11,000l. and 12,0007., for which they issued bonds of the company, similar in form to those before mentioned; and the money so raised, to the amount of 5,960, was handed to the defendant John Propert, and by him paid to the Accountant-General as part of such deposit; and the sum of 5,5687. was paid to the secretary or solicitor of the company, and by him or them also paid to the Accountant-General for the like purpose.

The bill further alleged a threat and intention by the directors to continue the issue of the bonds.

money. The form of the bonds was different from the form given in the schedule to the Land Clauses Act, and it could not be said that it was a device for issuing bonds assignable in the market as if they were bonds or debentures issued under the company's Parliamentary powers.

As to the later transaction, the case was even less strong. That transaction might or might not have been a proper one originally, but the Act of Parliament, which the Court must hold to be beneficial to the shareholders, had been actually obtained by means of those bonds. If the Court had been

Roll, QC., Giffard, Q. C., and Locock Webb, for the asked to restrain the company from issuing the bonds demurrer, contended,

for the purpose of paying the deposit, it might have

1st. That the plaintiff could only sue on behalf of done so: but now the money had been actually himself and the other shareholders,

Morley v. Alston, 1 Ph. 790, 4 Rail. Ca. 636.
2nd. That the conduct of the directors was not
Ilegal; on which point they referred to,

Royal British Bank v. Turquand, 5 E. & B. 248,
6 E. & B. 227;

Troup's Case, 29 Beav. 353;
Baker's Case, 1 Dr. & S. 55.

Sir H. Cairns, Q.C., and Roxburgh, for the bill. As to the form of the bill, the shareholders were before the Court in their corporate capacity. The practice had been modified since Mozley v. Alston (loc. cit.), and the other cestuis qui trustent of the directors might, if necessary, be hereafter brought before the Court in the ordinary way. At any rate this objection was one as to parties only, and therefore, ore tenus.

As to the equity, this was a contract ab ante, and not a mode of paying debts already owing. It was a scheme for raising money in an unauthorised manner,

received and applied, as he must hold, for the benefit of the shareholders. The threat, alleged by the bill, must of course be restricted to paying the contractor by similar bonds.

As to the form of the bill, the plaintiff could not sue by himself, under any notion that his co-cestuis que trustent might afterwards be brought before the Court. The forms of the Court furnished a distinct course in suits of this description, and the plaintiff must sue on behalf of himself and the other shareholders.

Minute.-Demurrer allowed with costs-liberty to

Shares, Bequest of-Specific Legatee-Calls.
Where a testator having shares in certain gas com-

and saving themselves the necessity of going to Parlia-panies bequeathed the residue of his personal estate, inment for further powers. The case of the

Emperor of Austria v. Day, 2 Giff. 628, was ultimately decided on the principle that Kossuth's notes affected and professed to make the finances of the

state liable.

WOOD, V.-C., said that the demurrer must be allowed, but with leave to amend. The plaintiff's case was not clearly stated, and of course the allegations of the bill must be taken most strongly against the pleader. The transactions complained of were, first, those stated in the 7th paragraph, and secondly, that the company when about to apply for a new Act of Parliament, which they afterwards obtained, raised | the amount of the deposit by means of one of these

bonds.

If it were

possible to treat those transactions

cluding the shares, to his wife for life, and empowered his trustees to continue the state of the investment of his

personal property, and after her death directed his trustees to transfer twenty-six shares in P Company to C B, and specifically disposed of his shares in I Company:

Held, that calls made on these shares during the

widow's lifetime must be paid out of the general resi duary estate.

This was a petition for the opinion and advice of the

Court, under Lord St. Leonards' Act (23 & 24 Vict. c. 38), upon shares in different gas companies.

John Box, being possessed of 150 new shares in the

Imperial Gas Light Company, 66 shares in the Phoenix

Gas Light Company, and shares in other gas companies, by his will bequeathed the residue of his personal estate,

trust for his widow for life, and after her death he

as consistent with the company's powers, the bill including the shares, to his executors and trustees upon could not be sustained. Now, if the company expecting to obtain extended Parliamentary powers directed his trustees to transfer into the name or names could find a contractor willing to take these bonds in of his brother Charles Box, his executors, &c., 26 shares payment, or part payment for work done, the Court in the Phoenix Gas Company for his and their own benefit: could not hold that it was either a fraud upon the and to transfer into the names of each of his nieces, company's Act or an unauthorised mode of raising Emily Johnson and Mary Johnson, their executors,

&c., fifty new Imperial Gas shares for their own benefit; and into the name or names of his nephew John Box, his executors, &c., the remaining 50 shares in the New Imperial Gas Company for his and their own benefit. He empowered his trustees to continue the state of the investment of his personal estate. Subject to certain annuities, he bequeathed the residue of his personal estate to certain charitable institutions.

not necessary to decide that, for his decision rested on the general scheme of the will. The testator's intention evidently was, that his wife should enjoy the income of the whole of his property en masse during her life; for this purpose he empowered his trustees to continue the state of the investment of his property. After his wife's death, but not until then, those shares were to be separated from the mass of his property. If the Court were to hold that some of the shares must be sold to pay the calls, the widow might say-“No ; I have a right to enjoy this property in the most beneficial manner, and I desire that these shares may be retained in specie." This case, therefore, was distin

The Imperial shares were 501. shares, upon which 407. only had been paid up at the testator's death. The Phoenix shares were 601. shares, upon which 587. only had been paid up, and a further call of 21. per share had been made since the testator's death. Two of these shares had been sold for the payment of debts.guishable from those cited, if on no other grounds,— The question was, how calls on the 26 Phoenix shares (which the petition assumed to be specifically bequeathed) and the 150 Imperial shares should be borne.

Hanson, for the petitioners, the trustees, one of whom was C. Box, contended that the calls should be borne by the testator's estate,

Clive v. Clive, 1 Kay, 600;

Jacques v. Chambers, 2 Coll. 435; 4 Rail. Ca. 499;
Blount v. Hipkins, 7 Sim. 121;

Wright v. Warren, 4 De G. & S. 367 ;
Armstrong v. Burnet, 20 Beav. 424.

because those in remainder could never have a right against the widow to have the calls raised by a sale of a portion of the shares. Further, the inconvenience pointed out by Kindersley, V.-C., in Day v. Day, could never arise in the present case, as the property was to be kept in one mass until the widow's death.

The answer to the petition, therefore, would be that the payment of all calls to be made during the widow's lifetime should come out of the residuary estate.

Erskine, for the Misses Johnson, on the same side. Settlement-Covenant to Settle After-acquired

The shares could not be transferred till the calls were paid, and therefore the executors must pay them.

G. L. Russell, for a residuary legatee, contended that the rule was clear that the legatee must take cum onere, and pay all calls made after the testator's death, Day v. Day, 1 Drew. & Sm. 261.

Property-Husband and Wife.

A marriage settlement contained a covenant by husband and wife jointly, and each of them separately, to settle property which they or either of them in her right should become entitled to during the coverture, except the wife's life interests and property settled to her

F. J. Wood, for other residuary legatees, on the separate use. same side, cited

Addams v. Ferick, 26 Beav. 384.

Hanson, in reply.

The wife's brother gave all his real and personal estate to the wife and her husband, their heirs, executors, &c., as joint tenants:

Held, that the property was within neither the letter nor the spirit of the covenant.

An antenuptial settlement, dated 22nd of July, 1845, was made on the marriage of the defendant, John Edye, with the plaintiff, his present wife. In it was recited an agreement, that any future fortune or property to which the plaintiff might thereafter become entitled, being of the value or amount thereinafter mentioned, should be settled upon the trusts and for the purposes thereinafter expressed. The first trust was to the plaintiff during their joint lives for her separate use. The husband and wife entered into a joint covenant, and each of them into a separate cove

WOOD, V.-C., said that this case turned on the special character of the will. It was not the simple case of a specific bequest of shares, as to which, after some conflict of decision, the current of authority, as shown by Fitzwilliams v. Kelly (10 Hare, 266), Day v. Day (loc. cit.), and Armstrong v. Burnet (loc. cit.), was in favour of the doctrine that the specific legatee must take the bequest cum onere. If, therefore, this were a gift simpliciter to A for life, with remainder to B and C, the general rule would apply, that the shares were separated from the testator's estate at his death, and the calls would be raisable out of the shares. This will was peculiar. The gift of the Imperialnant, that "if at any time during the coverture they shares was certainly specific. As to the Phoenix shares, if it were necessary to decide the point, his Honour would be inclined to think, on the whole scope of the will, that they too were specifically bequeathed, in accordance with the observations of Knight Bruce, V.-C., in Jacques v. Chambers (loc. cit.). But it was

(the husband and wife) or either of them, in her right, should by descent, succession, or otherwise howsoever, become entitled to any real or personal property or effects of the value or to the amount of 100%. or upwards, at any one time (other than and except interests which should be restricted to the life of

the plaintiff, or which, whether so restricted or not, should be settled and limited to her separate use) then" the same should be settled upon the foregoing

trusts.

Joseph Bell, a brother of the plaintiff, by his will, dated 23rd of August, 1861, gave all his real and personal estate unto and to the use of the plaintiff, and her husband, their heirs, executors, administrators, and assigns, as joint tenants.

The bill prayed for a declaration, whether the real and personal property so devised and bequeathed by the will of Joseph Bell, or any part thereof, was subject to the trusts of the settlement, or to the covenant therein contained.

Giffard, Q.C., and Hemming, for the plaintiff.

would take effect on her surviving, and which ought to be settled,

Atcheson v. Atcheson (loc. cit.).

Rolt, in reply, contended that the covenant comprised only property falling into possession during the

coverture.

WOOD, V.-C., thought that property passing by a gift of this peculiar description was not contemplated by the framers of the covenant, and that the covenant did not comprise it. The intention was to deal only with property accruing in the wife's right. There were three classes of property comprised in the covenant, but this property could not be brought within the terms of any one. It was not property coming to them both in her right, but in right of both of them that the husband and wife could not take as joint-in her right. It was, therefore, wholly omitted from as an entirety; nor did it accrue to either of them singly, tenants, but took in entire ties; there could not, the words of the covenant. Nor did it come within therefore, be any severance, the scope or spirit of the covenant. Prima facie the covenant would not embrace property not accruing in possession during the coverture and this view was strengthened by the exception of property settled to the wife's separate use, and by the recital, which

Rolt, Q.C., and Druce, for the husband, contended,

Atcheson v. Atcheson, 11 Beav. 485;

Co. Litt. 187 a;

Moffatt v. Burnie, 18 Beav. 211;

Warrington v. Warrington, 2 Hare, 54.

The Court would not look into the motive of the together showed the intention to be merely to guard

gift,

Cole v. Wade, 16 Ves. 27.

against the husband's marital right, but to leave the wife to take anything she might take as discovert.

Osborne, Q.C., and W. W. Cooper, for the surviving It was true the wife might become entitled to this trustee of the settlement, contrà, cited,

Ripley v. Woods, 2 Sim. 165;

Attorney-General v. Bacchus, 9 Price, 30; 11
Price, 547; cited in, Atcheson v. Atcheson;
Logan v. Wienholt, 1 Cl. & F. 611; 7 Bligh, 11;
commented on in, Sugden's H. of L. 107.
At any rate, the wife had a present right, which

property by survivorship. But then the coverture would be at an end, and the property would be in the same condition as property settled to her separate use during coverture.

He should, therefore, declare that the property given by Joseph Bell's will was not subject to the trusts of the settlement, or the covenant contained in it.

Q. B. 7 Nov. 1863.

COMMON LAW.

THE QUEEN ON THE PROSECUTION
OF THE VESTRY OF ST. MARYLE-
BONE v. THE BOARD OF WORKS
FOR THE STRAND DISTRICT.

Parish" abutting upon" a Highway-Medium
filum viæ-Order of Vestry for Expenses of
Paving in another Parish-Metropolis Local
Management Acts.

By an Act of the 30th Charles 2, the parish of St. A. was carved out of the parish of St. M., and its northern boundary was described as "abutting on and upon" a certain street

Held, that the boundary of the parish of St. A ran along the middle line of the said street.

By an order of the Metropolitan Board of Works, dated 6th March, 1857, and made under the provisions of the Metropolis Local Management Act, which came into operation 1st of January, 1856, the control of the parish of St. A) was given to the parish of B. the paving, &c., of Oxford Street (part of which lies in Upon a special case, stated by consent of the parties to the issues upon the return to a writ of mandamus, which writ ordered the Board for the district in which St. A's parish lay to pay to the vestry of B certain sums which they were required by two orders of the said vestry to pay in respect of the paving of Oxford Street by the said vestry;-it was objected, on the part of the defendants, -firstly, that the first of the said two orders was bad, as being in part for expenses incurred by the vestry between January 1, 1856, and 6th March, 1857,—and,

secondly, that neither order purported to be for expenses of the parish. In this map the boundary-line is drawn incurred in that part of Oxford Street which lay within | down the middle of Oxford Street. the parish of St. A :

tioned in the writ of mandamus. The question for the opinion of the Court is, whether the peremptory writ should issue in respect of one or both the said orders, and for what amount, if any.

Keane (with him Petersdorff, Serjt., and Inderwick), for the prosecutors.

The words "abutting on and upon" the highway, in the statute of Charles II., imply that the northern boundary of St. Anne's parish runs along the middle line of Oxford-street,

Berridge v. Ward, 30 L. J. C. P. 218;
R. v. Landulph, 1 M. & R. 393;
Baddely v. Gingell, 1 Exch. 319.

The vestry were entitled to include in their first order
the expenses incurred between the 1st January, 1856,
and 6th March, 1857; and even if they were not so
entitled, still, the orders being good on the face of
them, the amounts mentioned therein cannot be ques-
tioned here,

R. v. Gloucester, 5 T. R. 346;

St. Botolph v. Whitechapel, 29 L. J. M. C. 228.
The remedy, if any, must be either by proceedings in
Chancery, or, since the money is not yet paid, by
objection taken before the auditor, under the pro-

visions of 18 & 19 Vict. c. 120, s. 195.

Macnamara, for the defendants.

In order to learn what part of Oxford-street, if any, the parish of St. Anne is liable to repair, we must look to the Act of Charles II. alone, and the words "abutting on and upon" in that statute mean that the parish is to extend up to, but not into, the highway. The order is bad, because it includes costs incurred before the time for which the order could legally be made. The allowance of the auditor is said, in section 195, to be "final and conclusive"; but it cannot have been intended that there should be no means of testing in this Court the legality of their proceedings. It does not appear on the order that it is made for expenses incurred solely in that part of Oxford-street which is said to be in the parish of St. Anne.

Keane, in reply, pointed out that by 25 & 26 Vict. c. 102, s. 38, any person aggrieved by any auditor's allowance may, notwithstanding sect. 195 of the Act of 18 & 19 Vict., apply to the Court of Queen's Bench for a certiorari, notice being given beforehand to such auditor.

that they do not, because, if that had been the intenusque ad medium tion of the Legislature, the words ". filum via," or "bounded by the highway," would have been used. But it is clear that such a construction as that contended for by the defendants would lead to great inconvenience. In conveyances and in Acts of Parliament where land is conveyed, or where boundaries are described, we never meet with a description in which a boundary is described as being the medium filum of a way or river. It cannot be doubted that in an ordinary conveyance these words would mean "usque ad medium filum viœ." Why then should a different meaning be attached to them here? It appears that during the last thirty or forty years both St. Anne's parish and Marylebone have been carefully perambulated, and the perambulations have passed on each side of Oxford-street close to the houses; but it is at the same time quite clear that the parish of St. Anne has throughout that period submitted to repair the road up to the middle line. Then, again, the map which has been treated as authentic by St. Anne's parish, describes the boundary as running along the middle of the street. Besides, some effect ought to be given to the legal presumptions arising out of the case. Previous to the 30th Charles II., St. Marylebone and St. Martin were contiguous parishes, lying upon opposite sides of the Oxford Road, and the ordinary presumption of law would then be, that the repair of the highway was divisible between them. If, therefore, we were to hold that the statute of Charles II. made St. Anne's parish extend only as far as the walls of the houses on the south side, it would follow that all that which lies between the medium filum vic, and the houses in St. Anne's parish, would still remain in the parish of St. Martin. I am, therefore, compelled to believe, that the Legislature intended that the words of the Act should be construed in their ordinary meaning, and that all that part of the highway which lies south of the medium filum, should belong to the parish of St. Anne. With respect to the other points of the case, I entertain a strong opinion that the parish of St. Anne cannot be made liable for the repairs of any part lying without the parish of St. Anne; but there is nothing before us satisfactorily to show that that has been done on the present occasion. At any rate, I am of opinion, that we ought not to interfere after the provisions in the recent statute which have been pointed out to us by Mr. Keane.

WIGHTMAN, J.-I agree with my lord, and for the reasons which he has given.

COCKBURN, C. J.-It appears that the parish of St. Anne was originally carved out of the large parish of St. Martin, and the first question that arises for our decision is concerning the northern boundary of the new parish of St. Anne. That boundary is described BLACKBURN, J.-I am of the same opinion, and, in the Act of Charles II. as "abutting on and upon upon the first point, I can add nothing to the reasons the king's highway," which is now called Oxford-given by my lord. As to whether the order can be street, and we have to say whether those words include in the parish of St. Anne that portion which lies between the houses on the south side of Oxford-street and the medium filum viæ. The defendants contend

enforced or no, it would, on the one hand, be highly inconvenient if we were to hold that an order which has been enforced erroneously or for a wrong sum were void; and, on the other hand, it would be equally