He could not accept the books of the company Speed, for the railway company, contended that the against a person saying that he was not a shareholder, 142nd sect. applied only to stock which was strictly as evidence that he had assumed to act as a share-transferable in books, and pointed out the difference holder. To put the name of Sir C. Fox on the register between the language of the 142nd sect. and that of was an unwarrantable act, and he ought never to have the 141st, which comprised stock, "whether transbeen on the list of contributories. Having regard to ferable in books or otherwise." the doubt expressed in reported decisions, it was necessary to give leave to entitle the notice of motion "In Chancery" as well as “In Bankruptcy," and that having been done, he should declare that the appellant never agreed to become a shareholder, and that his name ought to be removed from the register and from the list of contributories. Lunacy Regulation Act, 1853, 16 & 17 Vict. c. 70, s. 142-Companies Clauses Act, 8 Vict. c. 16, s. 14-Transfer of Railway Stock without deed. The stock of a railway company is within the provisions of the Lunacy Regulation Act, 1853, s. 142, notwithstanding sect. 14 of the Companies Clauses Act requiring a deed of transfer. An order made upon the secretary of a railway company to transfer into the name of the AccountantGeneral stock belonging to a lunatic. This was a petition that directions might be given for effecting the transfer into the name of the Accountant-General of 6,1877. 10s., London and North Western Railway Company's Consolidated Stock belonging to J. R. Ives, a lunatic. By the Master's first general report, which was confirmed by the fiat of the Lords Justices, directions were given that "the secretary, or other the proper officer for the time being, of the London and North Western Railway Company, should be at liberty to transfer into the name of the Accountant-General" the 6,1877. 108. railway stock. The secretary of the London and North Western Railway Company, however, declined to transfer the stock, on the grounds that the stock of the company, which is subject to the provisions of the Companies Clauses Consolidation Act, 1845, was transferable by deed only, and, therefore, not within the provisions of the 142nd sect. of the Lunacy Regulation Act, 1853 (16 & 17 Vict. c. 70). Wickens, for the petitioner, referred to the interpretation of the word "stock," and the extension of the provisions relating to "the Bank of England" in the Lunacy Regulation Act, 1853, sect. 2, and to the Companies Clauses Act, sect. 14. Davey, for other respondents. THEIR LORDSHIPS thought that the words of the Act would bear the interpretation put upon them by the petitioner, and that such interpretation would be most for the public advantage, while no practical inconvenience could result from it. They accordingly made an order upon the secretary of the company to transfer the stock into the name of the AccountantGeneral. Trust for Sale-Discretion of Trustee-Right of Cestui Que Trust to be Consulted. Trustees will not be charged with loss to the trust estate, arising from acts done by them in the honest exercise of a discretion conferred upon them by the author of the trust, though in opposition to the judg ment and wish of the cestui que trust. This was an appeal, by the plaintiff, from a decree of Vice-Chancellor Stuart, reported 1 N. R. 420, where the facts are fully stated. The appellant now sought to vary the decree of the Vice-Chancellor, by charging the respondents personally with the loss alleged to have been sustained by the estate of the testatrix in the cause, in consequence of the agreement of the 27th February, 1862, for the sale of the business of the testatrix to Guy and Eames, which precluded them from accepting the higher offer subsequently made by Fraser and Davis. Malins, Q.C., and W. Morris, for the appellants, cited, to Turner v. Harvey, Jac. 178; Ord v. Noel, 5 Mad. 438; Harper v. Hayes, 2 De G. F. & J. 542 ; Lewin on Trusts, 414 (3rd ed.). Bacon, Q.C., and G. L. Russell, for the respondents. In the course of the argument, the Court referred Buxton v. Buxton, 1 My. & Cr. 80; Padden v. Richardson, 7 De G. M. & G. 563. KNIGHT BRUCE, L.J., said, that a person seeking to charge trustees personally with loss to the trust estate, must prove a case of gross mismanagement or neglect. The appellant had failed to do this; on the contrary, The deed was merely required for the purpose of the the evidence showed that the respondents, as men of stamp. honesty and intelligence, had sufficient grounds for believing, that, in making the sale in question, they the pleadings that in that suit they had made the were doing the best for the estate. matters, as to which they sought perpetuation of testimony, the subject of judicial investigation. TURNER, L.J., thought, that, in all the points, as to which their conduct had been impeached-viz., the This plea was argued on the 26th of February. time and manner of the sale, the persons to whom, Selwyn, Q. C., and Swanston, for the defendant. and the price at which, the business had been sold,— Hobhouse, Q.C., and Cotton, for the plaintiffs, obthe respondents had exercised a conscientious judg-jected that the plea was one which might have been ment; therefore, even if that judgment had been pleaded to the original bill, erroneous,-which, however, in his opinion, it was not-they could not have been charged with any loss occasioned by the error. The judgment of the cestui que trust could not be set up against the discretion conferred upon the trustees by the testatrix. The appellant's case wholly failed, and the appeal must be dismissed; but, considering the remoteness of the interest of any other person in the trust estate, the costs of the appeal might come out of the estate. Master of the Rolls. } ELLICE v. ROUPELL. 19, 20 MARCH, 15 APRIL, 1863. Pleading-Bill to Perpetuate Testimony-Exceptions to Answer-Bill of Discovery-Exami nation de bene esse-Practice as to Evidence. In a suit to perpetuate testimony, a defendant who has admitted the plaintiffs' right to have witnesses examined, is not bound to answer further. A bill of discovery does not lie as to matters which cannot be immediately made the subject of judicial proceedings. Distinction between bills to perpetuate testimony and bills of discovery, which also pray the examination of witnesses de bene esse. Semble, there has been no alteration in the rule, that, in suits to perpetuate testimony, the evidence given ought to be kept secret until the time for using it arrives. This was a bill to perpetuate testimony as to the title of the plantiffs to the Roupell Park estate. The original bill, which was filed on the 6th of September, 1862, was demurred to, and the demurrer having been allowed, was amended on the 22nd of September. Upon this amended bill the defendant, Sarah Roupell, was interrogated, and she put in a full answer on the 17th of December, 1862. On the 8th of January, 1863, the plaintiffs re. amended their bill, raising no fresh issues, but merely stating additional circumstances upon which to found more searching interrogatories. To the interrogatories upon this re-amended bill the defendant, Sarah Roupell, put in a plea, stating, that since the filing of her answer, the plaintiffs had filed another bill in Vice-Chancellor Wood's Court against the same defendants, and showing by a statement of Attorney-General v. Cooper, 8 Hare, 166. THE MASTER OF THE ROLLS (27th February) disallowed the plea on this ground, and ordered it to stand for an answer, with liberty for the plaintiffs to except to it for insufficiency. These exceptions now came on to be heard. During the argument, as also during the previous argument on the plea, the circumstance was referred to that an order had been made for the examination of one Harwood, the plaintiffs' principal witness, de bene esse, and that, under that order, he had been examined and cross-examined viva voce before the examiner, and copies of his deposition had been furnished to the several parties to the suit. Rolt, Q.C., and Cotton (Hobhouse, Q.C., with them), in support of the exceptions, contended that the plaintiffs were entitled to a full answer from the defendant. In a suit for the perpetuation of testimony there must be distinct issues raised between the parties, Knight v. Knight, 4 Mad. 1; Bartlett v. Hawker, 4 Mad. 9, n. (b); Cresset v. Mitton, 1 Ves. jun. 449; s. c. 3 Bro. Earl of Belfast v. Chichester, 2 J. & W. 439, 450; and the plaintiffs were, consequently, entitled to compel the defendant to put in an answer stating her case. In King v. Allen, 4 Mad. 247, a motion made before answer for a commission abroad to examine witnesses was refused. There was no difference in this respect between a bill for a commission abroad, and a bill to perpetuate testimony, Thorpe v. Macauley, 5 Mad. 218, 230. If the defendant answered, she must answer fully. In a suit for an account, a defendant could not relieve himself from answering by submitting to have the account taken. He must also answer as to everything material to the consequential relief sought. Mrs. Roupell's answer would be very material and useful in guiding the plaintiffs in the examination of witnesses. Every bill is in reality a bill of discovery, Mitf. Pleadings, pp. 53, 54 (4th ed.). The perpetuation of testimony was the principal object of the bill, but it might also be regarded as a bill of discovery. An express prayer for discovery was now neither necessary nor proper, 15 & 16 Vict. c. 86, ss. 10, 12. Discovery might be sought in aid of proceedings intended to be but not actually instituted, Cardale v. Watkins, 5 Mad. 18; THE MASTER OF THE ROLLS said, that this case Moodaly v. Moreton, 2 Dick. 652; 1 Bro. C. C. involved the consideration of matters which, owing to 469; the recent changes in the practice and procedure of the Court, had, in a great measure, become obsolete. The first question he had to consider, was, whether this was a bill of discovery, in the proper and technical sense. He said, in the technical sense; because Lord Redesdale had said (Mitford, Pleadings, p. 53 (4th ed.)), "Every bill is, in reality, a bill of discovery; but the species of bill usually distinguished by that title is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or writings, or other things, in his custody or power; and seeking no relief in consequence of that discovery, though it may pray the stay of proceedings at law till the discovery should be made." In his opinion, this was not a bill of discovery in this technical sense. A bill of discovery proper, was in aid of proceedings in some other court, and usually, if not necessarily, stated that such proceedings were pending. Here there was no such statement. A bill to perpetuate from a bill of discovery properly so called (Mitford, testimony was treated by Lord Redesdale as distinct Pleadings, 43 (2nd ed.), 51 (4th ed.)). This view was confirmed by Lord Eldon's language in Dursley v. Fitzhardinge (6 Ves. 263): "A bill to perpetuate testimony calls for no discovery from the defendant, Agar v. Regent's Canal Company, G. Cooper, 212, but merely prays to secure that testimony which might The Mayor, &c., of London v. Levy, 8 Ves. 404. Selwyn, Q.C., and Swanston, for the defendant, contended, that she was not bound to answer further, as her previous answer raised all the issues suggested by the then bill, and the subsequent amendment had not introduced any new issues. The analysis of the contents of Mitford on Pleadings, distinguished two classes of bills not praying relief, bills to perpetuate, and bills of discovery. So Lord Eldon said, that a bill to perpetuate called for no discovery, Dursley v. Fitzhardinge, 6 Ves. 251, 263. So also, Story on Equity Pleadings, p. 200, s. 299. In a suit to perpetuate testimony, an answer was a necessary step towards replication, Wyatt's Practical Register, 74; but it had been the practice to file replication as soon as the answer was put in whether it was sufficient or not. A defendant was only bound to answer fully as to matters material to the relief sought by the bill, Scott v. Mackintosh, 1 V. & B. 504; 214; Hirst v. Peirse, 4 Price, 339, 344; be had at that time if the circumstances called for it." Whether the two kinds of bills might be united in and in a suit to perpetuate testimony, the only relief the same bill, which should pray perpetuation of sought was the examination of witnesses. Under the old, if not under the present practice, the evidence given by the witnesses was kept secret, until the time for using it arrived. It would not be fair to make the defendants an exception, and compel them to disclose their own evidence. [The Master of the Rolls said, that he was not aware of anything to alter the former practice in this respect. Of course any cross-examination of witnesses by the defendant must be in public, but according to his present impression, the parties ought not to have been allowed to take out copies of the depositions.]* In Angell v. Angell, 1 Sim. & St. 83, 88-91, the Vice-Chancellor distinguished very clearly between bills to perpetuate testimony, and bills to examine witnesses abroad. He also explained what the case of Moodaly v. Moreton really was. Cotton (in reply) contended, that, in Dursley v. Fitzhardinge, Lord Eldon was speaking only with testimony, as to one matter, which could not at the time be made the subject of judicial proceedings, and discovery as to another matter, as to which proceedings were pending, it was unnecessary to inquire. Here it was one and the same subject matter, respecting which it was sought to perpetuate testimony, and to obtain discovery. As the bill prayed no relief, the plaintiffs could only be entitled to the discovery in aid of some proceedings instituted, or possibly impending, in some other Court. If this were so, the bill would be defective, so far as it asked for the perpetuation of testimony; whence it followed that, as collateral to the perpetuation of testimony, a prayer for discovery, in the technical sense, could not be sustained. The case of The Earl of Suffolk v. Green did not contradict these views of Lord Redesdale and Lord Eldon. The bill in that case was not properly a bill to per petuate testimony, but a bill of discovery relating to a bond then in force with a prayer for the examination de bene esse of a single witness. There was no doubt that a bill of discovery might ask either for the examination de bene esse of a single witness, or for a commission to examine witnesses abroad. But it was essential to distinguish between a bill to perpetuate testimony properly so called, and a bill of discovery, in which, as in a bill for relief, an order might be obtained for examining a witness de bene esse, and thus perpetuating his testimony. In a bill to perpetuate testimony, the reason for the examination of the witnesses was that the matter could not at the time be tried in this or any other Court, and the evidence was, or ought to be sealed up, until the time arrived for using it. A bill of discovery proper was in aid of proceedings in some other Court, and when a witness was examined de bene esse, this was Specific Performance-Settlement-Power of contained a power to trustees to sell at his request, en- done lest he should die before the time came for giving his evidence in that Court. The record in The Earl of Suffolk v. Green had been consulted, and it appeared that in fact no further answer had been put in. The clerks of the Record and Writs Office had, at his request, examined the records of twenty-eight Held, that the purchaser was entitled to specific percases to be found in the books, relating to the perpe-formance if he was willing to treat the contract as one tuation of testimony, and had only found one (Brand- for a sale only of Lord S's interest in the property, but lyn v. Ord, 1 Atk. 571) in which a further answer had been put in, and this did not appear to have been and to contingent remainders to his sons, which failed upon his death unmarried :— a contested case. Considering the present bill, then, as a bill for the It was true that the dismissal would not prevent the plaintiff from using the evidence already given; but all this showed that as soon as the first was on the file the plaintiff could file replication and examine wit nesses. It had been said that, according to the modern practice, the parties themselves could be examined, and this was a mode of examining the defendants, but it was obvious that, if they were to be examined, it must be in the same manner as the other witnesses. not otherwise, and that he was not entitled to any compensation or indemnity in respect of the charge of 15,000l. This was a suit for the specific performance of a contract entered into by John Savile Lumley, late Earl of Scarborough, for the sale to the plaintiff of a leasehold interest for lives in one moiety of a farm called "the Eastgate Farm." This moiety of the Eastgate Farm was subject to the trusts of a settlement dated the 28th of May, 1812. In 1853, the subsisting trusts of this settlement were first to raise 15,000l. for the sisters of the same Lord Scarborough, and subject thereto for Lord Scarborough for life, with remainder to his first and other sons in tail male with remainder to Lord Scarborough in fee. The settlement contained a power authorising the trustees and the survivor of them at the request of Lord Scarborough, when he should be in the actual possession of the said estates, to sell the same or any part thereof. The contract for the sale was contained in two letters, dated respectively the 23rd and 24th of April, 1855, Lord Scarborough's agent stating the terms as follows:-"I have seen Lord Scarborough, who consents to sell his moiety of the Eastgate Farm for 4,3501." During Lord Scarborough's lifetime no communication as to the contract was made to the then trustees of the settlement. Lord Scarborough died on the 29th of October, 1856, without having ever been married. By his will, dated the 22nd of June, 1837, and a codicil thereto, dated the 14th of August, 1850, he had devised certain real estates, including the moiety of the Eastgate Farm to trustees upon certain trusts under which the defendant Savile was tenant for life, subject to the payment of certain incumbrances out of the rents, ́and empowered the trustees to sell at Savile's request. The testator had also bequeathed the residue of his personal estate to Savile, but the residuary personal estate was said to have been exhausted by the testator's debts, and it did not clearly appear who would have the benefit of any increase to the personal estate. Savile was also the administrator de bonis non of the late earl, and the other defendant Kinnaird was the present trustee of his will and codicil. The total value of the estates charged with the 15,000l. was stated to be 600,0007. During Lord Scarborough's lifetime, his solicitors furnished abstracts, making out the title under the power in the settlement, and after his decease the same solicitors acting for the trustees of the will furnished further abstracts, showing or purporting to show a title under the power of sale in Lord Scarborough's will. There was, however, no fresh contract by the trustees, nor any contract by the defendant Savile. The abstracts furnished were investigated on behalf of the plaintiff; but the Master of the Rolls held that nothing had been done limiting his right under the original agreement to what could be conveyed in any particular manner. Selwyn, Q.C., and M. A. Shee, for the plaintiff, contended that the defendants must perform the contract entered into by Lord Scarborough. It had probably been intended to carry out the sale through the power in the settlement, but this was immaterial. Independently of this power, Lord Scarborough, at his death, had the whole fee simple in him, subject only to the charge for 15,000l., and he might have been compelled to complete the sale, and clear the property from the charge. The plaintiff was therefore entitled to compensation or indemnity in respect of this charge. That, however, was a question which would only arise when the time came for settling the conveyance to the purchaser. Baggallay, Q.C., and Chapman Barber, for Kinnaird, argued that if there was any binding contract with Lord Scarborough, it could only extend to what Lord Scarborough could have been compelled to convey in his lifetime. The power in the settlement gave the trustees a discretion as to consenting to a sale, and the Court would not have interfered with their discretion to compel them to exercise a power, though it might restrain them from exercising it improvidently. The Court, therefore, could not inquire whether the trustees ought to have consented. Now that the power was gone, It must assume that Lord Scarborough could not have | obtained their consent, and could only have conveyed his life estate and reversion in fee, subject to the 15,000l., and the contingent remainders to his issue, Thomas v. Dering, 1 Keen, 729; Graham v. Oliver, 3 Beav. 124. Lord Scarborough being thus unable to convey the whole interest sold, the plaintiff could not have been compelled to perform the contract; but if he should elect to have it performed, he was not entitled to any indemnity or compensation. The Court could not compel a purchaser to take or a vendor to give an indemnity, Balmunno v. Lumley, 1 V. & B. 224; Aylett v. Ashton, 1 My. & Cr. 105, 114. Paton v. Brebner, 1 Bligh, 42, 66. M. A. Shee, in reply, argued that, the present case was distinguishable from Thomas v. Dering, and that it was unreasonable to assume that the trustees had refused their consent. If, however, the plaintiff could not obtain a conveyance of the property free from the 15,0007., he was willing to take it subject to that charge, and either with or without an indemnity, as the Court might decide. THE MASTER OF THE ROLLS said, that it was clear that no title could now be made through the trustees of the settlement, as their power had been determined by Lord Scarborough's death. He would look into the question whether the plaintiff was entitled to any indemnity; but he was satisfied that it was not a case for compensation, and that the two letters constituted a contract binding upon Lord Scarborough and so much of the estate as he had power to dispose of. the plaintiff was willing to have the contract thus partially performed, he must have a decree for specific performance, and for a conveyance of all that Mr. Kinnaird could convey. As As the suit had been caused by the delays of Lord Scarborough's solicitors, the plaintiff's costs must be paid out of Lord Scarborough's estate. 22 APRIL, 1863. THE MASTER OF THE ROLLS said, that he regretted that he could only give a simple decree for specific performance without any indemnity. He could not have compelled Lord Scarborough himself to give an indemnity if, from any peculiarity in his title, he could not have made a title to the property, if required to do so in his lifetime. Much less could he make a decrce for an indemnity against a trustee who took nothing under the will, or against a personal representative who took nothing in that capacity, though he had a beneficial interest as tenant for life and residuary legatee. This was a question which would, perhaps, have been more properly raised at the time of settling the conveyance; but, as it had been fully argued, he thought it most convenient to decide the point at once. He should not insert any declaration |