the hands of the parties are joined together, and the clergyman pronounces them to be man and wife, they are married, if they understand that by that act they have agreed to cohabit together and with no other person. I can have no doubt that this woman understood this. She had been residing previously with a married couple, and must have known that they lived together in a manner differently from unmarried persons like herself. She remained up to the time of her own marriage perfectly respectable and chaste; she went through the solemnity in which the hands of herself and her husband were joined. A child was born of the marriage in due time and not sooner. She, who was aware of what the proprieties of life required, and had remained chaste until this time, after the celebration of this marriage and not before, allowed the communication of her husband. That shews that she was aware she had performed a solemn act, imposing new duties, and she was constant to her husband during the rest of her life-a period of nearly thirty years. Am I then to say that this person, whose soundness of mind it is impossible to impeach, was so dull of intellect as not to be capable of contracting marriage? The [17] clergyman does not minutely describe what passed on the occasion of the marriage; but that was not necessary, as the burden of proof did not lie upon those who wish to support the validity of the marriage. Everything is to be presumed in favour of a marriage solemnly contracted. In every view of this matter which I can take I have no doubt whatever that there is no evidence of the unsoundness of the mind of the Plaintiff's mother, or of her incapacity to contract a valid marriage.

[17] GRIFFITHS v. HATCHARD. July 18, 1854.

[S. C. 23 L. J. Ch. 957; 18 Jur. 649; 2 W. R. 672.]

Vendor and Purchaser. Conditions of Sale. Largest Lot.

On a sale by auction of land in lots the purchaser of the lot largest in value, in the absence of any condition respecting them, is entitled to the custody of the titledeeds relating to all the property; but if there be a condition that the purchaser of the "largest lot" shall have them, that must mean largest in superficial area.

Certain real estate, consisting partly of land calculated for building purposes, and partly of ground-rents, was sold by auction in 123 lots, subject to a condition of sale in the following terms :—

"The ground-rents being all secured by several leases, the counterparts of such leases will be delivered to the respective purchasers on the completion of his or her purchase; but the deeds relating to the remainder of the property will be retained by the vendors until the whole of the property to which they relate shall have been sold; and until such period the vendors will produce the said deeds for the inspection of the purchasers at the expense of the latter, but shall not be bound to enter into any deed of covenant for their production. And as soon as the whole of the property has been sold, the purchaser of the largest lot shall be entitled to the possession of the title-deeds, and shall be bound, if required, to enter into deeds of covenant for their production with the respective purchasers of the other lots."

The Plaintiff was the purchaser of the lot which was the largest in superficial area; and the Defendant was the purchaser of the lot, consisting partly of ground-rents, which was of the largest value.

[18] Mr. Moxon, for the Plaintiff. The purchaser of the lot of land largest in extent is entitled to the custody of the deeds. In all the precedents of conditions of sale, which are given in the text-books, when the purchaser of the lot which is largest in value is intended to have the title-deeds, that is distinctly specified; but here there is no reference to the value, it is simply "the largest lot," which must mean largest in point of area. The other construction would be open to the inconvenience that two lots might possibly be sold for the same price.

Mr. Pearson, for the Defendant. The purchaser of the lot largest in value is entitled to the custody of these deeds. The word "largest" must be construed with

regard to the circumstances under which it is used; for example, it is often stipulated that the largest purchaser shall have the deeds; and according to the Plaintiff's construction that would mean the purchaser who was the largest in his physical proportions. Moreover, it is obviously most just that the purchaser of the most valuable lot should have the care of the deeds, and, accordingly, the rule of law gives them to him in the absence of any stipulation; and here the word "largest" cannot mean largest in extent, because that would be inapplicable to such parts of the property as consist of ground-rents.

The reply was not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. In the simple case of a sale of land lotted out I can have no hesitation in saying that the purchaser of the largest lot must mean the largest in superficial extent. The lot is the land, and the largest lot is that which includes the largest quantity of land. The condition does not refer to the largest in value, and, in fact, it would be unnecessary to stipulate that the purchaser of the lot largest in value should have the custody of the deed because the law would give [19] him that right in the absence of any stipulation. As to the term being inapplicable to ground-rents, except in respect of value, it will be observed that the conditions distinguish the ground-rents from the other property in this very matter of the title-deeds.

[19] CLARK v. GILL. July 21, 22, 24, 1854.

[S. C. 23 L. J. Ch. 711; 2 W. R. 652. See In re Working Men's Mutual Society, 1882, 21 Ch. D. 833.]

15 & 16 Vict. c. 86, ss. 38, 34. Evidence. Interlocutory Motion. Professional

Witnesses. Compensation.

An Examiner, before whom witnesses who have made affidavits are being crossexamined for the purpose of obtaining evidence upon an interlocutory motion, is at liberty to return part of these depositions at a time; but if the evidence is being taken for the hearing of the cause, it seems that he cannot return any until the examination is closed.

Professional witnesses have a right to demand compensation for loss of time at the rate of a guinea a day before they submit to be examined, although they reside in the town in which the examination is conducted. Scale of allowances to different witnesses.

The Plaintiff and other persons, who had made affidavits in support of an interlocutory motion, were under oral cross-examination before the Examiner, in accordance with the powers for that purpose given by sect. 38 of 15 & 16 Vict. c. 86. One only of such witnesses had been actually examined when the examination was adjourned, because one of the other witnesses, being a medical man, resident in London, within the limits of the bills of mortality, refused to submit to oral examination until compensation had been given to him for his loss of time in attending to be examined.

Mr. Southgate now moved that the Examiner might be ordered to transmit the depositions of the one witness who had been examined to the Record Office of the Court, to be there filed, in order that the parties to the suit might obtain copies, as directed by 15 & 16 Vict. c. 86, s. 34.

Mr. Roxburgh, for the Plaintiff, opposed the motion, referring to the provision in 15 & 16 Vict. c. 86, s. 34, that, "when the examination of witnesses before any Examiner shall have been concluded, the original depositions, authenticated by the signature of such Examiner, shall be transmitted by him to the Record Office of the said Court, [20] to be there filed." He argued that this section applied not only to evidence taken in a cause for the purposes of the hearing, but also to a case like the present; for an interlocutory motion was often, in effect, the hearing of the cause, and the evidence on such a motion would be closed as soon as all the witnesses had

been examined. [THE VICE-CHANCELLOR. That would not prevent other affidavits being made after the cross-examination.] But the function of the Examiner is at an end until a fresh order for the examination of witnesses is made. [THE VICECHANCELLOR. From the position in the Act of the 34th clause it seems only to refer to evidence taken for the purposes of the hearing. What damage would you sustain by having these depositions returned?] The Plaintiff might then frame new affidavits upon the cross-examination, which would be an inconvenient course pending the oral examination; whereas no inconvenience would result from retaining the depositions until the examination is completed.

THE VICE-CHANCELLOR. As the days of keeping evidence secret are gone by, I do not see the inconvenience of the course proposed; for the solicitors present at the examination might take notes of the evidence, and affidavits might be framed upon such notes. The sooner the depositions are delivered out the sooner the motion can be brought to a hearing, and, by briefing the evidence from day to day, the matter may be expedited considerably. I think that the Examiner is at liberty to return part of these depositions at a time, and that I cannot prevent him.

Mr. Roxburgh then asked for leave to give notice of motion that the witness who refused to be examined should shew cause why he should not appear before the Examiner at his own expense. He contended that this witness had no right to insist upon having compensation made to him for loss of time before he was sworn, as he was residing [21] within the limits of the bills of mortality. The Taxing Masters were authorised to allow such expenses on taxation, but the witness was bound to submit to be examined on payment of one shilling. He referred to 5 Eliz. c. 9, s. 12, made perpetual by the 29 Eliz. c. 5. There might be a difference in the case of witnesses living in the country.

THE VICE-CHANCELLOR. You may give notice of motion. I cannot now direct the Examiner to examine this witness. You allow that a professional witness living in the country would have a right to demand this payment, and yet you contend that a professional man of eminence in London, whose time may be infinitely more valuable, has not such a right. I think that, on principle, it would be very objectionable that the payment should not be made beforehand; because otherwise it might be held out as an inducement to such a witness to give his evidence in a certain way that, if he did so, he would be compensated, and not otherwise.

July 24. THE VICE-CHANCELLOR Sir W. PAGE WOOD. I have made inquiry of the highest authority at common law, and have in consequence obtained the opinion of Mr. Bunce, one of the Masters of the Court of Queen's Bench, and neither of them has any doubt that a professional witness has a right to demand compensation for his loss of time before being sworn. I have the following written statement from Mr. Bunce :

"A medical witness, residing in London, is entitled to require for his expenses, for attending to give evidence in London, one guinea a day, and no more. If the witness has to come to London from a distance, then three guineas a day, and what is paid for travelling expenses.

"The rule that a witness is bound to attend and give his [22] evidence, where he lives in the same town, on payment of ls., is no longer law since the late Acts of Parliament, and particularly since the 15 & 16 Vict. c. 76 (the Common Law Procedure Act, 1852), under which a scale of allowances to different witnesses, according to their station in life, has been prepared and approved by the Judges; and though this scale is not in terms expressly applicable to witnesses in equity, no doubt the taxing officers of that Court would regulate the allowances upon the same basis.

"If the witness refuses to attend unless his expenses are first paid, one guinea a day would be all that he could claim."

[22] In the Matter of THE JOINT STOCK COMPANIES WINDING-UP ACTS, 1848 AND 1849; and of THE METROPOLITAN CARRIAGE COMPANY. CLARKE'S CASE. Nov. 2, 1854.

Practice. Motion to discharge Winding-up Order. Delay. Costs of Winding up.

An application may be made by motion, with notice, to discharge a winding-up order which has been made upon petition.

Where such an application was made fifteen months after notice of the order, and when considerable costs had been incurred in the winding up, although made by a person directly after he was placed upon the list of contributories, and although supported by evidence of facts, which, if disclosed on the hearing of the petition, would have prevented the order: Held, that the Court could not discharge the order, unless the applicant would consent to pay the costs which had been incurred by the official manager; and, as he declined to do so, the motion was refused, with

costs.

This was a motion to discharge an order for the winding up of the Metropolitan Carriage Company, which was made on a petition in the above matters by the ViceChancellor Sir William Page Wood on the 4th of March 1853.

The petition had been presented by one of the directors of the company; and it stated that a deed of settlement had been executed, "containing the usual provisions ordi-[23]-narily inserted in companies' deeds," by which certain persons, including the Petitioner, were appointed directors; that the requisite amount of capital had been subscribed for; and that the company had been completely registered on the 25th of September 1852. The petition stated that considerable preliminary expenses bad been incurred, and that, after the complete registration, letters of allotment had been issued, but that only about £10, by way of deposit, had ever been paid; and that the company were under large liabilities; and that judgment had been obtained in an action against one of the directors for £67 for some furniture supplied for the use of the company; and that this director had given ten days' notice to the other directors and shareholders to protect him from the consequences of such debt, which notice had not been attended to. The petition also stated that a large debt was due from the company to the secretary.

66

Evidence was now given to the effect that it was agreed by the board of directors, first, "that no operations should be commenced, or expenses, except preliminary ones, incurred, unless and until a minimum capital of £12,000 should be in the hands of the bankers of the company." Secondly, that, in the event of such a sum as £12,000 not being collected, the company should be considered as having never reached maturity; and all moneys paid by subscribers should be returned, minus 1s. per share, the directors themselves being the only parties answerable for any expenses plus such shilling." And it was proved that the officers of the society, including the secretary, had formally agreed that their salaries and remuneration should be contingent upon the £12,000 being raised. It appeared also that some of the directors had made themselves individually liable for most of the preliminary expenses, and that the only debts which they had jointly incurred were the £67, which had been recovered in the action; and ano-[24]-ther bill for furniture, upon which an action had been brought against another of their body.

The prospectuses and deed of settlement of the company contained a clause limiting the liability of the shareholders to 1s. per share, in case the minimum capital of £12,000 should not be raised. This fact was not stated in the petition.

The Petitioner had been served with notice of this motion, but did not appear. It was shewn that Mr. Clarke had been aware of the existence of the winding-up order since April 1853; when he received notice that an official manager was about to be appointed, and had attended and taken part in the discussion concerning such appointment.

Mr. Clarke had recently been put on the list of contributories.

Mr. Rolt, Q.C., and Mr. Burdon, for the motion.

V.-C. XIV.-12

Mr. Roxburgh, for the official manager, contrà, objected that the order, having been made upon petition, could not be discharged upon motion. By the 99th section of the statute of 1848 a motion might be made before the Lord Chancellor by way of appeal, but that did not apply to a rehearing before the Vice-Chancellor. [THE VICECHANCELLOR. I see no principle for such a distinction.]

Mr. Rolt, Q.C. A petition is only necessary in such cases when there is a complicated state of facts which it is proper to put on record. [THE VICECHANCELLOR. I will hear the motion.] The original petition contained misrepresentations and suppressions of material facts; for example, [25] statements of numerous debts of the company which do not exist, and no allusion to the limited liability of shareholders, or to the contingent salaries of the officers; and, therefore, this Court will now dissolve the order which has been thus obtained: Ex parte Barnett (1 De G. & S. 744). Then, Mr. Clarke cannot be prejudiced by the time that has elapsed since the order was made; for he conceived, until quite recently, that his liability would be limited to 1s. per share; but now that he is to be put upon the list of contributories he will be liable in addition to a proportionate share of the costs incurred in the winding up; and therefore it now, for the first time, becomes necessary for him to interfere to prevent this extremely expensive proceeding being thus carried on. Gay's case (1 De G. Mac. & G. 347), Mowatt and Elliott's case (3 De G. Mac. & G. 254).

Mr. Roxburgh, contrà. The delay of this application for so long is alone a sufficient answer to it: Re The Chepstow, Gloucester and Forest of Dean Railway Company (2 Sim. (N. S.) 11). The Petitioner is the proper person to defend the order which has been made. [Mr. Rolt. He has been served and does not appear.] [THE VICE-CHANCELLOR. Is Mr. Clarke willing to pay the costs which have been incurred by the official manager?] [Mr. Rolt. No; they are probably very considerable.]

Mr. Daniel, Q.C., am. cur., mentioned a case before Vice-Chancellor Kindersley, in which it seemed to be considered that such an application could not be made by a shareholder until his name was put on the list of contributories.

[26] THE VICE-CHANCELLOR Sir W. PAGE WOOD. I confess that I have a strong opinion against the mode of obtaining the original order in this case. The original petition was in the ordinary form of a petition for a winding-up order. It stated that the requisite number of shares had been subscribed for, and that the deed had been executed in the usual form, but suppressed altogether the fact that it was stipulated that 1s. per share was to be the extent of the liability of each shareholder; and it stated that numerous debts existed and claims to a large amount, setting out some by way of specimen, and that there were other large liabilities. It turns out to be the fact that all the shareholders are only liable to the extent of 1s. per share, and that the only debt in respect of which they could be made to contribute was a debt of about £67; and that the officers of the company undertook to look only to the assets of the company for payment of their salaries. It is only the directors themselves, if they could be called upon to pay the secretary, which they cannot be, who could come to the Court to enforce contribution in respect of his claim.

I am, however, extremely dissatisfied with the mode in which this case is presented to the Court. The party now applying to discharge this order, which he might probably have succeeded in doing if the application had been made in due season, as in the case of Ex parte Barnett (1 De G. & S. 744), was aware, fifteen months ago, of the existence of the order to wind up the company. He attended about that time in the Master's office, and took some part in the discussion as to the appointment of an official manager, and it seems now almost impossible for the Court to hold against the official manager himself that this order can be discharged, unless it were manifestly contrary to law, in which case it would fall [27] of itself. The Court cannot, in the exercise of its discretion, leave the official manager liable for all the costs which have been incurred, at the application of a party who has suffered the official manager to incur those costs during a period of fifteen months, without interfering in any way, and who does not now propose to indemnify him. There might be some difficulty in his making a special application until he was put on the list of contributories; but he must have seen plainly what course must be taken under the order, and there was no doubt that he would be a contributory; and therefore the fair course on his part