Chambers was directed to ascertain the value of the services rendered under the contract.

The mortgagor having, before bill filed, tendered principal and interest, and 201. for the mortgagees' services, the Court gave no costs up to the hearing, and reserved future costs.

The plaintiffs in this case were London auctioneers, and the defendant a brickmaker and farmer, carrying on business at Surbiton Hill, Kingston-upon-Thames. In the month of September, 1861, the plaintiffs made an advance to the defendant of a sum of 2007., which was secured by an equitable mortgage of a piece of land, known as the Park, Surbiton Hill, under a memorandum of agreement, which, so far as is material, was in the words and figures following:"Memorandum of agreement made this 30th of September, 1861, between Peter Broad and Taylor Pritchard, of 28, Poultry, in the city of London, auctioneers, and John Selfe, of Surbiton Hill, in the county of Surrey. In consideration of the plaintiffs Broad and Pritchard advancing to the said John Selfe the sum of 2007., upon the security of a piece or parcel of ground known as the Park, Surbiton Hill, the said John Selfe hereby authorises and instructs the said Broad and Pritchard to sell and dispose of the whole or any portion of the said land, either by private or public sale, at and for the best price that can be obtained; and further, to repay themselves out of the proceeds of such sale the said sum of 200l., with interest at the rate of 51. per cent. per annum, from the date hereof, with a commission of 57. per cent. on the amount realised, and the expenses attending the sale thereof; and in the event of the said John Selfe repaying the said Broad and Pritchard the aforesaid sum of 2007. and interest, the said John Selfe shall pay to the said Broad and Pritchard a commission of 5l. per cent. on the value of the said property, together with all expenses incurred by them, whether the property, or any portion thereof, is sold by any other agency, or retained by the said John Selfe. The said John Selfe further undertakes to execute a legal mortgage of the above-mentioned land and buildings to the said Broad and Pritchard, at his own expense, when ever called on by them so to do, such mortgage to contain all the usual and customary covenants, and particularly a power of sale either by private contract or public auction. (Signed) John Selfe."

In pursuance of the authority thus given to them, the plaintiffs made some preliminary arrangements for proceeding to a sale of the land called the Park, and incurred some expense in so doing; but in the month of February, 1862, the defendant revoked the plaintiffs' authority, and the property still remained unsold.

The value of the Park estate was about 80007., and the defendant had, before bill filed, tendered the principal sum of 2007. and interest, together with 207. for services rendered by the plaintiffs.

The bill prayed, 1st, an account of what was due to the plaintiffs for principal moneys and interest, commission and expenses, under the memorandum of agreement; and, 2nd, a foreclosure of the estate called the Park, in the event of the defendant making default in payment of what should be so found due from him to the plaintiffs.

Cole, Q. C., and Shebbeare, for the plaintiffs.

T. A. Roberts, for the defendant, contended, 1st. That the suit was in effect a suit for specific performance of the agreement to employ the plaintiffs to sell the land, and that it failed for want of mutuality.

2nd. That if the plaintiffs claimed as equitable mortgagees, they could not stipulate for any collateral advantage, and were not entitled to any commission in respect of their services.

On the latter point he cited, for the general principle,

Jennings v. Ward, 1 Vern. 520;
Chambers v. Goldwin, 9 Ves. 271;
Langstaffe v. Fenwick, 10 Ves. 405;
Webb v. Rorke, 2 Sch. & Lef. 661;
Leith v. Irvine, 1 M. & K. 277;

Coote on Mortgages, 14, 343 (3rd ed.); and for the particular case of a mortgagee auctioneer, Matthison v. Clarke, 3 Drew. 3; s. c. 18 Jur. 1020.

Cole, in reply.

23 JULY, 1863.

THE MASTER OF THE ROLLS was of opinion, that the agreement which constituted the equitable mortgage to the plaintiffs only constituted a mortgage to the extent of 2007. and interest. The cases cited showed that it was not competent for a person under colour of a mortgage to stipulate for a distinct collateral advantage. Probably the original reason of the rule was, that such a stipulation tended to usury; but the authorities in the books did not go wholly upon that, so that the repeal of the usury laws did not, in his Honour's judgment, affect the case. If Mr. Selfe, as mortgagor, had filed his bill to redeem, he would have been allowed to do so on pay. ment of 2007. and interest at 5l. per cent., and the Court would then, under the statutory power recently conferred upon it, have directed an inquiry as to the value of the auctioneer's services. The present suit was by the mortgagees for foreclosure; but the right to have the value of the services ascertained existed equally in either case.

The only difficulty was as to the costs. As a general rule, when a mortgagee came to foreclose, he might add the costs of the suit to his mortgage security. But if the mortgagor, previously to filing his bill, had tendered the amount of his principal and interest, the mortgagee had to pay the costs. Here a tender had been made before the bill was filed which would cover the amount due for principal and interest, but not, as the

plaintiffs alleged, for services rendered. That tender would have been sufficient if it had been made in respect of an ordinary mortgage contract. But the contract which the defendant had entered into was something more than that. No doubt, so far as related to the employment of the plaintiffs to sell, it was a contract which the Court would not specifically enforce. | But, as the defendant had entered into it with his eyes open, knowing perfectly well what he was about, his Honour could not hold him entitled to the full benefit of the tender.

Minute.-An account of what is due from defendant to plaintiffs in respect of the 2007., and interest at 57. per cent., and also an account of the plaintiffs' costs, as mortgagees, other than the costs of this suit. Then decree foreclosure in the usual way. Refer it to Chambers to inquire what is due to the plaintiffs in respect of their services rendered under the contract in relation to the property therein mentioned. No costs on either side up to and including the hearing. Reserve further consideration and future costs of the

suit.

}

Master of the Rolls. Re EAST WHEAL MARTHA 23 JULY, 1863. MINING COMPANY.

Joint-Stock Company - Transfer of Shares Production of Certificate-Evidence of Title of Transferror-19 & 20 Vict. c. 89, Table B, r. 14-25 & 26 Vict. c. 89, s. 35.

Under the Joint-Stock Companies Act, 1856, Table B, r. 14, a company is entitled, before making a transfer in the register, to demand that the certificate of shares should be left at the office for inspection by the board, and is not bound to be satisfied with the bare production of it to a clerk.

This was a motion made under the 35th section of "The Companies Act, 1862," for the rectification of the register of members of "The East Wheal Martha Mining Company (Limited)," by the insertion therein of the name of Henry Newman as a shareholder of the

company.

On the 9th of July, 1863, a Mr. Snell, one of the shareholders of the East Wheal Martha Mining Company, which was registered under the JointStock Companies Act, 1856 (19 & 20 Vict. c. 47), executed a deed of transfer of five shares (portion of 125 shares standing in his name) to Mr. Henry Newman. A memorandum of this transfer was endorsed on the certificate of the shares issued by the company. On the following day the deed of transfer was left at the office of the company by Mr. Snell, and the usual registration fee paid. At the same time Mr. Snell produced his certificate of 125 shares to a clerk of the company, but declined to leave it for inspection by the board, though requested so to do.

On the 15th of July an extraordinary meeting was

summoned for the purpose of passing a resolution for winding-up the company, and it was then intimated that the board declined to register the transfer, on the ground that the certificate ought not only to have been produced, but also left for inspection and verification. The 14th regulation of Table B, appended to the Joint-Stock Companies Act, 1856, provides that "the deed of transfer shall be presented to the company, accompanied with such evidence as they may require to prove the title of the transferror, and thereupon the company shall register the transferree as shareholder."

Roxburgh, for the motion, contended that as the certificate was only prima facie evidence of the shareholder's title, production was all that the board could require. The transfer was only of a portion of the shares mentioned in the certificate, and Mr. Snell was not bound to part with the possession of the evidence of his title to the shares which he retained.

Selwyn, Q.C., and Hemming, for the company.

cient evidence of the transferror's title. The board were Production to the clerk of the company was insuffientitled to see the document, in order to judge of its genuineness.

not.

Roxburgh, in reply.

THE MASTER OF THE ROLLS (after reading the 14th

regulation) was of opinion that the construction of it was reasonably clear. The directors alone were the proper judges of the evidence of the title of the transferror, and they were quite right in refusing to delegate to a clerk of the company the responsibility of deciding whether a document was spurious or A shareholder might deposit his certificate by way of mortgage, and then come and ask for a The directors were transfer, producing a false one. entitled to satisfy themselves that no such fraud had been committed. Suppose that this company, instead of being in the course of winding up, were carrying on business with profit and success, could the company be compelled to make the transfer in the register without having an opportunity of examining the certificate? In all these cases the company was entitled to require satisfactory evidence that the transfer was a bona fide act. Here the company had declined to be satisfied with mere production over the counter to a clerk, and his Honour would not compel the company to do that which they with reason thought they could not do safely. The motion must be refused with costs.

Common Law Bar), on behalf of the plaintiff in the suit, for leave to issue a writ of audita querela. The writ had been sealed at the Petty Bag Office, but could, not be served without special leave of the Court.

He referred, on the nature of the writ, to
Bacon's Abridgement, hoc tit. ;
Jacob's Law Dict. sub voce.

THE MASTER OF THE ROLLS said, if the plaintiff was entitled to the writ as of right, the officer would issue it on being furnished with the proper affidavit. If the case was one in which his Honour was called on to exercise a discretion, he declined to exercise that discretion in the absence of parties who might be prejudiced by the order. The motion must be made upon notice to the other side.

Practice-Limited Company-Security for Costs -20 & 21 Vict. c. 14, s. 24.

An affidavit by the defendant's agent, showing that there was reason to believe that, in the event of the defendant being successful, the plaintiffs, the official liquidators of a limited company, would not have assets in hand to pay the defendant's costs, is, if unanswered, a sufficient ground for requiring the plaintiffs to find security for costs, under 20 & 21 Vict. c. 14, s. 24.

Observations on Caillaud's Company v. Caillaud, 26 Beav. 427; 7 W. R. 407.

This was a motion on behalf of the defendant, that the plaintiff's might be ordered to give security for costs, under the 24th section of 20 & 21 Vict. c. 14.

The plaintiffs were the official liquidators of the Southampton, Isle of Wight, and Portsmouth Improved Steamboat Company (Limited), and the suit was one of several instituted to set aside mortgages given by the company to former directors, and to a former secretary.

The defendant had filed an affidavit made by his agent, Mr. C. E. Lewis, stating that a very large proportion of the shares in the company had been fully paid up previously to the winding up; that the liability of the alleged contributories, upon almost all the unpaid-up shares was disputed; that, although the winding-up order had been made in November last, no assets had as yet been received; that heavy costs had been already incurred by the petitioners and the official liquidators; and that three or four orders had been already made by the Lord Chancellor for the payment out of the assets of the company of the costs of the successful appeals of certain alleged contributories; and that there was good reason to believe that, in the event of the defendant being

Re STEARIC ACID COM. PANY (Limited).

19 & 20 Vict. c. 47 — Winding up - Official Liquidator-Table B, cl. 28.

Where, under 19 & 20 Vict. c. 47, Table B, cl. 28, notice has been given of a general meeting for the voluntary winding-up of the company, the appointment of an official liquidator is not good, unless it is stated in the notice that such appointment is the purpose of the meeting.

This was a motion on the part of the official liquidator for an injunction to restrain proceedings by a creditor of the company in the Lord Mayor's Court, to attach certain moneys in the hands of an auctioneer, who had sold the effects of the company under a voluntary winding up. By 19 & 20 Vict. c. 47, Table B, clause 28, which was adopted by the articles of association, it is enacted "that seven days' notice at the least, specifying the place, the time, the hour of meeting, and the purpose for which any general meeting is to be held, shall be given by advertisement, or in such other manner, if any, as may be prescribed by the company."

Notice was duly given of the general meeting for the voluntary winding-up of the company; but the notice did not state that the purpose of the meeting

was the appointment of an official liquidator. The question was, whether the appointment of the official liquidator was good.

Archibald Smith, in support of the motion, cited, 25 & 26 Vict. c. 89, ss. 133, 138; Re Keynsham Company, 2 N. R. 479.

Roxburgh, for the creditor, cited,

25 & 26 Vict. c. 89, s. 129;

19 & 20 Vict. c. 47, Table B, cl. 25, 28;
Anglo- Californian Gold Mining Company v.
Lewis, 9 W. R. 126.

A. Smith, in reply.

KINDERSLEY, V.-C., said, that the question was, whether or not the appointment of the official liquidator was good. The notice given of the general meeting said nothing about the appointment of an official liquidator, and so failed to fulfil the requirement of the clause, that seven days' notice should be given of the purpose for which any general meeting was to be held. He thought the company could not contend that the appointment of the official liquidator was good.

The motion must be refused with costs.

Kindersley, V.-C.

ERNEST V. VIVIAN.

23 JULY, 1863. Practice-Evidence-Examination of Witnesses. Notwithstanding the time for taking the evidence in a cause has expired, the Court will allow the examination in chief of witnesses as to facts to which newly discovered documents relate, on being satisfied that such documents are of importance in the cause, that they are newly discovered, and that there has been no delay or laches in respect of them.

The time for taking the evidence in this suit expired on the 30th of May last. The cause was fixed for hearing for the 14th of July. In the early part of the month the plaintiff discovered that certain important documents were in the defendants' possession. On the 10th of July a subpoena duces tecum was issued against the defendants, and on the 13th of the same month one of the defendants informed the plaintiff that he had searched and had found these documents, which were then produced. It was now moved "that the evidence in chief as to new documents might be taken viva voce at the hearing, in addition to or substitution for the evidence already taken."

KINDERSLEY, V.-C., said-In all probability these newly discovered documents would be of great importance to the plaintiff, and, assuming that the plaintiff had now for the first time discovered the existence of those documents, and had not disentitled himself by delay or laches of any kind, he thought he ought to have the opportunity of examining witnesses on them. For supposing a decree had been made against the plaintiff in the absence of these documents, if he proved that since such a decree had been made he had discovered material evidence, the Court would, on being satisfied as to the facts, give him leave to file a bill of review. He thought, therefore, that an opportunity ought to be given to the plaintiff to examine witnesses on the new evidence. The order, however, should be to this effect, that, notwithstanding the time had elapsed, the plaintiff should have the opportunity of filing affidavits and examining witnesses in chief before the examiner, so far as concerned the facts to which the new documents relates. The defendant must, of course, have the same opportunity.

Practice-Costs-Petition of Rehearing.

The Court refused to allow a petition of rehearing for costs alone, where the decree complained of was made in the exercise of the discretion of the Judge, and violated no principle, and was founded on no mistake.

This was a petition for rehearing. The bill stated that the plaintiff, the holder of certain farms, being embarrassed, had obtained advances from the defendant on the security of his crops, and prayed an account; and an inquiry as to these transactions was directed. There were in all five transactions of this kind.

The defendant said that he did not take the crops merely as security, but purchased them out and out.

The Chief Clerk found, by his certificate, that as to three of the transactions, the plaintiff—and as to two, the defendant-was right. On further consideration, an account was ordered to be taken, and a direction

made, as to costs. The rehearing sought was as to tion as to costs might be struck out; and that the costs alone: and the petition prayed that the direc till the accounts directed had been taken. consideration of costs might be adjourned or reserved,

Baily, Q.C., and Karslake, for the petitioner, contended that it was competent for the Court to reserve

Ferrand v. Mayor, &c., of Bradford, 8 De G. M. & G. 93.

Speed opposed the motion.

reserved till the accounts had been taken, and cited,

1 Seton on Decrees, 97, 106, 376, 377, 541, 543,

462;

Tanner v. Heard, 23 Beav. 555 ; Chappell v. Purday, 2 Phill. 227;

Owen v. Griffith, 1 Ves. sen. 249;

Menzies v. Connor, 3 M. & G. 649;

Legg v. Mackrell, 2 De G. F. & J. 551.

Glasse, Q.C., on the other side, was not heard.

KINDERSLEY, V.-C., said this was a simple case of a petition of rehearing for costs only. The general rule was, that this would not be allowed. But the rule was not so fixed as to admit of no possible exception: hardly any rule was so. Thus if the Court found that that which was complained of in the decree violated some principle, or arose from some mistake, and not from the legitimate exercise of the Judge's discretion, it would allow a rehearing. In this case it had been found, by the Chief Clerk's certificate, that the plaintiff and defendant were both partly right, partly wrong; and, therefore, no costs were given on either side. Of course there might be differences of opinion as to whether such a course was right or not; but, supposing it were wrong, it was not so because there

was any violation of principle or any mistake. It was done entirely in the exercise of the Judge's discretion. There could not be a petition of rehearing to set such an exercise right.

Minute.-Petition dismissed with costs.

A

An injunction having been awarded against the defendant till the hearing, and the plaintiff having undertaken to abide by any order as to damages, at the hearing the bill was dismissed, but without costs. motion to assess the damage sustained by the plaintiff in consequence of the injunction was refused, with costs, the damage suffered being the consequence not of the injunction, but of the suit, which the Court had held that the plaintiff was right in instituting.

Cases in which an undertaking as to damages will be enforced.

This was a suit instituted to obtain specific performance of an agreement whereby the defendant, Mary Marshall, agreed to let, and the plaintiff to take, a

certain hotel then in course of erection by the defendant, for the term of sixty-three years.

On the 21st of August, 1862, an injunction was awarded to restrain the defendant, till the hearing of the cause, from letting the hotel to any person other than the plaintiff without the consent of the plaintiff, who undertook to abide by any order the Court might make as to damages, in case the Court should thereafter be of opinion that the defendant had sustained any by reason of the order.

At the hearing on the 25th of July, 1861, the Court was of opinion that the agreement ought not to be specifically performed, unless the plaintiff complied with certain terms, which he declined to do; and

thereupon the bill was dismissed, but without costs.

During the interval between the 21st of August and the 25th of July the hotel had remained unlet.

Rolt, Q.C., and Karslake, now moved that the amount of damages sustained by the defendant, in consequence of the injunction awarded as above mentioned, might be assessed, and paid by the plaintiff

Sir H. Cairns, Q.C., E. B. Lovell, and J. M. Howard (of the Common Law Bar), were for the defendant, but were not called upon.

WOOD, V.-C., said, that the Court imposed on a plaintiff an undertaking as to damages in two cases— 1st, where the plaintiff came for an injunction parte; 2nd, where, upon a motion being made in a doubtful case, the Court granted an injunction till the hearing, upon the plaintiff entering into an undertaksecond head, and in it the injunction had been dising as to damages. The present case fell under the solved at the hearing. It had not been shown that any damage had resulted to the defendant from the injunction. Such damage as she had suffered arose