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Daniel, Q.C., for the devisee, contended, that by the direction to pay debts out of his personal estate, the testator had signified an intention to exonerate the real estate from the mortgages.

lant, then, being in their Lordships' judgment entitled the question, whether the devisee was entitled to have to relief by virtue of the special agreement, it is the mortgages paid out of the personal estate. unnecessary for their Lordships to say how the case would, in their opinion, have stood independently of Wickens, for the plaintiffs, the executors. that agreement; but it may be right to add, that they are not satisfied that the rights of consignees of estates held in trust ought in all cases to be affected by the defaults of trustees. The case of Simond v. Hibbart (1 Russ. & M. 719) seems to have an important bearing upon this point. There may be rights on the part of consignees paramount to the rights both of the trustees and the cestui que trusts; but their Lordships desire to be understood as not intending to give any final opinion on this question.

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Will-Subsequent Will-17 & 18 Vict. c. 113.

A, by a will made before the passing of the Act, 17 & 18 Vict. c. 113, devised a mortgaged estate; and after the passing of the Act made another will, which did not affect the devise :

Held, that the devisee was a person claiming under a will already made" within the meaning of the Act. This suit was heard before Vice-Chancellor Wood, in February, 1863, and is reported, 1 N. R. 428.

The testator in the cause by his will executed in 1847, directed his debts to be paid out of his personal estate, and after payment of the same, bequeathed his personal estate to his daughter (who died in his lifetime without issue), and devised his real estate (in the events which had since happened) to Thomas Perry

in fee.

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[The Lord Chancellor suggested, that by reason of the proviso, the Act did not apply to the case at all.]

Amphlett, Q. C., for the testator's widow.

The execution of the second will was a republication of the first will, which must, therefore, be taken to have been made in 1861, after the passing of the Act, Williams on Executors, 188 (5th ed.); Attorney-General v. Heartwell, Amb. 451;

1 Vict. c. 26, s. 34.

The Act, therefore, applies, and the testator has not signified an intention to exclude its operation,

Woolstencroft v. Woolstencroft, 2 De G. F. & J. 347.

Rendall, for the next of kin.

There can be no will in the testator's lifetime: the proviso in the Act applies only to wills coming into operation between the passing of the Act and the 1st of January, 1855 the instrument of 1847 is only part of a will, the two instruments together being the will.

THE LORD CHANCELLOR said, that the Legislature had carefully prevented the new rule introduced by the Act from being retro-active by inserting the proviso.

The expression, a will already made, meant an instrument executed at the time of the passing of the Act, and intended to operate as a will, but coming into operation after the Act should have come in force.

The will of 1847 in the present case was such an instrument; if the execution of the subsequent will had at all affected the claim of the devisee, it might have been doubted whether he could have had the benefit of the proviso, but as he claimed solely under the will of 1847, the Act did not affect his interest, and he was entitled to have the mortgages paid out of the personal estate.

the testator had signified an intention to exonerate It was unnecessary to decide the question, whether the estate from the mortgages, but he might observe that it was impossible to lay down a general rule as to what was a sufficient signification by a testator of an intention to exclude the operation of the Act; in each case the intention must be gathered from the whole instrument.

In the present case, had the will been made after that the testator had signified such an intention. the Act came in force, he should, probably, have held Note. See as to the question of intention,

Eno v. Tatam, 1 N. R. 529, and cases there cited.

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Practice-Infant Plaintiff coming of AgeStriking Name out of Bill-Costs.

Where an infant co-plaintiff, on coming of age, desires to withdraw from the suit, the proper order is to strike his name out of the bill, not to stay proceedings as to him.

The order is made without costs.

This suit had been instituted on behalf of three infants as plaintiffs, and a decree had been made. One of the plaintiffs, having come of age, now moved that her name might be struck out of the bill.

Wickens, in support of the motion, said that he had not been able to find any precedent for such an order after decree; but a similar order had been made after the evidence in the cause had been taken,

Acres v. Little, 7 Sim. 138;

Guy v. Guy, 2 Beav. 460.

His client was a necessary party to the suit, and it would, therefore, be necessary to make her a defendant, but he should leave the other plaintiff's to apply for a supplemental order for this purpose.

Renshaw, for the next friend, suggested, that the proper course would be to stay all proceedings as to Mr. Wickens's client. He doubted whether there would be any further proceedings in the suit. He also asked for his costs,

Anon. 4 Mad. 461.

THE MASTER OF THE ROLLS held, that the following would be the proper order, viz., that the name of Mr. Wickens's client should be struck out as a plaintiff, and should be inserted as a defendant in all future proceedings in the suit (if any). There would be no costs given, but the next friend's costs would be costs in the cause. This was not a motion for the dismissal of the bill, as was the case in Anon. 4 Mad.

461.

Companies' Act, 1856," but which was not registered under "The Companies' Act, 1862."

A resolution for winding up voluntarily had been

passed by the shareholders; the question raised on this petition was, whether it was competent for a company not registered under the Act of 1862, to wind up voluntarily.

Higgins, for the petitioner, contended that the company could not be wound up voluntarily; he commented upon

"The Companies' Act, 1862," ss. 176, 177, 196, 199, 205, 206, 207;

and argued that the words "unregistered company" in sect. 199, denoted a company not registered under that Act; that being so, the second article of sect. 199 was precise, that no unregistered company should be wound up under the Act voluntarily; and sect. 180 enabled a company to register for the mere purpose of winding up. He also referred to

Re Minima Organ Company, 11 W. R. 530.

Cracknall, for the company, argued that the company had power to wind up voluntarily, notwithstanding that it was not registered under the Act of 1862; he commented upon

"The Companies' Act, 1862," ss. 175, 176, 177,

196, 199, 209, 210; and argued that the words "unregistered company," in sect. 199, must have their prima facie meaning, of a company not registered at all, and that there was no reason for restricting the generality of the words employed; this company was registered under "The Joint-Stock Companies' Act, 1856," and, therefore, came within the definition contained in sect. 175; sect. 177 then declared that the Act should apply to such a company in the same manner as to companies registered but not formed under the Act. The repeal of the Act of 1856 did not affect the validity of the registration under that Act, and sect. 177, taken in connection with the other sections of the Act of 1862, reserved to companies registered under the Act of 1856 the same powers as to a company registered but not formed under the Act of 1862. He also

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to hold that an unregistered company, in sect. 199, denoted simply a company unregistered under the Act of 1862, would in effect repeal to a considerable extent the provisions of Part VI.

There was nothing in the Act of 1862 to affect the validity of the previous registration of the company under the Act of 1856; on the contrary, the 207th sect. enacted that the repeal of the Act of 1856 should not affect anything duly done, or any right or privilege acquired under the repealed Act.

It was, therefore, unnecessary to go through the formality of a second registration; it was competent for the company to wind up voluntarily; and, as the shareholders were in favour of a voluntary winding up, His Honour would make no order upon this petition.

Master of the Rolls. Re THE FIRE ANNI18 APRIL, 2, 7 MAY, 1863. HILATOR COMPANY.

of the progress of the winding-up before a meeting of the shareholders. The liquidator himself became bankrupt in January, 1863.

Baggallay, Q.C., and Roxburgh, for the petitioner, referred to,

19 & 20 Vict. c. 47, ss. 102-104.

Wickens, for the company and the liquidator, contended that, where there was already a voluntary winding-up, the Court could not make a winding-up order on the petition of a contributory.

If contributories might petition for a compulsory winding-up, it would not have been necessary to save the rights of creditors by

19 & 20 Vict. c. 47, s. 105.

The 67th sect. of the same Act specified the five cases in which there might be a winding-up by the Court, and the case of there being already a voluntary

Joint-Stock Acts, 1856-58-Compulsory Wind-winding-up was not mentioned.
ing-up-Previous Voluntary Winding-up—
Petition of Contributory.

The Court may make an order for winding up a ompany, registered under the Joint-Stock Companies' Ads, 1856-58, and which is being wound up voluntarily, even on the petition of a contributory.

The order may be made under the Acts of 1856-58 alone, and the petition need not be also entitled in the Companies Act, 1862.

This was the hearing of a petition by a shareholder in the Fire Annihilator Company praying that the company might be wound up under the Joint-Stock Companies' Acts, 1856 and 1857, and the Joint-Stock Companies' Amendment Act, 1858.

Baggallay, Q.C., in reply cited,

21 & 22 Vict. c. 60, s. 11,

as reserving all powers and jurisdictions exercised by the Court under the Winding-up Acts of 1848 and 1849.

THE MASTER OF THE ROLLS directed the petition to stand over for a fortnight, in order that the petitioner might examine the liquidator's accounts, and ascertain whether a winding-up by the Court could be dispensed with.

2 MAY, 1863.

The accounts produced by the liquidator proved scanty and unsatisfactory, and he denied the petitioner's right to any further account. The application for the winding-up order was therefore renewed.

The company had been originally constituted in 1849, under the 7 & 8 Vict. c. 110, for the purpose of working a patent for extinguishing fires. In 1856 it was registered under the Joint-Stock Companies' Act, was clearly entitled to a winding-up order. The Act

1856.

A special resolution that the company should be wound up voluntarily under the Joint-Stock Companies' Acts, 1856 and 1857, and that Curtis, the secretary of the company, should be appointed liquidator, was passed at a meeting of the shareholders of the company held on the 16th of February, 1858, and was confirmed at another meeting held on the 23rd of March, 1858.

This voluntary winding-up had been proceeding ever since, and was not yet concluded. The patent had not been disposed of, and had now expired. There was other property of the company still remaining unrealised, and, though large calls had been made, the liquidator had, since the commencement of the winding-up, incurred liabilities for rent and wages, in respect of which demands had been made on the petitioner. The liquidator had only once, in March 1862, complied with the direction of the 19 & 20 Vict. c. 47, s. 104 (12), as to annually laying an account

THE MASTER OF THE ROLLS said that the petitioner

of Parliament was certainly exceedingly vague; but if the liquidator's contention was well founded, the winding-up of a going concern might last for an indefinite time, and in the meantime the liquidator was not to render any accounts, though he might make calls from time to time. The liquidator clearly must be liable to account to the shareholders. The Act of Parliament was not intended to put an end to the right of the partners in the company to have the partnership accounts taken. Its object was to do away with the preliminary proceedings, without which no decree for an account of partnership transactions could be obtained,-proceedings which were very much impeded when the parties to the suit were numerous. It was not intended to enable the liquidator to carry on the winding-up for several years without rendering any account. The petitioner was therefore entitled to the usual winding-up order, and under that order he would be able to call upon the liquidator to render proper accounts.

7 MAY, 1863.

Roxburgh now mentioned that the registrar had objected to draw up this order, on the ground that the petition ought to have been entitled in the Companies' Act, 1862. He submitted that according to the 207th sect. of the Companies' Act, 1862, 25, & 26 Vict. c. 89, the winding-up in this case ought to be effected as if the Act of 1862 had never been passed, and the previous Acts were still in force,

Re West Silver Mining Company, 1 N. R. 463.

THE MASTER OF THE ROLLS held that the order might be made under the Acts of 1856-58 only.

Note. See for another mode of controlling a voluntary winding-up,

who accepted and acted in the trusts of the will. In 1848 a bill was filed by the three grandchildren against Smith for an account and administration of the estate, and in 1849 an inquiry was directed, and a decree made, declaring what legacies the various parties were entitled to.

In 1860 the plaintiff and other legatees were anxious to come to an arrangement as to the testator's property, and, after considerable discussion and disagreement, an arrangement was come to; and the draft of an agree ment was settled by the solicitor for all the legatees and the solicitor for the trustee on their behalf respectively, which, after considerable delay, was signed by the plaintiff. This agreement was now impeached by the plaintiff, who said that he did not at the time

Lowndes v. Garnett and Moseley Gold Mining understand his rights, and did not intend to give them Company, 2 J. & H. 282.

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up; that under the will and the decree of 1849 he claimed to be entitled to 7007., whereas, by the agreement, he only got 400Z. He claimed, therefore, that the agreement should be rectified, or else set aside altogether.

Family Arrangement.

Where parties who are in doubt as to their respective rights in a certain property, being fully informed as to facts, and standing on an equal footing with respect to legal advice, come to a deliberate agreement not influenced by fraud, circumvention, surprise, or misrepresentation, the Court will not set aside such agreement, although a Court of Justice might have come to a different conclusion as to the rights of the parties, to that given effect to by the agreement.

This was a bill by a pecuniary and residuary legatee to set aside an agreement, which had been entered into between the plaintiff and other parties interested in

the testator's estate.

The facts of the case were as follows:-

The testator devised his freehold and leasehold estates to trustees, upon trust out of the rents and profits to pay certain annuities, and then directed his trustees to pay certain legacies to the plaintiff : 1007. absolutely on his attaining twenty-one; and a further sum of 2007. payable at the same time, but whether the latter sum should be paid or not was left to the discretion of the trustees. He then gave to his granddaughters 301. each on attaining twenty-one or marriage, and to his grandsons living at his decease, or born afterwards, 1007. each at the age of fourteen, a further 1007. at the age of twenty-one, and 2007. at the same time, the payment of which was left to the discretion of the trustees. The residuary estate was to be equally divided among the grandchildren on their attaining the age of twenty-one, and some further legacies were given by a codicil. The testator left three grandchildren living at the time of his decease, the plaintiff, his sister, M. A. Partridge, and T. H. Cash, who afterwards died, and whose representative was T. Cash.

The defendant, C. J. Smith, was the only trustee

Glasse, Q.C., and Druce, for the plaintiff.

Equity relieves from an agreement obtained by

fraud,

Sanders v. Lord Annesley, 2 Sch. & Lef. 73;
Turner v. Harvey, Jacob, 169.

So by mistake of law,

Bingham v. Bingham, 1 Ves. Sen. 126;
Cocking v. Prait, 1 Ves. Sen. 400;
Stone v. Godfrey, 5 De G. M. & G. 76 ;
Broughton v. Hutt, 3 De G. & J. 501.
Or by mistake of fact,

Garrard v. Franket, 30 Beav. 445.

To make a compromise effectual, the doubtful rights to be relinquished must be presented to the minds of the parties,

Gibbons v. Caunt, 4 Ves. 839;
Harvey v. Cooke, 4 Russ. 839.

Baily, Q.C., and Robinson, for Charles J. Smith.
Taylor for M. A. Partridge, and Roberts for T. Cash.
The Court will not inquire into the sufficiency
of the consideration of a fair compromise,

Naylor v. Wynch, 1 S. & S. 555.
And will uphold family arrangements,
Cory v. Cory, 1 Ves. Sen. 18;
Neale v. Neale, 1 Keen, 672;
Stewart v. Stewart, 6 Cl. & Fin. 911.

KINDERSLEY, V.-C., after stating the facts, said that so long as ten years before the execution of the agreement which was now sought to be rectified or set aside, the questions which it was intended to settle had been considered, and legal advice taken upon them. There could have been no ignorance of facts on the part of the plaintiff, for he had had the will and decree constantly before him during the last ten years. The question was whether, under these circumstances, the Court would allow this agreement to be rectified or

would set it aside. Many cases had been quoted by counsel on both sides, but the effect of the cases (though some of the earlier ones might lead to a different conclusion), and the law as it now stood, were well stated by Lord Cottenham in Stewart v. Stewart (6 Cl. & Fin. 911). The law might shortly be stated thus: if parties who are in doubt as to their respective rights in a certain property, being fully informed as to facts, and standing on an equal footing with respect to legal advice, come to a deliberate agreement, not influenced by fraud, circumvention, surprise, or misrepresentation, that agreement must stand, although a Court of Justice might have come to a different conclusion to that which is given effect to by the agreement. If, under such circumstances, either party should impeach the agreement, the Court would not inquire into the rights of the parties, or whether one had got more, another less, under the agreement than their strict rights. The fact that the parties had been in controversy and doubt, and had come to an agreement, was sufficient. Now, in the present case, the parties had been in discussion as to their respective rights, they were fully informed as to the facts, for they had had the will and the decree frequently before them, they had been on an equal footing as regards professional assistance—for it made no difference whether the parties employed the same or separate solicitors. had been no fraud, surprise, circumvention, or misrepresentation, merely a difference of opinion as to the effect of the will and the decree. The parties had deliberately, after long discussion, come to the final determination which was embodied in the agreement, therefore the bill, so far as it sought to set aside the agreement of March, 1860, must be dismissed with

costs.

Wood, V.-C.

There

DAVIES v. HUGUENIN.

22 APRIL, 1 MAY, 1863.
Testamentary Power of Appointment-Release-
Settlement-Portions-Eldest Son-Younger

Children.

A testamentary power of appointment may for valuable consideration be released by means of a covenant on the part of the donee of the power.

A settlement provided that a gross sum should be raised out of real estate thereby settled for the portion or portions of the children of the marriage other than the eldest or only son. No period was fixed for vesting of the portions: ́Held (1st.) That the second son, who, by the death of his elder brother in the lifetime of the tenant for life, became entitled to the settled property, was not entitled to share in the sum. (2nd.) That the representatives of the eldest son, and of a daughter who attained twenty-one, but died unmarried in the lifetime of the tenant for life, were enentitled to share in it. (3rd.) That the representatives of a son who died an infant were not entitled to share in it.

By a voluntary settlement, dated the 9th of November, 1819, John Davies conveyed certain freehold estates to trustees to the use of himself for life, remainder to the use of his wife Mary Davies, during her life, remainder to trustees to preserve contingent remainders during her life, remainder to the use of the children of John and Mary Davies, as John Davies should by will appoint, and, in default of such appointment, to the use of such of them as Mary Davies should by will appoint: and in default of appointment by either of them, to trustees for a term of 500 years, with remainder to the first and other sons of the marriage in tail male, with remainders over.

The trusts of the term of 500 years were declared to be that the trustees should, after the decease of John Davies and Mary his wife, in case of their leaving issue "one son, and also one or more other child or children," raise 5,0007. "for the portion of the daughter or younger child" of John Davies and Mary his wife, "in case the said John Davies should depart this life leaving issue by the said Mary his wife, only one son and one other child born in his lifetime, or after his decease:" and in case John Davies should die leaving issue by Mary his wife "one son and also two or more children, either born in his lifetime or after his decease," that the trustees should raise 6,0007. for the portion or portions" of any child or children" of John and Mary Davies "other than their eldest or only son, equally to be divided betwixt and among them if more than one."

John Davies died in 1853, Mary Davies, his wife,

in 1861.

There were eight children of the marriage. Two of these died in infancy before the date of the settlement. Of the remaining six

William Hamblett Davies, the eldest son, died without issue after attaining twenty-one, in the lifetime of his father.

John Stanley Davies, the second son, attained twenty-one, survived his father, but died in the lifetime of his mother, leaving a widow and two children. Thomas Davies, the third son, was born in August, 1825, and died in the following month.

Lucy Margaret Davies attained twenty-one, but died unmarried in the lifetime of her father.

Elizabeth Ann Davies survived her mother.
Harriet Davies was twice married; in 1829, to
William Meddowcroft, and, in 1840, to Louis
Huguenin.

By the settlement made on the marriage of Harriet Davies and William Meddowcroft, dated the 12th day of September, 1829, John Davies covenanted that he would not execute any appointment, or do any other act to defeat, lessen, or diminish the share or interest to which Harriet Davies was or might become entitled in the pecuniary division or portion made and secured for the only daughter, or for the younger son and sons, daughter and daughters, as the case might be, of John and Mary Davies, under the above settlement: but

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