[THE LORD JUSTICE KNIGHT BRUCE. Is not the question one for the decision of a Court in the colony?]

In the Mortmain Act, land in Scotland is excepted, and *510 if it had been the intention of that statute to exclude *lands in the colonies from its operation, a similar exception would have been introduced. They also referred to Lyon v. Colville (a) Loscombe v. Wintringham, (b) Hargrave Coll. Jur. 162.

Mr. Roundell Palmer, Mr. Anderson, Mr. Bagshawe, Mr. W. M. James, Mr. Beavan, and Mr. W. Morris, for the respondents, were not called on.

THE LORD JUSTICE KNIGHT BRUCE. The appeal in this case. raises three questions, the first of which is involved in the two others, and need not be considered separately. The second question is, whether independently of the Statute of 9 Geo. 2, c. 36, whether on the assumption that the gift does not affect property obnoxious to that statute, there is a good trust for what this Court considers to be charitable purposes created by these words: "I hereby direct and appoint that the trustees or trustee for the time being of my said will do and shall stand possessed of and interested in the residue or surplus of the trust moneys and securities to them bequeathed, in trust to appropriate the same in such manner as they, my said trustees or trustee, shall, in their absolute and uncontrolled discretion, think proper and expedient for the benefit, and advancement, and propagation of education and learning in every part of the world, as far as circumstances will admit." I apprehend that the only difficulty as to this part of the case is created by the introduction of the two words "and learning" after the word "education." That a trust for education would be good, notwithstanding what this testator has said, whether effectually or ineffectually, of the uncontrolled discretion of the trustees, is clear

of doubt. The arguments against its validity have been *511 directed to the word "learning." Now my impression of the true construction is that either the words "and learning" add nothing whatever to the idea represented by the term "education," or, if they do, that the phrase "learning" is only to be con

sidered as explanatory of the word "education;" and that it is the same as if the testator had said "education in learning," as distinguished from education in other subjects or matters, to which the term education might have been applied. I think that the introduction of the expression does not render bad and ineffectual that which would have been good and effectual without it.

The next question is as to the property comprised in the bequest, and it has been suggested that immovable property in New South Wales must be ineffectually given to charitable purposes, as it is said to fall within the provisions of 9 Geo. 2, c. 36, by reason that the 24th section of 9 Geo. 4, c. 83, provides that all laws and statutes in force within the realm of England, at the time of the passing of the Act, not being inconsistent therewith, or with any charter or letters-patent, or order in council, which might be issued in pursuance thereof, should be applied in the administration of justice in the Courts of New South Wales and Van Diemen's Land respectively, so far as the same could be applied within the said colonies. Taking the whole of the section together, I am of opinion that the words "can be applied" mean "can be reasonably applied," a construction which, of necessity, introduces all those considerations that presented themselves to Sir WILLIAM GRANT'S mind in the case of Attorney-General v. Stewart, (a) a case specifically differing from the present, but which it is impossible to read without seeing that the opinion expressed by Sir * 512 WILLIAM GRANT applies to a case like this. He there suggests various reasons against the application of such a statute as that of 9 Geo. 2, c. 36, to a colony, unless the legislature had thought fit expressly so to apply it. Here, in the first place, it is to my mind doubtful, or more than doubtful, whether there could be an enrolment such as the statute requires. It is true that jurisdiction is conferred upon the Supreme Court analogous to the equitable and common-law jurisdiction exercised by the Court of Chancery here; but with regard to the particular enrolment which the statute requires, how could enrolment in the Courts in the colonies satisfy the words of the Act of Geo. 2? In the next place, there are the peculiar privileges granted to certain places of education in this country, in which the inhabitants of a colony cannot be expected to feel as much interest as ourselves.

(a) 2 Mer. 156.

For these particular reasons, for the reasons given by Sir W. GRANT, and for general reasons connected with the 9 Geo. 4, c. 83, I am of opinion that it ought to be held that the Statute of 9 Geo. 2, c. 36, is inapplicable to the colony in question, within the sense and meaning of the Act of 9 Geo. 4. There can be no objection to that declaration being made here, but whether it will be binding upon the Colonial Court is a different question. We have jurisdiction here over the person, and may declare the law according to the best interpretation that we can put upon it. The appeal must be dismissed, and the costs of all parties must be paid out of the fund. The Lord Justice Lord CRANWORTH concurred.

*513 In the Matter of the WOLVERHAMPTON, CHESTER, AND BIRKENHEAD RAILWAY COMPANY;

AND

In the Matter of the JOINT-STOCK COMPANIES WINDINGUP ACTS, 1848 and 1849.

DALE'S CASE.

1852. January 31 and March 8. Before the LORDS JUSTICES.

Where the Master has made an estimate, so far as is practicable, of the total amount for which, under the Winding-up Acts, the contributories are liable, he may properly make a call for that amount, and the costs of winding up, although the costs have not been taxed, and the exact amount of liabilities are not ascertained, and may make the call for such sum as he may consider likely to realize the sum required."

THIS was an appeal from the decision of Vice-Chancellor KINDERSLEY, refusing a motion made on the part of the appellant to discharge an order made upon him by the Master for a call in the course of winding up the affairs of the above company.

The company had been provisionally registered, but no deed of settlement had been executed.

The Master (Mr. Brougham) made a report on the 30th of July,

See 1 Jarman Wills (3d Eng. ed.), 221; Attorney-General v. Giles, 5 L. T. N. S. Ch. 44; Mayor of Lyons v. East Ind. Co., 1 Moo. P. C. C. 298. 2 See Ex parte Woolmer, 2 De G., M. & G. 665.

1851, to the following effect: "I have proceeded with the said reference, and have settled on the list of contributories the following persons as contributories, being members of the provisional and managing committees, with their own consent, and having agreed to take one or more shares, upon such share or shares being allotted to them according to the provisions of the said company, and to each of whom twenty-five shares were allotted, that is to say."

*

The report set forth a list of forty names, including that of the appellant, and stated that, on the 12th of July, 1850, the Master had made a call on these persons of 150l. each, *514 which produced 8581. 14s. 9d., which was expended in paying 797. 16s., a claim on the company; 1887. 14s. in paying Cottle's costs as directed by the House of Lords; 556l. 2s. 11d. in part payment of the expenses of winding up, leaving 347. 18. 10d. in the hands of the official manager. That from the books of the company it appeared that 11,2437. 28. 5d. was incurred in debts and expenses, all of which had been discharged by contributories in unequal proportions, with the exception of 2167. 08. 8d., which still remained due.

It then proceeded thus:

"And I find that there have been costs ordered by the Court to be paid by the official manager, and which are already taxed, amounting to the sum of 2371. 68. 4d., of which the sum of 1887. 14s. has been paid by the official manager as aforesaid, leaving 481. 68. 4d. still remaining unpaid; and that, in the winding up of the affairs of this company, the official manager has, by himself and his solicitor, expended large sums of money, and properly incurred costs, which, together with the costs so ordered to be paid, I estimate will amount to 12487. 6s. 4d. and upwards; and the said official manager has proposed to me, that, for the purpose of paying outstanding liabilities, and adjusting the claims of the contributories, and for raising the sum of 12487. 6s. 4d. for the costs of the winding up, a call should be made of 607. on each of the said contributories, so settled on the list as aforesaid. And I am of opinion and find that the sum of 52271. 3s., being that. part of the expenses incurred between the 1st of November, 1845, being the date of the consent to act as provisional committee men, and take one or more shares, signed by each of the said committee men as aforesaid, and the 1st of December, 1845, being the

* 515 day on which the said managing committee decided on suspending all expenses, were expenses necessarily incurred in preparing to launch the common concern in which the said several contributories had engaged; and I find that each of the said several contributories so settled on the list as aforesaid, is legally liable to bear and pay his ratable proportion of the said necessary expenses of the committee in preparing to launch the common concern, and also to bear and pay his ratable proportion of the costs incurred in winding up this company; and I am of opinion it is necessary and proper to raise the said sum of 52271. 3s., being the amount of the expenses incurred as aforesaid between November 1st and December 1st, 1845, and also the said sum of 12487. 6s. 4d. for the said costs, by means of a call of 607. upon each of the several before-mentioned contributories, each of the several contributories who has already made any payment by way of contribution to the said expenses, or otherwise having credit given him for the amount so paid by him against such call; and I direct an order for the call of 607. to issue against each of such several contributories upon whom notice of the intended call has been served, as appears by the affidavit of William Lowther, clerk of the official manager. Sworn before me on the 30th day of July instant."

On the same day (the 30th of July) the Master made a peremptory order for the call of 607. on the appellant and the other contributories on the list, and ordered each contributory to pay to the official manager on the 28th of August then next, "the balance, if any, which will be due to him, after debiting his accounts in the company's books with such call."

The appellant then moved before Vice-Chancellor KINDERSLEY to discharge the order, but the Vice-Chancellor held that as *516 the report on which the call was founded was not questioned, he could not discharge the order.

*

Mr. Glasse and Mr. Greene, in support of the appeal. The document on which the official manager relies as a report is really no report, but a mere memorandum of the Master. Sections 100 and 118 of the Winding-up Act 1848 show what a report is, and that the definition does not extend to such a memorandum as this. Nor will the 49th section of the Act of 1849 advance the matter further, for this is not a book of account as a document of the