may happen a case of a settlor declaring the fine to be a charge on the estate, and then the remainderman must take the thing exactly as he finds it. But when there is no such direction you take from your trustee what he has bought and pay accordingly. Take the simple case of twenty years, and suppose a man lives nineteen years of those twenty years, every year you get the value of whatever fragment there may be of the lease in possession and pay compound interest. Then it comes into possession. If there is only one year left he will have to pay whatever is to be appropriated for that one year. The tenant in remainder will only have bought a year. Then you will find what was paid down with compound interest to arrive at that interest in possession. Then, as to its being lives instead of years, Wigram, V.C., in that very case, begins his judgment by saying that he thinks it settled upon the authorities that there is no difference between lives and years. There is simply the difficulty of arriving at the value. You must assume the value for lives according to the tables, which are always properly framed for this purpose, and then the principle applies exactly in the same way that a value for years is assigned to the lives, and you calculate the compound interest upon it. In this particular case the parties have agreed that the surviving life shall be taken to be of the value it is at the present time. That does not alter the principle at all. It only comes to this, that that has happened which would probably happen. Both sides have agreed-or rather it has been agreed for them in chambers-that this was an ordinary life that was taken, and therefore it is taken just as well at its value now as if you were to go back and make a calculation and computation from the time the money was paid down. Therefore, the answer to the case must simply be, following Nightingale v. Lawson, that the proportion to be paid by the plaintiff for and in respect of the fines and expenses should be ascertained by reference to the actual enjoyment by William Hollins and to the value to be set upon the life of Francis Gale at the death of William Hollins, and having regard to the agreement to have a value set upon the life of Francis Gale at the death of William Hollins, and then compound interest should be computed at the rate of 47. per cent. per annum, with annual rests on the proportion payable by the plaintiff during the life of William Hollins, and simple interest at 47. per cent. should be computed for what shall be found due at the death of William Hollins for principal and interest as aforesaid till payment to the defendants. LORD JUSTICE SELWYN.-One point which was strongly urged upon us was that the tenant for life ought, at all events, to have been decreed to keep down during his life the interest on the money borrowed for renewal, and many cases have been cited in support of this contention. Those cases consist principally of three classes: first, where a provision has been made by the testator or settlor for the expense of renewal by sale or mortgage of the estate itself, in which case the tenant for life loses the rents of the part sold in the case of a sale, and keeps down the interest in the case of a mortgage; secondly, where the same provision is made by means of the sale or mortgage of another estate, in which case the tenant for life of the estate is in a similar position, and the case of Ainslie v. Harcourt (3) affords an instance of both these classes. The third class of cases is where the expenses of renewal are directed to be paid out of the rents and profits, in which case the whole burden is thus thrown upon the tenant for life, as in the case of Solley v. Wood (4). But where, as here, there is no provision made by the testator, but the estate is in fact reserved, it is clearly settled that the expense is to be borne by the parties interested in proportion to their enjoyment. At the time of the renewal the tenant for life in effect purchases an estate in possession, and the remainderman an estate in remainder; and if at that time they could foresee exactly the sums which certainly would have to be paid, and if it was then ascertained that out of a sum of 2,000l. required for that purpose 1,8007. was to be paid by the tenant for life and 2007. by the remainderman, no interest would become due by or to any person. So, if neither of them had the means of (3) 28 Beav. 313; s. c. 30 Law J. Rep. (N.s.) Chanc. 686. (4) 29 Beav. 482; s. c. 30 Law J. Rep. (N.s.) Chanc. 813. paying his share except by borrowing, and both had accordingly borrowed from a third person, each of them will have to pay interest of the sum so borrowed. But, in the present case, instead of borrowing from a third person, the tenant for life has paid the whole, and when the remainderman comes to claim the benefit of that renewal, upon what principle can he claim to be in a better position with respect to interest than if he had paid his share; that is to say, 2007. out of his own pocket or borrowed it from a third person? If he accepts the estate, it is clear that the 2007. was paid for his benefit at the time it was paid, and consequently must bear interest as against him from that time; and the authorities are decisive upon the point that interest is to be calculated with annual rests, upon the same principle as interest is calculated upon reversionary estates. That calculation is made up to the time when the reversion falls into possession, that is, up to the day of the death of the tenant for life, and from the time the remainderman -if he accepts the estate subject to the burden of paying his share of the renewal -becomes entitled, like an ordinary purchaser, to the rents and profits as from that day, and becomes subject to the ordinary right of interest on the purchase-money. This is, I apprehend, the meaning of Lord Thurlow's observations in Nightingale v. Lawson, where he says, after the death of the tenant for life, the demand upon the remainderman becomes a common debt. I think, therefore, that the order in this case must be in the form the Lord Justice has mentioned. The following are the minutes of the order: Their Lordships do order, that the said decree or order, dated the 17th of February, 1868, be varied; and their Lordships do declare, that the proportion to be paid by the plaintiff for and in respect of the fines and expenses of renewal in the special case mentioned, must be ascertained by reference to the actual enjoyments under the renewal grants and leases in the said special case mentioned by the said William Hollins, the late tenant for life of the estates, comprised in such renewal grants and leases, and by Elizabeth Allen, the testator's widow, and to the value to be set upon the life of Francis Gale, the cestui que vie, at the death of the said William Hollins; and having regard to the agreement, to have a value set upon the life of the said Francis Gale, the cestui que vie, at the death of the said William Hollins, that compound interest ought to be computed at the rate of 4. per cent. per annum, with annual rests on the proportion of such fines and expenses payable by the plaintiff Henry James Bradford, as the person entitled to nine fortieth shares of the reversionary interest, from the times of the several payments thereof up to the day of the death of the said William Hollins; and that simple interest ought to be computed at the rate of 4l. per cent. per annum on the total amount of such proportion and interest from the death of the said William Hollins until payment to the defendants Walter John Brownjohn and Charles Percival Titt. Solicitors Mr. C. P. Titt, for appellants; Messrs. Grane, Son & Fesenmeyer, for respondents. } HEATH V. FISHER. MALINS, V.C. The partners in a mine being hopelessly embarrassed, and their position becoming more critical every day, the Court interfered against a dissentient partner on motion before the hearing, and ordered an immediate sale of the mine and partnership property. This was a suit by six partners, as plaintiffs, against the only other partner, for the dissolution of a partnership between them in a certain colliery and other mines, in respect of which an agreement had been entered into with the owner of the soil for a lease of the mines, but which agreement had not been carried out for want of sufficient capital on the part of the intended lessees to work the undertaking. The landowner had filed a bill against them for the specific performance of the agreement, or, in the alternative, to have it rescinded, and had obtained an injunction against their working the mines, and an order for the appointment of a manager and receiver. The plaintiffs, being still unable to find capital to carry on the works, or to arrange with the defendant for the winding up and sale of the concern, now filed this bill against him, praying for a dissolution of the partnership, and that an immediate sale of the mines and plant might be ordered on motion before the hearing. Mr. Glasse and Mr. F. H. Colt, in pursuance of notice, now moved for an order that the mines in question, with the plant and machinery employed in the working of them, might be forthwith sold and disposed of, either by public auction or private contract; and that such sale might be ordered as of a going concern, with proper directions in that behalf. The motion was supported by evidence that the landowner was threatening to proceed with his suit, and also to re-enter for breach of the covenant in the intended lease; that the partners, who were mere working men, were unable to keep up the payment of the rents and royalties, or to find capital to carry on the mines; that further delay in winding up the concern would lead to the forfeiture of the right to the lease, the utter loss of the assets and the ruin of the partners; and that this could only be averted by an immediate sale of the property, for the purchase of which an advantageous offer had been made. to: The following authorities were referred Lindley on Partnership, p. 219, 228-9, 2nd edit. Bailey v. Ford, 13 Sim. 495; s. c. 12 Law J. Rep. (N.s.) Chanc. 482. Jennings v. Baddeley, 3 Kay & J. 78, 83. The defendant had been duly served but did not appear. Upon an affidavit of service, MALINS, V.C. made an order according to the terms of the notice of motion, appointing an early day to consider the offer for purchase at chambers. Solicitors-Mr. Thomas Price, agent for Mr. T. Sherratt, Talk-on-the-Hill, for plaintiffs. Company Winding-up- Interest on Calls-Payment into Court as a Security -Companies Act, 1862 (25 & 26 Vict. c. 89), s. 75; 3 & 4 Will. 4. c. 42. s. 28. Certain contributories in a company disputed their liability to be such, and appealed to the House of Lords. Meanwhile a call was made. The notice of the call contained an intimation that if it should not be paid interest would be charged. At their request they paid the call into the bank, not to the liquidators' general account, but to one entitled as a security account, to await the decision of the House of Lords. Afterwards that decision was unfavourable to them, and the money was applied for the purposes of the winding-up:-Held, that the contributories who had paid their money to the security account were liable to pay interest upon it until the time when it was applied. The question in this case related to the liability of Mr. Barrow to pay the sum of 667. interest due upon a sum of 2,000l. The circumstances were as follows. Mr. Barrow, with a number of other gentlemen, disputed their liability to be contributories; they were, however, held by his Honour to be so on the 9th of February, 1867. -(See the report, 36 Law J. Rep. (N.S.) Chanc. 233, and on appeal to the House of Lords, Ibid. 949, where the facts appear.) Previously to this, viz., on the 15th of September, 1866, a call had been made by the liquidators of 10l. per share, payable on the 15th of September into the Bank of England. The notice to the shareholders of this call contained a note that if the call should not be paid on the day named, interest, at the rate of 51. per cent., would be charged.-See Lintott's case (1). On the 21st of December, 1866, Mr. Barrow and the other contributories who disputed their liability obtained an order allowing them to pay the call into the Bank of England to the credit of an account, "The account of the liquidators in respect of the security of Adam Thom and others," (1) 36 Law J. Rep. (N.s.) Chanc. 510; s. c. 4 Law Rep. Eq. 184. and that upon such payment being made, all proceedings to enforce payment of the call should be stopped. The object of the payment was to secure the repayment to them of the amount of their call in the event of their establishing their freedom from liability. Mr. Barrow paid 2,000l. into the Bank under this order, together with interest up to the date of payment. In August, 1867, the decision of the House of Lords was pronounced, and soon afterwards, under the direction of the chief clerk, the money standing to the security account was taken possession of by the liquidator. The present claim of the liquidator was, therefore, for interest between the 21st of December, 1866, and the 24th of August, 1867, the day on which the money was so received by the liquidator. Mr. Cotton and Mr. Chitty, for Mr. Barrow. First, we say, that no interest was properly payable. [This point was taken, but not argued, in the Court below, because it had been previously decided by his Honour in another case Lintott's case, 36 Law J. Rep. (N.S.) Chanc. 510; s. c. 4 Law Rep. Eq. 184.] We submit that the decision in the former case is wrong. There was no reason why interest should run. The note at the foot of the notice of the call was not a demand within the meaning of Baron Parke's Act (3 & 4 Will. 4. c. 42), and the call was not an order of the Court. Next, assuming Lintott's case to be correct, still in the present case there can be no interest payable. The call directed us to pay the money into the Bank. This we did, and having complied with the exigency of the demand, 3 & 4 Will. 4. c. 42. s. 28. does not apply. Even if we had not paid it to the special account the liquidator could not, in the face of the litigation which was pending, have parted with the money. The separate account was merely a formal recognition of what would otherwise have been the proper course to pursue, viz., to keep the money until the right had been properly determined. The call, therefore, must be considered as paid, and no interest is due. Mr. Cole and Mr. Ferrers were for the liquidators, but were not called upon. LORD JUSTICE WOOD.-I think it would be contrary to the intention of the legislature and to justice if shareholders who pay their calls at the proper time are to be placed in a worse position than those who dispute their liability to do so, and so delay payment. The company may owe debts bearing interest, which would be running, and it would, I think, be hard and unjust to those who pay punctually that this interest should fall upon them, as it would do if the defaulters escape payment of interest. It may be that interest upon calls would not be payable in many cases under the articles of association, but the legislature has provided for these very cases by enacting, in section 75. of the Companies' Act, 1862, that the call shall be a specialty debt accruing at the time when the liability is incurred, though not payable till the calls are made. Making the call then, and, as in the present case, fixing a time for payment, complete the liability. It is immaterial whether the payment is to be made to the company or the liquidator. It is a specialty debt, and this, I think, brings it within the meaning of 3 & 4 Will. 4. c. 42. s. 28, as a debt payable at a certain time. There seems then, every reason why interest should be paid at the ordinary rate, and none to the contrary. As to the payment into the Bank, to the security account, this must be considered as made for the convenience of the shareholders who dispute their liability. They, by it, obtained an order staying proceedings against them. The money could not have been dealt with without the order of the Court, and therefore it was not applicable for the purposes of the company or the liquidation. It was merely a security, and the security might have been given in any other way. The payment was certainly no discharge of the debt, and interest ought to be paid up to the date of actual payment. LORD JUSTICE SELWYN.-The debt upon the call is, I think, under section 75. of the act, a debt payable at a certain time by virtue of a written instrument, within the meaning of 3 & 4 Will. 4. c. 42. Therefore a jury would, I think, have given interest. The argument before us was, that the debt was not due either to the company or to the liquidators, but the money was to be paid into the bank. This is answered I think, by section 92. of the Companies' Act, 1862, for by that section it is quite clear that the liquidator was the person to enforce payment. Ought then a jury to give interest in this case? Now, the liquidator could, as soon as the day for payment of the call arrived, have taken proceedings for compelling payment. These shareholders, however, applied to have those proceedings stayed, and this was done on the terms of security being given. Though no injunction was in form granted, preventing the liquidators from dealing with the money, the effect was the same: they could not without a breach of duty have applied the money in payment of the debts of the company. If the money was not invested, it was only the fault of those upon whose application the order was made. A jury in such a case ought, I think, to give interest, and we, acting as a jury, must now do so. The appeal must be dismissed with costs. The only point in this suit calling for a report was the question in whom the legal estate was vested under the will of John Mennell, who died in November, 1831, the will being dated the 25th of July, 1830. The testator, after giving various legacies and making divers specific devises, gave and devised his residuary real estate to his wife and three other persons, their heirs and assigns (subject and chargeable, along with his personal estate, to the payment of the said legacies and the annuity thereinafter mentioned), upon trust, that these four persons and the survivors and survivor of them, and the heirs, executors and adminisNEW SERIES, 38.-CHANC. trators of such survivor, should by and out of the rents, issues and profits thereof, in the first place, pay and secure, or cause to be paid and secured, unto Elizabeth Smith (therein described), for and during the term of her natural life, one annuity of 201., to be payable half-yearly as therein mentioned, and to be for her sole and separate use, with power to raise and levy the same by distress and sale as for rent in arrear, in the event of the same remaining unpaid for thirty days after falling due. And subject thereto, upon trust, in the next place, to permit and suffer the testator's said wife to have the free and uninterrupted use and possession of the same real estate, and to permit her to receive and take the residue of the rents and profits thereof for and during the term of her natural life, she keeping the same in good and tenantable order and repair; and from and after her decease, then the testator willed and directed that the said trustees, and the survivors and survivor of them, and the heirs, executors and administrators of such survivor, should stand seised of the same real estate to the use of eight persons therein named as tenants in common; and the testator empowered his trustees to reimburse themselves for all costs, charges and expenses out of any moneys which should come to their hands by virtue of his will, or any trust therein declared. The testator having died without an heir, the Attorney General was made a party to the suit, in order to have the question determined in whom the legal fee was vested. Mr. J. Pearson and Mr. Holmes, for the heir-at-law of the surviving trustee, contended that the devise to the trustees being upon trust to pay an annuity, they took the legal fee— Fenwick v. Potts, 8 De Gex, M. & G. 506. Mr. Wickens, for the Attorney General, submitted that they only took the legal estate for the life of the annuitant. Mr. Cotton, Mr. Lawson, Mr. Faber, Mr. Glasse, Mr. Wintle, Mr. F. Bacon and Mr. Boyle, appeared for other parties. MALINS, V.C.-It is clearly established that when the trustees have any duty to D |