the allotment of shares of such proposed new company, pay to the vendors or their nominees a further sum of 1,2507. in cash, and a sum of 2,000l. in fully paid-up shares in such new company.

"Third. And the purchaser agrees to use his best endeavours to form, constitute and promote such proposed new company, and the vendors agree to assist him by all means in their power in promoting and constituting such proposed new company, and if necessary in liquidating and dissolving the old company."

The plaintiff protested against this agreement both before and after it was entered into, but after considerable discussion, at a meeting of the company held on the 9th of December, 1871, resolutions were passed for the adoption of the agreement, for the voluntary winding up of the company, and the appointment of a liquidator with directions to carry out the agreement, with any modifications he might agree upon.

A meeting was held on the 6th of January, 1872, and adjourned to the 15th inst., to confirm these resolutions, but at the instance of Mr. Allsop, who thought a winding up might damage the prospects of the proposed company, only the first resolution was confirmed, and the rest were abandoned. On the resolution being confirmed, the seal of the company was affixed to the agreement.

On the 7th of February, the plaintiff filed his bill, alleging that the resolutions had all been passed, but praying a declaration that the agreement was ultra vires, and for an injunction to restrain the directors from parting with the assets and other consequential relief. Subsequently the bill was amended by stating that the winding up resolutions had been abandoned.

The 2501. had been paid under the agreement, but owing to the suit nothing further had been done. The bill was filed on behalf of all the shareholders except the defendants, the directors, but the directors stated in their answer, that the other shareholders approved of the scheme. They also in their answer stated that they had abandoned the idea of carrying out the plan without a winding up. The plaintiff alleged that the sale was

improvident, and in the correspondence which had taken place, pressed for information as to the means of Mr. Allsop, and for further details.

The Vice-Chancellor made a decree according to the prayer, and ordered the directors to pay the costs of the suit. The directors appealed.

Mr. Kay and Mr. Millar, for the appellants. We may have proceeded irregularly, but the arrangement is one that could be carried out under section 161 of the Companies Act, 1862, and the Court will not stop the sale

Ex parte Fox, 40 Law J. Rep. (N.S.)

433; s. c. Law Rep. 6 Chanc. 176. [LORD JUSTICE MELLISH.-But must not the sale be to an existing company? That decision went partly on the delay, and the company was formed before the plaintiff filed his bill.]

The agreement is not skilfully drawn, but it is obviously only provisional, and intended to be carried out as a sale to a new company.

[LORD JUSTICE MELLISH.-Is it consistent with the duty of directors as trustees to bind themselves personally to use their best endeavours to obtain a winding up, so as to fetter their discretion by their personal interest?]

Section 161 allows an agreement for sale to be entered into antecedently to a resolution to wind up.

Mr. Eddis and Mr. Samuel Dickenson, for the plaintiff.-We say that on the original bill the sale was invalid. Section 161 only allows an agreement for sale to a company, and this is an agreement to sell to Mr. Allsop for shares in a company to be formed hereafter. Before the resolution is submitted to the shareholders they have a right to know what the company is in which shares are offered (1).

On the answer of the directors, it is clear that no winding up was intended when the bill was filed.

LORD JUSTICE JAMES.-I am of opinion that the decree of the Vice-Chancellor ought to be affirmed. It appears to me that the company were altogether wrong not merely in form, but in the original agreement even if followed by a winding up, since, under section 161 of the Companies Act, 1862, the liquidator could not have sold to Mr. Allsop. That is the only section which gives power to bind dissentient shareholders, and that section only applies, "Where any company is proposed to be, or is in the course of being wound up, altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company." The proposed sale is not a sale to another company, but to an individual who is to be a speculator, and who is able to make as much profit as he can out of the formation of the new company. Under section 161, the various shareholders were entitled to know something more of the company in which they were to become entitled to shares than this, that it was to be any company that Mr. Allsop chose to form.

It

The matter does not stop here, though the question was important with regard to the costs on the original bill. further appears that the company had themselves abandoned the winding up when the bill was filed, and were about to carry out the agreement under their own powers. It is true they say in their answer, that they are advised that it is doubtful whether they can carry out the arrangement without a winding up, but they never communicated to the plaintiff their willingness to take this course, and it is very ambiguous, as it appears on their answer, whether they intended to do so. They say they would have gone on under a winding up but for these pending proceedings, but it is not at all clear that they would have done so if no bill had been filed. If the company had desired to avoid litigation, they should have submitted to an injunction, and then have proceeded to wind up the company and passed resolutions to carry out a proper sale.

The decision of the Vice-Chancellor is right, and the appeal should be dismissed with costs.

LORD JUSTICE MELLISH.-I am of the

NEW SERIES, 43.-CHANC.

same opinion. I have come to the conclusion that the agreement of the 16th of October, 1871, was not valid as a preliminary arrangement to winding up the company and selling the assets and business to a new company. I am of opinion that a sale under section 161 must be a sale to another company. The section begins-"Where any company is proposed to be or is in the course of being wound up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company." I think that must have reference to a particular arrangement with another company. Further on in the section it speaks of the "purchasing company." And then lower down it says that no special resolution shall be deemed invalid for the purposes of this section by reason that it is passed antecedently to or concurrently with any resolution for winding up the company or appointing liquidators. But that has reference, not to a mere proposal, but to an absolute sale to another company. Here by the agreement Mr. Allsop is called the purchaser. The directors on behalf of the company agree to sell, and he agrees to purchase the assets and business of the company. And it is agreed that the directors shall call a meeting and use their best endeavours in obtaining the sanction of the shareholders to the sale, and if necessary endeavour to obtain the voluntary liquidation and dissolution of the company. They did call a meeting of the shareholders, and passed resolutions to sell the business and assets, but not to wind up the company; and the agreement, which professed to be a sale to Allsop, was sealed by the company in pursuance of the resolutions. Then the agreement says that a deposit of 2501. is to be made, and that was done. And then-" If the purchaser shall with the assistance of the vendors as hereinafter provided for, succeed in promoting and constituting a new company for working the said patent, he shall within three months from the allotment of shares of such proposed new company, pay to the vendors or their nominees a further sum of 1,2501. in cash, and a sum of 2,0001. in fully paid-up shares in such company"-Allsop there remains the

3 F

Administration Suit-Admission of Assets-Form of Decree.

Where an administratrix had distributed the whole of the intestate's assets without making provision for calls on shares :Held, that there ought to be a decree for payment, and in default for administration.

The defendant Eliza Mayo was the administratrix of Frederick Mayo, who had died intestate in 1870.

Frederick Mayo had held 117 shares in the Albert Life Assurance Company, and Eliza Mayo was duly settled on the list of contributories of the company, which had been wound up in 1869.

An arbitrator (Lord Cairns) was appointed to determine questions arising in the winding up and he appointed the plaintiffs liquidators in 1871.

The defendant, Eliza Mayo, after she was so settled upon the list of contributories, and after paying one call of 1,9891. on the shares, distributed the residue of Frederick Mayo's estate without providing for the calls which might become due from his estate in respect of the said 117 shares. Under these circum

stances the arbitrator gave the plaintiffs leave to file this bill on behalf of themselves and all other the creditors of the said Frederick Mayo, the intestate, to administer his estate and effects.

By amendment the plaintiffs added the next of kin of the intestate as parties, a demurrer was filed to the amended bill by certain of the next of kin for want of equity, and was allowed.

The defendant admitted that she had received, but not that she had in her hands abundant assets to pay the amount of the call now claimed.

Mr. Dickinson and Mr. Herbert Lake, for the plaintiffs.-The administratrix by admitting assets has taken the liability on herself, and payment should be ordered, and an administration decree in default.

Mr. Karslake and Mr. Colt, for the defendant. The decree ought to be in the alternative, either for payment on the admission of assets or for administration. There is no precedent for the double decree, which might in fact amount to a preference of this creditor.

HALL, V.C., made the following order"That the administratrix of the said intestate do, on or before the 31st day of March, 1874 (she by her answer admitting assets of the intestate for that purpose), pay to the said plaintiffs, Samuel Powell Price and John Young as the official liquidators of the Albert Life Assurance Company in the plaintiff's bill mentioned, the sum of 1,2871., being the amount of the call of 117. per share in respect of 117 shares in the said company held by the said intestate, together with interest on the said amount of 1,2877. to the day of payment, at the rate of 51. per cent. per annum, and that if such sum of 1,2871. and interest as aforesaid shall not be paid by the defendant to the plaintiffs on or before the said 31st day of March, 1874, the following accounts and enquiries should be taken and made, viz., an account of what is due to the plaintiffs, and all other the creditors of the said Frederick Richard Mayo, deceased, the intestate in the bill named, an account of the inteste's funeral expenses, an account of the intestate's personal estate come to the hands of the administratrix of his

effects, or to the hands of any other person or persons by the order or for the use of the said administratrix. An enquiry what parts (if any) of the intestate's personal estate are outstanding or undisposed of. And that the intestate's personal estate be applied in payment of his debts and funeral expenses in a due course of administration, and that the said defendant should pay to the plaintiffs their costs of this cause up to and including this decree, such costs to be taxed by the Taxing Master, and that in case of non-payment further consideration should be adjourned, liberty to apply."

A testatrix, being entitled to exercise a non-exclusive testamentary power of appointment amongst her brother and four sisters, made a will giving her brother and two sisters 51. a-piece, and giving to her other two sisters all the residue of her property of whatever kind and wheresoever situate, and over which she had any power of appointment:-Held, that the effect of giving the residue of the appointable fund with the testatrix's own property, was to make the legacies payable out of both rateably, and so make the power well exercised.

SPECIAL CASE.

By a settlement dated the 31st of August, 1841, to which Anne Dunn and her brother and sisters, namely, Thomas Dunn, Mary Dunn, Elizabeth Dunn, Sarah Rebecca Dunn, and Jane Isabel Dunn were parties, certain personal property was directed to be held on certain trusts, including a limitation in certain events which happened, in the following words

"In trust for the said Thomas Dunn, party hereto, Mary Dunn, Elizabeth Dunn, Sarah Rebecca Dunn, and Jane Isabel Dunn, or their respective issue, in such parts, shares and proportions, and in such manner as the said Anne Dunn, either before or after and notwithstanding any coverture, by her last will and testament in writing, or any writing in the nature thereof, shall direct or appoint."

Elizabeth Dunn afterwards married R. J. Gainsford, and Jane Isabel Dunn married H. T. Stainton.

Anne Dunn duly executed a will dated the 20th of November, 1869, in the following words

"This is the last will and testament of me, Anne Dunn, of Elmfield Northaw, in the county of Devon, spinster. I appoint my sisters, Mary Dunn and Sarah Rebecca Dunn, co-executors. I give and bequeath to my brother, Thomas Dunn, and to my sister, Elizabeth, the wife of Robert John Gainsford, Esq., and Jane Isabel Stainton, the wife of Henry Tibbats Stainton, Esq., the sum of 51. each; and all the rest and residue of my property, of whatever kind and wheresoever situate, and over which I have any power of appointment or disposition, I give, devise and bequeath unto and to the use of my sisters, Mary Dunn and Sarah Rebecca Dunn, their heirs, executors, administrators and assigns respectively, for their own absolute use and benefit as tenants in common. Lastly I revoke all former wills and testaments at any time heretofore made by me."

The question was raised as to whether the power being non-exclusive was well executed by the will.

Mr. Southgate, Mr. W. S. Owen, and Mr. Kenyon Parker appeared for the parties, contending that the power was not well exercised.

Mr. Roxburgh, Mr. Ince and Mr. Morshead, for the other parties, were not called upon.

The following cases were cited or referred to

Bench v. Biles, 4 Madd. 187;

Greville v. Browne, 7 H.L. Cas. 689