CT. OF APP. IN RE COALPORT CHINA CO. (LIMITED).-MACIVER v. G. & J. BURNS. believing that they have considered the other question, whether he is or not a desirable person. There is no evidence whatever to show that they have acted in the slightest degree improperly or exceeded their powers. Now I wish to be cautious in this matter, because I have not the slightest doubt that the court has ample power to control the refusal of directors, or the exercise by them of their power to refuse, provided there is any evidence whatever which justifies the court in coming to the conclusion that they have not done their duty; but in the absence of all such evidence the court has no right to presume-(it is contrary to all ordinary principles of justice) that they have done wrong; on the contrary, it must be presumed that they have done right. I consequently think that the appeal should be allowed with costs here and below. LOPES, L.J.-I am of the same opinion, and have nothing to add. RIGBY, L.J.-I have only to add, in consequence of Mr. Warrington's argument that where the power is absolute a different rule applies to where the power is limited, that I do not think that distinction can be maintained. Even although, in terms, the power is absolute, it is a fiduciary power to be exercised for the benefit of the company, and with due regard to the rights of the transferor, so that no power is altogether absolute. But even in the case of a power absolute in terms, the courts have held that the directors are not bound to say, "We throw aside all external considerations and apply ourselves to the exercise of the power in the proper manner," and if they need not do it in that case, I do not see why they should do it when the power itself arises only in certain circumstances. The fact that they have resolved, must be taken, in the absence of positive evidence sufficient to satisfy the court to the contrary, that they had resolved within their jurisdiction and for right reasons. Appeal allowed. Solicitors, Hepworth & Co.; Powell & Rogers. CT. OF APP. In September, 1856, articles of partnership were entered into between James Burns, George Burns, John Burns, and Charles MacIver for the purpose of carrying on in partnership the business of steamship owners under the name of the Clyde Steam Navigation Co. Several changes took place in the constitution of the said partnership, and ultimately, in the month of April, 1895, the partners therein were Sir John Burns, Bart., and the plaintiffs, Charles MacIver, Henry MacIver, and William MacIver. On the 15th of April, 1895, Sir John Burns gave notice to the plaintiffs, under a clause in the partnership articles, of his desire to withdraw from the partnership, and on the 13th of June the plaintiffs gave Sir John Burns notice of their acceptance of his offer. Sir John Burns was a domiciled Scotchman carrying on business in Glasgow as a shipowner under the style of G. & J. Burns. He had also, for the purposes of his business of G. & J. Burns, an office in Liverpool, of which R. M. Deans was the manager. On the 20th of June, 1895, the plaintiffs issued a writ in the Liverpool District of the Palatine Court against "G. & J. Burns," whereby they claimed (1) an account as between the plaintiffs and the defendants of the partnership lately subsisting between them, under the name of the Clyde Steam Navigation Co.; (2) damages for breach by the defendants of their agreement or obligation to observe good faith towards the cther partners; and (3) that the plaintiffs or any of them might be appointed receivers or receiver of the partnership assets. This writ was served upon R. M. Deans, the manager of the Liverpool business of G. & J. Burns. It was accompanied by a notice in the following terms: "We hereby give you notice that you are served with the writ in this action as a person having the control or management of the partnership business." A notice of motion for a receiver was served along with the writ. On the 21st of June the defendants gave notice of motion that the service of the writ in the action and all subsequent proceedings therein might be set aside on the ground that the business carried on under the name of G. & J. Burns belonged to and was carried on solely by Sir John Burns, who was domiciled and resident in Scotland outside the jurisdiction of the court. On the 25th of June the Vice-Chancellor refused to make any order upon the defendants' motion to set aside service of the writ, his honour being of opinion that the writ was properly served under a rule identical in its terms with ord. 48a, r. 11, of the Rules of the Supreme Court, and that the cases of Russell v. Cambefort, 37 W. R. 701, 23 Q. B. D. 526, and St. Gobain Channy & Cirey Co. v. Hoyermann's Agency, 41 W. R. 563, [1893] 2 Q. B. 96, relied upon by the defendants, did not apply to a Scotch defendant. B., a domiciled Scotchman, residing in Glasgow, carried on business there and also in Liverpool under the firm name of G. & J. B., but the business belonged to B. alone. The plaintiffs, who had formerly carried Ord. 48a, r. 11, is as follows: " Any person carryon another business in partnership with B., issued a writing on business within the jurisdiction in a name or in the Palatine Court against G. & J. B., and served it upon the manager of the Liverpool office of G. & J. B. The writ claimed relief in respect of the partnership formerly subsisting between the plaintiffs and B. Held, that such service was not authorized by ord. 48a, r. 11, and must be set aside. This was an appeal from an order of the ViceChancellor of the County Palatine of Lancaster refusing to make any order on a motion by the defendants, to set aside the service of the writ in the action. (a.) Reported by ARNOLD GLOVER, Esq., Barristerat-Law. style other than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit all rules relating to proceedings against firms shall apply." The defendants, by leave, appealed. Sir R. Webster, Q.C., and P. Ogden Lawrence, for the appellants.-Rule 11 of order 48a was intended to apply to persons carrying on business under sham names, such as Waukenphast, " and was never. intended to authorize the service of a writ on a foreigner or Scotchman. The rule gives no justification or right to serve a Scotchman carrying on business in England. That is a matter for service out of the jurisdiction, in respect to which there is a whole code of rules. If there were any doubt about the matter on principle, the cases of Russell v. Cambefort and St. Gobain Channy and Cirey Co. v. Hoyermann's Agency are conclusive. They apply with even greater force to a Scotchman than to a foreigner. [They were stopped by the Court.] Cozens Hardy, Q.C., and T. R. Hughes, for the respondents.-Rule 11 is expressed in very general terms, and Russell v. Cambefort gives the only limitation that ought to be set upon it. Scotchmen are subjects of Parliament, and it is not unreasonable to suppose that Parliament may have considered them in authorizing these rules: Grant v. Anderson, [1892] 1 Q. B. 108, 40 W. R. Dig. 191. The judgments of Lord Esher and A. L. Smith, L.J., in St. Gobain Channy and Cirey Co. v. Hoyermann's Agency seem to suggest this distinction. If the same principle applies to Scotchmen as to foreigners, that case is against our contention, but the ratio decedendi there was allegiance, not local domicile. All Sir John Burns' dealing with us were carried on under the name of G. & J. Burns, and we are suing him in respect of something done by him under that name. Worcester City and County Banking Co. v. Firbank, Pauling, & Co., 42 W. R. 402, [1894] 1 Q. B. 784, proves that rule 1 of order 48a applies to foreigners not subject to the jurisdiction of English courts except so far as as they are so subject under the order itself. LINDLEY, L.J.-This is an appeal from a decision of the Vice-Chancellor of the County Palatine of Lancaster, refusing to make an order in the terms of the notice of motion, which in substance was to set aside the writ and all subsequent proceedings in this action of MacIver v. G. & J. Burns. The action was brought by three gentlemen of the name of MacIver against Sir John Burns, sued as G. & J. Burns, and it appears from the indorsement on the writ that the action was a partnership action to take the accounts and wind up the business of what is called the Clyde Steam Navigation Co. The Clyde Steam Navigation Co. was a partnership between the plaintiffs and Sir John Burns, and the dealings and transactions of that partnership relate to the sailings of steamships from the Clyde. Now Sir John Burns being sued simply as a member of that firm, and being a domiciled Scotchman, not residing here, and having nothing whatever to do in this country so far as the cause of the action is concerned, nevertheless does carry on business in Liverpool, apparently under the name of G. & J. Burns, and in consequence of that circumstance he is sued under that firm name, as I will call it. The question is whether that is right. Now, apart from all rules, let us consider the thing on principle. Here is a partnership action between certain partners. The proper parties to that partnership action are the individual partners. We have ascertained by inquiry that Sir John Burns is not described in the partnership articles as a separate firm carrying on business under the name of G. & J. Burns. Whether it would have made any difference if he had been, I do not pause to inquire. Now, being sued in respect of that partnership business, and being a Scotchman domiciled in Scotland, and not being resident here, if he is to be sued at all in this country, it ought to be under order 11, which relates to the service on and suing of persons not resident in this country. That is the proper order to go under prima jacie. But then it is said, on behalf of the plaintiffs, "As he carries on business in Liverpool under the name of G. & J. Burns, we can sue him under rule 11 of order 48a." Order 48a refers to actions by and COURT OF APPEAL. against partnerships. The first ten rules of it relate to actions by and against partnerships only. Partnerships can now be sued in the name of the firm, which they could not before, and inasmuch as they had before to be sued in the names of the persons who composed the firm, it was necessary to frame some rules to carry out the procedure, and rules 1 to 10 of order 48a are addressed to motions of that kind. Then comes rule 11, which has really nothing on earth to do with the partnership rules, but which is tacked on to apply to the case of a single individual who carries on business either in the name of a firm or, as it is expressed in the rule, under some name other than his own. Rule 11 is expressed in this way: Any person carrying on business within the jurisdiction there is no reference whatever to persons carrying on business without the jurisdiction-" in a name or style other than his own name may be sued in such name or style as if it were a firm name.' Pausing there, that does not give the court any power to sue a person abroad in the firm name. Then the rule runs on: "And, so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply." That throws us back upon what I may call the code of rules relating to firms-rules 1 to 10. Unquestionably rules 1 to 10 have, to a certain extent, altered the law as it was laid down in Russell v. Cambefort. The law is altered to this extent, that if two or more persons, being foreigners, carry on business in this country in partnership, you may sue them under the firm name, and get judgment against the firm, which judgment can be executed against its assets in this country. But when you come to apply that to the case of a single individual, there are no joint assets and the rule will not work. Take the St. Gobain case. Just consider the difference. If you have a claim against two or more partners, and you get judgment against the firm, the judgment only affects the joint assets. You cannot make it the foundation of a claim on the individual assets. If you obtain judgment against an individual who carries on business in a firm name, your judgment is against him and him only, and you cannot get any other. Therefore there is really no analogy between the two cases. If you are dealing with a single person, whether a foreigner or a Scotchman, the same rule applies, and you must go under Order 11. You cannot get at him under Order 48a at all. Now consider what rule 11 is for. Rule 11 is to enable the suing of persons in the name in which they carry on business-to facilitate the carrying on of actions against persons who conceal their names. For that purpose you must adapt, as far as you can, the rules relating to actions against firms-partners in firms. When you come to apply it to cases in which the reasoning does not apply, it will not work at all. I put a case in the course of the argument, which strikes me as showing what the real object of that rule is. If a man contracts debts with his baker or butcher in his own name, and carries on business under a name not his own, the baker or butcher cannot sue him under the name not his own. The reasoning of rule 11 does not apply at all to such a case. Why should it? When you come to look at rule 11 you observe the words "may be sued in such name or style as if it were a firm name." That is the key to the whole thing. I do not say the language of the rule states it, but it involves this: that you can only sue a man in his firm name in respect of matters which are connected with the business which he does carry on under that name. Now supposing that Sir John Burns in this case had a partner, and carried on business in Liverpool under the name of G. & J. Burns, CT. OF APP. you could not sue him in such an action as this in that firm name, because that would embrace somebody who had nothing whatever to do with the cause of action. MACIVER v. G. & J. BURNS.-IN RE LAMSON STORE SERVICE CO. (LIMITED). Hн. COURT. It appears to me that there has been a confusion of thought in this case altogether and a mistake, which is, to my mind, palpable when you look at the reason of the thing; and I must say that if we were to uphold this order we should be sanctioning a course which would give rise to a great deal of disturbance and outcry, and very legitimate outcry too, on the part of Scotchmen and foreigners. The right course here is to sue Sir John Burns in his own name, and to apply for leave to serve him under order 11. I think the order ought to be reversed. LOPES, L.J.-I am entirely of the same opinion. I think the learned Vice-Chancellor has misconceived the effect of this rule 11 of order 48a. That rule was not intended to apply to a case like the present; it was intended to apply to the case of an individual who carries on business in an assumed name-such, for instance, as the man who carries on business under the name of " Waukenphast," or, again, under the name of "Madame Louise," the real name being an entirely different one; "Madame Louise" and "Waukenphast" being assumed names. The object of the rule was simply to apply to cases of that kind, and in that respect was to remedy a defect which existed before that rule came into operation. I entirely agree with what has been said by the Lord Justice. I think if we were to support the order that has been made, a greater storm would arise than arose on a previous occasion when Scotchmen considered themselves aggrieved by a case which was decided in this court. RIGBY, L.J.-I am of the same opinion. First of all, let us consider the literal meaning of the words of rule 11: "May be sued in such name or style as if it were a firm name.' That is to say, he may be treated as though he were a member of a firm carrying on business in a firm name. It appears to me that those words necessarily limit the operation of rule 11 to cases arising out of that carrying on of a business. This is not a case of the kind at all, and it would appear to me to be altogether wresting the meaning of that clause into quite a different meaning to attribute the meaning to it which has been taken by the Vice-Chancellor. With regard to the argument that Scotchmen in a case of this kind are to be treated as in a different position from foreigners, I cannot accede to it at all. Of course, Scotchmen are not foreigners; they are fellow-subjects of ours, and they are in the same position as any other fellow-subjects, with the important exception that their system of jurisprudence differs in very important matters from ours-that there are such differences between our system and theirs that even if you find words which control the jurisdiction of, or confer a jurisdiction upon, our courts, you no more assume them to apply to the case of Scotchmen than to the case of foreigners. Parliament, of course, may legislate for Scotchmen as it may legislate for Frenchmen, so far as they are concerned in matters of litigation in our courts; but mere general language will not be construed necessarily to apply either to foreigners or to Scotchmen. That is, I think, the meaning that is to be attributed to the reasoning in the judgments already cited; and, as I have already pointed out, to call a Scotchman an English subject is a perfect absurdity. No one can ever construe words which have express reference to English subjects-as was said in one case by the Master of the Rolls- as having reference to Scotchmen. Appeal allowed. Solicitors, Bircham & Co., for Batesons, Warr, & Wimshurst, Liverpool; Rowcliffes, Rawle, & Co., for Hill, Dickinson, Dickinson, & Hill, Liverpool. Chan. Div. Stirling, J. J High Court of Justice. July 27; Aug. 1, 1895. In re LAMSON STORE SERVICE Co. (LIMITED). Where a company seeks the sanction of the court to a proposed reduction of capital, involving either the diminution of any liability in respect of unpaid capital or the payment to any shareholder of paid-up capital, the court has no jurisdiction to dispense with the settlement of a list of creditors of the company or with the ascertainment of the names of such creditors in munner provided by the 13th section of the Companies Act, 1867. These capital. were two petitions for reduction of By the first petition it was sought to pay off capital which was in excess of the wants of the company, partly by writing off unissued capital and partly by the return of capital which had been paid up. By the second petition it was sought to obtain the sanction of the court to the reduction of the capital by writing off a loss which had happened by reason of a large portion of the funds of the company having been vested in the purchase of its own shares. What had happened in each of these cases in chambers was this. The creditors of both companies were few in number, and in the first case an affidavit was made that the debts up to the date of the affidavit had been paid or satisfied. In the second case no such affidavit was made. The chief clerk in each case made an order dispensing with the necessity for the settlement of a list of creditors of the com pany. By section 13 of the Companies Act, 1867, "Where creditor of the company who, at the date fixed by the a company proposes to reduce its capital, every court, is entitled to any debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company, shall be entitled to object to the proposed reduction and to be entered in the list of creditors who are entitled so to object. The court shall settle a list of such creditors, and for that purpose shall ascertain as far as possible, without requiring an application from any creditor, the names of such creditors and the nature and amount of their debts or claims, and may publish notices fixing a certain day or days within which creditors of the company who are not entered on the list are to claim to be entered, or to be excluded from the right of objecting to the proposed reduction." Buckley, Q.C., and Whinney, appeared for the first-named company. Graham Hastings, Q.C., and Gregson, appeared for the second-named company. In each case it was argued for the petitioners that (a.) Reported by WM. SCOTT THOMPSON, Esq., Barrister-at-Law. HIGH COURrt. IN RE LAMSON STORE SERVICE Co. (LIMITED).-LLOYD v. NOWELL. there being in fact no creditors of the company the provisions of section 13 of the Companies Act, 1867, did not apply, and that, therefore, the chief clerk's orders were correct. STIRLING, J.-His lordship stated the facts as above set forth, and proceeded :-] The question to my mind is this, Whether that was a proper order under the circumstances. The petitions do not fall within the proviso in clause 4 of the Act of 1877, which is to the effect that where the reduction of the capital of a company does not involve either the diminution of any liability in respect of unpaid capital or the payment to any shareholder of any paid up capital, the creditors shall not be entitled to object or required to consent to the proposed reduction. Therefore the proceedings must be conducted with due regard to the Act of 1867, s. 13 (reads it). Now the first words are imperative, the court "shall " settle a list of I Solicitors in the first petition, Harwood & Stephen Solicitors in the second petition, Iliffe, Henley, & Sweet. LLOYD v. NOWELL. (a.) Vendor and purchaser-Memorandum in writing-Condition of the essence of the contract-Right of vendor to waive condition-Specific performance. By a memorandum, signed by the plaintiff and the defendant, it was provided that the former should sell to the latter a leasehold house "subject to the preparation by my (the plaintiff's) solicitor of a formal contract." The plaintiff having brought an action for specific performance upon the memorandum, Held, that this stipulation was a condition precedent to a concluded agreement between the parties; that it could not be waived by the plaintiff, as being for his exclusive advantage; and, therefore, that the action must jail. The plaintiff, Edwin Lloyd, having agreed to sell (a.) Reported by C. C. HENSLEY, Esq., Barristerat-Law. HIGH COURT. to the defendant, Joseph Dove Nowell, and the defendant having agreed to purchase the house No. 365, Camden-road, the agreement was reduced to writing, and was as follows: "365, Camden-road, "Nov. 1, 1894. "Subject to the preparation by my solicitor and completion of a formal contract, I am willing to sell to you lease of 365, Camden-road, for a term of twenty-eight years at a rent of £110 per annum, you paying me £500 premium for same, and also paying the cost of new lease; £100 paid (and receipt hereby acknowledged) as conditional deposit. to be paid 1st day of January, 1895, and possession Plants and conservatory given on completion. flowers to be included in price named. "(Signed) 66 Accepted. (Signed) JOSEPH D. NOWELL. The balance E. LLOYD. "Witness, GEORGE SQUIRE BONTALL. The agreement was retained by the plaintiff, and on the 1st of November the defendant paid the said deposit, and the plaintiff handed him a duplicate of the agreement signed by the plaintiff. The defendant having subsequently refused to complete, the plaintiff, waiving his right to have a formal contract prepared, brought the present action claiming specific performance of the agreement. The defendant pleaded in his defence that the agreement was not a sufficient memorandum within the Statute of Frauds, and counter-claimed for a return of the deposit, alleging that he had been intoxicated when he gave it. plaintiff.-The mere fact that the agreement stipulates Warrington, Q.C., and George Henderson, for the for a formal contract does not imply that it is not a concluded agreement: Rossiter v. Miller, 26 W. R. of the plaintiff only, and he may therefore waive it: 865, 3 App. Cas. 1124. The stipulation is in favour Hawksley v. Outram, [1892] 3 Ch. 359, 41 W. R. Dig. 169. Renshaw, Q.C., and A. Beddall, for the defendant. -The stipulation prevents the agreement from being conclusive. It is not a stipulation in favour of the plaintiff only. KEKEWICH, J.-It has been stated by Lord Blackburn in Rossiter v. Miller, that it is a question of construction, whether the parties finally agreed to be bound by terms which they have reduced to writing, though they were subsequently to have a formal agreement drawn up. It seems to me that on the true construction of the agreement before me, it is not a concluded agreement, subject merely to something afterwards being done. The stipulation as to the preparation of a formal contract is of its essence, preventing it from being final. The question then arises, Whether that stipulation is for the benefit of the plaintiff only, so as to entitle him to waive it. The case of Hawkesley v. Outram has been referred to as showing that it can be waived. That case, however, is distinguishable. There a partner in a business gave a power of attorney authorising the sale of his share of the business. The agreement for sale contained a clause restraining the vendors from trading within a certain distance of the place where the business was carried on. An action for specific performance having been brought by the purchaser, Romer, J., dismissed the action, holding that that clause was ultra vires the power of attorney. The Court of Appeal, however, decided that even if it was ultra vires, it was for the benefit of the purchaser only, and that he might, therefore, waive it. There could be in that case no doubt for HIGH COURT. HIGH COURT. IN RE GOODENOUGH.-SMALLWOOD (RSPDT.) v. SHEPPARDS (AppLLT.). whose benefit the clause was inserted. It was manifestly inserted wholly for the benefit of the purchaser, and not at all for that of the vendor. The purchaser was, therefore, clearly entitled to waive it. But how can I hold that the condition in the present case is only for the benefit of the plaintiff? It was no doubt inserted by his solicitor for his benefit; but it may be for the benefit of the defendant as well. Lord Blackburn, in the case mentioned above, says, "parties do often enter into a negotiation, meaning that when they have (or think they have) come to one mind, the result shall be put into formal shape, and then (if on seeing the result in that shape they find they are agreed) signed, and made binding; but that each party is to reserve to himself the right to retire from the contract, if, on looking at the formal contract, he finds that, though it may represent what he said, it does not represent what he meant to say.' It is quite within the limits of imagination that the vendor and purchaser here both meant subsequently to have a formal contract drawn up which should contain not what they had said, but what they meant to say. The words "subject to the preparation by my solicitor and completion of a formal contract, I am willing to sell," seem fairly open to that construction. I am thus of opinion that the stipulation goes to the root of the contract, and is not one which the plaintiff can waive. There will consequently be judgment for the defendant, with costs. Solicitor for the plaintiff, Wm. Negus. Chan. Div. Kekewich, J. } July 10, 11, 12, 1895. In re GOODEnough. Interest, rate of-Tenant for life-Remainderman- The court, in applying the rule laid down in Re Earl of Chesterfield's Trusts (32 W. R. 361, 24 Ch. D. 643) and analogous cases, ought now to take interest at 3 per cent. instead of 4 per cent. as the basis of calculation. Under a settlement executed in 1830 the testator, W. Goodenough, was entitled absolutely to a sum of consols, subject to the prior life interests of Dr. and Mrs. Hawkins. By his will, the testator gave his residuary estate to trustees upon trust for his daughter Mrs. Hawkins for life, with remainder as she should by will or codicil appoint. The will contained a power to retain and vary investments. Crawley, for the trustees of the will. Marten, Q.C., and Lemon; Renshaw, Q.C., and Methold; Bramwell Davis, Q.C., and Potts, for legatees. KEKEWICH, J. [after holding that the case was governed by In re Earl of Chesterfield's Trustees, 32 W. R. 361, 24 Ch. D. 643, and that the reversionary interest of the testator in the fund ought to have been converted, and that the legal personal representative of Mrs. Hawkins was entitled to an apportioned part of the capital of the fund on that basis], said:-The rule in Lord Chesterfield's case for ascertaining the to ascertain what sum-put out at 4 per cent. per amount apportionable between capital and income, is annum on the day of the death of the testator and accumulating at compound interest calculated at that rate with yearly rests and deducting income taxwould have produced the amount actually received. This hypothetical sum is to be treated as capital, and the balance income. In most cases this inures greatly to the benefit of the tenant for life. It is obvious that any alteration in the rate of interest will make an enormous difference. Four per cent. has always hitherto been the rate. What rate of interest ought now to be considered as the court rate to be allowed in analogous cases to the present one or charged against trustees in respect of moneys for which they are liable. I think it is a question which ought to receive the consideration of all the judges of the Chancery Division and be finally settled, but I am not aware of any proceeding by which it can be done. The result of adopting 3 per cent. instead of 4 per cent. will be very greatly in favour of capital as against income. Four per cent. has been for generations regarded as the rate to be allowed by the Court of Chancery unless 5 per cent. was chargeable for special reasons. Five per cent. was generally allowed by juries as the current rate of interest applicable to mercantile contracts or as fit to be allowed on the footing of damages. But it is common knowledge that nowadays trustees cannot get 4 per cent. and have to take even less than 23, and that ordinary people willing and able to go outside trust securities and yet determined not to speculate find it impossible to get more than 3 per cent. and are very glad to get as much. It seems to me to be bordering on, if not an, actual absurdity to fix 4 per cent. as the court rate where an ordinary prudent investor cannot obtain that return. Dracup, Field v. Dracup, 42 W. R. 264, [1894] 1 Ch. 59, the court charged 3 per cent. interest. In my opinion the time has arrived when 4 per cent., except as a penal rate, ought not to be allowed; and I think the amount should be ascertained in this case on the footing that 3 per cent. is the proper rate of interest. In In re |