required the decision as to his status to be postponed to a later period. The cases cited for the defence, raised no serious doubt; they simply decided that Courts of Law could not allow the forms of justice to be trifled with, by being employed in regard to fictitious cases. But it was said that the Court would not decide any question till the proper time; that here the real question was, as to interests of this child under the will of Mrs. Gurney's father, which could not be decided at present. Such was not, however, the case presented to him by the bill, and the Court never refused to decide a point at issue when legitimately brought before it, simply because grave consequences were involved. Further, the Court did act in cases where the point, in reference to which the Court was to exercise jurisdiction, was raised on purpose; as for example, those cases referred to by the SolicitorGeneral where, in order to obtain directions as to the education of children, property had been settled on them, it being supposed (rightly or wrongly) that this was necessary to call out the jurisdiction of the Court. On principle, therefore, it was impossible for him to avoid deciding this question. The strongest objection he had felt was, that a means might thus be afforded of disturbing the peace of families. A stranger might make such a settlement as the present, for the purpose of branding with illegitimacy one of a family whom he disliked. The Court had always refused to do any thing which might tend to disturb the peace of families. Thus, where income had been settled on a lady in case she continued chaste, it had refused to regard the condition annexed to the gift. In like manner the Court would deal with such a case as he had mentioned when it occurred. His present decision would be no precedent in such a case. Here a father had strong reason to dispute the legitimacy of a particular child, and had made a bond fide settlement on the children of his marriage, with the view of raising the question; he thought that the object of the father was a perfectly legitimate one, and that an early decision as to his status was for the benefit of the child. It had been objected that the Legislature had conferred no power of making a declaration of illegitimacy; but it could not be inferred that, because it refused to confer such a power on an entirely new Court, it intended in any way to interfere with the exercise of a totally different jurisdiction. The offer of indemnity to the trustees must be rejected; to accept it would be to stultify the jurisdiction of the Court by permitting proceedings to be stayed, if the defendant were rich enough to buy the suit off. His Honour then commented on the facts of the case, and made a decree in terms of the prayer of the bill. Wood, V.-C. Re THE ENGLISH AND IRISH Winding Up-Deficiency of Assets-Claims of A fund being created by the deed of settlement of an assurance society for the payment of all liabilities of the company; it was held, that debts created by the directors, in pursuance of their powers, had no priority over the claims of policy-holders against the fund. A policy-holder, participating in the profits of the society, is not necessarily a partner in it. Cox v. Hickman, 8 H. of L. Ca. 268, followed. This was a summons adjourned from Chambers, in order to decide certain questions which arose in course of winding up the above society under the Winding-up Acts of 1848 and 1857. The society was established in 1853, and was registered under the Act, 7 & 8 Vict. c. 110. The deed of settlement was dated the 27th of June, 1853; and its material provisions were as follows :— Clause 5 provided, that the capital of the society should consist of 100,0007., to be divided into 20,000 transferable shares of 57. each. Clause 77 prohibited the directors, except as by the deed specially provided, from contracting any debts on behalf of the society, other than such as should be necessary for carrying the objects and purposes of the society into effect. Clause 99 empowered the directors to issue policies under certain restrictions contained in the subsequent clauses, up to 104. Clause 116 provided, that persons effecting assurances with the society should be divided into two classes, to be called "The Participating Class," and "The Nonparticipating Class," respectively; and, by clause 117, the participating class were entitled to share in the profits of the society, as thereinafter mentioned. Clause 172 provided, that two funds should be created by the directors, to be called respectively, "The Paid Capital Fund," and "The General Fund ;" and that separate accounts of each should be kept. Clause 173 directed, that "The Paid Capital Fund" should consist of moneys arising from payments made, and to be made, in respect of the shares in the capital of the society. Clause 174 directed, that "The General Fund" should consist of the interest on the paid capital fund, the moneys to be received in respect of assurances, &c., and the profits made by the society in the course of its business. Clause 175-"That the general fund of the society shall be first applicable to and shall be applied in payment of all claims on the society in respect of the assurances of both classes. . . and in payment of all divided and, subject to such deduction as shall be made thereout pursuant to the next succeeding clause of these presents, shall be paid by way of dividends to and amongst the participating class of assurers and the proprietors of the society, in the proportions following, that is to say-six equal tenth parts thereof shall be allotted and divided amongst such of the assured of the participating class as shall, on the day of declaring such dividend as aforesaid, hold a other liabilities of the society, and of interest to the proprietors on their paid-up capital, and of such bonuses as are hereinafter authorised to be given to the assured of the participating class; and also in pay-¦ ment of the costs and expenses of and incidental to the establishing and setting on foot the society, including the costs of these presents, and the outfitting, furnishing, and repairing and altering the house or office of the society, and all other preliminary expenses prior to the complete registration; and also in pay-policy or policies in that class, and which division ment of all costs and expenses of the society, and generally of carrying on the business of the society and incident thereto :" and in case the general fund could not with convenience be made available or productive in time to meet such payments, or should be insufficient to meet the same, then a competent part of the paid capital fund was to be applied to make good such deficiency. Clause 178. "That previously to the annual general meeting, to be held in the year 1859, and afterwards at every fifth annual general meeting, or oftener if the directors shall from time to time think fit, the directors shall cause to be made by the actuary, or consulting actuary, for the time being of the society, a valuation of all the liabilities and assets of the society up to the 31st day of December in the preceding year, and shall cause a report in writing to be prepared, containing a clear and faithful exposition of the state of the affairs of the society, and showing distinctly the state of the funds and property of the society, and the profits thereof, and the surplus (if any) of the general fund, after valuing and deducting all unsatisfied claims, and the computed value of all liabilities of the society, and all such other particulars as the directors shall think necessary or proper for enabling the proprietors to form a just estimate and opinion of the real state of the affairs, funds, and property of the society. . . and such report shall state whether or not, after making ample provision for all the existing and contingent liabilities, risks, claims, and demands to which the property of the society may be subject, there remains such a surplus of the general fund as will justify any division of the profits amongst the participating class of assurers and the proprietors of the society, and the amount of such surplus; and such account and report shall be submitted by the chairman of the said annual general meeting to the consideration of such meeting; and if a majority in number of the votes of the proprietors present, either personally or by proxy at such meeting, shall approve of the report in regard to the surplus of the general fund, and the recommendation as to a division of such surplus of the general fund; and the recommendation as to a division of such surplus of the general fund amongst the participating class of assurers and the proprietors to the extent recommended by the report, or to any less extent in case such division of the same shall be recommended as aforesaid; then such surplus shall be shall be made by the actuary or consulting actuary for the time being of the society, and upon such principles as shall appear to such actuary or consulting actuary to be fair and equitable, and shall be paid to or applied for the benefit of the assured in the partipating class in manner hereinafter mentioned; and the remaining four equal tenth parts of the same profits shall be divided amongst the proprietors for the time being of the society, in proportion to their shares in the society, and shall, subject however to such deduction thereout in pursuance of the next succeeding clause of these presents, be paid to the said proprietors in manner hereinafter mentioned." Clause 179 directed, that the sums deducted from the profits in the manner previously referred to should be paid, by way of gift, to the treasurer for the time being of the Friend of the Clergy Society. Clause 198 provided, that every proprietor of the society should, as between him and the other proprietors, be liable for or in respect of calls, debts, losses, and damages, of or upon the society, in proportion to his share and interest for the time being in the funds or property of the society, but not further or otherwise. By each of the policies of the non-participating class, the funds or property of the society were made, according and subject to the provisions of the deed of settlement, liable to pay the sum thereby assured: and it was provided, that the capital, stock, and other the funds and property of the society by the provisions of the deed of settlement, applicable to the payment of moneys assured by life policies, should alone (subject, however, to all prior claims and demands thereon, in pursuance of the provisions of the deed of settlement) be liable to make good all claims due from the society in respect of the policy; and that the remedy of the assured should be against the society collectively, and the funds of the society, and not against the proprietors or other holders of shares in the capital of the society individually and that neither the directors signing the policy, nor any proprietor, or other holder of shares in the capital of the society, should be liable in respect of any such claim, further or otherwise than to pay to the funds of the society so much of his share or shares in the capital as should not for the time being have been paid up; and that all liability, in respect of the policy, of any proprietor or holder of shares, should, upon the full amount of his share or shares in the : mine. capital being paid up, absolutely cease and deter- general creditors ought to be satisfied out of the assets in priority to the policy-holders, and so deprive the latter of every opportunity of having their claims satisfied. By each of the policies of the participating class, the funds and property of the society were made, according and subject to the provisions of the deed of settlement, and the rules and regulations of the society, liable to pay the sum thereby assured, together with such further sum or sums, if any, as should, pursuant to the rules and regulations of the society, be appropriated by way of bonus or addition to the sum thereby assured; and it was further provided, that the funds and property of the society should alone be liable to answer all claims in respect of the policies; and that no director or shareholder of the society, or any other person, should, in any action or suit, or upon any claim or demand in respect of the policy, be in anywise subject or liable for any sum of money beyond the amount (if any), for the time being, recoverable by the society from such director, shareholder, or other person, in conformity with the provisions of the deed of settlement in force at the date thereof. The assets of the company consisted of about 80002. in the hands of the official manager, and 15,0007. expected to be recovered from the shareholders by means of a call of 17. 10s. still unpaid in respect of each share. They were wholly insufficient to satisfy the claims of the general creditors of the company. Claims were made against the company by policyholders, both of the participating and non-participating class; and the following questions arose : 1st. Whether the general creditors had any priority over the policy-holders in the distribution of the assets. 2nd. Whether the participating policy-holders were to be regarded as partners in the society. Rolt, Q. C., and Little, for the official manager, argued, 1st. That the policy-holders of the non-participating class, could share in the property of the society only, subject to prior claims; by the deed of settlement the directors were authorised to pay debts out of the general fund, and these debts constituted a prior claim on that fund. 2nd. That the participating policy-holders ought to be treated as partners in the concern; because the "general fund," which was the capital with which its business was carried on, consisted in part of moneys contributed by them; and they were also entitled to share in the profits quâ profits. Willcock, Q. C., and Speed, for the creditors' representative, submitted that, at all events, the creditors were entitled to come upon the assets, pari passu with the policy-holders. Daniel, Q.C., and Brougham Miller, for the nonparticipating policy-holders, argued that the deficiency in the general fund being created by the default of the shareholders, they could not be heard to say that the Fischer, for the participating policy-holders, argued, 1st, that each policy created a lien on the funds of the society, and that the holders were therefore entitled to be paid in priority to the general creditors, Robson v. M'Creight, 25 Beav. 272; Law v. Indisputable, &c., Society, 1 K. & J. 223; Re Athenæum, &c., Society, 28 L. J. (N. s.) Ch. 335. 2nd, that they were certainly not partners, Cox v. Hickman, 8 H. of L. Ca. 268. WOOD, V.-C., said the right of the non-participating policy-holders to share in the assets was scarcely open to argument. Their claims were to be discharged out of the funds of the society, subject to the provisions of the deed of settlement: the provisions on this point were contained in clause 175; and no such priority as had been contended for was thereby given to the general creditors, the general fund being simply to be applied in payment of all liabilities of the society. A more serious question arose as to whether the policies of the participating class were to be held to have such operation as to convert the holders into partners. His Honour then read the policy and clause 117 of the deed of settlement, and observed on the singular nature of the partnership, if such it were. Once in five years, or oftener if the directors saw fit, the actuary was to make a valuation of the funds of the society. This valuation was to be submitted to the shareholders, (not including the assured), who had the right to control the valuation of the actuary; and six-tenths of what the shareholders might agree upon was to be set apart for the policy-holders, and divided among them in such shares as the actuary might think equitable. A policy-holder had therefore no control over the profits of the company. He had no power to file a bill for an account, and had not even property in such portion as the shareholders might agree to divide till his share was allotted to him by the actuary. It was true that at one time it was held that a share in the profits of a trading concern was sufficient to constitute the holder a partner. But that doctrine had been reduced to its true limits by the recent case of Cox v. Hickman (ubi supra), which settled that a share in the profits did not constitute, but was a result of a partnership, and that partnership was to be treated as a branch of the law of agency. This decision reconciled the cases which had occasioned so much difficulty to Lord Eldon, where a distinction was drawn between the receipt of a sum proportional to profits, and the receipt of a given share of the profits. The question to be decided, therefore, in such cases was, whether the persons with whom the profits were shared were the agents constituted of the individual in question for carrying on the business. One test of this was whether the latter could file a bill against them or an account of the profits? In the present case no such bill could be filed by a policy-holder. The only right which he had was to an account of six-tenths of the portion of the profits set apart by the shareholders for division. HIS HONOUR then cited the opinions of Williams, and Wightman, JJ., Pollock, C. B., and Lords Camp. bell, Cranworth, and Wensleydale, expressed by them in Cox v. Hickman, and decided that the policy-holders in this case could not be said to have constituted the company their agents for carrying on the business, and remarked that this being a joint-stock company, of which the proprietors were registered, the law as to dormant partners did not apply, and the policy-holders could not, therefore, in any way be held partners with the shareholders. In this case there could be no marshalling of assets, as he could not compel the parties to wait till the result of a general process against the shareholders was seen; and he therefore ordered that the existing fund should be divided pro ratâ amongst the general creditors and the policy-holders. Note.-* See Oakford v. European and American Shipping Company (Limited), 2 N. R. 103. Q. B. 29 APRIL, 1863. COMMON LAW. FAWCETT, Appellant, v. OVERSEERS OF SCRIVEN TENTERGATE, Respondents. Tentergate, bore to 3861., the whole income of the vicar. The vicar contended before the justices that he was entitled to have the whole of the curate's Rating of Vicar-Curate's Salary-Glebe lying The overseers contended that only a certain proportion, salary deducted from the whole of the tithe rent-charge. without the Parish. The vicar of K derived an income of 3861. a year, partly from glebe-land lying without the parish of K, partly from money in the funds, and partly from a tithe rent-charge in lands in K. He employed a curate in K, paying him a stipend of 1001. a year :— Held, that, in rating the vicar, only such a sum could be deducted from the rent-charge in respect of the curate's stipend as bore to 100l. the same proportion which the whole of the rent-charge bore to 3861. Case stated by consent of the parties upon an appeal from justices in Petty Sessions. The appellant is the vicar of Knaresborough. In the parish of Knaresborough are five townships; the respondents are the overseers of Scriven Tentergate, one of these five townships. The whole income of the appellant as vicar is 3867. a year; of this, 3007. a year is derived partly from two glebe farms lying without the parish of Knaresborough, and partly from money in the funds. The remaining 867. a year is derived from a tithe rentcharge upon land in the parish of Knaresborough, and 261. a year of such rent-charge is charged upon lands in the township of Scriven Tentergate. The vicar employed a curate at a salary of 1007. a year, and it was admitted that a curate was necessary, having regard to the size of the parish and the number of church-services. The respondents, in rating the appellant in their township, made an allowance for the curate's salary. The sum deducted by them in respect of such salary bore to the whole salary of 1007. the same proportion as 261., the rent-charge in Scriven as above, of the curate's salary ought to be deducted from the tithe rent-charge. The justices confirmed the rating of the overseers. It was admitted that the overseers had deducted the proper amount, if they had applied the right principle in making the deduction. The question for the Court was, whether the overseers, in making the deduction, had or had not adopted the proper principle of calculation? F. M. White, for the appellant, contended that the whole of the curate's salary ought, for rating purposes, to be deducted from the tithe rent-charge. If it were not, then the parishes in which the glebe farms lie will have to bear part of the burthen, although they derive no benefit from the services of the vicar and curate. He cited, Goodchild v. Hackney, E. B. & E. 1. Price, Q.C., for the respondents, was not called. upon. COCKBURN, C.J.--As a general rule, the rector or vicar of a parish is entitled to have the stipend of his curate deducted from his rateable income; but, in the present case, the vicar is wrong in proposing to charge the stipend of his curate wholly against the tithe rentcharge. It ought to be charged upon the whole income of the vicar. It is true that a new element is introduced here, inasmuch as one source of the vicar's income arises from some glebe farms which lie without the parish of which he is vicar. It is somewhat hard on these farms and on the parishes in which they lie that they Ex parte JOHNSON. 30 APRIL, 1863. Bastardy-Notice of Appeal to Quarter Sessions -When order is "made" by Justices within 7 & 8 Vict. c. 101, s. 4. On the 17th of February, A B was adjudged by justices in Petty Sessions the putative father of a bastard child, and ordered to make certain payments. Verbal notice of appeal to the Quarter Sessions was then given, but no recognisances were entered into. The written order, embodying the decision of the justices, was afterwards drawn up and signed by one of them on the 1st of March, and by the remainder on the 3rd of that month. On the 2nd of March, notice of appeal in writing was given by the putative father, and on the 4th recognisances were duly entered into. Under these circumstances, the Court of Quarter Sessions refused to hear the appeal: Held, that they were right in so doing, as the order was made within the meaning of the 7 & 8 Vict. c. 101, 8. 4, on the 17th of February, and not at the time when it was signed by the magistrates, and, therefore, the recognisances were not entered into in time. Pearce moved on behalf of R. Johnson, for a rule calling on the justices of Essex to show cause why a mandamus should not issue commanding them to hear an appeal. On the 17th of February, 1863, the applicant was adjudged by justices sitting in Petty Sessions, to be the putative father of a bastard child, and was ordered to make certain payments. Verbal notice of appeal was immediately given, but no recognisances were then entered into. It has been the practice for the justices in the county of Essex, to sign the formal order, which is subsequently to their judgment drawn up by their clerk, at their next Petty Sessions. These would, in the ordinary course, have been held on the 2nd of March, but they were not in fact held till the following day, when the order made upon the applicant was signed by all the magistrates, with the exception of one who had previously signed it on the 1st of March. On the 2nd of March, notice of appeal to the Quarter Sessions was given by the applicant, in writing, and on the 4th of March, the necessary recognisances were entered into. When the appeal came on to be heard before the Court of Quarter Sessions, they refused to entertain it, on the ground that the order was not made until its signature by the magistrates on the 3rd of March, and that therefore the requirements of the 7 & 8 Vict. c. 101, s. 4, had not been complied with, which provides, that "if within twenty-four hours after the adjudication, and making of any order, on the putative father, such putative father give notice of appeal to the mother of the bastard child, and also within seven days give sufficient security by recognisances, or otherwise, for the payment of costs," it shall be lawful for the putative father to appeal to the Court of Quarter Sessions. The learned counsel now argued that the requirements of the above section had been sufficiently complied with. [COCKBURN, C.J.-It strikes me that you cannot call the mere signing of the written document by the magistrates the making of the order,—that must be a judicial act in which they all concur.] Reg. v. Justices of Flintshire, 15 L. J. M. C. 50, decides otherwise. [COCKBURN, C.J.-That is a Bail Court decision only, and we should feel ourselves at liberty to reconsider it. You seem, however, to be in this dilemma, that either the order was made on the 17th of February, in which case the recognisances were not entered into in time, or it was not made till the 3rd of March, in which case you were too soon with your notice.] If the Court will not grant a mandamus under the circumstances, I should ask for a certiorari for the purpose of quashing the order, on the ground that, not having been drawn up at the time the judgment was given, and having been afterwards signed by the magistrates at different times, it is bad. COCKBURN, C.J.-I think that in this case there should be no rule, though I by no means concur in the grounds on which the Court of Quarter Sessions have proceeded. They have gone on the ground that the order was made on the 3rd of March, but I am of opinion that it was made on the 17th of February, the date of the hearing and adjudication. What we call the order, namely, the written record of the adjudication, is merely the memorial of the judgment which the magistrates have orally pronounced, and though it may be signed subsequently to the time of such judgment, it is so signed nunc pro tunc. It would be impossible otherwise for a party intending to appeal to know when the order was made, and though it may work hardship in this case, I think we shall be laying down a much more convenient rule, if we decide that the order is made at the time the magistrates pronounce their judgment in Court. That was done in this case on the 17th of February, and, although verbal notice of appeal was given in time, yet the further requirement of the statute,—the enter |