COURT OF CHANCERY. MORRIS v. MORRIS.-Jan. 28 and 29. Practice-Publication of Depositions taken in a Suit to perpetuate Testimony. It is no Objection to the Publication of a Deposition taken in a Suit to perpetuate Testimony, that it is intended to use that Deposition in the Court of Chancery in Ireland.

This was a motion, by way of appeal, from the decision of Knight Bruce, V. C., directing the publication of depositions taken in a suit to perpetuate testimony in reference to the claim of the plaintiff to certain estates in Ireland. The evidence was intended to be used in a suit in the Court of Chancery in Ireland, instituted for the purpose of establishing the plaintiff's right in the same lands.

certified by the Master, a writ of fi. fa. was issued under the 1st Order of 10th May, 1839, directed to the sheriff of Brecon, and following the form of writ annexed to the Orders. The sheriff made a return, having levied the whole amount mentioned in the writ, except 277, and certifying there were no further goods of the party in the county. Under these circumstances, it was wished to issue a second writ into another county, in order to obtain payment of the 277., but a doubt was expressed by the record and writ clerk whether this could be done, on the ground that the form of the writ specifies the exact sum at which the costs have been taxed by the Master as the amount to be levied.

Hall, for the party issuing the writ, brought the matter under the notice of the Lord Chancellor. [He referred to the terms of the 1st Order of 10th May, 1839, "That every person to whom &c., shall &c., be entitled by his clerk in court to sue out one or more writ or writs of fieri facias, or writ or writs of elegit, of the form hereinafter stated, or as near thereto as the circumstances of the case may require."

The LORD CHANCELLOR, referring to the Order and to the form of the writ, stated that he saw no reason why the same course should not be pursued here as at common law, where several writs would be issued until the whole amount was levied.

Rogers, for the defendant, in support of the appeal, argued, that the Court of Chancery would not lend its aid to the jurisdiction of a foreign Court; that, for all purposes of this suit, Ireland must be treated as a foreign country; that it was doubtful whether the Court in Ireland would receive the evidence, or permit any use whatever to be made of it. [He cited Dunn v. Coates, (1 Atk. 288); Bent v. Young, (9 Sim. 180); and referred to Mitf. Pl., (4th ed.) p. 186, note (q), relative to a case there mentioned, of Crowe v. Del Ris, which appeared to be in favour of the Vice-Chancellor's order, but he argued that the authority of that case VICE-CHANCELLOR OF ENGLAND'S COURT. had been misconstrued.]

E. F. Smith, in support of the order of the ViceChancellor, cited Houlditch v. Lord Donegal, (1 Molloy, 366); Morrison v. Arnold, (19 Ves. 671); Harris v. Cotterell, (3 Mer. 678); Barnsdale v. Lowe, (2 Russ. & My. 142); Hennell v. Lyon, (1 B. & A. 184, 187). He referred to The Attorney-General v. Ray, (2 Hare, 518, and 3 Hare, 335), for the proper form of the order in a case like the present*.

Jan. 29.-LORD CHANCELLOR.-The facts of this case are: a suit is instituted to perpetuate testimony as to an expectancy, which at the time was not in a state to be tried. This expectancy has now fallen into possession, and the witness is dead; the application is to publish the deposition. The only difficulty is, that it is intended that this evidence should be used in Ireland. I have looked into the authorities referred to for not ordering publication, and have consulted the case referred to by Lord Redesdale. Crowe v. Del Ris has no application; it relates to compelling discovery, which is a very different matter from the present. The only question here is as to the publication of the deposition. How far this deposition can be used in the court where it is to be used, is a question for that Court to determine. The only question here is as to publication. The event, in reference to which it was necessary that the deposition should be taken, has happened, and the case is therefore complete. The Vice-Chancellor is right, and the motion must be dismissed, with costs.

SPENCER v. ALLEN.-Feb. 10.

A

COOPER v. WEBB.-Dec. 16 and 17. Joint-stock Company-Parties-Equity. Bill was filed by one Shareholder, on behalf of others, against the managing Committee of an abandoned Railway Company, charging Misconduct against the managing Committee, alleging that there would be a Balance in the Hands of the Committee after Payment of all Expenses, and praying a Declaration that the Undertaking had failed, an Account and Distribution of the Residue, and that the Defendants might be charged with what they had improperly expended; and offering, on behalf of the Plaintiff and the other Shareholders, to contribute proportionally to the Expenses.-Demurrer for Want of Equity and Parties overruled.

The plaintiff in this case was John Douglas Cooper, one of the shareholders in the York and Lancaster Railway Company, suing on behalf of himself and the other shareholders in the said company other than the defendants. The bill, filed Oct. 26, 1826, stated, that, in July, 1845, the said railway company was projected, and that a prospectus of it was published. That the capital of the company was to be divided into 64,000 shares of 257. each, with a deposit of 21. 12s. 6d. That Sir Henry Webb and twenty-one other persons, respectively defendants to the bill, were duly appointed directors, and undertook and agreed to act as the committee of management of the said company, and took upon themselves the sole and exclusive management of the affairs of the said company. That the objects of the company, as set forth in the prospectus, were very beneficial, and might, with proper management, have been accomplished; that the plaintiff applied for shares, and had fifty allotted to him, and paid to the bankers of the company 1317. 5s., as a deposit thereon. That the defendants, as such committee of management, undertook to prepare a proper subscribers' agreement and parliamentary contract; and that an agreement and contract, prepared by them, was executed by the plaintiff and the several other shareholders on whose behalf he sued. That the defendants, instead of allotting, as The reporter is indebted to the kindness of a friend for they might and ought to have done, the whole number the short statement of the facts and arguments here given; but of shares in the said company, allotted only 52,320, the mode in which the case was disposed of by the Lord Chan-which number was greatly insufficient. That the decellor appears to render any more lengthened report unneces- posits upon the said 52,320 shares, other than and exsary for the purpose of making it intelligible to the reader. cept those which the defendants allotted or retained VOL. XI.

1839.

Practice-Writ of Fieri Facias-Orders of 10th May, If the Sum levied under a Writ of Fi. Fa. issued according to the 1st Order of 10th May, 1839, is not sufficient to satisfy the Amount for which the Writ is issued, another Writ may be issued, following the same Course as that pursued at Common Law.

In this case certain costs had been ordered to be paid. The amount having been ascertained on taxation, and

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for themselves respectively, were duly paid up, and be divided, or such other proportion of the said exsuch deposits amounted to 132,000l.; and the whole of penses as this Court should, under the circumstances, such sum was paid into the bankers' of the said com- declare to be just; and that the proportion of the said pany. The bill then set out the parliamentary con- expenses so to be attributed to the shares, so as aforetract, which was in the usual form; and stated, that, at said held by the plaintiff and the other persons in the date of the parliamentary contract, the defendants whose behalf plaintiff sued, might be deducted out of knew, that, by reason of the insufficient allotment of the monies so as aforesaid paid by way of deposit on shares, the defendants had failed to raise the capital the said shares; and that the residue of the said deponecessary for the formation of the said company; and sits might be repaid to plaintiff and the other sharethat the purposes for which the said company was pro- holders on whose behalf plaintiff sued; and that an posed to be established were then frustrated, and had account might be taken of the monies and funds of the become impracticable. That the defendants ought then said company now remaining in the hands or at the to have stopped the undertaking, but proceeded and disposal of the said defendants, and that the said monies caused surveys to be made, and other expenses to be and funds might be applied in payment of the debts incurred to a very large amount, and applied to Par- and liabilities properly incurred by the said defendants liament for an act to authorise the construction of the on behalf of the said company, if any, which then reproposed undertaking; but their application, as they mained outstanding; and that the residue thereof might well knew, before they applied, it must and would be, be paid and applied in aid of the objects of this suit, as was rejected for non-compliance with standing orders, the Court should direct. To this bill several of the whereupon the undertaking was abandoned by the de- defendants demurred, assigning nine causes of demurrer: fendants. That the defendants refused to give any ac- for want of equity, because all the other shareholders count, other than a statement that 36,8531. had been were not parties, because all the provisional directors expended, and that, after returning 30s. per share, there were not parties, because all the shareholders who would remain a balance of 10,0087., but offered to re- had executed the release were not parties,—because all turn 30s. per share on receiving releases from the share- the trustees of the subscribers' agreement and parliaholders. That the plaintiff and the several other sub-mentary contract were not parties,-for want of inscribers to the said undertaking on whose behalf the terest in the plaintiff,—and because many of the shareplaintiff sued had refused, and still refused, to execute holders had interests adverse to those of the plaintiff. the release until they had received accounts. The bill Bethell, for some of the demurring defendants.—This charged, that, under the circumstances aforesaid, the is a bill seeking relief which I should have thought it said company ought to be dissolved, and the affairs impossible to obtain. It prays, first, a declaration that wound up, and the accounts taken under the decree of the company has failed through the neglect of the dethe Court. That the sum of 36,8531., mentioned as the fendants, and that it ought not to have been proseamount of expenses, was far greater than the amount cuted; afterwards, that the defendants may be charged actually incurred; and that there was then in the hands with the costs, and that the plaintiffs may be declared of the defendants, or due to the plaintiffs, a much liable to contribute in proportion. I have heard of a larger balance than 10,0087. That the defendants had bill filed by a plaintiff claiming something, on behalf of corruptly and fraudulently mismanaged the affairs and himself and some one else, but never of a bill proposing assets of the said company; and the bill charged several to subject other persons, in their absence, to liabilities, specific instances of mismanagement. That the number after carefully making excuses for not bringing them of shareholders on whose behalf plaintiff sued was so here. The account is to be taken on the principle of great, and the rights and liabilities of the said share- mutuality; but where are we to find these other perholders so subject to change and fluctuation by death sons? The bill does not impeach the company as and otherwise, that it would not be possible, without fraudulent and as a bubble, but has an allegation that the greatest inconvenience, to make them parties to it would be beneficial. Then the bill prays that a this suit, and so to do would render it impossible to rateable distribution of the assets ought to be made; bring this suit to a determination; and that, in fact, but how can that be done in the absence of the parties the plaintiff was ignorant of the names and addresses who are to receive? this plaintiff's share would be less of such shareholders. That the interests of such share-than 1007. What he sues for must be for the benefit holders were, so far as regarded the relief sought in this suit, and the accounts thereinafter required, identical with those of plaintiff; and that none had interests adverse to those of plaintiff, in respect of the matters therein mentioned; and that all the shareholders of the said company, other than the said defendants, were fully represented by the plaintiff, and had a common interest in obtaining, and consented and agreed to, the relief thereby prayed. And the bill prayed that it might be declared, that the objects and purposes for which the said company proposed to be established had failed through the neglect and misconduct of the defendants, and that the defendants were not justified in prosecuting the said undertaking after the failure thereof; and that it might be declared that the defendants were not entitled to pay, deduct, or retain, out of the funds of the said company, any expenses incurred in prosecuting the said undertaking subsequent to the said failure. That accounts might be taken, and that the plaintiff and the other shareholders, on whose behalf plaintiff sued, might be declared liable to contribute such proportion of the amount of the said expenses as the number of shares held by the plaintiff and such other persons bore to 64,000, being the whole number of shares into which the capital of the said company was proposed and intended to

of the other persons, on whose behalf he sues. (Long v. Younge, 2 Sim. 369). The instant the partnership is dissolved, each partner has a separate interest, and must be brought here to take care of it. (Richardson v. Hastings, 7 Beav. 323; Evans v. Stokes, 1 Kee. 24; Richardson v. Larpent, 2 You. & C. C. C. 507). [Vice-Chancellor.-It is a question whether this relief can be obtained without a dissolution.] (Wallworth v. Holt, 4 M. & C. 619; Hichens v. Congreve, 4 Russ. 562; Deeks v. Stanhope, 14 Sim. 57). It is impossible, if the prayer of this bill is granted, that this partnership can be carried on.

Stuart, for other defendants.-In Wallworth v. Holt relief was given, because the plaintiff carefully abstained from asking for a dissolution. Welford, on the same side.

J. Parker, in support of the bill.-The defendants have in their hands more than sufficient to discharge all the liabilities of the company. We say, that the sum of 36,8537. is, in point of fact, more than the disbursements, and that the defendants, after paying that sum, and 30s. per share, would have a large balance. The bill states, that all the plaintiffs have refused to execute the release without an account. [Vice-Chancellor.-The bill asks that the disbursements may be paid and the surplus divided. Now, has not every one

VICE-CHANCELLOR KNIGHT BRUCE'S COURT. might be allowed the costs of his attendances before the

the receipt of which was, in the ordinary manner, ac- 1021. 1s. 6d. The letter goes on, "The amount of such knowledged by indorsement, signed on the deed in each principal and interest due from Miss E. M. Dunston is case. The security, therefore, is made for the 500l., 1587. 28. 9d., and my client's claims for costs, charges, with interest from the date of the deed, which contains, and expenses, 861. 58. 2d., reduced by taxation to 427. in each instance, a power of sale in default of payment 12s. 2d. The last paragraph of the letter is sufficiently of 500/. and interest at the end of three calendar months. remarkable, whether consistent with strict right or not, The ladies had executed, on a former occasion, a secu- considering the position in which Mr. Paterson stood rity for 20007. to a lady of the name of Cassidy. The towards these ladies, and in which they stood to him, copy of that security had been forwarded to Mr. Pater- when the deeds were prepared and executed: "I must son for the purpose of assisting him in preparing such decline furnishing you with copies of these securities." security or securities as he should take from these Under these circumstances, a motion was made in ladies. That security also contained a power of sale, each of the two suits for an injunction to prevent exenot exercisable before the end of six calendar months cution under the power of sale; and an order was made from the date of the security. It must be taken, upon by arrangement, referring it to the Master "to take an the evidence, that the ladies were told that the deeds account of the amount due for principal, interest, and which they had executed were substantially the same, taxed costs, such as are now to be taken to have been mutatis mutandis, as Mrs. Cassidy's security; but it properly incurred," but reserving, in so many words, appears, that, instead of six calendar months being al-"the costs of these suits, including the costs of this lowed to the borrowers, a period of only three calendar application until after the report;" materially differmonths was allowed. The solicitor states, that, al- ing, therefore, from an ordinary redemption order, or though he himself was aware of that circumstance, he a redemption decree. It directs the costs to be taxed, did not consider it a matter of substantial moment, and and an account to be taken of them. The order carehe admits that the ladies were not apprised of it. The fully draws a distinction, sending the reference to the security being thus given with this power of sale, it Master, with an undertaking to pay what shall be found remains to be seen what money was advanced in fact, due, and has left all the rest for the Court to deal with. the securities purporting to be for 500l. each. The ad- In the result, I think that the Court would forget its vance in one case appears to have been of 1507. only, duty to the public and to the parties, if it did not direct and was advanced on the day of the date of the deed; Mr. Paterson to pay all the costs of the suits. He and, in the other instance, a sum of 245l., advanced must have what is due to him, but he must not only partly before and partly at the date of the deed, and not have any costs, but he must pay all the costs of partly after it. So that, in the one case, the security, these suits, occasioned as these suits have been. I will if properly expressed, could not have been certainly for deliberate for a week upon the question, whether my more than 2451., and in the other for not more than duty does or does not require that I should add any150%, with interest in each case. The deeds being pro- thing of a peculiar nature to that order. If I say noduced, it appears that in each instance there is, not thing upon the subject within a week, the Registrar annexed to the deed, properly speaking, but pinned to will add nothing of a peculiar nature to the order. If it, a letter from each lady to Mr. Paterson, and, being I shall think it right to add anything of that nature, I alike, it will be sufficient to read one. It is thus:- shall state it in public, with my reasons. I am surprised, that, if this matter could have been kept out of court, it was not so kept. How any man could have brought it before a court of justice, if he could have kept it from the notice of a court of justice, I cannot conceive.

"Kentish Town, Nov. 21, 1845. "Dear Sir, I hereby authorise you to appropriate 350%, part of the 5007. lent to me on mortgage, left in your hands for my use, first, in respect of your professional charges against me in respect of such loan, or any other charges which may be incurred on my behalf; and, secondly, in satisfying the claims I have named to you, and with the particulars of which I will furnish you in a few days.

"I am, dear Sir, your's truly,

"E. M. DUNSTON." Now, whatever may have been the intention with which these securities were prepared, it is quite obvious that they were not securities which any professional man should have permitted a client, particularly a woman, to execute. Without imputing any improper intention to Mr. Paterson, I regret very much that it occurred. These parties afterwards separated, and after some previous communication on the 20th April, 1846, another solicitor was employed, (whom, in a certain stage of the business, Mr. Paterson chose to adopt as his solicitor), who, in a letter which was written on the day of the filing of one bill, and two days after the filing of the other, thus speaks to these women:"I also give you notice, that, unless the same is paid within ten days from this date, my client will immediately thereafter pursue his legal and equitable remedies for the recovery thereof." I may observe, from the tenour of this letter, that the person to whom it was addressed might well understand that a threat to execute the power of sale was embodied in that language. The writer says, "The amount of such principal and interest due from Miss S. C. Dunston is 2517., and my client's claims for costs, charges, and expenses, including the proceedings in the suit in Chancery, 1371." Taxation has reduced that amount of 1377. to

The case was not again mentioned.

ARMSTRONG . STOCKHAM.-Dec. 11. Practice-Payment of Money out of Court to a Solicitor. A Person who was entitled to 691. Stock and 51. Cash, was resident out of the Jurisdiction. By a Letter he requested that the Money might be paid to his Solicitor, and the Court made the Order upon the Solicitor and another Person entering into an Undertaking that the Sums should be properly applied.

A petition was presented in this case by a party who was entitled to 697. 37. per cent. Consols, and 57. cash, standing in the name of the Accountant-General, the petitioner having attained the age of twenty-one years. The petition stated, that he was resident at Honduras, and was desirous that the money should be paid to his solicitor, and the prayer was accordingly.

Roundell Palmer, in support of the petition, stated that a letter had been received from the petitioner, stating his wish that the money should be paid as prayed by the petition.

KNIGHT BRUCE, V. C.-I will make the order prayed, upon the letter making the request of such mode of payment being entered, and upon an undertaking being given by the solicitor, and some other proper person, that the money shall be properly applied.

The name of a party was mentioned, and, he being approved of by the Court, the order was made.