardy, Q.C., and Alexander, for the remainderman.-The sale was made at the request of the tenaut for life. [PEARSON, J.-Suppose he had sold under the Settled Land Act, 1882 ?] He would have been a trustee for all parties interested under section 53. [PEARSON, J.-Does that amount to more than that be is bound to sell with the same care as a trustee?] The case of In re Knatchbull's Settled Estates, 33 W. R. 10, 27 Ch. D. 349, shows that the Act was not intended to change the rights inter se of tenant for life and remainderman. In Tewart v. Lawson the trust was to accumulate for the purpose of paying off the testator's debts. Here the trust is to accumulate until the amount of accumulations is sufficient to pay off the mortgage debts. The accumulations ought to be employed in recouping the inheritance. Elphinstone, for the trustees of the will. W. W. Karslake, Q.C., in reply. PEARSON, J. (after reading the will, and stating the facts above set out, continued) :-The estates are now free from mortgages and incumbrances; and, accordingly, there is now, under the provisions of the will, no reason for accumulating the rents. But it is contended HIGH COURT. by the remainderman that, as one of the mortgage debts has been paid off in a manner unprovided for by the testator-by a sale of the property subject to it-the accumulation of the rents ought to continue until an amount equal to that raised by the sale is obtained, for the purpose of recouping the inheritance, and that the tenant for life should receive the interest only. There is, bowever, nothing in the will to provide for what has actually occurred. The testator directs that the tenant for life is not to receive any part of the rents until the mortgages have been paid off. But since the date of the will the Settled Land Act, 1882, has been passed, and one of the purposes to which the proceeds of a sale by the tenant for life under that Act may be applied is the discharge of incumbrances affecting the inheritance. I see no reason why the proceeds of a sale by the mortgagees should not be applied for the same purpose. If the testator had intended the rents to be accumulated for the benefit of the remainderman after the mortgages had been paid off, he has not made any provision to this effect. Having regard to the case of Tewart v. Lɑwem, which was similar to the present, I must decide that the tenaut for life is entitled to the possession of the estates. The surplus accumulations must, I think, go in the same way. It is not now required for the purpose for which the rents were accumulated. I have felt great difficulty in deciding this case. My ratio decidendi is that the mortgage debts have been paid off in a way different from that which the testator intended, and he has not provided for the event. Solicitors, Fladgate & Fladgate; Capron, Daltons, & Co.; Whitaker & Woolbert. In re LEICESTER CLUB AND COUNTY RACE COURSE Company-Winding up—Priority of debts—Dir-ctors By an agreement duted the 30th of May in the same year, and subsequently confirmed by the court, the official liquidator agreed to sell all the assets of the company for the sum of 78. 3d. in the pound on the claims proveable against the company. The chief clerk, by his certificate, certified that the claims set forth in the 1st and 2nd schedules had been allowed against the company, but that the claims set forth in the 2nd schedule were allowed to the persons therein named for their fees as directors, and were payable only after all the other creditors of the company had bern paid in full. One of the directors, who was not present u hen the certificate was 8 ttle, took out a summons asking that the official liquidator might be ordered to pay him the dividend of 78. 3d. on the debt found due to him for fres. Hold, that a sum due to a director for fees was a sum due to him in his character of a member "by way of dividends, profils, or otherwise," within sub-s ction 7 of section 38 of the Companies Act, 1862, and must be postponed until after the outside creditors hud been paid in full. (a.) Reported by G. E. JEFFERY, Esq., Barrister-atLaw. HIGH COURT. Adjourned summons. IN RE LEICESTER CLUB AND COUNTY RACE COURSE CO. This was a summons taken out by Mr. Cannon, one of the former directors of the above company, that the official liquilator might be directed to pay to him, out of the assets in his hands, the sum of £76 17s. 84., being a❘ dividend of 7s. 34. in the pound upon a debt of £212 2-. proved by the applicant, and allowed against the company; and, if necessary, a declaration that the statement made in the chief clerk's certificate, dated the 13th of November, 1884, that such debt was only payable after payment in full of the debts in the 1st schedule therein, was erroneous, and that, if necessary, the said certiite might be altered or varied; and that the said official liquidator or Thomas Robinson, one of the respondents to the summons, might pay the costs of the applicant. The Leicester Club and County Race Course Co. (Limited) was a company, incorporated under the Companies Acts, with articles of association. The articles of association contained, among others, the following provisions :-Art. 64 Any director shall vacate his office of director if he shall cease to be a member. Art. 65.-The remuneration of the directors for their services shall be such sum as the company, in general meeting, may from time to time determine, which shall be divided amongst the directors in such manner as they shall from time to time think fit. By a resolution passed at a general meeting of the shareboliers of the company, held on the 26th of December 1883, the sum of £800 was voted to the directors for directors' fees. In May, 1884, the company_was ordered to be wound up compulsorily, and an official liquidator was appointed. By an agreement, dated the 30th of May, 184, and made between the official liquidator of the one part, and John Robinson of the other part, the official liquidator agreed, subject to the approval of the court, to sell, and John Robinson agreed to purchase, all the property and assets of the company, “subject to the existing incumbrances thereon, at a price of 7. 3d. in the pound upon the total amount of the claims proveable against the company, in addition to the payment in full of such sums as by law are to be paid in full." The agreemeut was subsequently sanctioned by the court, and ordered to be carried into eff-ct. The chief clerk, by his certificate, dated the 13th of November, 1884, certified that the debts and claims which had been allowed were set forth in the 1st and 2nd schedules. The debts in the 1st schedule were debts due to the ordinary creditors. The heading of the 2nd schedule was as follows: "Debts due to creditors for fees, and payable only after payment in full of debts in the 1st schedule." Mr. Cannon, one of the former directors of the company, objected to the beading of the 2nd schedule of the certificate, on the ground that directors' fees were not sums due to them **in their character of members of the company by way of dividends, profits, or otherwise," within the words of sub-section 7 of section 38 of the Companies Act, 1861, and, therefore, ought not to be postponed until alter the payment of debts due to the ordinary creditors. He accordingly took out this summons. Jo appeared that Mr. Cauuon was not present when the Certificate was rigued, and that he never received any notice to settle the same. The summons was adjourned into court. Everitt, Q.C., and D. L. Alexander, for the applicant. -The words" or otherwise" in sub-section 7 of section 38 of the Companies Act, 1862, must mean something ejusdm generis with dividends and profits. Section 38, if extended to debts, will not include a sam due to director for fees: In re Overend, Gurney, & Co., Ex parte Grissl, 14 W. R. 1015, L. R.1 Ch. 528; In re West of England Bank, Ex parte Browne, 27 W. R. 869, 12 Ch. D. 823. The salary having been dy voted in HIGH COURT. pursuance of the articles, section 38 does not apply, as the sum voted is not a sum due "by way of dividends, profits, or otherwise." Although directors are generally members of a company, there is nothing in the act requiring them to be members, and the salary when voted is due to them in their character of directors, and not in their character of membera. When the sum voted to them is once duly allocated to them it becom +8 a debt due to them as directors, and recoverable by action at law: Orton ▼. The Cleveland Fire-Brick and Po'tery Co. (Limited), 13 W. R. 869, 3 H. & O. 868. It is not enough to show that the money voted is due to the directors as members; it must be due to them in their character of members. Cozens. Hardy, QC., and Gears, for Robinson.Directors are not like outsiders; they cannot recover their fees: Eley v. The Positive Government Security Life Assurance Co. (Linit-d), 24 W. R. 338, 1 Ex. D. 88; Dunst in v. The Imperial Gas Light and Coke Co., 3 B. & Ad. 125. Grissell's case and the case of The West of England Bank were both cases in which the debt was due to an outsider, and not to a member. Assuming that in the case of a going concern & director might maintain an action for his remuneration, it does not follow that in the winding up his salary should not be postponed. This money was due to Mr. Caunon in his character of a member by virtue of the articles, and, therefore, this case is within the language of sub-section 7 of section 38. Everitt, Q.C., in reply.-The sum voted to directors can be paid out of capital, and this shows that the sum is a debt, since it could not be paid out of capital if it was analogous to dividends or profits: Re Lundy Granite Co., 20 W. R. 519, 26 L. T. N. S. 673; Harvey Lewis' case, 20 W. R. 408. PEARSON, J., after stating the facts, continued:-The two questions, then, upon the merits which were urged, were these that the chief clerk was mistaken in supposing that these debts ought to be postponed to the payment of the debts due to the general creditors; and, secondly, even if that were not so, nevertheless, under an agreement which had been entered into with Mr. Robinson, who had bought from the liquidator the assers of the company on condition of paying a sum equal to 7s. 3d. in the pound on all the debts due from the company, upon the terms of that agreement, the debts In the Zud schedule, whether payable puri pussu or not with the debts in the 1st schedule, were entitled to 7. 31. in the pound. The point which, I have mentioned first I will take first. The question, shortly stated, is this-whether, in the winding up of a company, which is not solvent, fees due to directors are to be paid puri passu with outside debts, or whether they are not to be paid until all the outside creditors have been paid in full ? It is certainly a very extraordinary thing that, while this question might have been raised at any period within the last twenty years, it has never been brought before the court. What bas happened in the meantime- how directors' claims tor fees have been disposed of-I do not know. All parties, I think, agree, and I agree with them, that the case 18 to be disposed of on one sub-section of the Companies Act of 1862-the 7th sub-section of the 38th section. [His lordship read the sub-section, and coutinued:-] That which the court is called upon now for the first time to decide is this-"A debt due to a member of a company in his character of a member by way of dividende, profits, or otherwise." First, let me see what the position of these directors is. In the articles of association by which this company is bound, the managing directors were to be members, because anyone appointed to be a director vacated his office if he ceased to be a member. Then the remuneration was given in |