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11,0001. and 12,0001., for which they issued bonds money. The form of the bonds was different from of the company, similar in form to those before men- the form given in the schedule to the Land Clauses tioned; and the money so raised, to the amount of Act, and it could not be said that it was a device for 5,9601., was handed to the defendant John Propert, issuing bonds assignable in the market as if they were and by him paid to the Accountant-General as part bonds or debentures issued under the company's of such deposit; and the sum of 5,5681. was paid to Parliamentary powers. the secretary or solicitor of the company, and by him As to the later transaction, the case was or them also paid to the Accountant-General for the less strong. That transaction might or might not
have been a proper one originally, but the Act of The bill further alleged a threat and intention by the Parliament, which the Court must hold to be benedirectors to continue the issue of the bonds.
ficial to the shareholders, had been actually obtained
by means of those bonds. If the Court had been Roll, Q.C., Giffard, Q.C., and Locock Webb, for the asked to restrain the company from issuing the bonds demurer, 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,
received and applied, as he must hold, for the benefit Morley v. Alston, 1 Ph. 790, 4 Rail. Ca. 636. of the shareholders. The threat, alleged by the bill, 2nd. That the conduct of the directors was not must of course be restricted to paying the contractor llegal ; on which point they referred to,
by similar bonds. Royal British Bank v. Turquand, 5 E. & B. 248, As to the form of the bill, the plaintiff could not 6 E. & B. 227 ;
sue by himself, under any notion that his co-cestuis Troup's Case, 29 Beav. 353 ;
que trustent might afterwards be brought before the Baker's Case, 1 Dr. & S. 55.
Court. The forms of the Court furnished a distinct Sir H. Cairns, Q.C., and Roxburgh, for the bill.
course in suits of this description, and the plaintiff As to the form of the bill, the shareholders were
must sue on behalf of himself and the other share
holders. before the Court in their corporate capacity. The practice had been modified since Mozley v. Alston (loc. Minute.- Demurrer allowed with costs-liberty to cil.), and the other cestuis qui trustent of the directors amend. might, if necessary, be hereafter brought before the Court in the ordinary way. At any rate this objection
Wood, V.-C. was one as to parties only, and therefore, ore tenus.
7, 17 Nov. 1863. As to the equity, this was a contract ab ante, and not a mode of paying debts already owing. It was a
Shares, Bequest of-Specific Legatee-Calls. scheme for raising money in an unauthorised manner,
Where a testator having shares in certain gas coniand saving themselves the necessity of going to Parlia- panies bequcothed the residue of his personal estate
, in, ment for further powers. The case of the
cluding the shares, to his wife for life, and empowered Emperor of Austrio y. Day, 2 Giff. 628,
his trustees to continue the state of the investment of his was ultimately decided on the principle that Kossuth's personal property, and after her death directed his notes affected and professed to make the finances of the trustees to transfer twenty-six shares in P Company to state liable.
C B, and specifically disposed of his shares in I ComWood, V.-C., said that the demurrer must be pany :allowed, but with leave to amend. The plaintiff's case
Held, that calls made on these shares during the was not clearly stated, and of course the allegations widow's lifetime must be paid out of the general resiof the bill must be taken most strongly against the duary estate. pleader. The transactions complained of were, first, This was a petition for the opinion and advice of the those stated in the 7th paragraph, and secondly, Court, under Lord St. Leonards’ Act (23 & 24 Vict. that the company when about to apply for a new Act c. 38), upon shares in different gas companies. of Parliament, which they afterwards obtained, raised John Box, being possessed of 150 new shares in the the amount of the deposit by means of one of these Imperial Gas Light Company, 66 shares in the Phænix
Gas Light Company, and shares in other gas companies, If it were possible to treat those transactions by his will bequeathed the residue of his personal estate, 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 ex
trust for his widow for life, and after her death he pecting 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 Phænix 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,
Re Box's Trusts.
&c., fifty new Imperial Gas shares for their own benefit; not necessary to decide that, for his decision rested on and into the name or names of his nephew John Box, the general scheme of the will. The testator's intenhis executors, &c., the remaining 50 shares in the tion evidently was, that his wife should enjoy the New Imperial Gas Company for his and their own income of the whole of his property en masse during benefit. He empowered his trustees to continue the her life ; for this purpose he empowered his trustees to state of the investment of his personal estate. Subject continue the state of the investment of his property. to certain annuities, he bequeathed the residue of his After his wife's death, but not until then, those shares personal estate to certain charitable institutions. were to be separated from the mass of his property.
The Imperial shares were 501. shares, upon which If the Court were to hold that some of the shares must 401. only had been paid up at the testator's death, be sold to pay the calls, the widow might say—“No ; The Phænix shares were 601. shares, upon which 581. I have a right to enjoy this property in the most beneonly had been paid up, and a further call of 21. per ficial manner, and I desire that these shares may be share had been made sinee the testator's death. Two retained in specie.” This case, therefore, was distin. 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 Phenix because those in remainder could never have a right shares (which the petition assumed to be specifically against the widow to have the calls raised by a sale of bequeathed) and the 150 Imperial shares should be a portion of the shares. Further, the inconvenience borne.
pointed out by Kindersley, V.-C., in Day v. Day, could Hanson, for the petitioners, the trustees, one of never arise in the present case, as the property was whom was C. Box, contended that the calls should be to be kept in one mass until the widow's death. borne by the testator's estate,
The answer to the petition, therefore, would be that Clive v. Clive, 1 Kay, 600 ;
the payment of all calls to be made during the widow's Jacques v. Chambers, 2 Coll. 435; 4 Rail. Ca. 499;
lifetime should come out of the residuary estate. Blount v. Hipkins, 7 Sim. 121 ; Wright v. Warren, 4 De G. & S. 367;
EDYE V. ADDISON. Armstrong v. Burnet, 20 Beav. 424.
17 Nov. 1863.
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
Property-Husband and Wife. paid, and therefore the executors must pay them.
A marriage settlement contained a covenant by husG. L. Russell, for a residuary legatee, contended band and wife jointly, and each of them separately, to that the rule was clear that the legatee must take cum settle property which they or either of them in her right oncre, and pay all calls made after the testator's death, should become entitled to during the coverture, except Day v. Day, 1 Drew. & Sm. 261.
the wife's life interests and property settled to her F. J. Wood, for other residuary legatees, on the separate use. same side, cited
The wife's brother gave all his real and personal Addams v. Ferick, 26 Beav. 384.
estate to the wife and her husband, their heirs, executors,
dc., as joint tenants : Hanson, in reply.
Held, that the property was within neither the letter Wood, V.-C., said that this case turned on the
nor the spirit of the covenant. special character of the will. It was not the simple An antenuptial settlement, dated 22nd of July, case of a specific bequest of shares, as to which, after 1845, was made on the marriage of the defendant, some conflict of decision, the current of authority, as
John Edye, with the plaintiff, his present wife. In it shown by fitzwilliams v. Kelly (10 Hare, 266), Day v.
was recited an agreement, that any future fortune or Day (loc. cit.), and Armstrong v. Burnet (loc. cit.), was property to which the plaintiff might thereafter become. in favour of the doctrine that the specific legatee must entitled, being of the value or annount thereinafter take the bequest cum onere. If, therefore, this were mentioned, should be settled upon the trusts and for a gift simpliciter to A for life, with remainder to B the purposes thereinafter expressed. The first trust and C, the general rule would apply, that the shares was to the plaintiff during their joint lives for her were separated from the testator's estate at his death, separate use.
The husband and wife entered into a and the calls would be raisable out of the shares. joint covenant, and each of them into a separate cove
This will was peculiar. The gift of the Imperial nant, that “if at any time during the coverture they shares was certainly specific. As to the Phænix (the husband and wife) or either of them, in her right, shares, if it were necessary to decide the point, his should by descent, succession, or otherwise howsoever, Honour would be inclined to think, on the whole scope become entitled to any real or personal property or of the will, that they too were specifically bequeathed,
effects of the value or to the amount of 1002. or in accordance with the observations of Knight Bruce, upwards, at any one time (other than and except V.-C., in Jacques v. Chambers (loc. cit.}. But it was interests which should be restricted to the life of
the plaintiff, or which, whether so restricted or not, would take effect on her surviving, and which ought to should be settled and limited to her separate use) be settled, then” the same should be settled upon the foregoing Atcheson v. Atcheson (loc. cit.). trusts. Joseph Bell, a brother of the plaintiff, by his will,
Rolt, in reply, contended that the covenant comdated 23rd of August, 1861, gave all his real and prised only property falling into possession during the
coverture. personal estate unto and to the use of the plaintiff, and her husband, their heirs, executors, administrators,
Wood, V.-C., thought that property passing by a and assigns, as joint tenants.
gift of this peculiar description was not contemplated The bill prayed for a declaration, whether the real by the framers of the covenant, and that the covenant and personal property so devised and bequeathed by did not comprise it. The intention was to deal only the will of Joseph Bell, or any part thereof, was sub- with property accruing in the wife's right. There ject to the trusts of the settlement, or to the covenant
were three classes of property comprised in the covetherein contained.
nant, but this property could not be brought within Gitard, Q.C., and Hemming, for the plaintiff.
the terms of any one. It was not property coming to
them both in her right, but in right of both of them Roll, 2.C., and Druce, for the husband, contended, that the husband and wife could not take as joint in her right. It was, therefore, wholly omitteil from
as an entirety; nor did it accrue to either of them singly, tenants, but took in entireties ; 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 Atcheson v. Atcheson, 11 Beav. 485 ;
covenant would not embrace property not accruing Co. Litt. 187 a ;
in possession during the coverture : and this view was Moffatt v. Burnie, 18 Beav. 211;
strengthened by the exception of property settled to Warrington v. Warrington, 2 Hare, 54.
the wife's separate use, and by the recital, which The Court would not look into the motive of the together showed the intention to be merely to guard gift,
against the husband's marital right, but to leave the Cole v. Wade, 16 Ves. 27.
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,
property by survivorship. But then the coverture Ripley v. Woods, 2 Sim. 165 ;
would be at an end, and the property would be in Attorney-General v. Bacchus, 9 Price, 30 ; 11 the same condition as property settled to her separate
Price, 547 ; cited in, Atcheson v. Atcheson ; use during coverture.
commented on in, Sugden's H. of L. 107. by Joseph Bell's will was not subject to the trusts of At any rate, the wife had a present right, which the settlement, or the covenant contained in it.
THE QUEEN ON THE PROSECUTION By an order of the Metropolitan Board of Works, Q. B. OF THE VESTRY OF ST. MARYLE- dated 6th March, 1857, and made under the provisions 7 Nov. 1863.
BONE v. THE BOARD OF WORKS of the Metropolis Local Management Act, which came
the paving, dc., of Oxford Street (part of which lies in Parish "abutting upon” a Highway—Medium the parish of St. A) was given to the parish of B.
filum viæ-Order of Vestry for Expenses of Upon a special case, stated by consent of the parties to the Paving in another Parish—Metropolis Local issues upon the return to a writ of mandamus, which Management Acts.
writ ordered the Board for the district in which St. A's
parish lay to pay to the vcstry of B certain sums which By an Act of the 30th Charles 2, the parish of St. A. they were required by two orders of the said vestry to pay was carved out of the parish of St. M., and its northern in respect of the paving of Oxford Strect by the said boundary was described as "abutting on and upon” a restry ;-it was objected, on the part of the defendants, certain street:
-firstly, that the first of the said two orders was bad, Held, that the boundary of the parish of Sl. A ran as being in part for crpenses incurred by the vestry along the middle line of the said street.
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 :
The 2 Will. & Mary, c. viii. s. 6, (making it Held, that the Court could not entertain such objec- incumbent on every inhabitant of Oxford Street to tions upon the argument of the special case, but that the repair the highway in front of his own house,) 8 & 9 remedy was by objection taken before the auditors under Will. & Mary, c. xxxvii. s. 6, 2 Geo. 2, c. xi., and 18 & 19 l'ict. c. 120, s. 195, and thence, if need be, by | 10 Geo. 3, c. 23, ss. 10, 66, 69, 72, are to be taken as certiorari to the Court of Queen's Bench, under 25 & part of the case. 26 Vict. c. 102, s. 38.
By 35 Geo. 3, c. 73, ss. 40, 43, 177, 179, the part
of Oxford Street lying within the parish of St. Anne Mandamus, commanding the defendants to pay to | is declared to be, for the purpose of paving, lighting, the prosecutors forthwith two sums of money pursuant &c., within the parish of St. Marylebone, and powers to two orders of the vestry of the parish of St. Maryle are given to the vestry of the latter parish to levy an bone, dated respectively the 14th of August, 1858, annual sum of 5001. upon the several parishes (includand the 18th of June, 1859. The defendants having ing St. Anne's) which adjoin Oxford Street upon the made return to the writ of mandamus, the issues came south side, to be expended upon the paving, lighting, on to be tried
Westminster before Cockburn, C.J., &c., of Oxford Street. Up to the passing of the Act and a special jury, when a verdict was entered for the for the better local management of the metropolis Crown, leave being reserved to move to enter a verdict (18 & 19 Vict. c. 120), which came into operation on for the defendants. Accordingly a rule nisi was ob- the 1st of January, 1856, the vestry of St. Marylebone tained which was subsequently, by order of the Court, continued to pave, light, and cleanse the whole of and with the consent of the parties, discharged, sub- Oxford Street, including that part on the south side ject to the opinion of the Court upon the following which lies between Nos. 382 and 440. special case :
By section 140 of the last-mentioned Act power is By an Act of Parliament of the 30th Charles II., given to the Metropolitan Board of Works to place entitled “An Act for making part of the parish of St. under the exclusive management of one vestry or Martin's-in-the-Fields a new parishı, to be called the district board of works, for the purpose of paving, parish of St. Anne in the Liberty of Westminster,” lighting, &c., the whole of any street which lies in the boundaries of the new parish were set forth, part more than one parish, or district; and section 160 proof the description being as follows :—“All the houses, vides that where part of a street in one parish is tenements, lands, and grounds beginning at, &c. . . thus placed under the control of the vestry of another with all the east side of Sohoe Street, abutting to parish, such other parish may, by order upon the first the sign of the Red Cow being the corner house mentioned parish or district board, demand and obtain at the north end of the said Sohoe Street upon the from such parish or board the sums required by them king's highway or Great Road, with all the houses for defraying the expenses consequent on executing and ground abutting on and upon the said road leading the Act. from the said sign of the Red Cow to the house known On the 6th of March, 1857, the Metropolitan Board by the sign of the Crooked Billet . . shall be of Words made an order, under sect. 140, placing and are hereby made, and shall be for ever hereafter under the exclusive management of the vestry of St. esteemed to be an entire parish separate and distinct Marylebone, for the purpose of paving, lighting, &c., from the said parish of St. Martins." The Red Cow all that part of Oxford Street which lay within the is now 382, Oxford Street, being the corner house at parish of St. Anne. the north-east end of Wardour Street, and the On the 14th of August, 1858, the vestry of St. “Crooked Billet” is now 440, Oxford Street, being Marylebone made an order upon the Board of Works the corner house at the north-west end of Crown for the Strand district (within which the parish of St. Street, both being on the south side of Oxford Street. Anne is situate), requiring the sum of 4361. 10s. Od. The whole of the north side of Oxford Street is in to be paid to them to defray the expenses incurred by Marylebone parish. During the last thirty years the the vestry in executing the Act. line of the middle of Oxford Street has been perambu
A similar order, dated the 18th of June, 1859, was lated by the parishioners of St. Marylebone as the made by the vestry of St. Marylebone upon the Strand southern boundary of that parish ; Pluring the same Board of Works, demanding payment of 1741. 28. for period the persons beating the boundaries of St. expenses incurred in executing the Act. The sum Anne's parish have passed along the south side of mentioned in the first order includes expenses incurred Oxford Street, beating the doors and windows of the by the vestry between the 1st of January, 1856, and houses, and not along the middle of the road.
6th of March, 1857, upon that part of Oxford Street, The vestry of St. Anne's are possessed of a map of alleged to be in the parish of St. Anne, which was the parish of St. Anne's (purporting to have been placed by the Metropolitan Board of Works under made in 1771 by a parishioner), which hung for many their control. years in the vestry-room for the use of the inhabitants The two orders above-mentioned are the orders men
tioned in the writ of mandamus. The question for the that they do not, because, if that had been the intenopinion of the Court is, whether the peremptory writ tion of the Legislature, the words “ usque ad medium should issue in respect of one or both the said orders, filum vix,” or “bounded by the highway," would have and for what amount, if any.
been used. But it is clear that such a construction as
that contended for by the defendants would lead to Keane (with him Petersdorf, Serjt., and Inderwick), great inconvenience. In conveyances and in Acts of for the prosecutors.
Parliament where land is conveyed, or where bounThe words “abutting on and upon” the highway, daries are described, we never meet with a description in the statute of Charles II., imply that the northern in which a boundary is described as being the medium boundary of St. Anne's parish runs along the middle
filum of a way or river. It cannot be doubted that in line of Oxford-street,
an ordinary conveyance these words would mean Berridge v. Ward, 30 L. J. C. P. 218 ;
“ usque ad medium filum vic." Why then should a R. v. Landulph, 1 M. & R. 393 ;
different meaning be attached to them here? It Baddely v. Gingell, 1 Exch. 319.
appears that during the last thirty or forty years both The vestry were entitled to include in their first order St. Anne's parish and Marylebone have been carefully the expenses incurred between the 1st January, 1856, perambulated, and the perambulations have passed on and 6th March, 1857 ; and even if they were not so
each side of Oxford-street close to the houses ; but it entitled, still, the orders being good on the face of is at the same time quite clear that the parish of St. them, the amounts mentioned therein cannot be ques. Anne has throughout that period submitted to repair tioned here,
the road up to the middle line. Then, again, the R. v, Gloucester, 5 T. R. 346 ;
map which has been treated as authentic by St. St. Botolph v. Whitechapel, 29 L. J. M. C. 228.
Anne's parish, describes the boundary as running The remedy, if any, must be either by proceedings in along the middle of the street. Besides, some effect Chancery, or, since the money is not yet paid, by ought to be given to the legal presumptions arising objection taken before the auditor, under the pro- out of the case. Previous to the 30th Charles II., visions of 18 & 19 Vict. c. 120, s. 195.
St. Marylebone and St. Martin were contiguous Macnamara, for the defendants.
parishes, lying upon opposite sides of the Oxford In order to learn what part of Oxford-street, if any, Road, and the ordinary presumption of law would the parish of St. Anne is liable to repair, we must look then be, that the repair of the highway was divisible to the Act of Charles II. alone, and the words "abut between them. If, therefcre, we were to hold that the ting on and upon ” in that statute mean that the statute of Charles II. made St. Anne's parish extend parish is to extend up to, but not into, the highway.
only as far as the walls of the houses on the south The order is bad, because it includes costs incurred side, it would follow that all that which lies between before the time for which the order could legally be the medium filum viæ, and the houses in St. Anne's made. The allowance of the auditor is said, in section parish, would still remain in the parish of St. Martin. 195, to be “final and conclusive”; but it cannot have I am, therefore, compelled to believe, that the Legisbeen intended that there should be no means of testing lature intended that the words of the Act should be in this Court the legality of their proceedings. It construed in their ordinary meaning, and that all that does not appear on the order that it is made for part of the highway which lies south of the medium expenses incurred solely in that part of Oxford-street filum, should belong to the parish of St. Anne. With which is said to be in the parish of St. Anne.
respect to the other points of the case, I entertain a Keane, in reply, pointed out that by 25 & 26 Vict. made liable for the repairs of any part lying without
strong opinion that the parish of St. Anne cannot be C. 102, s. 38, any person aggrieved by any auditor's the parish of St. Anne; but there is nothing before us allowance may, notwithstanding sect. 195 of the Act of 18 & 19 Vict., apply to the Court of Queen's Bench satisfactorily to show that that has been done on the for a certimari, notice being given beforehand to such present occasion. At any rate, I am of opinion, that
we ought not to interfere after the provisions in the auditor,
recent statute which have been pointed out to us by COCKBURN, C.J.-It appears that the parish of St. Mr. Keane. Anne was originally carved out of the large parish of
my lord, and for the St. Martin, and the first question that arises for our
reasons which he has given. 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 enforced or no, it would, on the one hand, be highly in the parish of St. Anne that portion which lies inconvenient if we were to hold that an order which between the houses on the south side of Osford-street has been enforced erroneously or for a wrong sum were and the medium filum ric. The defendants contend void ; and, on the other hand, it would be equally