1872 In re GARNIER. V.-C. M. security taken by the Court of Session in Scotland from the curator bonis was sufficient, ordered the Petition to stand over. It appears here that no security is taken in this lunacy such as a committee would have to give; all the security that is given is for the due performance of his office generally. At a subsequent hearing of Re Morgan an order was made that the dividends on the £90,067 18s. should be paid over from time to time during the life of the lunatic to the curator bonis. Therefore that was a case where the Court distinctly refused to hand over the capital to the curator, thinking the income sufficient, and ordered the income to be paid, but refused the capital. In Then the case of Re Elias (1) is relied upon; but the point which I have now to decide was never suggested in that case. Re Elias there was a considerable sum of East India Stock, and the lunatic was resident in Holland. The Lord Chancellor (Lord Cottenham) made an order authorizing the Petitioner, while provisional curator, to receive the dividends of the stock, and referred it to the Master to ascertain whether the Petitioner was, according to the law of the kingdom of the Netherlands, entitled to have the funds transferred to him. No inquiry was directed as to whether the Petitioner had given any security, and it did not appear whether the lunatic was a native of Holland. Now, the only counsel who appeared there was Mr. Cotton, asking for the transfer of the funds; there was no counsel, on behalf of the family, objecting or asking the Court to exercise any discretion. Mr. Cotton, in support of the Petition, submitted that the case was distinguishable from that of Re Stark (2). There was no one there to say it was not distinguishable from Re Stark, or to appeal to the discretion of the Lord Chancellor, or to ask him to exercise it; but even there the report states that the Lord Chancellor, after some hesitation, made the order in the terms of the prayer of the Petition, observing that he assumed that no security had been given by the curator, and that none was required by the laws of Holland. Then His Lordship intimated that he should have had no difficulty in making the order if it had been shewn that the lunatic was a Dutch subject. I cannot entertain a doubt that in that case, if the property had been large, and if any one had sug(1) 3 Mac. & G. 234. (2) 2 Mac. & G. 174. gested to Lord Truro, by whom the case was subsequently heard, that in these other cases, Re Stark (1) and Re Morgan (2), this Court absolutely refused to transfer the capital under such circumstances, especially considering that he had considerable hesitation when there was no opposition, that hesitation would have become a positive refusal. These are the only cases really bearing on this subject, because the case of Scott v. Bentley (3) merely goes on the general question, and the case of Hessing v. Sutherland (4) does not strictly apply, because the question of discretion was not raised. It is true I have no jurisdiction in Lunacy, and I can only apply these cases by analogy. This money has been paid in under the Trustees Relief Act. Have I then, under that Act, any discretion? Does it follow that any money paid in must be paid out to any one having a legal right? I have already referred to the case of an insolvency. There it was asked how much was required to pay the debts, and the Court would only order so much as was necessary for the debts, to be paid out, and the rest was to be administered by this Court according to the rights of the parties. Under Lord Cottenham's Act, by which moneys are paid into the Court of Chancery, what is the Court to do? It is enacted by the 2nd section that "such order as shall seem fit shall be made from time to time by the Court in respect of trust money paid in." It is the constant practice of this Court to exercise a discretion as to whether it will order money to be paid out or keep it here. I exercise such a discretion every day I hear petitions. I have, in my opinion, the same discretion in this matter. Where money was paid in under the Trustees Relief Act, the Lord Chancellor, sitting in Lunacy, in the cases of Re Stark, Re Morgan, and Re Elias, exercised that discretion. Under these circumstances, I come to the conclusion that this money ought not to be handed out, but only so much of it as is required for the maintenance of the lunatic with reference to his condition and situation in life. It is not suggested that the capital is wanted, beyond so much as will pay a debt of £48 which has been incurred. That, of course, ought to be paid. (1) 2 Mac. & G. 174. (3) 1 K. & J. 281. V.-C. M. 1872 In re GARNIER. V.-C. M. 1872 In re GARNIER There had better be an affidavit on the subject; and whatever is justly due to this Petitioner for expenses incurred in the lunacy, and also the costs of this Petition, must be paid. The residue must be retained in Court, and the dividends paid to the Petitioner for or towards the maintenance of the lunatic. The Petitioner, if he wants any more money, if circumstances should arise rendering it necessary to have more of the capital, can apply from time to time, and then the Court will exercise a beneficent discretion on such a subject. It is said that it is desired to increase the dividends, and that they only produce 3 per cent. in the English funds; if need be, the fund can be put in that form of investment which will produce the highest amount of interest; but I think that is not necessary, because it is clear that, after the income has been applied, the family of which he is a member, his brother or sister, and his nephews and nieces, supply all that is wanted; and there is no evidence to lead me to entertain a doubt that this lunatic is supplied with every comfort. The order will, therefore, be to ascertain and pay what is due to the Petitioner for the costs of the lunacy and of this Petition-that is to say, any expenses properly incurred by the Petitioner in reference to the lunacy. I decline to order any further portion of the capital to be paid out, but there will be payment of the dividends to the Petitioner till further order as curator bonis. Solicitor for the Petitioner: Mr. Horwood. Solicitors for the Respondents: Messrs. G. L. P. Eyre & Co. LETHBRIDGE v. ADAMS. [1863 L. 186.] Ex parte LIQUIDATOR OF THE INTERNATIONAL Creditor-Unregistered Company-Insurance Society-Liability limited by Contract—Inability to continue Business-Damages for Breach of Contract. An unregistered assurance society issued policies under which the assets of the company alone were liable. The company, being insolvent, was registered as an unlimited company, under the Act of 1862, and immediately afterwards ordered to be wound up : Held, that the shareholders were liable beyond the amount of their shares for the expenses of the winding-up; but that there was no liability beyond the amount of the shares for any breach of contract involved in ceasing to carry on business. THIS suit was instituted for the administration of the estate of Mary Ann Adams, who was at her death the holder of 200 shares in the International Life Assurance Society. The society was established as an unregistered company under the name of the National Loan Fund Life Assurance and Deferred Annuity Society by a deed of settlement of the 16th of February, 1838, and was reconstituted under its present name by a supplemental deed of settlement of the 12th of May, 1841, which incorporated the provisions of the previous deed. By the supplemental deed the capital was fixed at 25,000 shares of £20 each. The only clauses of the deeds of settlement which it is necessary to refer to are the 46th and the 56th of the deed of 1838. Clause 46 was as follows: "That two successive general meetings, specially called by the directors for the purpose, shall have full power to resolve on the dissolution of the society, and to fix a day for the dissolution thereof, provided such dissolution shall have been recommended by at least two-thirds of the directors for the time being, and shall be agreed to by two-thirds of the votes of the voters and proxies present at such meetings respectively: provided always, that if at the annual meeting in 1841, or any subsequent annual meeting, the society shall appear by the ac V.-C. M. 1872 Feb. 9. 1872 บ. ADAMS. LIFE V.-C. M. counts so to be rendered as herein provided to have sustained and incurred losses and expenses to the extent of one-fourth part of the LETHBRIDGE actually subscribed capital of the society, it shall be lawful for a special general meeting to be convened for the purpose of resolving the dissolution of the society, in any of the modes hereinbefore appointed for the convening of special general meetings; and it shall be lawful for such general meeting, by a majority of the votes ASSURANCE of the voters and proxies present thereat, to resolve on the dissolution of the society, and to fix a day for the dissolution thereof: provided always, that if at any time before the said annual meeting in 1841, the society shall have sustained losses and expenses to the extent of one-twentieth part of the nominal capital of the said society, the court of directors shall forthwith convene a general meeting for the purpose of communicating the same, and at such general meeting the said society shall be declared ipso facto dissolved." SOCIETY. Clause 56, after making other provisions relating to policies issued by the society, continued as follows: "And provided also, that in every such policy, grant, and contract there shall be contained express words for making all sums of money payable by virtue thereof, payable out of the funds and effects of the society only, and referring to the provisoes in these presents restricting the liability of the directors parties thereto, and of all other the members of the society, to the amount of their respective share of and in the subscribed capital of the society." The operative part of the life policies granted by the society ran as follows: "Now therefore this policy of assurance witnesseth that if the said assured shall die at any time before day of 18 , or at any time thereafter whilst the payment of the sum of £ shall be duly made to the said society on or before the day of in each and every succeeding year during the life of the said assured, then the funds and property of the said society, according to the deed or deeds of settlement thereof, after satisfying all assurances granted by the society previously payable,. and all other prior charges on such funds and property, shall be subject and liable to pay," &c. And the policies also contained a provision in the following words: "Provided, lastly, and it is. hereby expressly declared, that no person assured by the society |