HIGH COURT.

itself-notably in the 21st and 53rd sections. By the 53rd section a tenant for life, in exercising any power under the Act, is bound to have regard to the interests of all parties entitled under the settlement, and, in relation to the exercise thereof by him, is deemed to be in the position and to have the duties and liabilities of a trustee for those parties. Supposing that this case had not fallen within the Act, and that the trustees had, in the exercise of their ordinary discretion, selected these securities in good faith, their discretion could not have been questioned: they would have been acting within the scope of the authority conferred on them by the settlement. Similarly the tenant for life, in the exercise of his statutory power, cannot be controlled by the trustees or by the court, so long as he really and honestly exercises his discretion. This the present tenant for life has done; he has considered the question of the propriety of the investments, and has consulted a broker of good standing in the City of London, who has advised him on the subject. He has offered to produce an affidavit verifying the paper on which the broker's advice is given. This should be done. I hold, then, that the trustees will be safe in complying with the direction given, and that they are bound to comply with it.

Solicitors, C. & S. Harrison & Co.; Spencer Whitehead, for Blackmore, Shield, & Mackarness, Alresford.

CROMPTON AND EVANS UNION BANK v. BURTON. (a.) Practice-Payment into court—Order for payment into court on motion-Admission by defendant of receipt of money-Improper payments by defendant.

Upon an interlocutory motion, money will not be ordered to be paid into court by a constructive trustee unless it is actually in his hands. It is not sufficient that it has been in his hands and that he is responsible for it.

Neville v. Matthewman, 42 W. R. 675, [1894] 3 Ch. 345, and Nutter v. Holland, 43 W. R. 18, [1894] 3 Ch. 408, followed.

Motion by the plaintiffs for an order directing George Burton and William James Burton, two of the defendants, within four days to pay into court to the credit of the action, a sum of £2,835 198., being the balance of the purchase-moneys of certain real estate, after deducting therefrom £2,500 due on a first mortgage.

The plaintiffs were second mortgagees of the property which had been sold, the amount of their mortgage being £3,000. Henry Green, the mortgagor, died on the 3rd of July, 1893. The executors and trustees of his will were also made defendants to the action. Acting under the advice of the defendant, George Burton, who was their solicitor, the trustees of the will put the mortgaged property up for sale. Eighteen lots were sold, realizing in all £5,335 198. It turned out, however, on investigating the title, that the trustees had only a future power of sale under the will, and, therefore, could not make a title, whereupon the defendant, George Burton, procured a transfer of the first mortgage to his son, William James Burton, who carried out the contract by selling, as mortgagee, under the power of sale. George Burton acted as solicitor for his son in the completion of the contracts, and the purchase-money was paid to him; the son did not receive any of the

(a.) Reported by R. SILLEM, Esq., Barrister-atLaw.

HIGH COURT.

money, and was in fact a mere nominee throughout. In answer to the motion, the defendant, George Burton, had filed an affidavit admitting the facts, and the receipt of the whole sum, but exhibiting an account purporting to show how he had disposed of the whole of the money with the exception of £1,035. He claimed to be entitled to deduct, besides the money due under the first mortgage, certain payments, amounting to a considerable sum, made to the testator's executors in respect of costs incurred by them in carrying on a colliery, which formed part of their testator's estate, and also to retain the costs of the transfer and sale, and the amount of a promissory note still outstanding, given by him as collateral security for money borrowed by the executors from their bankers.

tiffs.-The only deduction the defendants were enSwinfen Eady, Q.C., and E. S. Ford, for the plaintitled to make from the proceeds of sale was the amount due to the first mortgagees; they ought not to be allowed their claim in respect of the other items and the defendants must be treated as if they still in the account, such payments were breaches of trust, had the moneys in their hands.

Vernon Smith, Q.C., and A. W. Rowden, for the defendants Burton.-The defendant, George Burton, was acting for the executors and not for the first mortgagees. Even if he has wrongfully parted with the money, the order cannot be made against him: Nutter v. Holland, 43 W. R. 18, [1894] 3 Ch. 408, and Neville v. Matthewman, 42 W. R. 675, [1894] 3 Ch. 345. Orders on motion are only made for the security of the fund, not by way of penalty or by way of prejudging liability.

from this case, inasmuch as there the executor never E. S. Ford, in reply.-Neville v. Matthewman differs got the money. Nutter v. Holland was a case under ord. 55, r. 3 (d), where the actual words are "money in the hands of the executors or trustees."

NORTH, J., after stating the facts, disallowed the claim on the promissory note, and also the costs of the sale, on the ground, as to the latter, that there was no evidence that they had been paid, and continued:-Then I come to deal with the item relating to the payments made by the defendant to the executors. In his affidavit the defendant says that he paid the sums to Hardwicke (one of the executors) to enable him to carry on the colliery, and it was understood that he (the defendant) should be paid out of the proceeds of sale of the property, and the plaintiffs would be paid somehow else. This arrangement was a gross breach of duty on the part of the trustees and the solicitor, and I should accordingly have thought it was a matter of course that these moneys should be paid into court, but I feel embarrassed by the cases of Neville v. Matthewman and Nutter v. Holland. I do not think those cases can go quite as far as the defendants contend-namely, that if a man wrongly paid away money yesterday, he cannot be ordered to pay it into court to-day; but, having regard to the practice of the court as modified by those cases, and to the fact that these moneys have been paid to the executors, and are not now in the hands of the defendants, I cannot order the moneys so parted with to be paid into court. therefore, order the defendants Burton to pay into court the balance of the proceeds of sale of the mortgaged property after deducting the sum paid to the first mortgagees and the payments made to the executors.

I,

Solicitors for the plaintiffs, Johnson, Weatherall, & Sturt, for W. G. Ekin, Nottingham.

Solicitors for the defendants, Peacock & Goddard.

HIGH CT.

Chan. Div. North, J.

June 26, 1895.

In re JEFFERY. ARNOLD v. BURT. (a.)

Infant-Maintenance-Income

Contingent interest Conveyancing Act, 1881 (44 & 45 Vict. c. 41), 8. 43. Where property is settled on trust for such members of a class as shall attain twenty-one, the accumulated income will be divisible into as many shares as there are members in existence, one of such shares being payable to each adult, and one of such shares being applicable under the Conveyancing Act, 1881, s. 43, for the maintenance of each infant.

The fact that the class is capable of increase will make no difference.

Adjourned summons.

William Jeffery, who died in February, 1887, gave the residue his estate, both real and personal, to his trustees upon trust to sell and convert the same, and out of the income to pay certain life annuities and subject thereto to hold the same " in trust for all and every the present and future born children of my son Clayton William Jeffery and all and every the present and future born children (except William Charles Burt, who I declare shall take no benefit or interest whatsoever under this my will), of my said daughter Matilda Jane Burt, and all and every the present and future born children, including Frank Harry Burt of my daughter Pauline Mary Burt, who, whether in my lifetime or after my decease, being a son or sons, shall have attained or shall attain the age of twenty-one years, or being a daughter or daughters shall have attained or shall attain that age or shall have married or shall marry, and if more than one, in equal shares as tenants in common.

In In re Jeffery, Burt v. Arnold, 39 W. R. 234, [1891] 1 Ch. 671, North, J., held that the surplus income belonged to the grandchildren who had attained twenty-one at the time such income accrued and that section 43 of the Conveyancing Act, 1881, did not apply. He did not, however, make any order as to future income.

Application was now made by the trustees in consequence of the decision in In re Holford, 42 W. R. 563, [1894] 3 Ch. 30.

Carter Price, for the plaintiffs.

Coltman, for the adult grandchildren, said that the case was distinguishable from In re Holford, because there the class was not capable of increase.

Seddon, for great grandchildren.
Wright Taylor, for grandchildren under age.

North, J., said that in In re Jeffery, Burt v. Arnold, and afterwards in In re Adams, 41 W. R. 329, [1893] 1 Ch. 329, he took a certain view of the law; but in In re Holford the judges in the Court of Appeal had expressly said that In re Jeffery was wrongly decided. He there decided how the income then accrued due was to be applied, and that was past and done with; but he was now asked to make a declaration as to income that had not then accrued due. He did not think that the question was res judicata by his former decision, and the Court of Appeal having said that he was wrong in his former decision he would not then follow it, but hold that the income was not to be divided only among those who had attained twenty-one. He would accordingly make a declaration that the trustees had power under section 43 of the Conveyancing Act, (a.) Reported by G. B. HAMILTON, Esq., Barristerat-Law.

"scheme

The deed of foundation of a charity is not a legally established" within the meaning of section 29 of the Charitable Trusts Act, 1855:

Consequently, the trustees of a charity who contracted to sell land in exercise of powers of sale contained in their deed of foundation could not force their title upon the purchasers without first obtaining the sanction of the Charity Commissioners to the sale.

The trustees of a charity based their title to certain hereditaments, the subject of this summons, under a deed of foundation dated the 29th of July, 1868, the terms whereof it is immaterial to here set out.

The said deed was duly enrolled and perfected in accordance with the provisions of 9 Geo. 2 c. 36 and the amending Acts thereunto.

The said deed contained, inter alia, certain powers of sale and exchange, in exercise of which the trustees contracted with the London and North-Western Railway Co. to sell to the company the hereditaments aforesaid.

The railway company objected to the title on the ground that under section 29 of the Charitable Trusts Act of 1855 the trustees were precluded from exercising the said powers of sale without the consent of the Charity Commissioners, and they demanded that such consent should be obtained.

In the alternative they proposed to pay the purchase-money into court under section 69 of the Lands Clauses Act of 1845. The trustees declined to comply with either alternative, and the company then took out this summons to have it determined by the court whether the trustees could exercise the powers aforesaid without the consent of the Charity Commissioners.

Underhill, for the summons.-The sole question is whether the deed of foundation is a "scheme legally established" within the meaning of section 29 of the Charitable Trusts Act of 1855, which provides that it shall not be lawful for the trustees or persons acting in the administration of any charity to make or grant, otherwise than with the express authority of an Act of Parliament, or of a court or judge of competent jurisdiction, or according to a scheme legally established, or with the approval of the board, any sale, mortgage, or charge of the charity estate. I say the deed of foundation is not such a scheme. The phrase "scheme occurs frequently both in this Act and also in that of 1853, of which it is an amending Act, whereas neither Act refers to a "deed of foundation." The policy of these Acts was to secure the proper administration of charitable funds through the

(a.) Reported by ARTHUR MORTON, Esq., Barrister-at-Law.

supervision of some responsible public authority. If the trustees in the exercise of these powers of sale are only to be controlled by the terms of the deed of foundation the object of the Acts will clearly be evaded. The purchasers are entitled to ask that the trustees obtain the consent of the Charity Commissioners before the purchasers can be called upon to accept the title.

Hastings, Q.C., and Ingle Joyce, for the trustees of the charity. The trustees of this charity have power to sell without consulting the Charity Commissioners, on the ground that the deed of foundation is a "scheme legally established" within the meaning of section 29 of the Act of 1855. The deed was duly enrolled and properly attested, and that makes it a "scheme legally established." Plaintiff's argument practically is that the word "scheme" has acquired a technical meaning, but the court ought not to give a technical meaning to a word without very careful consideration and upon very weighty grounds: Massy v. Rowen, L. R. 4 H. L. App., at p. 300, 18 W. R. H. L. Dig. 20. Then clearly in section 54 of the Act of 1853 the word "scheme means a plan"-i.e., a deed of foundation, and that indicates that the word has the same meaning in section 29: In re Campden Charities, 30 W. R. 496, 18 Ch. D. 310. The legislature never intended, by section 29 of the Act of 1855, to take away from trustees their powers of sale, and the word "legally" only means "in a legal way."

Underhill, replied.

STIRLING, J. (after stating the facts as above set out) delivered a reserved judgment as follows:-What is usually meant by a scheme in connection with a charity is not the instrument of foundation, but a document sanctioned by some properly constituted authority containing directions for the administration of the charity. Previously to the passing of the Charity Act of 1853 such schemes were made by the Court of Chancery only, and they were mainly made in three classes of cases-i.e., (1) Where the directions in the instrument of foundation were ambiguous, imperfect, or otherwise insufficient; (2) where the directions had become under altered circumstances unsuitable to carry out the intention of the founder; and (3) where a scheme sanctioned by the court had in like manner become unsuitable for that purpose. In the Act of 1853, however, other authorities than the Court of Chancery were authorized to make schemes. Now the word scheme occurs in several sections of the Act of 1853 and in section 39 of the Act of 1855, and in all these places it is used to designate such an instrument as I have described. Prima facie, then, it might be expected that the word would also bear the same meaning in section 29 of the latter Act. [His lordship here dealt with the language of the various sections of the Acts, and continued:-] Now I think that the use of the words "legally established" in connection with the word "scheme seems to point to the intervention of some duly constituted authority, and as a matter of verbal construction I come to the conclusion that the words "scheme legally established" do not include the instrument by which the charity was founded.

It would, however, I think, be unsatisfactory to

dispose of the case without considering what object the Legislature intended to attain by the enactment of section 29. Now this section prohibits three classes of transactions-i.e., (1) sales; (2) mortgages or charges; and (3) certain kinds of leases of charity estates; and it is desirable to see how the law stood with respect to such transactions

prior to the passing of the Act of 1853. A sale, lease, or mortgage under an express power was good: see the judgment of Lord Cranworth in Attorney-General v. Hardy, 1 Sim. N. S. 338. Even where no express power of sale existed a sale might be made provided it were in accordance with a provident administration of the estate for the benefit of the charity, but the purchaser took subject to the obligation of showing that the sale was beneficial to the charity and justified by the circumstances, Attorney-General v. Warren, 2 Swans. 291; and In re Clergy Orphan Corporation, 43 W. R. 150, [1894] 3 Ch. 145, the court, although it had power to sanction the alienation of charity lands, exercised that power with great caution: Attorney-General v. The Mayor of Newark, 1 Hare [His lordship here considered, at length, the principles which had been applied by the court in the cases of leases of various kinds made in respect of charity lands, and continued :-]

395.

The statement of the law, which I have just made appears to disclose two blots, at least, in charity administration.

In the first place it was obviously difficult in many cases for a trustee, not acting under the direction of the court, to satisfy himself that the transaction in which he was engaging might not afterwards be held to be a breach of trust, and in the second place many transactions held by the courts to be within the powers of trustees, were, to say the least of it, of very doubtful expediency in the interest of the public.

By sections 21 and 24 of the Act of 1853 the Legislature authorized the Charity Commissioners to sanction leases, mortgages, sales, and exchanges of charity lands, and thus enabled the trustees to obtain protection in a cheap mode, and without putting either the charity estate or themselves to the expense of Chancery proceedings. In this way the first of the two blots was removed, and I think the second was intended to be wiped out by section 29 of the Act of 1855.

The view of the Legislature was that alienations of charity estates, by way of sale or mortgage, or by leases in reversion, or for lives or long term, or in consideration of fines, gave rise to abuses, which the law as it stood prior to 1855 did not adequately prevent, and that such transactions ought not to take place, except by the direct authority of Parliament, or with the sanction of the court or the Chancery Commissioners, both being authorities familiar with charity administration, and likely to be vigilant in guarding against its abuses. But founders of charities and their legal advisers were not necessarily cognizant of what had been done in past times, and might unwittingly introduce into the instruments of foundation, clauses which the experience of the courts or the Charity Commissioners would lead them to regard as highly objectionable. I do not suggest that the present vendors have done, or intended to do, anything which could possibly be treated as an abuse of their powers; but if their contention is well founded, it follows that the founder of a charity might, by introducing appropriate clauses into the foundation deed, effectually authorize his trustee to grant leases in reversion, or for lives, or long terms, or in consideration of fines, without the consent of the Charity Commissioners.

Now I do not think that that was intended by the Legislature. Section 29 of the Act of 1855 prohibits (inter alia) sales except under certain circumstances. It is for those who claim that their case falls within either of the excepted cases to make this out, and, upon a fair construction of the enactment, I think the present vendors have failed to do so.

The objection, therefore, raised by the purchasers

HIGH COURT.

In re STANDARD GOLD MINING Co. (a.) Company-Winding up-Practice-Right to inspection of depositions taken under section 115 of the Companies Act, 1862-Companies (Winding-up) Rules, April, 1892, rr. 11, 32.

When a company is being wound up by the court, and an examination has been taken under section 115 of the Companies Act, 1862, every creditor and contributory whose claim or proof has been admitted is entitled under rule 32 of the Companies (Winding-up) Rules, April, 1892, as of right to inspect the file of proceedings and take copies of any documents therein. Motion.

This was a motion by a contributory in the winding up of the company which was being wound up by the court to discharge an order made by his lordship in chambers refusing liberty to inspect and take copies of depositions taken under section 115 of the Companies Act, 1862. The motion also asked in the alternative for a declaration that the depositions were upon and formed part of the file of proceedings of the company under rules 11 and 12 of the Companies (Winding-up) Rules, April, 1892. The depositions in question were not filed on the ordinary file open to the inspection of contributories, but on a supplemental file kept for the purpose.

Bramwell Davis, Q.C., and Theobald, for the application, said that the applicant had first, an absolute right to inspect; or if not, the court in its discretion would allow inspection. They referred to General Order, November, 1862, r. 58; Companies (Windingup) Rules, 1890, r. 180; Companies (Winding-up) Rules, April, 1892, rr. 11, 32; Re London v. Lancashire Paper Mills Co., 57 L. J. Ch. 766, 36 W. R. Dig. 25; Re Beall, [1894] 2 Q. B. 135; Re Greys Brewery Co., 32 W. R. 381, 25 Ch. D. 400, 408.

Gore Browne, for the liquidators, referred to the Bankruptcy Rules, 1870, rules 9 and 12, and Bankruptcy Act, 1883, s. 27; Ex parte Pratt, 31 W. R. 187, 21 Ch. D. 439; Vaughan Williams on Bankruptcy, ed. 4, p. 80; Re Norwich Equitable Fire Insurance Co., 32 W. R. 964, 27 Ch. D. 515; Re American Exchange in Europe, 58 L. J. Ch. 706, 38 W. R. Dig. 11; Re Gold Co., 27 W. R. 757, 12 Ch. D. 77.

Bramwell Davis, Q.C., replied.

VAUGHAN WILLIAMS, J.-The question I have to decide is whether in a winding up a creditor or contributory is entitled under the rules to inspection of everything on the file, including depositions taken under section 115 of the Companies Act, 1862. The rules are rules 11 and 32 of the Companies (Windingup) Rules, April, 1892. For the purposes of the present case I shall treat the depositions as if they were on the ordinary file directed to be kept by rule 11.

In Ex parte Pratt, which was a case in bankruptcy, the court seems to have considered that a creditor had not an absolute right to a copy of his depositions,

(a.) Reported by V. DE S. FOWKE, Esq., Barristerat-Law.

HIGH COURT.

but that it was a matter of discretion whether he should be allowed to have a copy. The right in bankruptcy was also discussed in Re Beall, where Lord Davey said: "The depositions were taken by the court at the instance of the official receiver, and were taken down by a shorthand-writer, who was sworn, who thereby became the agent of the court. They were, in fact, taken by the court itself for the purpose of the proceedings in the bankruptcy. Why they should not be placed on the file, like any other proceedings in bankruptcy, I am at a loss to understand, and, they being on the file, I can see no ground whatever for taking them off. They are placed there for the inspection of the debtor and of any other person who is entitled to inspect them under rule 12." Lord Davey says that it is a matter of right and I have some difficulty in reconciling what he says with what was said by the late Sir George Jessel in Ex parte Pratt.

I do not understand, from the statement of facts in North Australian Territory Co. v. Goldsborough Short & Co., 41 W. R. 501, [1893] 2 Ch. 381, which was a case in the winding up of a company, that the defendants, who were asking for leave to inspect the depositions, were creditors or contributories in the winding up; and it seems to me, therefore, that that case has no application to the present. I wish to say, however, that the rule applied by Lord Esher in bankruptcy, where inspection was invariably seems to be the same as that which used to be applied refused, even on the application of a creditor, until notice had been given of an intention to use the deposition in some judicial proceeding. Where the practice is inconsistent, I must give effect to the words of the rule. I cannot say that the applicant has not the right to see these depositions. It is very inconthe court should have a discretion in the matter. If venient that the practice should be in this state, as I had a discretion I should allow the applicant to see his own deposition, but not those of the other deponents.

Solicitors, Linklaters; Loughborough, Gedge, & Nisbet.

Q. B. Div. (Cave and Wright, JJ.)

JJ.) }

Oct. 26.

TANNER v. Oldman. (a.) Metropolis Building — Buildings to be carried out under a contract-London Building Act, 1894 (57 & 58 Vict. c. 213), s. 212.

The provision in section 212 of the London Building Act, 1894, which exempts from compliance with its requirements buildings to be carried out under any contract entered into before the Act, includes buildings to be carried out under a building agreement made for the development of an estate.

Case stated by the metropolitan police magistrate sitting at Greenwich, under 20 & 21 Vict. c. 43, and 42 & 43 Vict. c. 49.

Section 212 of the London Building Act, 1894, provides as follows:-"Notwithstanding anything contained in this Act, a building, structure, or work which has been commenced before and is in progress at the commencement of this Act, or which is to be carried out under any contract entered into before the passing of this Act, may be completed, subject to and in accordance with the provisions of the Acts

(a.) Reported by C. G. WILBRAHAM, Esq., Barristerat-Law.

HIGH COURT.

relating thereto as in force immediately previous to the passing of this Act."

The appellant, a district surveyor under the Act for the district of Hatcham, served on the respondent a notice of objection to certain buildings which he proposed to erect in Musgrove-road, in the parish of St. Paul's, Deptford, on the ground that the plans did not conform to the requirements of the Act. Under a building agreement between the Haberdashers' Co. and the respondent, dated the 3rd of January, 1894, the respondent had agreed to build forty-three dwelling-houses on four several plots of land, of which those to which objection was taken formed a part. They were to be built at a cost of not less than £380 each, at various times between the years 1894 and 1899. They were to be erected and completed in accordance with plans and specifications approved of by the company's surveyor, and it was further provided that the works should be executed in accordance with the regulations of the Metropolitan Building Act then in force, and any other Act for the time being affecting the premises.

The proposed houses would have satisfied the requirements of the Metropolitan Building Acts in force previously to 1894, but did not satisfy the provisions of the present Act. There was no evidence that the company's surveyor had seen or approved of the plans and specifications.

The respondent appealed to the police magistrate, sitting as a court of summary jurisdiction, who disallowed the objection and stated this case.

Cripps, Q.C., and Daldy, for the appellant.-The sole question is whether the word "contract" in the section includes an ordinary building agreement entered into for the development of an estate. It only includes a contract for the carrying out of a specific building or buildings. If building agreements were intended, the working of the Act would be postponed for an indefinite period, for such contracts often extend over a long period of time. The builder who enters into them takes the risk of the legislative requirements being altered. The buildings in this case could not be said to be "carried out " under the building agreement. The contract under which they would be carried out would be the specifications prepared and approved before their erection.

Jelf, Q.C., and Grain, for the respondent.-The owner is just as much interested as the builder in the continuance of the conditions on which he made his contract; for if a fixed sum had been named to be expended on each house, and the Legislature subsequently required, as in the present Act, increased thickness of walls, the builder, in order to recoup himself, would reduce the size and lower the character of the houses, a circumstance which might have a material effect on their selling and letting value and on the value of adjacent property. The Legislature must be taken to have declared, by means of section 212, that it will not interfere with arrangements made on the faith of the old law.

Cripps, Q.C., in reply. It is admitted that if the respondent in this case were to make a sub-contract with another builder for the execution of the work the buildings would then be subject to the provisions of the Act. It follows that they are equally subject to those provisions if he executes the work himself.

CAVE, J., after reading section 212, said: The question in this case is whether the buildings were to be carried out under a contract entered into before the passing of the Act. There can only be one answer to that question-that they were. Several houses were to be erected at various times under a building contract. It was by that contract alone that the builder

HIGH COURT.

had power to enter on the land, and build the houses. Without that contract he would have been a trespasser. We are asked to narrow the meaning of the word "contract" in the section, and to say that it is limited to a builder's specifications. If the Legislature had desired that construction it could have substituted the word "specification" for "contract." A specification may be a contract, but all contracts are not specifications. The appeal must be dismissed.

WRIGHT, J.-I am of the same opinion. I cannot help thinking that when an Act like this is passed, which is capable of being opposed by private persons, a section of this kind occurring in it ought to be treated as a sort of compromise. At any rate, there is no reason for narrowing the ordinary meaning of the word contract.

REGINA v. WAUDBY. (a.) Criminal law-Wounding-Aiding and abetting-Indictment for felonious wounding-Conviction for misdemeanour only-Prevention of Offences Act, 1851 (14 & 15 Vict. c. 19), s. 5-Accessories and Abettors Act, 1861 (24 & 25 Vict. c. 94), s. 8.

Where a prisoner is indicted for felonious wounding. and is convicted only of the misdemeanour of unlawful wounding, a person who is indicted with him for aiding and abetting the felony may be convicted of aiding and abetting the misdemeanour.

Case stated by Lawrance, J., as follows:John Waudby and William Waudby were tried before me on the 17th of May last, at the assizes held at Leeds, upon an indictment charging John Waudby with feloniously, &c., shooting, with intent to do grievous bodily harm to one William Featherstone, and William Waudby was charged with aiding and abetting John Waudby to commit the said felony.

In the second count of the indictment the charge against John Waudby was for feloniously wounding, with intent to do grievous bodily harm, and against William Waudby for being present, aiding, and abetting, &c., the said John Waudby to commit the said felony.

The jury found John Waudby guilty of unlawfully wounding, and William Waudby guilty of aiding and abetting, and it was objected on behalf of the prisoner, William Waudby, that, as he was only aiding and abetting a misdemeanour, he was entitled to be acquitted on the said indictment.

I overruled the objection, and released the said William Waudby on recognizances to come up for judgment when called upon.

The question for the consideration of the court is whether I was right in so holding.

No counsel appeared for the prisoner or for the prosecution.

LORD RUSSELL OF KILLOWEN, C.J., after reading the case, said:-We are of opinion that the learned

(a.) Reported by T. R. COLQUHOUN DILL, Esq., Barrister-at-Law.