ADEMPTION-advances: residue]-Testator gave his wife a life interest in half his residue. Subject to that life interest he directed his residue to be divided among his children. He made advances to some of his children, which it was admitted would adeem their shares pro tanto :Held (affirming the decision of one of the ViceChance lors, page 407), that the widow was entitled to a life interest in only half the actual residue, without regard to the amount paid by way of advancement, ademption operating only to equalize as between the children what they took from their father. Meinertzhagen v. Walters,

801

ADMINISTRATION OF ESTATE-election: domicil]— The widow of a domiciled Scotchman filed a bill in this Court for the administration of her husband's estate, under an English will; and prayed (inter alia) that her infant children should elect and collate, in order to enable her to ascertain her rights and remedies according to the Scotch law; and insisted on a Scotch domicil. The residuary legatee under the English will filed a cross bill, to establish an English domicil, and for the administration of the estate accordingly:--Held, that the questions raised by the widow were well raised, and could be disposed of by this Court. v. Douglas; Douglas v. Webster, 74 For many purposes a domicil of origin requires more to change it than a domicil of acquisition; and in order to prove that the domicil of an adult of sound mind has been changed, an intention on his part must be shown. That is to say, such an intention must be proved to NEW SERIES, 41.-INDEX, Chanc.

Douglas

have actually existed in the mind of the party; or it must appear that it was reasonably certain it would have existed, if the question had arisen in a form requiring a deliberate and solemn determination. Ibid.

A child of Scotch parents for some time resident in England, who was born there, and was for many years himself a resident with his wife and children there, and who died and was buried in England, was, under all the circumstances of the case, held not to have lost his Scotch domicil of origin. Ibid.

petition by infant ward of Court marriage: settlement]--The Court, on a petition presented in an administration suit by a ward of Court and her husband, who had married without its consent while the wife was a minor and in ignorance that she was a ward of Court, settled her property on her for life, with remainder to her children; and with a power for the wife to appoint the property by will to her husband for his life. Wilkinson v. Joughin, 234

marshalling assets]-A pecuniary legatee has no right to call upon a residuary devisee to contribute to the payment of debts-Hensman v. Fryer (37 Law J. Rep. (N.s.) Chanc. 97), not followed. Dugdale v. Dugdale, 565

Burden of proof. See Practice-Harvey v. Wilde.

Cross-examination of parties in administration suit. See Practice-Glover v. Ellison; Lancefield v. Iggulden.

A

ADVANCEMENT. See Will-Taylor v. Cartwright. AFFIDAVIT-made abroad] - Statutory declaration made in New South Wales by husband and wife allowed to be annexed as an exhibit to an affidavit filed in the cause. Whiting v. Bassett, 551

ALE AND BEER HOUSE-License in name of a dead man. See Vendor and Purchaser-Cowles v. Gale.

ALIEN-conveyance in trust for sale: devise to an alien: conversion: Naturalisation Act, 1870: rights of the Crown]-In March, 1862, L. and S. (the wife of an alien) conveyed land of which they were tenants in common to a trustee, upon trust to sell and stand possessed of the proceeds in trust for L. and S. in equal shares, the share of S. to be for her separate use. In April, 1862, L. and S. entered into an agreement to allot the lands in severalty, and that the trustee should stand possessed of each such respective allotment on the respective trusts declared by the deed of March, and that nothing in the agreement should prejudice or affect any of the powers or trusts of the deed. No sale was ever effected and S. died in 1866, having by her will given to her husband, the alien, her personal estate absolutely and a life interest in her real estates:-Held, first, reversing the decision of one of the Vice Chancellors, that the land was not in equity converted into money; secondly, that the title of the alien having accrued before the passing of the Naturalisation Act, 1870, that Act did not remove his disability to hold land. Thirdly, following the decision of LORD ROMILLY, M.R., in Barrow v. Wadkin (24 Beav. 1, 327; s. c. 27 Law J. Rep. (N.S.) Chanc. 129), that the trust for the alien could be enforced for the benefit of the Crown. Sharp v. De St. Sauveur, 576

ANNUITY-forfeiture of, on bankruptcy. See Will -Trappes v. Meredith.

APPEAL—when allowed]—An appeal will not be allowed where the amount in dispute is only 17. 15s. In re The National Assurance and Investment Society, 341

- from decision of judge as arbitrator]-Where differences arose in a winding up between persons claiming a charge upon the company's estate and the official liquidator, and the parties agreed that their rights should be determined in a summary way by the judge acting in the matter of the winding up,-Held, that this was a submission to arbitration by the judge personally, and there was no appeal from his decision as an arbitrator. In re Durham County Permanent Benefit Building Society; ex parte Wilson, 164

APPOINTMENT. See Power of Appointment. Settle

ment.

APPORTIONMENT — executory devise: life estate: impeachment for waste]- Testator bequeathed his residuary personal estate to trustees upon trust for his two grand-daughters in equal shares at twenty-one or marriage, and directed that in case they or either of them should marry under twenty-one, their shares should be settled upon them and their children in the usual form. Both grand-daughters married under twentyone, one in 1867, the other in 1870, after the passing of the Apportionment Act of that year-Held, that in both cases the income of the respective trust funds was apportionable down to the date of the respective marriages. Clive v. Clive, 386

St. Aubyn v. St. Aubyn, 1 Dr. & S. 611, followed.

Ibid.

The same testator devised his real estate to the trustees upon trust for one of his said granddaughters, and directed that in the event of her marrying under twenty-one (which event happened), then they should assure the same by deed to her for her life to her separate use, without power of anticipation, with remainder to her children as tenants in common in tail with remainders over, with power to the trustees to secure a life interest to the husband after the death of the granddaughter either with or without impeachment for waste :-Held, that the life estate of the granddaughter must be subject to impeachment for waste. Ibid.

specific legacy: gift of apportioned part of income]-Testator, as to his share or interest in a company, bequeathed the dividends to his uncle for life, and after his death the same share or interest to his two daughters :-Held, that dividends declared after testator's death were not apportionable between the legatee and the general estate of the testator. Jones v. Ogle, 633

ARBITRATION-Common Law Procedure Act, 1854: sole arbitrator]-A submission to reference provided for the appointment of one arbitrator by each party, and the appointment of a third by the first two arbitrators :-Held, that the Common Law Procedure Act, 1854, s. 13, did not apply. Gumm v. Hallett, 514

See Appeal. Contract. Land Clauses Consolidation Act. Marine Insurance.

BANKERS-Right to retain on general account proceeds of security for bills under discount. See Company.

Privilege. See Contributory-The Contract Corporation.

BANK OF ENGLAND-funds standing in the names of three persons jointly: death of one: evidence]

-The Bank of England is a body having a discretion to exercise for the benefit of the public as well as itself; and is not bound to accept as sufficient evidence of the death of a stockholder on a joint account in its books, such proof as would satisfy the Court of Chancery. Prosser v. The Bank of England, 327

C. P. died in 1871. At her death a sum of 2,960. 15s. 9d. New Three per Cent. Annuities, and no other fund, was standing in her name and in the names of the plaintiff's jointly in the books of the Bank. The burial of C. P. was entered in the proper parish register. An extract from the entry, together with a statutory declaration of the identity of C. P., was forwarded by the plaintiffs to the Bank, in order that they might affix to her name in their books the usual memorandum of death. The Bank, however, would not do so, on the ground that "the declaration did not aver that the extract had been compared with the original register for the parish where C. P. was buried." A motion

for an injunction to restrain the Bank from continuing the name of C. P. in their books without the memorandum was refused with costs. Ibid.

BANKRUPTCY―proveable debt: transferor and transferee of shares: calls: plea of inspectorship deed-A claim by the transferor of shares in a limited company, to be indemnified out of the estate of his bankrupt transferee against calls made on the transferor after the transfer, is not a debt proveable under the Bankruptcy Act, 1861, ss. 153 and 154; and a plea of the effect of an inspectorship deed under s. 192 of that Act is no defence to a creditor's suit in equity to administer the estate of the transferee. Holmes v. Symons, 59

been

jurisdiction]-Plaintiff was an uncertificated bankrupt. His creditors had paid their principal in full, but without interest. He filed a bill against his former solicitor, his two partners and the assignee of the estate in bankruptcy, to set aside a sale which had been made of plaintiff's share of his business to his partners as having been made at an under value, fraudulently and by means of a conspiracy between all the defendants. The sale had been made under the direction of the Court of Chancery in a partnership suit:Held, that plaintiff had no locus standi in the Court of Chancery. Motion v. Moojen, 596

order and disposition: shares]-A railway company, not authorised by its statutes to invest in stock or shares of other companies, purchased stock of another railway company, and had it transferred to a trustee for them. The trustee was registered as owner of the stock. Notice of the trust was given to the company whose shares were purchased. The trustee became bankrupt :-Held, that his assignees in bankruptcy were entitled to the shares

standing in his name discharged from the trust. Great Eastern Railway Company v. Turner, 634

BENEFIT BUILDING SOCIETY- rules: borrowing powers: unauthorised application of money: rights of depositor: mortgage to secure deposit]

The certified rules of a permanent benefit building society stated that the society's objects were "to raise a fund for the purpose of enabling its members to purchase land; to erect buildings thereon; to provide means for the profitable investment of small savings, and in cases of accidental death to relieve the widows and families of deceased shareholders by adding the interest and estimated profits of the current year on the withdrawal of their shares at the time of death." The original rules contained no powers of borrowing. Subsequently the rules were altered, so as to empower the directors, "from time to time to borrow for the purposes of the society such sums, and at such rates of interest, and under such terms and conditions, as they might think proper and expedient." This rule was duly certified by the barrister:Held, that under this power the directors could only borrow for the purposes expressly mentioned in the original rules of the society, and that money lent to the society by way of deposit at interest, and used for an unauthorised purpose, could not be recovered by the depositor. In re Durham County Permanent Benefit Building Society; Davis's case-Wilson's case, 124 But where the loan had been secured by a deposit of mortgage deeds executed in usual course by the members to the society to secure the advances made to them,-Held, that the official liquidator of the society was not entitled without payment of the loan to deprive the lender of his securities. Ibid.

breach of trust by directors: suit to recover moneys of the society improperly deposited with a finance company]-The manager of a benefit building society established pursuant to 6 & 7 Will. 4. c. 32, deposited, in pursuance of a resolution passed by the directors but contrary to the provisions of the Act and the rules of the society, money of the society with a finance company of which he was also manager. The company gave a cheque to the manager for the repayment of the money to the building society, but he did not pay over the money to the society:--Held, on bill filed by the trustees of the society (reversing the decision of the MASTER OF THE ROLLS), that the money was trust money improperly deposited with the finance company, that the giving the cheque to the manager was no discharge to the company, nor repayment to the building society, and that, therefore, the trust money being still in the hands of the finance company, a suit would lie in this Court on behalf of the real owners to recover it, and that, without making the directors of the building society a party to it. Hardy v. The Met, opolitan Land and Finance Company, 257

BENEFIT BUILDING SOCIETY (continued)-Distinction between investing members and outside creditors. Alteration of Rules. See Winding up.

BILL OF SALE-of chattels in foreign parts: registration]-A bill of sale of personal chattels situate in Scotland, though made in England and by a domiciled Englishman, need not be registered under the Bills of Sale Registration Act, 17 & 18 Vict. c. 36. Coote v. Jecks, 599

CHARGE-on mortgaged estate. See Interest. CHARITY-scholarship: preference cæteris paribus to be given to freemen of town: fitness: election]-By the scheme of a charity, it was provided that the income should be applied towards the maintenance of a scholar at Oxford or Cambridge, who was child of a resident of Guildford, "preference being given cæteris paribus to the son of a freeman: it was also provided that the scholar should be examined and approved by examiners; that the examination and approbation should be declared in writing delivered to the trustees before election. On a vacancy occurring there were two candidates; one the son of a freeman resident, the other the son of a resident who was not a freeman. The examiners recommended for election the one who was not the son of a freeman, reporting that he was the superior in every respect, but that they thought the other, if admitted to the university, would pass the examinations. The trustees elected the son of the freeman :Held, on petition to set aside the election, that the preference to be given to the son of a freeman was only to be given in case of substantial equality; that the trustees should have followed the recommendation of the examiners, and elected the best scholar; that the election must be set aside, and the son of the non-freeman, who passed the best examination, elected. Re Nettle's Charity, 691

lapsed legacy: Mortmain Act: perpetuity] -Testatrix by will gave a legacy of 1007. to each of several persons, "to be applied by each of them to such charitable purposes as each may think most advisable." Some of these persons died in the testatrix's lifetime:— Held, that the legacies given to those persons lapsed. Chamberlayn v. Brockett, 789 Testatrix by will gave money to be applied in building almshouses "when land should be given for the purpose: "-Held, that the gift was bad as tending to a perpetuity. Ibid.

Bequest to. See Mortmain.

COMMON-Rights of. See Custom.

COMPANY-Seripholder: right of directors to register as shareholder] Plaintiff applied for and received an allotment of scrip certificates to bearer under a prospectus, which stated that on registration of the serip, of which due notice

would be given, the certificates would be divided into five shares of 10. each. He never applied to have his scrip registered:- Held, affirming the decision of the MASTER OF THE ROLLS, that he could not be registered as a shareholder without his consent. MacIlwraith v. The Dublin Trunk Connecting Railway Company, 262

directors: fraudulent use of power: delusive contrivance]-The directors of a company by the articles of association were empowered to receive payments in advance of calls, and were to be paid a certain amount for their fees. The company fell into a state of utter insolvency, and the directors knowing this, in order to get rid of their liability on shares not fully paid up held by them, passed a resolution authorising any director to pay calls in advance. Under this resolution the directors from time to time paid to the account of the company large sums purporting to be advances on calls, and immediately afterwards they drew against these sums for their fees. The company was afterwards wound up. Upon summons by the official liquidator to enforce a second payment of the calls purported to have been paid under this arrangement,-Held, that the arrangement being a contrivance only for the benefit of the directors could not stand, the pretended payments in anticipation of calls were invalid, and the calls must be enforced. In re European Central Railway Company; Sykes' Case, 251

misrepresentation in law: authority to bankers: overdrawn banking account: liability of directors: issue of unpaid shares]-The doctrine that a person who by a false representation induces another to do an act which results in a loss, is liable to make good his representation, does not apply where the misrepresentation is one of law only. Beattie v. Ebury, 801 Decision below (page 393) affirmed. Where (with the sanction of their Board) three directors of a railway company signed an authority to the company's bankers to honour the company's cheques, and upon the strength of this authority the bank permitted the company to overdraw their account to a very large amount, the directors who signed the authority were held not to be personally liable for the debt, even if the authority could be considered as a represen tation (which probably it was not), that the company had power to overdraw their account, which they could not legally do. Ibid. By an arrangement with the manager of the company's bank, preference shares and debentures of the railway company on which nothing was paid were issued to two of the directors of the company, and transferred to nominees of the bank as security for the above mentioned advances:-Held, under the circumstances, that the bank knew at the date of the transfer that nothing had been paid on the shares and debentures, and that there was no misrepresentation or fraud in the transaction. Ibid.

misrepresentation in prospectus by suppression of material facts and liability of directors and of estate of deceased director after failure of criminal proceedings to proceedings in equity]- Directors may not be liable to a criminal prosecution under 24 & 25 Vict. c. 96. s. 84, and yet may be liable in a Court of Equity to indemnify persons taking shares on the faith of representations made by them. Peek v. Gurney, 436

Misrepresentation by directors in the prospectus is not vice that taints the share itself, into whosesoever hands it passes; but the share may be purified by the conduct of the allottee or any subsequent holder. If therefore the allottee is barred by time or condonation, the transferee is barred also. Ibid.

Although in cases where a shareholder proceeds

against directors for indemnity the Court will not lay down a hard and fast line, such as that laid down in cases where a shareholder endeavours to obtain the cancellation of his shares, and say that after the commencement of the liquidation no relief can be given, yet the shareholder must shew diligence in investigating the true state of the case, and in coming to the Court after the misconduct of the directors has been discovered; and if the liquidation has commenced before his application this will be a most material fact, and it will be rigidly incumbent on him to shew why he did not come sooner; no conduct being more reprobated in this Court than playing fast and loose, calling on directors to be indemnified on account of the suppression of facts if the company prove disastrous, and condoning such suppression if the company prove a success. Ibid. The estate of a deceased director, who joined in making misrepresentations in a prospectus, is as liable as the surviving directors are to indemnify persons taking shares on the faith of such misrepresentations. Ibid.

- foreign company: payments ultra vires: libel: costs: injunction]-The governing body of a corporation, which is in fact a trading partnership, cannot in general use the funds of the community for any purpose other than those for which they are constituted; whether that governing body is exclusively directors, or a council general, or the majority at a general meeting of the company. Therefore the special powers given either to the directors or to a majority by the statutes or other constituent documents of the association, are always to be construed as subject to a paramount and inherent restriction, that they are to be exercised in subjection to the special purposes of the original bond of association. That is not a mere canon in the English Municipal Law, but a great and broad principle, which must be taken (in the absence of proof to the contrary) as part of any given system of jurisprudence. Pickering v. St phenson, 493

The costs of a prosecution for libel instituted by the directors of a trading company are not

properly payable out of the assets of the company. Such payments will accordingly be restrained for the future; but it does not follow that the directors will be ordered to repay past costs so discharged by them. Ibid.

transfer of business: grantee of annuity: payments by transferee company: novatio]The I. Life Insurance Company had by its deed of settlement a power to dissolve itself and transfer its business and liabilities to another approved company, but "without prejudice to the rights of the parties then assured." The I. Company, in 1860, under this provision, transferred its business to the E. Society. D., the grantee of an annuity in the I. Company, objected to the transfer, and refused a policy in the E. Society, but he took no proceedings in the matter and went to the office of the E. Society and received his annuity regularly from that society until 1871, when the E. Society was wound up insolvent :-Held, that there was no novation of contract as between D. and the E. Society, and that D. was entitled to recur to the I. Company for payment and to have that company wound up for the purpose of going against the uncalled-up share capital of the company. In re The India and London Life Assurance Company-Dyke's case, 601

sale of business to another company: ultra vires: contract to take shares: communication of allotment]-B. Company with limited liability, carrying on the business of marine insurance only, and having no power to sell its business, entered into an agreement with P. Company, being an unlimited company, and carrying on the business of life, fire, and marine insurance, for the transfer of its business to that company, in consideration of a sum of money, and of so many shares in P. Company to be issued to members of B. Company. In order to carry out this agreement, B. Company was wound up voluntarily under an order of the Court, and the sanction of the Court was obtained to the agreement. Letters were sent by the manager of P. Company to the shareholders of B. Company, asking them to exchange their shares in B. Company for shares in P. Company in pursuance of the agreement, and enclosing forms of application for shares in P. Company:-Held, that shareholders of B Company, who signed and returned such forms of application to the manager of P. Company, had entered into a binding contract to take shares in that company, notwithstanding they had received no notice of allotment of the shares. Held, also, that the agreement for the amalgamation between the two companies having been sanctioned by the Court under the winding up of B. Company, was not ultra vires, and therefore not invalid. In re The United Ports and General Insurance Company. Brown's case; Tucker's case, 157

amalgamation: shares in new company: withdrawal of allottee: directors' power to com