LORD CHANCELLOR'S COURT. LORD CHANCELLOR'S COURT. LORD CHANCELLOR'S COURT. cient grounds laid before the Master of the Rolls, it his attention had been called to them, to warrant the order that is now complained of. I think, therefore, that the appeal must be allowed, and the order of the Court below must be discharged. Lloyd.-Your lordship will make the order that should have been made in the court below-refuse the motion with costs. Bacon.-No; his lordship has not said that. The LORD CHANCELLOR.-I have considered that point; and I do not think the defendant should have any costs. There is but one ground for it. I do not think the parties have a right, at the peril of their opponents, to come into court totally unprepared to occasion expense for want of the Court being put in possession of the proper materials. I think such parties must come at their peril. There are adequate means for their protection; and if they choose to rely upon their own efforts, be it so: the Court will aid them to the utmost of its power, but that, like all other speculations, is not to be made at other people's expense. I therefore think, if a party puts his opponent to expense for want of the Court having before it that assistance without which justice cannot be safely administered, he should do that at the peril of costs, and therefore the original motion should have been refused without costs. ROLLS COURT. Tuesday, Jan. 14. he has made the foundation of his application of provided. The case itself was a peculiar and extrasuch a nature as to shew that when the hearing came ordinary one, the receiver there had a simple duty on it would be nugatory for the Courts to decree a to perform, you may consider him merely as minisspecific performance of the articles according to the terial; he was to receive all that the persons paid for prayer of the bill, which must be the foundation of their entrance to the theatre, and to apply it accordthat relief? Has he shewn that the acts that had ing to a certain specific arrangement that the parties occurred were of such a nature as that, although at had before directed that he was to do until the hearthe time he presented his bill, and framed the prayer ing of the cause. The case appears to me to be of his bill, his object was to establish the partner- very distinguishable in its circumstances, and taking ship, yet by reason of the conduct of the defendant the expression which is here used as applied to the since the state of things had altered, the partnership receiver, and receiver only, it does not become applino longer could be carried on with reasonable ad- cable to this case. I can readily conceive a case vantage to him, according to the original term? where the mere question is of receipt, where, Why, he might have amended his bill, and adapted as in the case of Const v. Harris, the allegations his prayer to any state of circumstances which would were, that of allowances to be received by the parjustify any variation he might be advised to make; ties, without the interposition of a receiver that they but with the prayer standing for a specific perform- would not be applied to their proper purposes, and ance, or, in other words, for the establishment and that in truth at the hearing of the case there would continuance of the partnership, he comes and be a failure of justice by the acts which took place asks for a receiver and manager to be ap- in the mean time. It seems to me that that case is pointed. Now, having attended to the various not to be taken as an authority at all inconsistent cases which have been cited, they appear to me to with the general course of decisions that had before be all one way, down to the very last case that has prevailed. Then, if I am correct in the conclusion been referred to, of Smith v. James, and I find but to which I have come, by the rule and practice one case in which any expression is at all equivocal, of this Court, a receiver or manager is only granted as far as I can judge. I do not mean to say you where it is auxiliary to the object of dissolution. may not extract a sentence from some of the cases, I do not go into any possible cases which might or more than a sentence, which, taken apart from the arise, but act according to the doctrine which has context, and considered in the abstract, and without been laid down--a doctrine, I apprehend, that bereference to the subject matter to which they were longs to all Courts, namely, that you adhere to prinaddressed, it might be possible to found a doubt upon ciple, and apply that principle to new cases, so as to it; but taking the context in all the cases, and give effect to it in the best possible way. It is posapplying, as it is proper it should be, what falls from sible that there might be a case arise where a party the Court, as construed and as made intelligible by was so conducting himself as that, unless a manager that context, I do not see that there is any doubt was appointed in the meantime, the concern might running through the cases; and, without investigat- be destroyed. Well, the Court would no doubt aping the particular merits of Anstruther's Reports, you ply the principle that had before properly prevailed do find there that laid down by the Court which to such a case, but in the present case it appears that seems to me to be consistent with all the subsequent there is a partner against whom insolvency is not authority, and if you go through those cases, there charged, who has brought in the whole of the is not one, as it appears to me, that at all impugns capital, who, it is suggested, is not perfectly comthe general doctrine, which I conceive to be clear, petent to answer for any money that may come to that where it is not the object of the suit to obtain a his hands, supposing he is in the habit of receiving dissolution of partnership, but, on the contrary, to money, as appears to be the case. It is said that he continue it, that it is not according to the practice has applied a part to his own purposes. Well, of the Court to grant in the course of that suit the how far had he a right so to do, whether he had adappointment of the manager and receiver. The two vanced any sum of money on account of the partnercases that appeared to have some expressions in them ship, and that he reimbursed himself out of those which seem to be favourable to the plaintiff's view moneys does not appear. There may be a variety of of the case, were Goodman v. Whitecomb and circumstances that may account for that; but in the Wilson v. Greenwood. I have remarked upon absence of all explanation, I simply have this case both those, that with respect to the one, what before me here of a person who is under the peril of falls from Lord Eldon in the earlier case, with an injunction against the misapplication of the funds, reference to the subject matter, clearly meant against whom there is no motion to commit for a that a party might so misconduct himself by breach of that injunction, who is not shewn to be so excluding his fellow partner from a proper participa- circumstanced as to make any such interference tion in the management of the business as might essential to the security of the parties pending the furnish a ground for dissolution; but that is stated in hearing of the cause until its hearing. It seems to the course of observations all directed with reference me, therefore, that no circumstance in this case to the principle that a receiver and manager was to warrants a departure from what I conceive to be the be appointed in reference to dissolution, and then established principle of the Court now, that the having the mind directed to the subject of dissolution. general jurisdiction is auxiliary in granting a receiver Amongst the causes of the dissolution is the exclusion and manager to a dissolution, I conceive to be clear. by one partner of the other. Goodman v. White- In the present case it appears to me that what is comb, which is the last of the cases, is perfectly plain said is correct, that by granting a manager in truth, and intelligible. It shews that Lord Eldon had not instead of doing that which is the only object of at all altered his view upon the matter, and had granting a receiver or manager, it is destructive of abundantly removed any doubt or ambiguity as to it. It seems to me perfectly impossible that this the meaning of the expression to be found in concern could be carried on with that advantage 1 Swan's Reports. The case of Walworth v. Holt which both parties have a right to expect; it should appears to be a peculiar case; but the point that be carried on until the hearing, when it is expected there arose was of a very distinct nature. The part- that the partnership should continue. It seems to nership there had ceased to be carried on; it was me impossible that the appointment of a receiver quite obvious, from the fact that it could not be could be made with any substantial benefit. I cercarried on, the concern was insolvent; the parties tainly cannot adopt the view which one of the learned were undisposed to raise any capital, and the pro- counsel has presented to me of that qualified sort of perty of the partnership was likely to be lost, as ap- management which is to leave the parties in truth to pears upon the proceedings between the period of manage for themselves under the supervision of a the motion and the hearing, lost to all parties, unless manager, I do not understand that. It appears to the Court had interfered to preserve it; and although me that interference with the manager in any subthe bill had not the word "dissolution" in it, yet it stantial degree would be a contempt of the Court, was plain that it was the object and necessary effect punishable just as much as a breach of the injuncof that bill to put an end to the concern; and there- tion. Now there are articles necessary to be purfore it stood upon precisely the same basis as if the chased, and there is a trade to be carried on which bill had been filed exclusively for the purpose requires skill. This gentleman, the manager-the of dissolution, and the winding up of the con- conductor of the concern, it seems to me, cannot by The school, which was originally founded and cern. In the case of Const v. Harris, which is the possibility conduct it in such a manner as to preserve endowed by King Edward VI. and the management only case that introduces any ambiguity, there is it entire and substantial for the benefit of the part of it, and of the property held in trust for it, had, certainly an expression, in page 525 of the report, ners, after the hearing of the cause, supposing a de- before the year 1848, become the subject of difthat would seem favourable to the plaintiff: it says, cree shall be made to carry it on. It is that kind of ferences of opinion and litigation; but by an order "The most prominent point on which the Court business that I think cannot be so carried on, and it dated the 2nd of August, 1818, and made by the acts in appointing a receiver of a partnership con- does not appear to me that anything has been done Lord Chancellor, on an information filed by the cern is the circumstance of one partner having taken which will necessarily prevent the partnership being Attorney-General against the corporation of Ludlow upon himself the power to exclude another partner carried on if a decree be made for that purpose as and others, a scheme for the regulation of the from his full share of the management of the part- prayed by the plaintiff at the hearing. I think, grammar-school in question, and certain other charinership, as he who assumes that power himself en- therefore, from the circumstance that the attention ties, was settled; and by the 14th regulation of that joys." Now, the receiver that was asked for in that of the Master of the Rolls was not called to the state scheme, it was provided as follows:-"That the case was a receiver who, it is to be justly observed, of the record, and to the prayer of the Bill being trustees shall have authority from time to time, was wholly unconnected with the management: he exclusively, or for the main part, directed to the upon such grounds as they shall, at their was to receive, either the rent under a lease if the establishment of the partnership, and to the carry-discretion, in the due exercise of the powers parties thought fit to adopt that lease, or the admis- ing it on; and that the act imputed to the defendant and trusts reposed in them, deem just, from sion money taken at the entrance of the theatre, is by no means destructive of the partnership in time to time to remove the master, usher, or supposing the lease was repudiated or not acted upon, the sense that a decree would be available for any additional master or masters, or either of them, and he was to apply it according to certain terms carrying it on by reason of his intermediate from their or his offices or office in manner afterand provisions which the parties themselves had acts, it does not appear to me there were any suffi- mentioned, that is to say, that on the requisition in Charity-Removal of master-Exercise of discretion This was a motion made on behalf of the plaintiff that the defendants might be restrained from taking any proceedings for the purpose of enforcing a resolution by the trustees of the grammar-school of King Edward VI. in the borough of Ludlow, made on the 16th January, 1850, whereby it was resolved that the plaintiff should be removed from the office of the said master. The bill prayed for a declaration that the resolution was invalid, and that the plaintiff might be quieted in his possession of the office of master, to which he was appointed in the year 1838. ROLLS COURT. writing, signed by three of the trustees at least, the secretary of the trustees shall call a meeting of the trustees; a notice in writing to be given or sent to each of the trustees six days before the holding of such meeting; and in such notice shall be stated, that at the said meeting it is intended to propose the removal from the office of master, usher, or additional master or masters, persons whose names shall be in the said notice; and that at the same meeting there shall be present not less than twothirds of the trustees for the time being; and that at the said meeting a resolution shall be proposed by one and seconded by another of the trustees, for the removal of such master, usher, or additional master or masters; and that if the same be carried by at least two-thirds of the trustees so present, the same shall be entered upon the minutes of the trustees and signed by such of them as vote for the said resolution; and that the resolution shall, at a subsequent meeting oft h ecrustees called by such notice as last before-mention and which notice set forth the former resolution, and with an interval of one calendar month at least, whereat the same proportion of trustees at least shall be present as is required to be present at the first meeting, be confirmed by two-thirds of the trustees then present, the said master, usher, or additional master or masters, shall be considered as if removed, as on the day of the second meeting; and his office shall be vacant on and from that day, provided that such resolution and confirmation thereof, as aforesaid, together with the grounds of such removal, shall be entered and preserved upon the minutes and proceedings of the said trustees." touching the discipline, order, or conduct of the authority to dismiss the master for any cause which Turner and Renshaw, for the motion, cited On the 8th of January, 1850, three of the trustees signed a requisition addressed to the secretary of the trustees, requiring him to call a meeting for Wednes-sonally distasteful to himself or inconsistent with day, the 16th day of January then next, at which meeting it was intended to propose the removal of the Rev. Arthur Willis, the plaintiff in the cause, from his office of master of the school. On the same day the secretary gave notice of the intended meeting. Accordingly the meeting was held on the 16th day of January; fifteen trustees were present; and after reading the requisition and notice, reading an order of the 6th of August, 1849, and the report of the grammar-school committee, a resolution for the removal of Mr. Willis was moved by one trustee, and seconded by another, and then certain trustees, -fourteen in number,-acting, as they say, in their discretion, and in the due exercise and execution of the powers and trusts reposed in them, resolved that Mr. Willis be removed from his office; and they did remove him, and signed their name to such resolution; and they subjoined a statement of the grounds of such removal, which were six in number; and it was ordered that a special meeting of trustees should be convened for Wednesday, the 20th of February then next, at eleven o'clock in the forenoon, for the purpose of submitting the foregoing resolution for confirmation. A meeting was accordingly held on that day. It was stated that the Rev. Arthur Willis, the master of the grammar-school, and Mr. John Williams, the usher of the grammar-school, severally attended and were heard,-that the resolution of the 16th of January was read, and then that, upon the motion of one trustee, seconded by another, the undersigned trustees, being not less than two-thirds of the trustees present at the meeting, and alleging that they had heard the Rev. Arthur Willis on the subject, and had duly considered the premises, did in their discretion and in the exercise and execution of the powers and trusts reposed in them, deem it just to adopt the resolution, and they accordingly resolved that the resolution be confirmed. The plaintiff feeling himself aggrieved by these proceedings on the part of the trustees, filed his bill to The MASTER of the ROLLS.-The plaintiff in this restrain them, and thereby alleged that some of the case complains of his removal from the office of trustees were holders of removeable leases, and schoolmaster; he admits that the trustees of the others were members of the corporation, and that charity, if they act in the due exercise and discretion the compromise which had been entered into (after of the powers and trusts reposed in them, and in the an information had been filed respecting the charity manner authorised by the regulation, have a right to lands which had become intermixed with those of remove the schoolmaster, and that they have even a the corporation), and which had been carried out by discretionary power, when it is exercised, after due the 9 & 10 Vict. c. 18, and the scheme subsequently consideration, and after making themselves duly acsettled by the Court was less favourable to them and quainted with the facts upon which they act. But to the corporation than the terms originally pro- he denies that they have any right to remove the posed, and that the plaintiff having exerted himself master arbitrarily and capriciously; and he insists in favour of the charity, had incurred the displeasure that in this case they have acted irregularly, without of the trustees, because the income of the property proper inquiry, and unjustly, and that they have of the corporation had become exhausted in indemni- done him an injury, for which he is entitled to refying the charity, and the expenses of the corpora- dress in this Court. The trustees, on the other tion had to be met by a borough-rate. The bill also hand, insist, that they have a right to remove the stated that the trustees were further annoyed by the master for any reasons whatever which seem good to plaintiff's interfering to prevent the sale of a part of themselves; that they are not answerable to this the charity property called Ashford estate, the plain- Court for the mode in which they have thought fit to tiff conceiving that it was about to be sold at an exercise their discretion; and they further contend, undervalue, and having written to the Bishop of that if they are bound to answer, or are in any way Hereford to withhold his consent and allow the accountable for the exercise of their discretion, they plaintiff, as an object of the charity, to be heard are ready to shew they have proceeded regularly and against the sale. The bill then alleged that the justly, and have removed the master for good and trustees had concocted a plan to remove the plaintiff sufficient reasons. The first, and perhaps the only from his office. The bill then stated certain resolu- question material to be considered at this time is, tions of the trustees passed on the 6th of August, whether under the scheme established in this case, 1849, whereby it was resolved that every complaint the trustees have an arbitrary and uncontrollable Turner, in reply, cited Archbold v. The Commissioners of Charitable Bequests for Ireland, 2 H. L. Cas. 460. when considered with reference to the direction of the reserved statement of the grounds of removal appears to me to have the effect of restricting the large meaning which might otherwise be given to the word "discretion" contained in the ordering part of the clause. Considering that the trustees are not the only and absolute judges of the sufficiency of the grounds of removal upon which they have acted, and that they are subject to the jurisdiction and control of this Court, with execution of the trusts reposed in them, it becomes necessary to inquire into the manner in which they have acted in the present case. The plaintiff alleges that the power of the trustees has been corruptly exercised, or at least that there has been an undue exercise of the discretion which they had. A great many affidavits have been filed; they contain much inconsistent evidence, and it seems to me, that some, at least, of the trustees manifested an eager desire to find occasion to remove the plaintiff. If, upon a fair investigation of the facts, and after just means of explanation and defence had been afforded, it had appeared that the employment of the plaintiff had become prejudicial to the school, the trustees would have been fully justified in removing him. On the merits, however, I find it very difficult to form a conclusive opinion of the truth or falsehood of many of the allegations which are stated. But, after reading the affidavits, I observe that some differences having arisen between the master and the usher, the trustees not troubling themselves to promote any means of conciliation or adjustment, seem to have been disposed to impute the principal fault to the plaintiff; and, instead of instituting an inquiry in his presence, which might have afforded him the means of explanation and defence, they, without his knowledge, commenced proceedings against him by referring the matter to the school committee to consider the case. The school committee proceeded to investigate the case in his absence and without his knowledge, and reported against him. The report was not communicated to him, but the trustees met, as they say, considered the report, and in his absence, and without hearing him, they confirmed the report, and resolved to remove him; and stated the grounds and reasons for such his removal. The ROLLS COURT. trustees having thus committed themselves without hearing the party affected by their resolution; having thus condemned the plaintiff unheard-ordered another meeting to be summoned for Wednesday, the 20th day of February then next, at eleven o'clock in the forenoon, for the purpose of submitting the foregoing resolutions for confirmation. The trustees did not even then think it necessary to communicate the proceedings to the plaintiff, but the plaintiff having by some means, not, I think, explained, become acquainted with the proceedings on the 28th of February, two days before the appointed meeting for the 20th, wrote to the trustees a letter, which ought, I think, to have induced them to pause, and to consider whether they were proceeding with due caution and justly. The only effect which it seems to have had upon them was to induce them at twelve o'clock on the day of the meeting to inform him that they had received his letter, and were ready to hear what he had to say on the subject of it. He did accordingly attend, and said what he could or thought of under such circumstances; and, after so hearing him, asking him, I think, whether he had anything further to say, and receiving an answer (which might well be) that he had not,-under those circumstances, and without any other hearing or inquiry in his presence, they confirmed the former resolution to remove him, and this confirmation was signed by the same fourteen trustees who had signed the resolution of January, and so previously committed themselves to the conclusions and to the reasons. Care was taken to observe the mere forms required by the 14th regulation about that. I own that it appears to me perfectly clear that Mr. Willis had no proper opportunity afforded him of defending himself-no sufficient means of explanation- no means of proving his defence if he had any. The evidence which is before me does not enable me to determine whether Mr. Willis had a good defence or not; and it is a most serious misfortune to the welfare of this school that a matter of such importance should remain in suspense. I think, upon their own shewing, the trustees have taken upon themselves to remove Mr. Willis without giving him a proper hearing, and the facts which are disclosed in the affidavits, though not such as to enable me to come to a satisfactory conclusion, are, at least, such as to make it not improbable that Mr. Willis may be able to shew that he ought not to have been removed. Therefore I am of opinion that the injunction must be granted to restrain the defendants from enforcing the resolution of the 16th of January, confirmed on the 20th of February. I wish only to add that I do not mean to say anything that can really determine the right or propriety of conduct between these parties; and although I think they are not entitled to proceed upon the footing of this resolution, I do not mean to insinuate in any way that they are not entitled to have a proper investigation into these or any other grounds of removal, and proceed in a just manner upon them. VICE-CHANCELLOR KNIGHT BRUCE'S COURT. ciently broad basis to carry on the extensive business Thomas Holme might be inserted in the said list of "To the Directors of the Royal Bank of Australia. "Royal Bank of Australia, "London, 7th August, 1840, "2, Moorgate-street. "Gentlemen,-In reference to the five hundred shares in the Royal Bank of Australia, which I agreed to take, in order to extend and secure the basis on which the establishment shall be placed, I hereby bind myself, at such time or times within four years from the date of the deed of settlement as shall be convenient to me, to pay the deposits and calls on the said shares, with interest thereon, at 5 per cent. from the time appointed for the payment of the same, until such calls and deposits shall be paid by me. "I am, Gentlemen, your most obdt. servant." Thomas Meux 500 John W. Sutherland 500 Alexander Cockburn 100 William P. Crawford 200 John Connell . 500 Joseph P. Robinson 100 George Webster.... 500 Another letter, addressed by Mr. J. P. Robinson to the directors, was as follows: "Royal Bank of Australia, 2, Moorgate-street, London, 7th August, 1840. "Gentlemen,-In reference to the one hundred shares in the Royal Bank of Australia, which I agreed to take, in order to extend and secure the basis on which the establishment shall be placed, I hereby bind myself, at such time or times within four years from the date of the deed of settlement as shall be convenient to me, to pay the deposits and calls on the said shares, with interest thereon, at 5 per cent. from the time appointed for the payment of the same until such calls and deposits shall be paid by me. "I am, &c. "Jos. ROBINSON. "To the Directors of the Royal Bank of Australia." Mr. J. P. Robinson accordingly gave a promissory note for 1,000l. being 107. a share on account of the 100 shares. In the beginning of the year 1812, Mr. J. P. Robinson, went to Sydney, where he remained until his death, which took place in 1848. In 1847 the promissory note was sent out to Mr. Boyd, the manager of the bank at Sydney, but Mr. J. P. Robinson was not in a position to discharge it. In the ledger of the bank, entries were made in Mr. J. P. Robinson's account of dividends on the 100 shares, and of the 1,000l. promissory note, and the interest thereon. R. Palmer (with whom was Cairns) contended that Mr. J. P. Robinson's executors were not liable to be placed on the list in respect of the 100 shares, as these shares were not allotted, nor was the deed case (before the Lord Chancellor). Reported by GEO. S. ALLNUTT, Esq. of the Middle Temple, executed in respect of them. He cited Gouthwaite's Barrister-at-Law. March 24 and 29. Ex parte ROBINSON, re THE ROYAL BANK OF AUSTRALIA. Joint-Stock Companies Winding-up ActsContributory. A. B. the director of a banking company, took twenty shares as a qualification for his office, and signed the deed in respect of them he afterwards, in pursuance of a resolution by the directors, signed a letter agreeing to take 100 shares more, and he gave a promissory note for 1,000/. in respect of these shares, payable within four years. The 100 shares were not allotted, nor was the deed executed by A. B. in respect of them. Entries were made in A. B.'s account in the bank books of the dividends, &c. on account of these 100 shares, but the promissory note when due was not discharged by A. B. : Held, that A. B. was a contributory for 120 shares. The VICE-CHANCELLOR (without hearing Malins and Daniel for the official manager) said, that the Master had treated the 100 shares on the same footing as the twenty shares. His Honour could not see how he could have done otherwise. He thought it a very clear case, and must refuse the motion with costs. Saturday, March 29. Ex parte HOLME, re THE NORTH OF ENGLAND The circumstances of the case will appear from the following judgment of the Master: 66 Application of the official managers to include Thomas Holme as liable to losses under the 26th article of the deed of settlement. Thomas Holme signed the deed of settlement in respect of shares amounting to thirty, and subsequently he acquired eighteen other shares. On the 21st of January, 1847, he transferred these forty-eight shares to Mary Aitchinson, having received dividends or profits which became payable up to that day. The sum of 2551. 14s. has been paid by Mrs. Aitchinson on account of the calls made under this reference, and Samuel Hedley, by his affidavit, swears that he has been informed and believes that Mary Aitchinson is totally unable to make any further payment on account of the said calls or either of them.' Under these circumstances the official manager applies to include the transferor, Thomas Holme, as liable to losses under the proviso in the 26th article of the deed, that nothing in this article contained shall extend or be construed to extend to release the previous holder of shares so forfeited or transferred as aforesaid from his proportion of the losses, if any, sustained by the company, up to the period of his ceasing to be such holder as aforesaid. In Hawthorn's case he was included in the list as liable in respect of losses, if any, sustained by the company up to the period of his ceasing to be a holder of shares, but in the present case Mr. Holme resists being included at all, upon the ground that at the time he ceased to be a shareholder the company had not incurred any losses; and in support of that proposition he relies upon the reports of the directors, and mainly upon two balance-sheets. One is for the year ending the 31st of December, 1845, by which it is made to appear that there was profit for that year amounting to 9,7731. 1s. 11d. out of which a half-year's dividend, amounting to 3,7327. 14s. 3d. was paid. The other is for the year ending the 31st of December, 1846, by which it is made to appear that there was a profit for that year amounting to 12,4217. 10s. 4d. out of which a half-year's dividend, amounting also to 3,7321. 14s. 3d. was paid. Messrs. Holme and Dees have filed a joint affidavit. It is argued on behalf of Mr. Holme that these balance-sheets are by the terms of the deed of settlement conclusive as to the state of the affairs of the bank at the conclusion of the years 1845 and 1846. The official manager insists that they are not conclusive, and that he has a right to shew that in fact the company on and prior to the 21st of January, 1847, had incurred very heavy losses, and for that purpose he has filed an affidavit, sworn by Samuel Hedley, who, at the opening of the bank, was appointed cashier, in March 1835 succeeded to the office of manager, and in May 1846 became managing director, and so continued until the stoppage of the bank, or till the order of reference to me, and is now employed by the official manager as a clerk in assisting them in winding up this company's affairs. This person, who, as I understand, prepared the two balance-sheets which I have referred to, now by his affidavit states that if the truth had been told in 1845 and 1846 it would have appeared that the bank had at that time incurred enormous losses, and that, therefore, the representations so made were in substance false. That may be so; but for the purpose of the present application I shall give so much weight to the balancesheets which he prepared, as to consider that Mr. Holme has prima facie shewn that no losses had been sustained when he ceased to be a shareholder, and therefore I shall not include him in the list of contributories, subject of course to the right of the official managers to apply again when they may be in a situation to shew that losses in fact had been sustained on the 21st January, 1847; but to establish that result it will be necessary to do much more than file an affidavit sworn by the aforesaid Samuel Hedley.-J. W. F.-28th January, 1851." The 26th and 45th clauses of the deed of settlement, and to which reference was made in the arguThis was a motion on behalf of Mr. Anthony ment, were as follow:-26. Whenever, by any George Robinson, that the decision of Master means whatsoever, any shares shall become actually Richards, dated the 25th of February last, whereby forfeited, or shall be duly and effectually transferred the name of the said A. G. Robinson was retained to a new holder, then, and in such case, and not on the list of contributories of the above-named before, the responsibility of the previous holder, as company for 120 shares, as executor of Joseph Phelps This motion was made on behalf of the official a member of the company in respect of such Robinson, deceased, might be reversed, or varied, managers of the North of England Joint Stock shares, shall (so far as the law will in that beand that the name of the said A. G. Robinson might Banking Company, and was, that the decision of half allow) cease and determine, and such previous be ordered to stand on the said list as such executor Master Farrer, whereby he, on the 7th of March holder shall be exonerated and released from as aforesaid for twenty shares only. Mr. J. P. inst. excluded the name of Thomas Holme from the all subsequent claims, demands, and obligations, Robinson, who was a director of the company, took list of the contributories of the company as a contri- in respect of the same shares, and from all future twenty shares as a qualification for the office, and in butory liable to contribute to the losses (if any) sus- observance and performance of the covenants respect of these shares paid the deposit and signed tained by the said company up to the 21st day of conditions, stipulations, and agreements in the deed the deed of settlement. At a meeting of the bank, January, 1847, or other the period of his ceasing to of settlement, contained in respect of the same held on the 7th of August, 1840, the question having be the holder of forty-eight shares of 1001. each shares, provided, nevertheless, that nothing in this been discussed whether the bank was upon a suffi- might be reversed, and that the name of the said article contained shall extend, or be construed to V. C. KNICHT BRUCE'S COURT. extend, to release the previous holder of shares so forfeited or transferred, as aforesaid, from his proportion of the losses (if any) sustained by the company up to the period of his ceasing to be such holder, as aforesaid. 45. At every half-yearly general meeting of the company, the directors shall exhibit to the shareholders assembled such a balance-sheet as they are required to prepare by the 69th article of these presents, and such a statement of the probable amount of the losses to be apprehended from the subsisting accounts and engagements of, or with, the company, and generally of the state and progress of the affairs of the company up to the 30th day of June and the 31st day of December immediately preceding such meeting, as the directors shall deem expedient for the interest of the company to be made public; and every such balance-sheet shall be binding and conclusive on all the shareholders, their executors, administrators, and assignees, unless some error shall be discovered therein, respectively, before the next half-yearly general meeting, and, in that case, such error only shall be rectified. Bacon and J. V. Prior, in support of the motion, referred to the definition of the word "contributory,' in the Winding-up Act, 1848, and cited Hawthorn's case, 1 De G. & Sma. 571; 1 Mee. & Gard. 49; and Gouthwaite's case (before the Lord Chancellor). The VICE-CHANCELLOR said that if he put Mr. Holme's name on the list, he should be saying that what the shareholders had done was not conclusive upon them as between themselves and Mr. Holme. Bacon.-But Mr. Holme was a shareholder at the time these representations of the accounts were made, and, therefore, he should bear the consequences. J. V. Prior said that if these balance-sheets were to be conclusive, it would appear that all the enormous losses of this bank had occurred between the last account and March, 1847. Notwithstanding the state of the bank's affairs, it was quite consistent that a profit might have been made in the particular years. (Oldaker v. Lavender, 6 Sim. 239.) The VICE-CHANCELLOR (without hearing R. Palmer and Bates for Mr. Holme), said that this gentleman was not liable for any loss incurred after he ceased to be a shareholder, and his Honour conceived that the mere possibility that there might have been a loss sustained before he ceased to be a shareholder did not give a right to place his name on the list. He was of opinion that it must be proved of such persons and such circumstances, that there had been a loss sustained before the period in question. Mr. Prior had sensibly observed that it was almost an irresistible inference, from the nature of the evidence, that there must have been such losses at that period, by the stoppage which occurred and the lamentable wreck they appeared to have made of it. That there would be more force in that, his Honour thought, but for the circumstance he was about to mention that between these disputants for the present purpose, the balance-sheet immediately before, and the balance-sheet immediately after, the time Mr. Holme ceased to be a proprietor, must be taken to be conclusive,-that was between these disputants for the present purpose. He could not say that in his opinion a case had been shewn for Mr. Holme's name being put on the list. He agreed with the Master in paying no attention to Mr. Hedley's affidavit. The motion must be refused with costs. V. C. LORD CRANWORTH'S COURT. V. C. LORD CRANWORTH'S COURT. Thursday, Feb. 20. WALDRON ". SLOPER. Practice-Short claim-Costs. The claim had been set down as a short claim on Stuart (Shapter with him), for the defendant, Giffard and T. Wood for other parties. See Hills v. Treacher, 16 Law T. 457. Comnion Law Courts. COURT OF QUEEN'S BENCH. Nov. 22, 1850; Jan. 18, 1851. 66 REG. v. COTTLE and ANOTHER. QUEEN'S BENCH. tion was left to them whether it was within the "town" of Taunton. The learned judge directed them, that by the word "town" must be understood an inhabited place where the dwellings are contiguous, so that the occupants may be taken to be living together; that it was not necessary that the houses should touch each other; that it was sufficient if they were so reasonably near that the inhabitants might be said to dwell together. A verdict was found for the Crown, but leave reserved to the defendants to move to enter the verdict for themselves, if the prohibition in sec. 27 ought to be limited to roads which were in the town of Taunton at the time of the passing of the statute. In the ensuing term a rule nisi was obtained accordingly to enter the verdict for the defendants; or for a new trial upon the grounds of misdirection, and that the verdict was against the evidence. The misdirection complained of was, that the learned judge did not sufficiently make it a part of the definition of the word "town," that there must be a continuous mass of buildings, and a continuous occupation. Elliott v. The South Devon Railway Company, 2 Exch. 725, was cited and commented on, but Lord CAMPBELL, C. J. said,-Substantially the matter was left to the jury in the very way in which it is contended that it ought to have been left. There was certainly no misdirection. Crowder, Butt, and Fitzherbert shewed cause.— The verdict ought to stand for the Crown. The words in sec. 27 shew that the future as well as the present state of things was contemplated. The trustees are forbidden to "continue" or to erect," and that not only in the towns of Taunton and Wellington, but in any other town through or into which the said roads may pass or be made, there being at the time when the Act passed no other town through or into which the road in question passed, but the possibility of the formation of some new town being anticipated by the Legislature. The last words of the section speak of "any place which is or shall be paved" by local commissioners. The same rule of good policy is applicable to both present and future. The object of the statute was to provide for the varying wants of the inhabitants. If the place were actually to cease to be town in one direction by the removal of houses, &c. there a toll-house might be erected; but if it grow extensively like a large manufacturing district in another, there an existing toll-house must not be continued. By sec. 32, the Act is to continue in force for thirty-one years, a period in which most extensive changes of occupation may take place. (Hammond v. Brewer, 1 Burr. 376; Reg. v. Fisher, 8 C. & P. 612.) Kinglake, Serjt. Moody, and M. Smith, in support of the rule.--The word "town" must be taken to be used in the same sense throughout the Act. In sec. 14, it is recited, that there are several turnpike or toll-houses belonging to the said turnpikeroads, in and near the town of Taunton, which it may be convenient to discontinue as toll or collecting houses. There the word "town must be limited to that which was the town of Taunton at the time of the passing of the Act. The same section gives power to sell the then existing toll-houses, but no power to dispose of any thereafter to be erected, which surely would have been given, if any thereafter to be erected could become unlawful by reason of the town being extended to them. The benefits and grievances as they existed at the time of the passing of the statute were before the eyes of the framers, and they were legislating for a state of things which they could see and know, not for mat Held, that these words were not to be limited to the "towns," as they were at the passing of the Act, but that it was unlawful for the trustees to erect a toll-house in any part of the road which, by the increase of buildings, had become part of the town of T. since the passing of the Act. This was an indictment against two of the trustees of the Taunton roads, for obstructing a highway by the erection of a toll-house in the town of Taunton. The defendants pleaded "not guilty," and the ques-ters of which they could then know nothing. If a tion was, whether under the powers given to them by stat. 3 & 4 Vict. c. xxxvi. (an Act for more effectually repairing several roads leading from the town of Taunton, &c.) the defendants were justified in erecting the toll-house at the part of the road at which they had erected it. By sec. 27 of the statute, it is enacted "that it shall not be lawful for the said trustees to continue or erect any turnpike or toll-gate across the said roads in the towns of Taunton and Wellington, or in any other town through or into which the said roads may pass or be made; nor to apply, extend, or appropriate any of the tolls hereby granted, or any of the moneys raised by virtue of the said recited Acts, &c. or to be raised, &c. in repairing or amending any part of the said turnpike-roads in any town or place which is or shall be paved or repaired by any commissioners or trustees for executing any local Act of Parliament." It was admitted that at the time of the passing of the Act (1840), the spot at which the toll-house had been erected was not in the town of Taunton, but since that time there had been a large number of houses built in the outskirts of the old town, by reason of which, it was conThe VICE-CHANCELLOR considered that the sig-tended for the prosecution, that the spot in question nature of counsel to the draft, in the same way as was, at the time of the erection of the toll-house, to a draft bill, was sufficient, and ordered the en- within the "town" of Taunton, according to the grossment of the special case to be filed by the meaning of that word in sec. 27 of the statute. proper officer. Friday, Jan. 10. STAPLETON V. STAPLETON, Practice-Special case under recent Act-Signature of Counsel. The Signature of counsel to the draft of a special case intended to be argued under the Act 13 & 14 Vict. c. 35 (Mr. George Turner's Act), is sufficient. Fleming applied to the Court that a special case which had been settled under Mr. George Turner's Act as above, might be filed with the Clerk of Records and Writs. He had signed the draft, as he would have done the draft of a bill, but the officers were desirous of ascertaining the opinion of the Court whether the engrossment also should not be signed by counsel. The section of the Act is as follows: Sec. 10. "And be it enacted that every such special case shall be signed by counsel for all parties, and shall be filed in the same manner as bills are filed, and that the defendants may appear thereto in the same manner as defendants appear to bills; and that no defendant shall be required to take an office copy of a special case, but an office copy thereof shall be taken by the plaintiff.' The indictment was tried before Mr. Gurney, Q.C. at the Lent Assizes, 1850, for the county of Somerset. The jury had had a view of the spot, and the ques growing town had been in their contemplation, QUEEN'S BENCH. Rule discharged. or as it might be at any time during the thirty-one judgment of the Court.-This was an action on the "river" in this clause, or, in effect, adding the words years for which the Act was to be in force. We case, by the owners of certain vessels navigating the " not navigable," which are not to be found in the have come to the conclusion that the latter is the river Ouse, and the second count of the declaration clause itself. The plans and books of reference just construction. Whatever inconvenience might charged the defendants with filling up and obstruct- would be before the Legislature when the special Act arise from authorising the erection of a turnpike ing part of the bed of the river, penning back the for constructing this railway was passed, and although gate in a place which, when the Act passed, had water, and preventing it from flowing in its accus- it may be true, as was suggested, that no particular been in the country, and before the Act expired had tomed channel and course in so ample a manner as individual felt so much interest in opposing the Act become nearly in the centre of a great town; if it otherwise would have done, and preventing the by reason of the insertion of a portion of these there had been a clear enactment to that effect we plaintiff from passing along and navigating that navigable rivers in such plans and books as to make must have been bound by it. But looking to the part of the river. The defendants pleaded it a subject of controversy during the progress of the language here employed, we think the Legislature that they had done the things complained Act, yet we are not warranted in supposing that the contemplated the probable increase of Taunton of, under a special Act for making their railway, Legislature overlooks such insertion, or in limiting within a period longer than that generally as- under the Lands Clauses and the Railway Clauses the operation of the plain words which the Legisla signed for a generation of the human race, Consolidation Acts; that the plans and books of ture has employed. A subsequent part of the clause and intended that its inhabitants as it in- reference were deposited with the clerk of the peace; in question was relied upon by the plaintiff which creased should be exempt from the annoy- that the part of the bed of the river which was ob- provides that the company may alter the course of ance of a turnpike-gate cutting off the free in- structed was among the lands delineated in the any rivers not navigable within such lands for the tercourse between neighbours in the same street. plans and described in the books of reference; and purpose of constructing and maintaining tunnels, The words are" It shall not be lawful for the said that the defendants did, for the purpose of making bridges, passages, or other works over or under the trustees to continue or erect any turnpike-gate across and constructing the railway in the said Act men- same, and divert or alter as well temporarily as permathe said roads in the towns of Taunton and Welling- tioned, and under and by virtue of the provisions of nently the course of any such rivers," that is, "rivers ton, or in any other town through or into which the the said Acts of Parliament therewith incorporated, not navigable," in order the more conveniently said roads may pass or be made." The whole struc- and not otherwise, enter upon the said part of the bed to carry the same over, or under, or by the side of ture of the clause is prospective. What is to be fo the river, and make and construct part of the said the railway, as they may think proper." And it was town must be the same as to the continuing as to the railway thereon, the same being necessary for the argued that the Legislature manifestly intended to erecting of the gate; and if a new gate is to be purpose of making the railway. The plaintiff replied confine the power of diverting and altering the course erected in the year 1870, the trustees are surely di- de injuria, upon which issue was joined. Upon the of rivers to those which are not navigable, which rected to consider whether the road is then within trial, it was contended for the plaintiff, that the would be entirely frustrated, if the word "rivers," in the limits of the town of Taunton, not whether it defendants, under this plea, were bound not only to the prior part of the clause were held to include was thirty years before. This construction is forti- shew that that part of the river obstructed was de- navigable rivers; since the language used in the fied by the reference to "any other town through or lineated and described in the plans and books of prior part is so comprehensive as to include the into which the said roads may pass," meant, pro-reference, and was used for the necessary construc-power of diverting and altering the course of rivers bably, to protect the inhabitants of any new town tion of the railway, but also that all the notices re- there mentioned. But we think that this reasoning which might spring up within the district while the quired by the Act for the purchase of such part of is not sound. The prior part of the clause gives Act should be in force. We are therefore of opinion the river from the owners of the bed of it had been only the power of constructing piers in or upon that the learned judge was bound to leave the ques-given, and all other things done which were requi- rivers within the lands described in the said plans tion to the jury whether, when the indictment was site to vest that part of the bed of the river in or mentioned in the said books of reference; yet we found, the gate stood across a road which was to be the company. The learned judge told the jury think not so as to enable the company to divert or considered at that time in the town of Taunton. We that the allegation in the plea did not make alter the entire course of such rivers, or to obstruct have likewise to dispose of the application for a new such proof necessary, and they found for the the whole navigation of them, being navigable; for trial, on the ground that the verdict in the affirma- defendants. A rule nisi for a new trial has we cannot suppose that the Legislature would permit tive was contrary to the evidence. Had the verdict been obtained upon the ground of misdirection in such lands to be included in the plans and books of been the other way, we should have, by no means, this respect, and also for judgment non obstante reference as would enable the company so to divert disapproved of it; but considering that, after the unex- veredicto, on the ground that if the judge was right or alter the entire course of navigable rivers, or to ceptionable direction of the learned judge, it turned in his construction of the plea, the plea is bad for obstruct the entire navigation of them. But the on a pure question of fact, to be decided by twelve the want of an allegation that those various acts had latter part of the clause, which does apply to such gentlemen who had had a view of the locality, and that been done which it had been insisted ought to have entire diversion or alteration in the course of a river, they may have come to the proper conclusion, we been proved at the trial; and, further, upon the is expressly confined to those which are not think the verdict ought not to be disturbed, and the ground that none of the Acts of Parliament autho- navigable: the one contemplates the approrule for a new trial must be discharged. rised the company to construct their railway upon priation of part of a river to the uses of the bed of the navigable part of a river. This rule the railway, leaving the residue of it in its has been argued before us, and, upon consideration, usual course, and the navigation of that residue we are of opinion that the learned judge was right in unimpeded where it is a navigable river; the the construction which he put upon the plea, and, other contemplates the entire diversion of the therefore, that there is no ground for granting a new whole course. The erecting anything in a navi Stat. 8 & 9 Vict. c. 20, s. 16-Obstructing navigable trial. With respect to the judgment non obstante gable river or upon a highway which would be a river-Purchase of the soil. veredicto, we are of opinion, that as against the nuisance if not authorised by the Act of Parliament, To an action on the case by the owner of vessels plaintiff in this action, who had no interest in the soil cannot by any reasonable construction of language be navigating a navigable river against a railway of the bed of the river, but had only the right of considered as a diverting or altering the course of such company for filling up and obstructing part of the passing along a navigable highway common to all river or highway. No doubt such an erection in a bed of the river, so as to prevent the water from the Queen's subjects, it was not necessary for the navigable river by preventing the water from flowing flowing in its accustomed channel in as ample defendants to aver or prove that they had taken the at all along the site of the erection would "prevent manner as it otherwise would have done, and for proper steps to vest in them the ownership of the the water of the river from flowing in its accustomed consequent injury to the plaintiff, the defendants bed of the river. If they were entitled by Act of channel and course in so ample a manner as it otherpleaded that they had done the things complained Parliament to convert a portion of a navigable river wise would have done," which is the language used of under and by virtue of their Special Railway into a railway, and so to obstruct and do away with a in this declaration, but which is a very different Act and the Lands Clauses and Railway Clauses portion of the navigable channel, it cannot be thing from diverting or altering the course of the Consolidation Acts, which were incorporated material to the public at large, or to those river within the meaning of the stat. 8 & 9 Vict. c. 20. therewith; that the part of the river obstructed persons who were in the habit of navigating For these reasons we are of opinion that the plea was among the lands delineated upon the plans that portion, whether the ownership of the bed of the objected to is sufficient, and that the rule which has and sections and books of reference deposited river in that portion has been effectually transferred, been obtained must be discharged. There was a with the clerk of the peace; that they entered, or whether any body is entitled to compensation in cross rule for a new trial obtained by the defendants, &c. for the purpose of constructing the railway, respect of such ownership, or has or has not been as regarded the grievances complained of in the first and not otherwise; and that it was necessary to satisfied. The remaining question is, whether the count of the declaration, which was for obstructing construct the railway in the manner complained defendants were authorised by any Act of Parliament a road leading to the river. This rule was granted of, &c.: to construct their railway upon the bed of the navig- upon the ground of the verdict for the plaintiff being Held, that it was neither necessary for the defend-able part of the river. The Act on which the de- against the evidence. It has not been argued, but ants to allege in the plea, nor to prove at the trial fendants rely is the stat. 8 & 9 Vict. c. 20, s. 16, as the counsel for the defendants in arguing the other that they had taken the requisite steps to vest in the Railway Clauses Consolidation Act, which pro-rule said that they did not object to a new trial genethemselves the soil and bed of the river upon which vides "That for the purpose of constructing the rally, and as the counsel for the plaintiff wish for a the obstruction was erected. railway they may make or construct in, upon, across, new trial, we know not whether they intend to shew Held, also, that under sec. 16 of stat. 8 & 9 Vict. under, or over, any lands, or any streets, hills, cause against the defendants' rule for a new trial or c. 20, a railway may be constructed upon the bed valleys, roads, railroads, or tramroads, rivers, canals, not. of a navigable river, so as to interfere to some ex-brooks, stream, or other waters within the lands tent with the flow of the river and with the navi- described in the said plans or mentioned in the said gation, although under that section a railway books of reference or any correction thereof, such Rule discharged. company has no power wholly to alter the course temporary or permanent inclined planes, tunnels, of such a river. embankments, aqueducts, bridges, roads, ways, pasSaturday, Feb. 15. sages, conduits, drains, piers, arches, cuttings, and WOODCOCK V. PRITCHARD and ANOTHER. fences as they think proper." They have here con-Execution-Distress for rent-Landlord's claim structed an embankment and a road in and upon the river described in the plan and mentioned in the books of reference. The word "rivers" is here used without any qualification; it would seem, therefore, to include navigable rivers as well as rivers not navigable, especially as the word "roads," here also used, plainly includes highways along which the public have as extensive a right of passage as they have along navigable rivers. Other provisions are introduced into the Act as to the mode of using roads, but none as to the mode of using navigable rivers. Whether such provisions were intentionally omitted, and if so, for what reason we cannot tell; but we cannot see that such omission Saturday, Feb. 22.—PATTESON, J. delivered the justifies us in qualifying the meaning of the word Feb. 1 and 22. a This was an action upon the case for obstructing the navigation of the navigable river Ouse, whereby the plaintiff was damnified. The action had been directed by an order of the Vice-Chancellor of England, and special damage to the plaintiff was, by his order, admitted. At the trial before Alderson, B. at the Summer assizes, 1850, the defendants had a verdict. Subsequently a rule nisi was obtained for a new trial upon the ground of misdirecdtion, or for judgment non obstante veredicto. The facts and pleadings sufficiently appear in the judgment of the Court. Wells shewed cause. O'Malley and Worlledge in support of the rule. JUDGMENT. It was intimated to the Court that neither party was now desirous of a new trial. By the COURT. Wearing apparel and implements of tradeCounty Courts Act. The wearing apparel and implements of trade of a debtor to the value 51. are protected from seizure under an execution issued out of a County Court, by s. 96 of the County Courts Act; but if the landlord gives to the bailiff a written notice claiming arrears of rent under sec. 107, the bailiff may distrain such wearing apparel or im plements of trade to satisfy the rent. This was an action of trespass. The declaration stated that the defendants, on the 11th of September, 1849, seized certain goods, to wit, a bedstead, signboard, pillows, &c. of the value of 51. the same being the bedding of the plaintiff and his family, and the |