-Held, that the objects of the gift were not sufficiently to the estate of earose, as to the sum of 2001 18

ascertained, and that the 5001. must be treated as assets of the deceased. ↑ moppunten sta tribe to o Cause.—This suit was instituted for the administration of the personal estate of a testatrix, Margaret Roberts, whose sons, the plaintiff and the defendant, were executors of her will. The main question for

23

on the authority of Hughes v. Stubbs (ubi sup.), that
in order to complete the gift the cheque should have
been acted upon in the lifetime of the testatrix; but,
according to the view contended for, the memorandum
was not to be treated as a cheque, and the case in
question did not apply to it. He cited Vance .
Vance (1 Beay.
605) and
and Kiddell Y, Farnell 182
Giff, 428) Ju

au Nov
Honor first
stated, that he did not propose to deal at present with
the question as to the Statute of Limitations. Upon
the other question, I am now prepared to give my
Τ
opinion. It was first argued, that a valid gift was
made by a document directing the plaintiff to pay his
wife or order 5007, out of moneys in his hands. Lord
Eldon in Ex parte Pye, Ex parte Dubost (18 Ves.
140), explained the true principle of the Court upon
this subject. He said, It is clear that this Court
will not assist a volunteer; yet, if the act is, com-
pleted, though voluntary, the Court will act upon it."
Now, a claimant under an alleged gift is clearly a
volunteer, and to perfect the gift the subject of it
must be placed beyond the control of the donor. That
principle was explained in Gaskelly. Gaskell (2 Y.
& J. 502), where Alexander, C. B. said, "If a man
wholly denudes himself of property, and places it in
trustees, over whom he has no sort of control, I will
not say that he

spectively. The defendant denied that these sums had not been brought into account, and even if it were held that they had not, he relied upon t the Statute of Limitations with respect to all the four our sums in in question. Greene, Q. C., and Dickinson, for the plaintiff, argued that the transfer of the cheque was valid, either as direct gift, or as a declaration of trust. [They cited Sloane v. Cadogan (Sugd. V. & P. App. No. 24, 11th ed.), Fortescue y Barnett (3 My, & K. 36); and Wheatley V. Purr (1 Kay, 551).J5ge betized text te Malins, Q. C. and Bevir, for the defendant, contended that there was not a valid gift in any way. The question was this: what was the effect of a paper signed by the testatrix a short time before her death, which was in the form of a cheque, but was drawn on private individual, and not on a banker? If it were maintained that it was a voluntary gift by word of mouth, the Court would require the most conclusive evidence of intention. A case very much in point had been decided on appeal during the course of this itigation. In that case a person had put a cheque of 2004 into the hand of a young child in its nurse's arms, and had said to the nurse, "It is his own, to do what he likes with it." There, although the words, as far as they went, seemed clear enough, the Lord Chancellor, reversing a decision of his Honor, had held that what had thus fallen from the testator in conversation, did not constitute a final gift. If, on the defeat the legacy duty, But I cannot see that in other hand, the paper were looked upon as a cheque, this case the testatrix parted with the control, for she it was necessary, in order to complete the gift, that it would not allow the plaintiff to take the order away should have been acted upon in the lifetime of the with him. It is said, however, that she afterwards testatrix; and this had not been done. Why did not delivered it to him, and desired him to invest the the plaintiff at once cash the cheque out of the moneys amount for the benefit of his wife and children. Now, in his hands, or debit the testatrix, and credit his wife the direction made by the document itself, was to pay with the amount in the account between the testatrix to the wife, so that the money would really belong and himself? He did not adopt either of these to the husband in his marital right. When, therefore, courses; he made no entry (except, as he alleged, in she afterwards told him to invest it for the benefit of pencil) until after her decease, and it was evident his wife and children, the objects of her bounty were from that circumstance that he did not at first sup- changed. There is thus an inconsistency in the direcpose there was a complete gift. When it was remem- tions which destroys the evidence of the gift. The bered, in addition, that the cheque was given back to case above mentioned (E. parte Pje) shewed, that a the testatrix, who locked it up, it was impossible to written document might be impressed with a trust; consider that there was sufficient evidence of a gift. for there a testator executed a power of attorney The plaintiff had sworn to certain circumstances which which directed a transfer of certain property into the nobody could actually disprove, as they could be only name of another person, and the transaction was upwithin the knowledge of himself and the testatrix; held as a trust, although the power of attorney was but if such a narrative could be accepted by the Court not acted upon in the testator's lifetime. I am satiswithout corroboration, the whole property of any tes-fied of the soundness of this decision, and on the same tator might be sworn away. They cited Hughes y. principle, the testatrix in this case, who deliberately in Stubbs (1 Hare, 476); Dillon N. Coppin (4 My. & C. writing directed a certain sum to be paid, might, no 647); Dipple v. Corles (11 Hare, 183); Antrobus v. Smith doubt, have impressed a trust on the sum in question. (12 Ves. 39); Edwards v. Jones (1 My, & C. 226); Tate But here I am met by the same difficulty, for I am Y. Hilbert (2 Ves, jun 111), and Bayley v. Boulcott (4 not that it is a gift to the wife, or, Russ, 345)]dt udfoloog i oni zebra at tug of words, to husband his marital right, bGreene, Q. C., in reply. This was to be looked upon but that it is given in trust for the wife and children. as a case of a trust for the benefit of the testatrix. Under these circumstances, I must hold, that the true As to a sum of 500%, which formed a part of the trust objects of the gift are not sufficiently ascertained money, the testatrix had said, "You are to hold it not and, consequently, I cannot declare that this sum of for me, but for your own wife and children." Under 5001. has ceased to be part of the estate of the testhese circumstances, the cases cited as to imperfect trans- tatrix-r-nos al sogar 1000 not surpass a wet who A fer of cheques, and the like, had no application, Theresa Note for reference-Story's Eqs793, at EDUS was no transfer necessary; for Roberts, the plaintiff, Astur esse in a to root (abrost held a certain fund in trust, and the 5004, formed Jaart a gorom od blot se abroarrat a part of that fund. That particular, sum of 5007. VICE-CHANCELLOR WOOD'S COURT! the testatrix directed him to hold for other persons by abnormito Froste bash bo LINGWOOD V. THE STOWMARKET PAPER COMPANY.than herself, namely, his own wife and children, and, Nov. 9 and 15 95 dost his Haccordingly, he so held it. The cheque, as it had been aroiffure for asorti called, was merely a memorandum giving him this di-san a bato Practice Nuisance Injunction.froad rection; it operated as a declaration of trust, and on Form of order for an injunction to restrain the pollution a declaration of trust the death of the person creating steigimba odt rot boff a stream, tine aidTous the trust could have no effect. It has been argued, This was a motion to make perpetual an injunction throttsgotta ratiunile as she is obtained on the 9th October, 1865, restraining the defendants, until the hearing or further order, from

discharging refuse matter from their works into the river or stream in the bill mentioned, so as to cause it to flow to the plaintiff's lands in a state less pure than that in which it flowed there previously to the establishment of the works.

The defendants submitted to the motion, and the only question was on the form of the decree, whether or not the words, "to the damage and injury of the plaintiff," should be inserted in it.

Phear appeared in support of the motion Eddis and Allan Bruce, for the defendants, submitted, that the proper form of the order included the words in question.

Phear, in reply.

Judgment was reserved on this point.

Nov. 15.—Sir W. P. WOOD, V. C., after referring to the cases of Dawson v. Paver (5 Hare, 415) and Bidder v. Richards (Set. Dec. 894, 3rd ed.), said-I propose to make the order as in the notice of motion, with the addition of the words, "to the injury of the plaintiff." I do not by this intend to say that there must be substantial pecuniary damage, but I only mean so to frame the order as not to give an opening for frivolous proceedings being taken for breach of the injunction in cases of casual insignificant pollutions of the stream.

The following was the order made:-Perpetual injunction to restrain the defendants, &c. from discharging from their works, in the bill mentioned, into the river or stream, in the bill also mentioned, so as to cause it to flow to the plaintiff's lands, &c. in a state less pure than that in which it flowed there previously to the establishment of the said works, and to his injury, any such refuse or other matter as was discharged by the defendants from their said works into the said river or stream previously to the filing of the said bill, or any noxious fluid or other foul matters whatsoever.

Note for reference-Set. Dec. 894.

FEATHERSTONHAUGH v. THE LEE MOOR PORCELAIN
CLAY COMPANY.-Nov. 17.
Company-Ultra vires.

to the company.
2507. were reserved on these leases, and they wer
subject to a condition for determination on the step-
page of the works.

Certain royalties and a rent of

The deed of settlement of the company was dated the 21st February, 1852, and contained the fog provisions :

15, 16, 17, and 19.-That the capital of the co should be 100,000l., in 4000 shares of 251, each vá power to raise additional capital not exceeding 20 that out of the 100,0007. the sum of 80,000L, being fa value of the leases and plant, should be representat by 3200 paid-up shares; and that 1200 of these pa up shares and the subscribed for shares should carry a preferential dividend of 67. per cent., in procity to the remaining 2000 shares which were taken by Jan Phillips and William Phillips.

30. That it should be competent for any extrardinary general meeting, by a majority, which sh consist of at least two-thirds in number of the whole number of votes recorded in relation to any of the matters provided for by this present clause, by my resolution or resolutions, . . . so far as the res of law and equity would permit, to amadi ta, or repeal, all or any of the clauses, proven pulations therein contained which might be for the time being; and also to make, do, or a cise, and to bind the company, and every shede thereof to, any act, deed, matter, or thing whatsoever which the company, by virtue of its corporate capaci or otherwise, or all the shareholders thereof togeten was or would be enabled to make, do, or execute, the consent of every shareholder were given thereto.

51. This clause gave power to the directors to enter into contracts for any purpose for carrying on the business; but if any contract appeared to them to e ceed their authority, provided it was not contrary the act or to the rules of law, they were to be s liberty to submit it to an extraordinary general mee ing, as under the 30th clause.

141. That dissolution should take place on the deter mination of the term of ninety-nine years, or upon i resolution to that effect carried at two extraordinary general meetings by two-thirds of the votes. On the 27th March, 1852, the company was com The deed of settlement of a company contained a clause, pletely registered under the 7 & 8 Vict. c. 110, and com that an extraordinary general meeting might, by a ma-menced operations under the management of Wilhar jority of two-thirds, so far as the rules of law and equity would permit, add to or repeal any of the clauses in the deed, and also might do and bind the company, and every shareholder thereof to, any act which the company, or all the shareholders together, could do. The company was on the point of being wound up, when the directors, with the sanction of an extraordinary general meeting, bona fide granted a lease of their property. On a bill being filed by a dissentient shareholder to set aside the lease-Held, that the granting of the lease was within the power conferred by the above provision, and the Court, therefore, refused to interfere.

Motion for decree. The bill was filed by the executors of W. Featherstonhaugh, deceased, who was at the time of his death the registered holder of 800 deferred shares in the Lee Moor Porcelain Clay Company, and the object of the suit was to set aside a lease of the property of the company.

Phillips, from whom W. Featherstonhaugh obtaine his shares. The company did not prove successfu and it was discovered in 1862 that the whole of t existing works and buildings must be abandoned, others erected lower down the hill on which they stoc and that the whole mode of manufacture must b altered.

Under these circumstances, on the 11th September 1862, a resolution for winding up the company passed by a very large majority at an extraordica general meeting. On the 14th October, howeve the day fixed for the second extraordinary gener meeting, the question was adjourned, as an opport nity had presented itself of letting the works, the directors immediately issued an advertisement f that purpose. Subsequently, at an extraordinary gener meeting, held on the 17th December, 1862, a resoluti was unanimously passed authorising the directors The Lee Moor Porcelain Clay Company was regis-grant, and cause the common seal of the company to be tered originally under the 7 & 8 Vict. c. 110, and affixed to, a lease of the works of the company to subsequently under the Joint-stock Companies' Acts becca Martin for twenty-one years, at a rent of of 1856 and 1857; and its objects were the work- for the first seven years, 1000l. for the second seve ing and preparation of porcelain clay at Plympton, years, and 12001. for the third seven years. St. Mary Bridge, in the county of Devon, under two leases for ninety-nine years, dated the 29th September, 1834, and the 1st January, 1835, granted to John Phillips and William Phillips, and assigned by them

W. Featherstonhaugh did not attend this meeting and protested against the letting of the works, b the directors on the 12th February, 1863, execut the lease to Rebecca Martin, which comprised the

, 23

whole of the property on which, under the deed of settlement, the operations of the company were to be carried on, and also certain property which the directors, under the authority of a general meeting, had purchased from the representatives of William Phillips, who died in 1861. The lessee, Rebecca Martin, also purchased most of the plant at a valuation. The capital of the company had been increased by a loan to the amount of 10,000l., and by the creation of 800 new 67. per cent. preference shares of 251. each, the whole amount of which had not been called up. The number of the preferential shareholders was considerably in excess of those holding deferred shares.

concerned, as it would be impossible to get the consent of married women or infants; and persons in a fiduciary character might be unwilling to consent. Of course, the power would be controlled by the general scope and purport of the deed; and that is the answer to the argument on the act, and the authorities, that the company must tell the Legislature what it is incorporated for; and it cannot deviate from the purpose for which it is incorporated, and the object it has in view, without having a supplemental deed, properly executed and registered, as pointed out by the act. And again, it is said, upon the authorities, beginning with Natusch v. Irving and downwards, the law is the same as in the act, that persons associated for one purpose, and having bound themselves to carry

W. Featherstonhaugh died on the 26th March, 1863, and his executors, on the 7th August, 1863, filed this bill (which was similar to one which had been pre-into effect that purpose, cannot, without the consent pared, and was intended to be filed, in his lifetime), alleging that if the amounts still due on the preference shares were called up, the business might be carried on at a profit; and the bill concluded with a prayer that the lease might be set aside.

of every individual proprietor, be held to have bound themselves to enter into an engagement to carry on some totally different object. Now, perhaps, although that class of decisions might not altogether extend to a case where there is such a clause as is contained in The directors submitted by their answer, that they the present deed, yet, for the purpose of this decision, had power to grant the lease, having regard to the it is not necessary to hold that the clause would go to constitution of the company, and the general scope of such a length as to justify the carrying on by twothe deed of settlement, and that the lease was bene-thirds of the shareholders of that which they could do ficial, as the deferred shareholders might possibly eventually realise something from it; and they would inevitably lose all if the company were wound up, as it must have been if the lease had not been granted. Osborne, Q. C., and E. Macnaghten, for the plaintiffs, now submitted that they were entitled to a decree, according to the prayer of the bill; and they cited Natusch v. Irving (Gow on Partnership, 398); Colman 7. The Eastern Counties Railway Company (10 Beav. 1); and 2 Lind. Part. 674.

Rolt, Q. C., Waley, and Druce, for the company. Giffard, Q. C., and E. Charles, for the lessee. Sir W. P. WOOD, V. C.-It seems to me that I should be controlling improperly the effect of this deed if I did not allow that act to stand, which the company have done through the medium of their directors,

if they had all consented; such as a gold mine in South America, or any purpose utterly unconnected with all the objects of this deed.

But I think there is a construction of the clause perfectly consistent with the decided cases, and with the act of Parliament, and which will authorise me so far to avail myself of the reasons and grounds of the decision of the House of Lords in the case of Simpson v. The Westminster Palace Hotel Company (8 H. L. C. 712; S. C., 6 Jur., N. S., 985), as to say that the test for the purposes of this case is, "Have the company by this, which they have done by virtue of the clause, either abandoned their purposes, or (these being the two cases put by Lord Campbell) have they exceeded their purposes?" It appears to me they have not abandoned their purposes. They have The whole case turns on the 30th section of the granted the lease for twenty-one years, and so far they deed, coupled with any considerations that may arise have agreed to take a rent for the property, instead upon the constitution of the company with reference of working it themselves, and taking the profits; but to their preferential and other shares, and upon the they have not abandoned it. At the end of twentyrest of the deed. The question is, whether, under the one years, they are to have the whole of the property unusually large power conferred upon a meeting of back, and, as it appeared to them, being the sole judges the shareholders by this deed (which is not by any as to that, in a more profitable condition. They have means an unreasonable power), the company are not exceeded their powers, because no one can connot able to do what they may deem best with refer- tend, that parting with their property for a certain ence to their assets. The argument has been, that a time is more than this-that during that time they crisis might arise when it would be necessary to have are not carrying on the business. But as to that, I larger powers than any contained in the deed, when apprehend it is perfectly competent for a meeting to the administration of the property would require a say, "The market for our goods is in a very depressed more effective control to be exercised over it by the state, and we agree that it is better not to work it for shareholders than could be so under any ordinary a few years." That would be entirely within their deed, where the only provision, when difficulties arise, functions, and they could not be said, in that respect, is (if there is no power of sale), a provision for the to have abandoned their work, or to have exceeded dissolution and winding up of the company in such the operations allowed them. I have said that I manner as may be agreed upon. It was said that there thought it would not be desirable to throw out any might arise (and it appears to me that here the case intimation that this clause would give authority wholly did arise) such a state of things that a dissolution beside the deed; and that view is fortified by the 51st would be a necessary course, unless something else clause of the deed, which seems to indicate plainly, could be determined upon with reference to the assets; that the company themselves conceived that the large and the question was put, whether any interpretation powers given to the directors were only to be exerof this clause could be considered as more natural, cised, as, indeed, appears also on the face of the deed, than to say that it was with reference to dealing with in conformity with its general stipulations. [His Honor the assets in cases of emergency, that a power of such then stated the effect of the 51st clause, as above.] a large description was inserted. [His Honor stated Therefore, the 51st clause is not exactly restrictive, the clause as above, and the facts, and proceeded:] but it it is in some degree explanatory, as shewing Then surely the emergency which has arisen is one that the company do not mean to give a wild power which might well have been contemplated, in which it to apply their money to any purpose, so long as they would be difficult to deal with the assets of the com- can get two-thirds of the shareholders to take that pany in the manner most beneficial for all parties view, but they mean them to have the largest control

over the property of the company. There is a consi derable capital about to be raised, and as no one can tell the incidents that may arise in working a speculative concern like this by means of that capital, and in order not to be embarrassed in the management of the property, they vest in two-thirds of the share holders of the company the power of saying what in any emergency is best to be done. In this view, I do not think I am putting on the clause a construction beyond the provisions of the act of Parliament, the scope of the instrument, or the decided authorities.com That being so, I have only to look to the emergency that has arisen, though, perhaps, I am hardly justified in doing so, if I am right in my construction that it is for the company to judge what is best to be done. But with reference to what has been suggested, as giving a clue to the interpretation of the clause, namely, as to the hardship upon the deferred shareholders, it is necessary to say a few words upon the position of the company. rosy sdt of qe bine eresz zuen tol

chaser; and in that state of things somebody comes in and says, I will indemnify you against all charges, and the burthens of the leases; and I will engagé te leave the whole of your property in a much better condition than I find it in now." Is not that hav and legitimately within the scope of a clans rei says, that two-thirds of the meeting may detene with reference to this body, anything who whole body of shareholders could determine? I had the whole body of shareholders sui jurisit is the objects of this clause to make them all m juris, could I possibly restrain the whole body from entering into an arrangement for leasing their pro perty, and disposing of it in the manner described! I apprehend, so far from it, that in truth if they had not been sui juris, the Court would in such i casebe very glad to give its assistance, if it were administering the assets of the testator. And really the only ground that can be put forward that if the assets were divided, there might be something It is said, independently of the observations arising coming to the plaintiffs, though it is by on the general act, and the decided cases, there is clear that would be so; but it is said by dùs as something special in the constitution of this company, rangement they will be kept for twenty-one reas as the preference shareholders have an undue advantage the state they have been in for nine par over the deferred shareholders, the scheme of the com- I apprehend, however, that this amounts to making pany being, that there are certain deferred shareholders unless you can make out that there was a fa who can take nothing until 6. per cent. has been paid intention. At the same time I deal with the argent to the preference shareholders; and it so happening that at the end of twenty-one years they may do the at the present time, that there is a decided majority same thing again, and so on, by saying that they are of two-thirds of the preference shareholders, so that not to say that nobody shall make any profit becse by a construction of the deed in favour of the de- they cannot make any. If the plaintiffs could she fendants, you put the deferred shareholders entirely fraud, that might have been a different matter but at the mercy of the preference shareholders, and it is not alleged here, nor proved in the slightest enable them to defeat all their interests, and therefore degree. All the circumstances in the case prove that it is said that imposes on the Court the necessity of the whole thing has been done bonâ fide with 1 putting a more limited construction on the power. view of making the most of the assets of the com The first answer to that, I apprehend, would be, that pany; and I hold that is expressly intended, by giving the persons who entered into these engagements knew the large power contained in that clause of the deed exactly the constitution of the company, and had His Honor then discussed the question of laches, and this clause before them, and were willing to trust to said, that the plaintiffs' was not a very favourate two-thirds of the shareholders at a general meeting, ease with which to come into equity, with refers all the authorities and powers here conferred; and I to mining property, and concluded]-I do not deck take it that the construction of this clause is not to be the case upon that ground; but my decision rest it in any way altered by the circumstance which appears the higher ground, that what has been done is on the face of the deed, that there are two distinct thorised to be done by that very large power confers classes of shareholders. If those who know that, give by the deed; and therefore I must dismiss the al power to two-thirds of the shareholders, be they with costs. the tot eroing to dlya bagi who they may, it does not appear to me to be a legiti-do and Note for reference-Lind. Part. 515. mate argument to say, that, because a certain acto de, iml so z may result in an advantage to the one over the other, P10908 921 sdt Ege-miz » 9d in'e en there has, therefore, been a fraudulent or improper &z › godt to zid nocu złocuq 10 [her] di

11

oft to et terres TRINITY TERM.***

[Before CoCKBURN, C. J., CROMPTON and SHEE, JJ.,

exercise of the power.q1o9 19 dance bus gift tote COURT OF QUEEN'S BENCH. But, if that be so, surely the only alternative is that of fraud. Of course the fullest power may be exer cised fraudulently. His Honor then stated, that in his opinion the shareholders in this case had acted not only perfectly bona fide, but in a manner absolutely HossACK, App., GRAY, Resp. June 3. essential to the interests of the company.] Pilots, license of Corporations of London and Le Hi Dantes abro Trinity Houses. By a charter granted to the Trinity House of Leith, the corporation are empowered to license pilots "in and outwards of the Frith of Forth, and along the and islands of the Northern and German Oceans:Held, that the powers thus conferred have refera a the coast of Scotland only, and do not extend to licensing of pilots within the limits of the jurisdicti of the Trinity House of London. 1-2

Suppose, then, not the case that has actually oc curred, of a lease, that gives only a surplus rent to the preference shareholders, but suppose somebody had offered to take a lease which would have given some portion of profit to the deferred shareholders as well, I do not suppose I should then have heard any argument about the want of power, but the question would have been, whether such a course of proceedings by directors was legitimate. Can, then, anybody, affirm that, if all the shareholders came together, they could not agree to say, that instead of dissolving, they would grant a lease until better times, for this is not a lease for the whole term, but only for twentyone years, leaving fifty years to come afterwards? The concern is on the verge of dissolution, with large debts, and therefore not very likely to find a pur

1 Special case, stated by consent, to determine a question of jurisdiction between the corporation the Trinity House of Deptford Strond, in the county of Kent (herein called the Trinity House of London and the master and assistants of the Trinity House of Leith, in the county of Edinburgh.