1851.-Sichell's Case.

to the same thing as the correspondence did in Upfill's case. I confess I think it does. Mr. Rolt endeavored to distinguish it on the ground that there was only a conditional acceptance. Sichell said:—I will not accept, because I must first be satisfied that the scheme will be ready for the next session of Parliament." The only meaning of that is:-"I do not like to take the shares till I am satisfied on that point." But the secretary writes something which does satisfy him; *whether it was right [*192]. or not is not of any importance. He waives the objec tion and says:-"Please to put in my name fifty shares of the one hundred reserved for me." In Upfill's case the expres sion was: "I accept the one hundred shares allotted to me." It would be ridiculous to say that there is any difference between the one case and the other. Upfill says:-"You tell me I may have one hundred shares; I will have them." Sichell says:"You tell me I may have one hundred shares; I will have fifty of them." The quantum of shares makes no difference.

In Upfill's case, also, it was said, as it was in this, that there was only an apportionment of shares; and that an apportionment did not amount to an allotment. But Lord Brougham considered the distinction to be a mere verbal one, and said that apportioning meant the same thing as allotting: and so do I.

It seems to me that this case is undistinguishable in principle, and, indeed, scarcely in a single word, from Upfill's case; and, therefore, Upfill's case will govern it; and Mr. Sichell's name must remain on the list.

Motion refused with costs.

1851.-Best's Case.

[*193] *IN THE WINDING-UP OF THE DIRECT BIRMINGHAM, OXFORD, READING AND BRIGHTON RAILWAY COM

PANY.

EX PARTE BEST.

Joint-stock Companies' Winding-up Acts.-Contributory.—Juris · diction of Master.

1851: 11th and 15th January.

After the Master had inserted B.'s name in the list of contributories, and after the court, on appeal, had ordered it to be struck off, the Master, on new evidence being brought before him, ordered the name to be replaced on the list.

The court held that the Master had exceeded his jurisdiction, and ordered the name to be again struck off.

THE Master charged with the winding-up of the company in this case, had placed Mr. Best's name on the list of contributories; but Vice-Chancellor Knight Bruce, on a motion, by way of appeal from the Master's decision, being made before him, ordered the name to be erased. Afterwards, the Master, on new evidence being brought before him by the official manager, and after hearing both sides, ordered the name to be re stored.

Mr. Rolt and Mr. Prior, for Mr. Best, now moved that the name might be again erased, on the ground that, as Mr. Best had been, previously, specially excluded from the list, the Master had no jurisdiction to restore his name. They relied on the 81st sect. of the Winding-up Act of 1848, 11 & 12 Vict. c. 45.(a)

Mr. Bethell and Mr. Roxburgh, for the official manager, referred to the 17th and 27th sections of the Act of 1849, 12 & 13 Vict. c. 108.(a)

The VICE-CHANCELLOR, after observing that Best's case was un

(a) These sections are stated in the Judgment.

1851.-Best's Case.

distinguishable, in point of merits, from Upfill's case, proceeded

thus:

*My opinion, on the construction of these Acts of [*194] Parliament, is that the Master could not do what he has done. That seems to me to be pretty clear.

By the 81st section of the first act, it is enacted: "That it shall be lawful for any person whose name shall stand upon the list of contributories, to summon any other person whose name shall not be upon such list, and who shall not have been previ ously specially excluded therefrom, to appear before the Master at a day and time to be therein specified, to show cause why his name should not be included in, or specially excluded from, the list:" that is to say, if the name has not been excluded from the list, the party may be summoned; but, if he has been specially excluded, his case cannot be reconsidered. Then comes the Amendment Act. How does that alter it? The 17th section says:-"It shall be lawful for the Master, from time to time, to reconsider and review any order or proceeding which may have been made by, or may have taken place before him under the said act, upon such terms and in such manner as he thinks fit." If there was nothing more, it is clear to me that, as the former act had said, in terms, that a party who had been specially excluded should not be put on the list again, that did not authorize the Master so to proceed. How does the 27th section alter it? Not at all. The 27th section says:-"That the power, by the said act given to contributories, to summon any other person to show cause why his name should not be included in, or specially excluded from the list"-because it may, under certain circumstances, be beneficial to a party to have his name on the list as a contributory, in order to get something in the distribution of the calls-" and the power of the Master to declare such person included in or excluded from the *list, shall and may be exercised, from time to time, so [*195] long as the list has not been wholly settled, although the person so to be summoned have been already included or specially excluded (as the case may be) as respects any other share

1851.-Best's Case.

or interest in the company than the share or interest in respect of which he is proposed to be included in, or specially excluded from the list."

Now, according to the true construction of the former act, if Mr. Best's name had been once excluded from or included in the list, as the case might be, under no circumstances could he be summoned to be included or excluded contrary to what had been before decided. But, then, this Act of Parliament contemplates that the party who has been included or excluded, may be shown to have some other shares than those in respect of which he was before included or excluded, and that he may be entitled to be included or excluded in respect of them; and then he may be proceeded with, with respect to those other shares, just as if he had never been dealt with at all; but it does not otherwise alter the former act. Therefore, I think that this motion must be granted. Mr. Best's name must be taken off the list, because the Master had no jurisdiction to put it on a second time.

The costs, including the costs in the Master's office, must be paid out of the estate.

It is a great misfortune, owing to the hurried way in which Upfill's case was necessarily argued at the end of the last session of Parliament, (it being, as Lord Brougham said, ex[*196] tremely important to get the matter *settled,) that the case was heard without the assistance which might have been had if more time had been allowed, and that not one of the cases in the Court of Exchequer and in the Court of Error, was brought under the consideration of the House.

1851.-Ross' Trust.

IN THE MATTER OF ROSS' TRUST.

EX PARTE COLLINS.

Restraint on Anticipation.—Separate Property.-Feme Coverte.

1851: 10th January and 27th February.

A testator, after having bequeathed a sum of stock in trust for the separate use oʻ his wife for her life, directed that it should remain, during her life, and be under the order of the trustees, made a duly-administered provision for her, and the interest of it given to her, on her personal appearance and receipt, by any banker the trustees might appoint. Held, that the wife was not prohibited from alienating her interest in the stock.

JAMES ROSS, by his will dated the 4th of September, 1824, bequeathed 3,000l. consols to trustees, in trust to pay and apply the annual interest (being 907.) unto his wife, Ann Ross, (from whom he had been some time separated,) and in lieu of any claim or claims, for or during her life, for her sole and separate use, independent of any husband she might thereafter marry and of his control, debts and engagements; and her receipt and receipts, notwithstanding her coverture, should be a sufficient discharge or discharges, to the said trustees: and the testator willed and directed that this 3,000l. capital 31. per cent. consols stock, should remain, during his said wife's life, and be under the orders of the said trustees, made a duly-administered provision for her, and the interest of it given to her, on her personal appearance and receipt, by any banker or bankers the said trustees might appoint in London or elsewhere, as might suit the parties, by half-yearly instalments of 451. sterling each, at Midsummer and Christmas, and to commence *on the next half-yearly day after his decease, [*197] but to cease and be void on her death, together with the trust and the capital of 3,000l. consols stock to be rendered back to his estate, by the said trustees, their executors, administrators and assigns, and to become, in like manner as his other personal property, the joint and separate property of the legitimate children of his brother, Thomas Ross, their heirs, executors and administrators.