to the extent of the fund actually paid in; so that these trustees have in fact gained nothing by the course they have taken, while they have put the Petitioner to expense in getting the money out of Court.

In the case of Croyden's Trust there was a dispute between two parties as to the title to the fund. Here, the title to the fund is undisputed. The trustees, by their own affidavit, filed on paying the fund into Court, expressly state that they are not aware of any other person than the Petitioner being entitled to it.

The Court has no authority under the Act to make the trustees pay costs, but they cannot be allowed any costs, except the mere costs of paying the money into Court. Does the Petitioner object to their being allowed those costs?

[Mr. W. P. Murray having replied in the negative, an order was made for payment of the fund to the Petitioner; and the trustees were not allowed any costs, except those of paying the money into Court.]

[44] RUMBOLD v. FORTEATH. Dec. 10, 1856.

[For subsequent proceedings, see 3 K. & J. 748.]

Production of Documents. Affidavit. Heir. Ejectment. Practice in Chambers.

In a suit by the heir at law for discovery in aid of an action of ejectment brought by him against persons in possession, claiming as devisees of the ancestor: Held, that the Defendants, whether bound to produce any documents or not, must make the usual affidavit in answer to a summons for production by the Plaintiff.

The practice on proceedings in Chambers is that, if one side only desires to be heard by counsel, the Judge hears the argument in Chambers; if both desire to be so represented, the matter is adjourned to be heard in Court.

This was a bill of discovery. It stated that George Lord Rancliffe, deceased, was, in his lifetime, and at the time of his death, seised of or otherwise well entitled to certain freehold hereditaments, situated in certain parishes and places therein specified, in the counties of Nottingham and Leicester; and that he died on the 1st of November 1850 without having ever had any issue; and that the Plaintiff and two other persons were his co-heirs at law in coparcenary; and it stated the pedigree of their heirship.

The bill then stated that Lord Rancliffe, some short time before his death, had executed a certain paper-writing, dated the 26th of June 1850, alleged by the Defendants to be his last will and testament, whereby he bequeathed all his personal estate to the Defendant, Harriott Forteath, absolutely; and that it was alleged that the testator thereby gave and devised all his real estates, whatsoever and wheresoever, to the said Harriott Forteath, her heirs and assigns, and appointed her sole executrix.

That on the 21st of June 1851 probate of the said paper-writing, as of the last will and testament of the said Baron Rancliffe, was granted by the Prerogative Court of the Archbishop of Canterbury to the said Harriott Forteath, as the executrix thereof; and that she possessed herself of the real and personal estate of the said Lord Rancliffe; and that she and her husband, the Defendant, Alexander Forteath, or one of them in her right, had ever since been and still were in possession of such real estates; and that she had also possessed herself of all the title-deeds, documents, evidences and writings of and relating to the said [45] real estates; and that the Plaintiff had lately commenced an action of ejectment against the Defendants, Alexander Forteath and Harriott Forteath, for the recovery of the possession of the said real estates.

The bill then stated that, at the time of the death of the said Lord Rancliffe, there were outstanding terms for years in the said real estates, or in some part thereof; and also mortgages and other incumbrances thereon, and leases thereof, which were still subsisting; but that, by reason of the Defendant, Harriott Forteath, having possessed herself of the deeds, documents, evidences and writings aforesaid, the Plaintiff was unable to set forth the particulars of such terms of years, mortgages, incumbrances and leases, or any or either of them; and that the Defendants threatened

and intended to set up such outstanding terms of years, mortgages and incumbrances and leases, or some or one of them, in bar to the said action of ejectment; and that the Plaintiff, under the circumstances aforesaid, was unable to proceed at law for the recovery of the possession of the said real estates.

And the bill prayed discovery of all and singular the matters aforesaid, to enable the Plaintiff to proceed in and prosecute his said action of ejectment; and that the Defendants might produce at the trial of the said action all and singular the deeds, documents, evidences and writings of or relating to the said real estates, or any or either of them, or such of them as might be necessary for the purposes of the trial of the said action; and for an injunction to restrain them from setting up outstanding terms, mortgages, incumbrances or leases, or either of them.

The joint answer of the Defendants set up the will. They admitted the possession of all such of the title-deeds, documents, evidences and writings of or relating to the said [46] real estates as were not in the possession of the mortgagees of the same estates, admitted that there were outstanding terms, but offered not to set up any outstanding term or legal estate on the trial of or in bar to any action of ejectment by the Plaintiff; and therefore submitted and insisted that, having regard to such offer, it was immaterial and unnecessary to state what terms, &c., there were in particular.

The Plaintiff moved, in Chambers, for production of documents. The Defendants refused to make the usual affidavit. The motion was adjourned into Court.

Mr. Cairns, Q.C., and Mr. J. S. Moore, for the Plaintiff. The Defendants are bound, at least, to make the affidavit. If all the story in their answer be true, they may yet have documents in their possession shewing that the will was obtained by fraud. In Harrison v. Southcote (1 Atk. 539) Lord Hardwicke says, "Though an heir at law is not entitled to come into this Court upon an ejectment bill for possession, yet he is entitled to come here to remove terms out of the way, which would otherwise prevent his recovering possession at law, and has also a right to another relief before he has established his title, namely, that the deeds and writings may be produced and lodged in proper hands for his inspection." In Lady Shaftesbury v. Arrowsmith (4 Ves. 70) the Lord Chancellor says, "It would be a very delicate point to order a general inspection into all deeds and settlements on behalf of a person claiming in the mere character of heir at law. I do not find any spark of equity upon which that application could be made in this Court, and supported. The title of the heir is a plain one, and it is a legal title. All the family deeds together would not make his title [47] better or worse. If he cannot set aside the will, he has nothing to do with the deeds. He must make out his title at law, unless there are incumbrances standing in the way which this Court would remove, in order to his asserting his legal right. There the principle of equity interferes."

Mr. Willcock, Q.C., and Mr. Rolt, Q.C., for the Defendants. The Plaintiff wants no discovery. The will can be seen by him at Doctors' Commons. We admit that Lord Rancliffe was seised in fee of the property. There is no allegation in the bill impeaching the will.

VICE-CHANCELLOR Sir W. PAGE WOOD. It may probably be of little use, but I think that the common affidavit must be made. It is a very different question whether the Defendants will be compellable to produce the documents in their possession; but, at present, I cannot say that there may not be documents in their possession proving the Plaintiff's heirship, or in some way assisting his case.

Some discussion then took place as to the costs of the summons.

THE VICE-CHANCELLOR. Ì order now that the affidavit shall be made, and the rest of the summons must stand over. When it comes on again in Chambers I shall have jurisdiction there to dispose of the costs. This argument is merely heard here by adjournment from Chambers. The rule is that, if one side only desires to be heard by counsel, I hear the application in Chambers: if both wish to be heard by counsel, it is adjourned into Court; but it is still the same proceeding by summons.

[48] GILLMAN v. DAUNT. Nov. 17, 1856.

[See In re Emmet's Estate, 1880, 13 Ch. D. 488; In re Wenmoth's Estate, 1887, 37 Ch. D. 270; In re Whitten, 1890, 62 L. T. 392; In re Mervin [1891], 3 Ch. 203.]

Will. Construction. Class. Distribution.

Bequest to J. D. (a younger son of A. D.) as soon as he should attain twenty-one, but in case he should die before attaining twenty-one, then to such of the other children of A. D. as should attain twenty-one. J. D. died an infant. Held, that the words "such, &c., as should attain twenty-one" were equivalent to "at twenty-one," or "when and as they should attain twenty-one," and that on J. D.'s death the share of a child who had then attained twenty-one became immediately payable, and no afterborn child (if any) would be entitled to a share in the fund.

Frances Gillman, by her will in 1845, bequeathed to the Plaintiffs all her stock in the Union Bank of London, upon trust to pay or transfer £2000 thereof to John Daunt, a younger son of the Defendant, Achilles Daunt, as soon as he should attain the age of twenty-one years; but in case he should die before attaining that age, then upon trust to pay or transfer the said principal sum of £2000 unto such of the other children of Achilles who, being a son or sons, should live to attain the age of twentyone years, or, being a daughter or daughters, should attain that age or marry, and, if more than one, in equal shares; and to apply the dividends and interest thereof for their, his or her benefit until payment to them, him or her of the said principal sum of £2000.

The testator died in May 1846; John Daunt died in November 1855, an infant. Achilles had issue, at the death of John, nine children, of whom one, viz., Achilles the younger, had then attained twenty-one. The rest were still infants, and unmarried.

Mr. Rolt, Q.C., and Mr. Boys, for the Plaintiffs, as trustees, submitted whether the beneficial interest in the stock set apart to answer the legacy of £2000 was restricted to the children in esse at the death of John, one of such children having then attained twenty-one; or whether after-born children (if any) would be entitled to share with them in the fund.

[49] [THE VICE-CHANCELLOR. Does not Whitbread v. Lord St. John (10 Ves. 152) cover it?]

Mr. Rolt, Q.C. There the bequest was to the children when and as they should attain twenty-one. Here, the words "such as shall attain twenty-one" would seem to

indicate a class.

Ellison v. Airey (1 Ves. sen. 111) was also cited.

Mr. Willcock, Q.C., and Mr. Renshaw, for Achilles Daunt the younger; and Mr. Kenyon, for the other children of Achilles the elder, were not called upon.

VICE-CHANCELLOR Sir W. PAGE WOOD. I have always taken the rule to be as it is stated by Mr. Jarman, that, "where a legacy is given to the children, or to all the children, of A., to be payable at the age of twenty-one, or to Z. for life, and, after his decease, to the children of A., to be payable at twenty-one; and it happens that any child, in the former case at the death of the testator, and in the latter at the death of Z., has attained twenty-one, so that his or her share would be immediately payable, no subsequently born child will take" (2 Jarm. on Wills, p. 130): and for this reason, viz., that the child who has attained twenty-one cannot be kept waiting for his share; and if you have once paid it to him you cannot get it back.

I think that the terms of this bequest, "such as shall attain twenty-one," amount to the same thing as "at twenty-one," or "when and as they shall attain twenty-one." I must therefore hold that, on the death of John, the share of Achilles the younger, who had then attained [50] twenty-one, became immediately payable; and that no after-born child, should there be any, will be entitled to a share in the fund. There must be an order for a sale of the shares, and for payment of one-ninth of the proceeds to Achilles Daunt the younger.

Ordered accordingly.

[50] VANCE v. THE EAST LANCASHIRE RAILWAY COMPANY.(1) Dec. 8, 1856.

Company incorporated by Act of Parliament. Railway Company. Application to Parliament. Injunction.

Although it is competent to the directors of every railway company, on complying with the Wharncliffe Order, to apply to Parliament for an extended line, or for any other extension of their powers, they will be restrained from defraying the expenses of such application out of the assets of the company, and from issuing new shares, purporting to be shares in the company, except for the purposes and under the powers of existing Acts.

By stat. 9 & 10 Vict. c. cccii. the Defendants, the company, were incorporated under the name of "The East Lancashire Railway Company.'

The Plaintiff was a shareholder in the company.

By stat. 9 & 10 Vict. c. ccclxxxi. the company were empowered to purchase the Liverpool, Ormskirk and Preston line; and the purchase was effected.

Several extension and amendment Acts were subsequently passed for the benefit of the company, all of which contained the following proviso:-"That it shall not be lawful for the said East Lancashire, out of any money by the now stating or any other Act relating to the said company authorised to be raised for the purpose of such Act or Acts, to pay or deposit any sum of money, which, by any Standing Order of either House of Parliament now in force, or hereafter to be in force, may be required to be deposited, in respect of any application to Parliament for the purpose of obtaining an Act authorising the said company to construct [51] any other railway, or execute any other work or undertaking." Accordingly, when further capital was required to be raised by preference shares, or for any special purposes, special powers and authorities were granted in the successive subsequent extension Acts, each of which (the last being the 17 & 18 Vict. c. cxvii., 1854) contained a provision similar to the above; and also that the sums thereby authorised to be raised by shares or mortgage should be applied only in carrying into execution that Act and the other previous Acts relating to the company.

On the 6th of November 1856 the Defendants, the directors of the company, issued a circular notice, convening an extraordinary general meeting of the company for the 12th instant, at Bury, for the purpose, first, of considering the propriety of authorising the directors to apply to Parliament, either alone or with other persons, for a bill to authorise the construction of a new line from Colne to Bradford, with all necessary powers; and, secondly, in case such application were authorised by the meeting, then to consider further the best way of raising the requisite capital; with an address to the shareholders, signed by the chairman, insisting on the loss which the company suffered from the want of such a communication as the proposed new line would open out, and the advantages offered thereby; and stating that the proposed new line would be twenty miles in length, and would yield an estimated profit of £4, 10s. per cent. on an estimated outlay of £800,000.

On the 10th of November advertisements appeared in the London Gazette of that date referring to the new intended line, and headed "Colne and Bradford Railway: Construction of the Railway by the East Lancashire, or by New Company;" and proceeded to give notice of such intended construction.

[52] On the 12th of November an extraordinary general meeting of the company was held, pursuant to the circular notice of the 6th of November. The chairman moved the first resolution, stating that no other company had been applied to for subscriptions to the new line, as the directors conceived it was most for the interest of this company to construct it as an integral portion of their own line. By this resolution, which was carried almost unanimously, the directors were authorised to apply to Parliament for the proposed bill. The chairman then moved a resolution,

(1) Ex relatione Mr. Regnier W. Moore, the motion having been heard by the Vice-Chancellor in his private room.

which was also carried by a similar majority, and by which, in contemplation of the passing of the bill, the directors were authorised to issue new shares representing an additional capital of £800,000, consisting of a £5 per cent. preference stock for five years certain, with the privilege to the holders to convert it into ordinary stock of the company, at par, in January 1862; but if not then converted, the company to have a further period of five years to redeem the same. The proposed new preference shares were to be of the nominal value of £25 each, and to be offered first to the existing shareholders; and a deposit of £3 per share was to be payable immediately on the allotment. In case it should be necessary to reduce the nominal value of the proposed new shares, such reduction was to be made pro rata. In case of non-payment of such deposit on the day appointed, the allotment was to be cancelled; and all new shares remaining in the hands of the company, after the distribution among the shareholders thereby authorised, were to be disposed of by the directors for the benefit of the company, as the directors might think fit; and all shareholders accepting the allotment of the proposed new shares were to execute such subscription contract as the directors should require.

By a letter of allotment, dated the 17th of November, [53] twenty-seven new shares were appropriated to the Plaintiff, and he was directed to pay, on or before the 10th of December, £81, being the deposit thereon of £3 per share, to the bankers of the company.

On the 20th of November the secretary of the company wrote to the Plaintiff, informing him, in reply to an inquiry addressed to him by the Plaintiff on the subject, that the proposed application to Parliament had been advertised; and that, in anticipation of the passing of the bill, the directors intended to act on the resolution of the 12th of November for raising the proposed capital.

On the 5th of December the Plaintiff filed his bill against the company and its directors, praying for an injunction to restrain the directors from applying any of the funds of the company in or towards surveying the proposed new line from Colne to Bradford, or in or towards the preparation or promotion of any bill in Parliament for the construction of such new line; and from issuing, allotting or keeping in circulation any new preference shares for the purpose of raising capital to enable them to construct such new proposed line, and to cancel any such new preference shares as might have been already issued for such purpose; and to have any part of the assets of the company which might have been applied to any such purposes replaced by the directors.

The secretary of the company made an affidavit, stating that the resolution passed at the meeting authorising the creation of the £5 per cent. preference new shares was considered by the directors to be, and that the same was in fact, prospective, and conditional upon the Act being obtained, in all the particulars of such resolution, except the immediate raising, by subscription, sufficient funds to provide for the Parliamentary deposit and preliminary expenses, and the execution of the necessary subscription deed; and, [54] further, that the directors were not in fact parties to the arrangement for raising the said funds, otherwise than as any of the directors or shareholders might think fit, individually, to become parties to the subscription contract; and save that, as the proposed new line was to be worked in conjunction with the existing line, it was obviously necessary to obtain the sanction of the company, with a view to the adoption of the new line by the company that the subscribers to the proposed new line were aware that they could not legally, at present, have any claim on the existing company, and were subscribing only in expectation of Parliament granting the necessary powers: that the directors had not paid, and did not intend to pay, any preferential interest or dividend in respect of new shares allotted or subscribed for, until they should have power from Parliament; that the £3 per cent. deposit was carried to a separate account; and that all payments of the preliminary surveys and expenses, so far as the same had been disbursed, had been made out of the funds so produced; that the surveys had been made, not as suggested in the bill by the engineer of the existing company, but by another engineer (who was named), and who was not then, and never had been, a servant or officer of the company; and he denied any intention on the part of the directors, as suggested in the bill, of applying any part of the property of the company in payment of preliminary expenses or promotion of the bill for the proposed new line.