V.C. W.]

amount as a debt due to her; secondly, as an act of maternal duty, kindness, or bounty; and, thirdly, as an advance on an intermediate footing, that is to say, in the expectation of being recouped out of some fund under the jurisdiction of the court, which it would allow to be so applied, although such expenditure had not been previously sanctioned by the court. Of course I apprehend that if a mother or any other person confers a gift, intending it as a gift at the time, she cannot afterwards, under a changed state of circumstances, come to this court and ask to have it treated as a loan. In the present case the question is, first, did the mother make the advances during the minority of her son with the intention of afterwards claiming to be recouped as a creditor? I see no reason to believe that she did so, and therefore I hold in this respect that there was no debt for maintenance during minority. It is probably not necessary to consider whether she made these advances during minority with the intention of afterwards claiming them out of a fund under the control of the court, but in my opinion it is clear she did not, from what took place after the son came of age; for I cannot conceive a stronger intimation of an intention not to claim any repayment than is manifested by her handing over the sum of 1000l. as she did. I take it, therefore, as clear for the present, that whether these advances were actually intended as a bounty, or not, during the minority, there was nothing to create a debt. The fund I am now dealing with is not under the control of the court otherwise than for the purposes affecting the administration of the intestate's estate, and I am now trying the question of the claim against the fund as a jury would try it in an action of assumpsit. As to what took place after majority, the claim has entirely failed. What the mother has to show is a contract, and she shows none. I am perfectly convinced, in my own mind, that she never, during those six years between the minority and the death of Joseph Cottrell, had the smallest idea of claiming repayment of anything from him. Nothing would have surprised him more than if she had intimated such an intention to him, and it would, no doubt, have caused an alteration in their arrangements; but she never, as I believe, formed such an intention, and certainly never intimated it. As to what took place before my predecessor, there is a little difficulty, because some part of the case was dealt with in a former suit, but I do not know that I am technically bound by the finding upon the certificate that the sum was proper to be allowed, to hold that that constitutes it a debt against this estate. Although all the parties were present, the precise question now before me could not have arisen in the former suit, and as I do not think that the certificate is conclusive upon me to hold that there is any debt, and being convinced that there is none, I dismiss the summons. The claim will therefore be disallowed.

Solicitors: Chester and Urquhart; Poole and Gamlen; Edward Pope.

Wednesday, July 26.

[V.C. W.

Re THE BANK OF HINDUSTAN, CHINA, AND JAPAN;
ROGERS' CASE.
Company-Winding-up-Colourable transfer of
shares-Rectification of register.

Where in a company in which the directors had power to refuse a transfer of shares, a transferor and transferee concurred in misrepresenting the real circumstances of a transfer:

Held (in the course of liquidation), that such transfer could not stand as against the company.

THIS was an application on behalf of the official liquidator of the above company for an order to rectify the register of shares, by inserting thereon the name of a Mr. Snow in lieu of that of a Mr. Rogers. The facts were shortly these:

Mr. Snow was a holder of 102 shares in the company, with 251. paid up. On the 26th April 1866 Snow called on Rogers, whom he had formerly known, and having ascertained that he was over twenty-one years of age, asked him to take a transfer of the shares. At that time the shares were worth 137. a piece, and Rogers told Snow that he had not enough to pay even 501. for them, but Snow said he could pay for them at a future time. Rogers still demurred to accepting them, but eventually he accompanied Snow to his brokers, and accepted a transfer expressed to be passed, but Rogers gave Snow a promissory note made in consideration of 13261. No money in fact payable at nine months, for a sum which, with interest, amounted to 13751. Rogers at the time was residing with his mother, who kept a lodginghouse in Cadogan-terrace, Chelsea. He had no independent property, but was employed as a clerk at Hermitage Wharf, Wapping, at a salary at from 100l. to 1207. a year. In the deed of transfer be was described as of Cadogan-terrace, Chelsea, gentleman.

In Jan. 1867 an order was made for windingthe up company under supervision. Subsequently, a call of 31. a share was made by the liquidators, and the sum of 3061. was provided by Snow, by getting a friend to lend the money to Rogers.

The articles of association of the company (inter alia), empowered the directors to refuse to register a transfer, unless the transferee was approved by the board of directors.

The effect of the evidence on behalf of both transferor and transferee was that an out-and-out transfer was intended to be effected; the chief clerk, however, was of opinion that Mr. Snow's name ought to be placed on the list of contributories in lieu of that of Mr. Rogers, and the matter was, therefore, at the request of Mr. Snow, adjourned into court.

Greene, Q.C. and W. M. Morris, for the liquidator, submitted that the circumstances of the transaction showed that it was only intended that Rogers should act as trustee for Snow, and that Snow should remain substantially the owner of the shares. The registration was not binding upon the company. The directors had power, under their articles of association, to refuse to register a transfer if the transferee was not approved by the board. They had no opportunity of forming a proper opinion as to the transfer, and had been misled both with regard to the social position of the transferee, and the consideration which he was represented to have paid. The case came clearly within the authorities. They referred to

V.C.W.]

Lund's case, 27 Beav. 465;

Hyam's case, 1 De G. F. & J. 75; 1 L. T. Rep. N. S. 113;

Payne's case, L. Rep. 9 Eq. 223;

Williams' case, L. Rep. 9 Eq. 225, n.;

Re Bank of Hindustan, China and Japan (Kintrea's case), L. Rep. 5 Ch. 95; 21 L. T. Rep. N. S. 688. Which they distinguished from

Harrison's case, L. Rep. 6 Ch. 286; 24 L. T. Rep. N. S. 691; and

Battie's case, 22 L. T. Rep. N. S. 464.

Dickinson, Q. C., and R. E. Turner contended that the transfer was complete and irrevocable. There was no intention to make Rogers a trustee for Snow, and no substantial misdescription as to his position. With regard to the consideration, except for the purposes of the Stamp Acts, it was not necessary to make any reference to it. The manner of payment was a question which only concerned the transferor and transferee, and did not affect the validity of the transfer. The authorities referred to had no application to the present

case.

The VICE-CHANCELLOR.-There are two questions raised upon this summons: First, whether, under the circumstances, Rogers ought not to be considered a trustee for Snow; and, secondly, whether there was not such an amount of misrepresentation with regard to the transfer as to nullify the effect of the registration. As to the first point, it will not be necessary to decide it, for it appears to me that the application can be sustained on the second ground, the case coming within the principle laid down in Williams' case (sup.), Payne's case (sup.), and Kintrea's case (sup.). The description of Rogers as a gentleman, and the statement of the consideration being for 13261., were both circumstances liable to mislead, and which, in fact, did mislead the directors. The description of Rogers as a gentleman is not of such importance as the mis-statement with regard to the consideration, although there can be no doubt it must be considered a misdescription. It is clear that the promissory note was not given at the time the transfer was executed. But waiving this objection, the note itself was certainly not worth five shillings in the pound, and probably it was not worth anything. There could have been no expectation that it would be paid by Rogers out of his own means. A promissory note is, technically, payment of money until dishonoured, but it may be fraudulent payment, and I think it amounts to that in the present case. No consideration is necessary to make a good transfer of shares, and a transfer to avoid liability is perfectly lawful. The circumstances may be such as to render the transfer a fraud on the part of the transferor, for which the transferee may obtain redress; but this cannot be the case where the transferee does not complain. Where, however, the directors have power to refuse a transfer, and the tranferor and transferee concur in misrepresenting the circumstances of the transaction, the transfer cannot stand against the company. The name of Mr. Snow must therefore be placed on the list of contributories, and as the summons was adjourned into court at his request, he must pay the costs of the adjournment.

Solicitors: Ashurst, Morris, and Co.; Thos. White and Sons.

Thursday, July 27.

[V.C. W.

Re MARYLEBONE IMPROVEMENT ACT 1868;
Ex parte TOPPLE.

Lands Clauses Act (8 Vict. c. 18), ss. 78, 80--Purchase under-Leases granted by landlord after notice to treat-Compensation-Costs.

The Metropolitan Board of Works gave notice to treat for the purchase of houses. After notice the landlord granted leases for three years to his weekly tenants. The tenants sent in their claims for compensation, which, after some litigation, failed. Subsequently the landlord petitioned for payment of his purchase-money, which had been paid into court under the Lands Clauses Act, when the board claimed to be reimbursed for the costs they had incurred in adjusting the claims of the tenants:

Held, that there was no power under the Act to make the order asked, but that as the board had been put to unnecessary expense by the petitioner's conduct, the court would go to the full extent of its jurisdiction, and refuse him his costs of the peti

tion.

THIS was a petition for payment to the petitioner of certain compensation money which had been paid into court by the Metropolitan Board of Works under the following circumstances :

In May 1839 the Metropolitan Board of Works, under the provisions of the Marylebone Improvement Act 1868, which embodied the Lands Clauses Act, gave notice to the petitioner for the purchase of three houses, of which he was the landlord, and which were then let to three weekly tenants. Shortly after receiving the notice the petitioner granted to each of the three tenants leases for three years. There had been no previous agreement between the petitioner and his tenants for effecting this arrangement, but it was done, as the petitioner admitted, at his instance, with a view of giving the tenants a claim to compensation.

In Feb. 1870 the petitioner sent in his claim against the Board of Works, but the arbitrator, in making his award, treated the leases as non-existent, and the compensation money was paid into court on that footing. In March 1871 the tenants sent in their claims, and an award having been made upon them, on the supposition that they were valid, the compensation money was paid into court. In July 1871 the tenants presented a petition for payment of this money out of court, but the Master of the Rolls decided that they were not entitled to it, and dismissed the petition without

costs.

The present petition was presented by the landlord for payment of his compensation. The Board of Works had paid about 2007. in adjusting the claims set-up by the tenants, and they now asked to be recouped out of the money to which the petitioner was entitled.

Dickinson, Q. C. and Bagshawe, in support of the petition, submitted that the landlord was not answerable for the costs incurred by the board. He had made no secret of the circumstances affecting the tenants' claims, and the board might have refused at once to entertain them, without going to the expense of assessment. They further submitted that the petitioner was entitled to interest on the purchase money.

Greene, Q. C. and Charles Hall, for the Board of Works, contended that the court had power to make the applicant pay the expense to which the

board had been so unnecessarily put. The 78th section of the Lands Clauses Act gave the court power to make such order as it thought fit, and the 80th section, after directing payment of costs by the board, except in certain cases specified in the Act, went on to enact that it should be "lawful" for the court to order such payment; thus giving a discretionary power to the court. The practice of manufacturing claims was a growing one, and ought to be discouraged. As to the interest asked for, the court had no jurisdiction to grant it.

Dickinson, Q. C. in reply.

The VICE CHANCELLOR.-I am of opinion that the money in court cannot be treated as a fund out of which the board can be indemnified for the expenses they have incurred in settling the claims of the petitioner's tenants. I consider that I have no discretion in the matter; but even if I had, I should have hesitated long before permitting any portion of the fund to be applied for such a purpose. The claim set up by the board, if it can be enforced, is not one to be made here or now. With regard, however, to the costs of the present application the case is different. It does not lie in the mouth of the petitioner to say that the board were unnecessarily alarmed at his goodnatured, but ill-considered, attempt to compensate his tenants out of the board's pocket. His conduct has entailed upon the board unnecessary expense, and I think I shall only be doing justice if I go to the full extent of my jurisdiction under the Act, and refuse him his costs of this application. I do not think I have jurisdiction to make him pay the costs, otherwise I might have done

80.

With regard to interest, I consider that I have no power to make the board pay it, and I am not sure that, even if I had the power, I should have exercised it in the applicant's favour. Solicitors: Kernot and Rawlinson; W. W. Smith.

V.C. BACON'S COURT.

Reported by the Hon. ROBERT BUTLER and T. H. CARSON, Esq., Barristers-at-Law.

Friday, Nov. 3.

SLEEMAN 2. WILSON.

Demurrer-Breach of trust-Acquiescence. A testator appointed a person guardian of his illegitimate children, to whom he bequeathed a bond debt, and the guardian became possessed of the bond, but took no steps to enforce it, and the debt became irrecoverable. Shortly afterwards, the wards were made acquainted with the existence of the bond, but took no steps against the guardian in respect of it. On the death of the guardian, thirty-eight years afterwards, they filed a bill against his executors to recover from his estate the amount of the bond debt and interest. On demurrer to the bill:

Held, that the plaintiffs were barred by their acquiescence.

THIS was a demurrer to a bill, by which the plaintiffs sought to make the estate of the late Sir De Lacy Evans liable for an alleged breach of trust under the following circumstances:

In the year 1810 Major Henry Evans lent to John Evans the sum of 21661. 138. 4d., the repayment of which was secured by a bond dated the 19th Dec. 1810, whereby John Evans bound himself to repay the money, with interest thereon at

[V.C. B.

the rate of 5 per cent. per annum, in twelve calendar months from the date of the bond, and he also signed a warrant of attorney of even date with the bond, whereby he authorised certain persons therein mentioned to appear for him in the Court of Exchequer in Ireland and confess judgment upon the bond.

Major Henry Evans died in Sept. 1810, having by his will, executed at Chutterpore, in the East Indies, and dated the 14th Aug. 1810, bequeathed all his property in England to be divided equally between the plaintiffs, Ann Maria Sleeman and Henry Evans (his illegitimate children), and he appointed Cromwell Massey to be his executor in England and guardian to his children, jointly with his nephews, Richard Evans and Lacy Evans (afterwards General Sir De Lacy Evans). Probate of the will, limited to the testator's effects in England, was granted to Massey.

On the death of their father the two children came to England from India, and resided with Sir De Lacy Evans, who was one of the testamentary guardians from that time until they respectively came of age. In 1811 the bond and the warrant of attorney were delivered to Sir De Lacy Evans, who thus became (as alleged) trustee of the debt and the interest thereon for the infants. At the time the bond became due John Evans (who was a brother of Sir De Lacy Evans) was possessed of considerable real estates and other means of satisfying the debt; but Sir De Lacy Evans, both then and afterwards, neglected to enforce payment either of the interest or principal, or to register the bond so as to make it a charge on John Evans's estate, in consequence of which, in 1831, the debt became irrecoverable, and was wholly lost.

The plaintiff, Ann Maria, married in 1832 the plaintiff Richard Sleeman, and it was not until the following year that Sir De Lacy Evans informed them of the existence of the bond, and then John Evans, being insolvent, all attempts to recover the debt were ineffectual.

The plaintiffs took no steps to recover the debt and interest from Sir De Lacy Evans during his lifetime, being, as they alleged, unwilling to interrupt the friendly relations which existed between themselves and Sir De Lacy Evans.

Sir De Lacy Evans died on the 9th Jan. 1870. On the 21st July 1871 the plaintiffs filed the present bill against his executors, praying that it might be declared that Sir De Lacy Evans had committed a breach of trust in neglecting to take steps for the recovery of the bond debt, and that his estate might be decreed to make good the loss occasioned by such breach of trust.

To this bill the defendants demurred.

Amphlett, Q. C. and Renshaw appeared in support of the demurrer, and submitted that this being a case of constructive and not of express trust, and the plaintiffs knowing all the facts for the last thirty-eight years, they must be taken to have acquiesced in what had taken place. They referred to

Pickering v. Lord Stamford, 2 Ves. jur. 272;
Smith v. Clay, 3 Bro. Ch. C. 638, n;
Beckford v. Wade, 17 Ves. 87.

Fry, Q. C. and Graham Hastings, for the plaintiffs, contended that Sir De Lacy Evans was testamentary guardian of the infants, and that by accepting that position he had constituted himself a trustee to the infants: Mathew v. Brise (14 Beav.

V.C. B.]

through certain lands belonging to the plaintiff. Previously to the passing of the Act the plaintiff petitioned Parliament against the Bill, but withdrew his opposition in consideration of an agreement entered into between the company and himself, whereby the company agreed that—

The said railway company should construct contemporaneously with the construction of the said railway, and for ever thereafter maintain at their own proper expense, a sufficient siding of at least 100yds. in length alongside the line of railway as constructed through the land of the plaintiff, and upon land belonging to the plaintiff, and to be provided by him for that purpose for the use of and to the reasonable satisfaction of the plaintiff.

The next clause provided that if any differences should arise between the parties to the agreement, they should be referred to and be determined by arbitration, according to the provisions with respect to arbitration contained in the Companies Clauses Consolidation Act 1845.

Previously to the opening of the line for traffic, on the 1st Sept. 1869, the plaintiff, through his solicitor, made several applications to the defendants, requiring them to construct the siding, but the company refused to make it. In the correspondence which took place, the plaintiff expressed his willingness to accept compensation for the breach of the agreement, but the parties were unable to agree as to the amount.

On the 21st Oct. 1869 the plaintiff served the defendants with a notice, requiring them to perform their part of the agreement, and stating that he had provided and put at their disposal such quantity of land belonging to him and adjoining the railway as was sufficient for the proper construction of the siding, and authorising them, their workmen, &c., to enter upon the same land for the purpose of constructing the siding.

The defendants, however, still refused to construct the siding, and the plaintiff therefore instituted the present suit, praying for the specific performance of the agreement.

The defendants, by their answer, submitted that the plaintiff's proper remedy was an action at law for damages for breach, and not a suit in equity for the specific performance of the agree

ment.

Amphlett, Q.C. and Townsend, for the plaintiff,

referred to

Storer v. Great Western Railway Company, 2 You. &
Coll. Ch. 48;

Lytton v. The Great Northern Railway Company,

3 K. & J. 394; 27 L. T. Rep. 42;

Wilson v. The Furness Railway Company, 21 L. T. Rep. N. S. 416; L. Rep. 9 Eq. 28; to show that the court had jurisdiction to enforce specific performance.

Kay, Q.C. and Speed, for the defendants, contended that where money was a sufficient compensation for the breach of an agreement, the court would not decree specific performance, and that the plaintiff having offered to accept compensation, showed that damages would be sufficient in this case: (Senior v. Pawson, L. Rep. 3 Eq. 330). In all the cases cited by the other side, the land upon which the works were to be executed belonged to the defendants, but in this case it belonged to the plaintiff, who should have made the siding, and then have brought an action for breach of the agreement. The following authorities were referred to:

South Wales Railway Company v. Wythes, 1 K. & J. 186; on appeal 5 De G. M. & G. 880;

Burton v. Lister, 3 Atk. 382;

[V.C. B.

Errington v. Aynesly, 2 Bro. Ch. Rep. 341; Flint v. Brandon, 8 Ves. 159;

Pollard v. Clayton, 1 K. & J. 462.

same

as

The

The

The VICE-CHANCELLOR said: I wholly disclaim the notion that a railway company is to be dealt with in the court upon any other principles than such as would and ought to be applied to individuals. Their contracts are to be considered just as any other contracts; their rights and their obligations are in all respects the those of any members of the community. They possess certain privileges different from, and in some respects beyond, those of individuals; but while it is the duty of the court to respect and to secure the enjoyment of those privileges, it is no less an imperative duty to take care that the powers with which the Legislature has entrusted them, and which are inherent in their constitution, are not so exercised as to protect them in doing wrong, or in escaping from the fulfilment of their lawful engagements. Nothing can be plainer than the engagement entered into by the company, which forms the subject of the present suit. company desired to make a certain railway through, among others, the lands of the plaintiff. He resisted the design, he petitioned Parliament, without whose authority the railway could not be made, against the Bill which they had presented. Whether he would or would not have succeeded in his opposition cannot now be ascertained. company, however, were so moved by his opposition that they thought it prudent to come to terms with him, and they proposed or agreed that if he would permit them to acquire, under the terms prescribed by their Bill (and which are the same as those applicable in all such like cases), so much of his land as they required for their undertaking, that they would, in making their railway, make a siding out of that railway upon lands belonging to the plaintiff. The plaintiff having acceded to these terms, and relying upon the performance of the obligation which the company thus assumed, the opposition was withdrawn, the Bill passed, and the company undertook by an agreement under their common seal to perform their promise. They have taken such land of the plaintiff as they required, the plaintiff has performed his part of the contract, the company have made and opened their railway, and they now refuse to perform the other part of that contract, by force of which alone they have acquired possession of the plaintiff's land. A more direct, wilful, and determined violation of a plain contract cannot be suggested. No excuse is offered for it-no suggestion that it is impracticable or even that it is inconvenient for the company to perform their part of that contract of which the plaintiff has performed his; but what they say is, that the plaintiff may by an action at law recover against them in money such amount of damages as a jury may think he has sustained by their wilful breach of their contract, and that therefore a court of equity will not entertain the complaint. I do not understand that the law as administered in this court countenances any such defence. If that were the law, the great majority of the cases in which this court has exercised its authority for the purpose of compelling specific performance of contracts might be readily disposed of, because in the great majority of cases a payment in money might satisfy the wrong which the breach of such contracts inflicts.