creditors, namely, the joint creditors, and detract, to the extent of the proof, from the benefit they would derive from the separate estate. Therefore it has been laid down as a general rule, that a partner cannot be admitted to prove against the estate of his copartner. The question is now, whether that rule, so expressed, should be confined within the limits of the purpose by reason of which it was framed, or whether it should be carried out to the letter, where the reason

costs of the assignees will come out of his estate, but I will give no costs to the creditor who appeared separately.

Note for reference-Arch. Bank. 585.

COURT OF APPEAL IN CHANCERY.

Winding up-Scripholder.

A scripholder can maintain a petition for winding up the company on undertaking to do all the acts necessary to make himself a shareholder.

or purpose ceases to have any application. There have Re LITTLEHAMPTON STEAM-SHIP COMPANY.-Feb. 17. been several cases before Lord Eldon which are collected in the 2nd volume of Glyn & Jameson's Reports, but they have principally arisen under circumsances where the debt sought to be proved by one artner against another co-partner has arisen in repect of transactions which have arisen subsequently o the bankruptcy; as, for example, where the partner as paid to the joint creditor more than properly he Ought to have paid, and is entitled, therefore, to conibution from his co-partners. But the case before e is of a different kind; and I regard it as consisting entirely of these circumstances to which I mean to limit my decision, namely, that the debt sought to be proved by the partner against his co-partner, is a debt arising from an undisputed contract, apart from the co-partnership, and which was executed at the time of the adjudication in bankruptcy. I also have to consider that one of the facts of this case is, that by no means can there be any surplus of the partner's estate, against which proof is proposed to be made, whether proof be

admitted or not.

Now, limiting my decision to the proof admitted, I think it reasonable and just that the rule should not extend beyond the reason which introduced it, and was the cause of its being laid down; and if it be true that the estate of the co-partner cannot by possibility yield a surplus, it would be unreasonable and unjust to refuse the opportunity of proof being made. It has been very justly said by Mr. De Gex, in the argument, that the result would be to pay the creditors of one partner with the money of another; and also, as he has said, it would not be difficult to suggest a state of circumstances in which the joint creditors would be prejudiced by the rule being adhered to. I will put one case. Suppose the separate estate of one partner to be 10,000%., and his separate debts to be 10,000l., exclusive of a debt due to his co-partner, if proof of the co-partner's debt were not admitted, the other separate creditors would be paid in full. But if he owed 10,000l. to his copartner, and that proof were admitted, then the creditors would receive only 10s. in the pound. Now, suppose the co-partner to be indebted to the extent of 10002, but to have no assets except the debt which is due to him from his partner; if you admit the copartner to prove against the estate of his partner for his debt, you realise 50007., and the surplus of that sum over 1000l. will be for the benefit of the joint creditors. So that if the rule which was intended for the benefit of the joint creditors were adhered to, it would in reality deprive them of 4000l. Many cases of such injustice would arise, if we were to follow the letter when the spirit of the rule ceases to have any application.

Therefore, I am of opinion that the proof by one partner against the separate estate of another partner ought in this case to be admitted. But inasmuch as contingencies might arise which might render the separate estate of the partner larger than is now contemplated, there should be added to the order a declaration that the proof must be subject to be expunged, and the difference omitted, in case of any such surplus of the estate of that partner occurring, for the benefit of the joint creditors. The

This was a petition for the winding up of the Littlehampton Steam-ship Company, presented by a petitioner, who was not a shareholder, but held ten scrip certificates, under which he was entitled to claim shares at any time. The company had passed a resolution for a voluntary winding up, and opposed the petition, but the Master of the Rolls made the order, on the pctitioner admitting his liability as a contributory, and undertaking to do all acts necessary to make himself a shareholder.

The company appealed.

Baggallay and Roberts, for the petitioner.

Selwyn and Bateman, for the appellants, contended that the petitioner did not come within sect. 82 of the Companies Act, 1862, being neither a shareholder nor a creditor. The shareholders all wished for a voluntary winding up. (Re Northumberland, 2 De G. & J. 357; 4 Jur., N. S., 419; Re The British Alkali Company, 2 De G. & Sm, 458).

Sir J. L. KNIGHT BRUCE, L. J., said that it was true, that the title of the original petitioner had been at first, and still was, from a technical point of view, so incomplete as not to confer on him any absolute right to come to this Court, and ask for an order for the winding up of the company compulsorily by the Court; but at the same time he had, as his Lordship thought, a substantial interest in the company; such an interest as rendered it not incumbent upon the Court at once to dismiss his petition, but would enable the Court to give him the opportunity of obtaining such an order, upon his undertaking to do all things that were necessary in order that he might be treated in every respect as a contributory. The question, therefore, was at first, and still is, of judicial discretion; and, in his opinion, there was, owing to the circumstances of the case, considerable danger of irregularity, and a want of thorough and efficient supervision, if the company were wound up voluntarily. It appeared to him, therefore, that the judicial discretion had been properly exercised, and that the Master of the Rolls had taken a judicious course in granting an order for winding up by the Court upon the original petition, notwithstanding the formal defects in the title of the petitioner. Much greater harm and mischief would probably result from a voluntary winding up, and it might stand in the way of substantial justice.

Sir G. J. TURNER, L. J., said, that as his learned brother agreed with the Master of the Rolls in this case, it was with diffidence that he pronounced an opinion which differed from theirs; but he could not see his way to holding, that the petitioner was a contributory of the company, so as to entitle him to present a petition to have the company wound up.Appeal dismissed, without costs.

Note for reference-Shelford's Company's Act, 105.

JOPP v. WOOD.-Jan. 31 and Feb. 28.
Domicil-India.

Long and continuous residence in a foreign country is not
decisive as to a change of domicil; but an intention to
change must be shewn.

A covenanted servant of the East India Company was held to have changed his domicil, as having entered the service of a foreign government.

The fact of a testator describing himself in his will as of a foreign country, does not of itself shew any intention to change.

This was an appeal from an order made by the Master of the Rolls, dismissing a petition for rehearing on the 2nd December, 1864, reported ante, p. 53; the question being, whether, under the circumstances stated in the former report, and in the judgment of Lord Justice Turner below, John Smith had lost his Scotch domicil, and acquired an Indian domicil.

The point principally relied upon by the appellant, in support of his contention, that there was a change of domicil from Scotland to India, was the long-continued residence of the testator in the latter country; but nothing is better settled, as to the law of domicil, than that the domicil can be changed only animo et facto: and although residence may be decisive as to the fac tum, it cannot, when looked at as to the animus, be regarded otherwise than as an equivocal act. The mere fact of a man residing in a place different from that in which he has been before domiciled, even although his residence there may be long continuing does not of necessity shew that he has elected that place as his permanent and abiding home. He may have taken up and continued his residence there for some special purpose, or he may have elected to make the place his temporary home. But domicil, although in some of the cases spoken of as home, imports an abiding and permanent home, and not a mere temporary one.

Hobhouse and H. M. Jackson, for the appellants, contended that the domicil was Indian. Acceptance of The effect of residence on domicil is well explained by employment in India was enough to change the do- Dr. Lushington, in his very able judgment in Hodgson micil, as was the possession of real estate there. (Mon- v. Beauchesne (12 Moo. P. C. 285), and I entirely agree roe v. Douglas, 5 Mad. 379; Forbes v. Forbes, Kay, in the opinion which is there expressed upon the subject. 341; 18 Jur. 642. Long residence in India is enough. In considering cases of this description, it must be (Cockerell v. Cockerell, 2 Jur., N. S., 727; Attorney-borne in mind that the acquisition of a new domicil General v. Fitzgerald, 3 Drew. 610; Lyall v. Paton, involves an abandonment of the previous domicil; and 25 L. J., Ch., 746; Allardice v. Onslow, 10 Jur., N. S., in order, therefore, to effect the change, the animus 352; Drevon v. Drevon, Id. 717). There is no occa- of abandonment, or, as Lord Cranworth has strongly sion to prove an intention of changing the domicil at expressed it, the intention exuere patriam must be the time of leaving the domicil of origin. (Re Capte- | shewn. Whether this intention of abandonment may vielle, 10 Jur., N. S., 1155). Here, the change is only not be inferred from a long and continuous residence to a country under the same sovereign, which is easier. alone, in a case in which there may be no other cit (Whicker v. Hume, 7 H. & C. 159; 4 Jur., N. S., 933; cumstances indicative of the intention, is a question Laneuville v. Anderson, 9 Moo. P. C. 325). There is no which in this case it is unnecessary to decide, and on necessity to prove that there was no intention ever to which, therefore, I give no opinion. Such a case can return. very rarely, if ever, occur.

T. Atkinson, Serjt., Selwyn, and B. L. Chapman, for the respondents, maintained that John Smith had never lost his domicil of origin. (Moorhouse v. Lord, 10 H. L. C. 272; 9 Jur., N. S., 677). There must be an intention to change. (Attorney-General v. Rowe, 1 H. & C. 31).

Hanson, for the Commissioners of Inland Revenue, who claimed legacy duty if the domicil was Scotch, cited Hodgson v. Beauchesne (12 Moo. P. C. 285) and Attorney-General v. Kent (1 H. & C. 12).

Hobhouse, in reply.

Feb. 28.-Sir J. L. KNIGHT BRUCE, L. J.-Had Mr. Smith, the propositus here, been in the employment of the Government in India, I assume from the authorities that, to say the least, the burthen would have been upon those asserting that his domicil remained Scotch at his death, to establish that assertion. But he was never in the service or employment of the Indian Government; he resided in India, while there, for the mere purposes of his business, and appears always to have retained the wish and intention of returning finally to Scotland. His correspondence and conduct appear to prove that distinctly. A permanent residence in India seems never to have been in his contemplation. It appears to me that his domicil of origin was never lost, or intended to be lost, and that the conclusion of the Master of the Rolls was right. Some, at least, of Lord Kingsdown's observations, in advising the House of Lords upon the case of Moorhouse v. Lord (10 H. L. C. 291; 9 Jur., N. S., 677), seem especially apposite to the present conten

tion.

Sir G. J. TURNER, L. J.-This is a question of domicil. The case has been so recently before the Court, that it is unnecessary to state the facts. The Master of the Rolls has been of opinion that the testator was domiciled in Scotland, and I concur in that opinion,

In the course of the argument on the part of the appellant, reliance was placed on the cases which have been decided as to the covenanted servants of the East India Company, but there are considerations connected with these cases which have no bearing on a case like the present. At the time when those cases were decided the government of the East India Company was in a great degree, if not wholly, a separate and independent government, foreign to the govern ment of this country; and it may well have been thought, that persons who had contracted obligations with such government for service abroad, could not reasonably be considered to have intended to retain their domicil here. They, in fact, became as much estranged from this country as if they had become servants of a foreign government.

There are several minor circumstances on which the appellant also relied; such as the purchase of land in India by the testator, when he embarked in the indigo trade; his having retained his house in Calcutta during his temporary visit to this country in 1819: and the fact of his having been described as "of Calcutta" in his will, and in the other instruments which he executed on the occasion of that visit. That pur chase of land in India was a necessary incident of the trade in which the testator was then engaged. His retaining the house in Calcutta was the natural conse quence of his intending to return to that place, and the description of him in his will and in the other instruments was almost necessary for the purpose identifying him. These circumstances, therefore, in my opinion, are but of little, if any, weight. Sup posing, then, that the case had rested here, I should have felt scarcely a doubt upon it, but any possible doubt which there might have been seems to me to be wholly removed by the evidence on the part of the respondent, It appears, by that evidence, that the

of

of the mortgagor; and also the sum of 217. 19s. 10d. in connexion with the said attempted sale; all of which were charges due from the mortgagor personally, and did not affect the mortgagees, and were improperly charged as against the mortgaged property. But for the alleged improper charges, the bill of costs of Forsyth would not have amounted to the sum of 4257. 118. 8d.

Forsyth, on the other hand, contended that the costs and charges included in his bill of costs were properly chargeable as against the mortgage premises, and that in the event of the sale having been carried out, he would have been entitled to charge them to the prejudice of Greenwood's security.

Selwyn, for Mr. Grenwood.
Hobhouse, for Forsyth.

Stat. 6 & 7 Vict. c. 73, ss. 38, 39, were referred to. Jan. 12.-Sir J. ROMILLY, M. R.-In form, this is an application to tax a bill of costs; in substance, it is an application to reform a mortgage deed. Mr. Greenwood seeks to have the bill taxed, in order to exclude items which can be properly charged against the mortgagor only. But this is not the proper form of application. Assuming, however, it to be so, this difficulty remains, that Greenwood is a party to a deed under seal, in which there is a recital, that 43007. is due on the mortgage for principal, interest, and costs. Mr. Greenwood, therefore, is estopped from saying that a smaller sum is in reality due; and so long as this deed remains as it is, notwithstanding the terms of the receipt, he cannot be allowed to contest the amount.

If Mr. Greenwood has any remedy, about which I express no opinion, it is not by summons to tax the bill, and the summons must, therefore, be dismissed, but without costs.-The order dismissed, without costs.

tember it was executed by the plaintiff. On the 29th September the plaintiff's solicitor informed the company's solicitor of the fact, and asked for an appointment to complete the purchase. He at the same time inclosed his bill of costs, amounting to 487. 16s. 107 The company's solicitor objected to the amount. On the 19th October the plaintiff's solicitor offered to take 421. for his costs. After considerable correspondence, the plaintiff's solicitor wrote to the defendants that his client had instructed him, that, unless he received an appointment for an early day in the following week to complete the sale, he was at once to take steps to enforce the completion thereof.

On the 13th November the company offered to pay 407. for the plaintiff's bill of costs; and on the 15th the plaintiff's solicitor wrote accepting this offer. On the 17th November the company's solicitor wrote to the plaintiff's solicitor as follows:-"We had hoped to have been able to give you an appointment to complete for next week. We cannot, however, until the week fol lowing. We propose to settle at one o'clock on Mon day, the 28th." On the 19th November the plaintiffs solicitor wrote in reply:-"Yours of the 17th instant to hand. The appointment for the 28th will be cont venient. It is a pity you did not send it previously, as, not having received any appointment, I was com pelled to follow my client's instructions, and prepare and file a bill for specific performance. In order to avoid expense, I will delay serving it until the 28th."

On the 22nd of November the plaintiff's solicitor forwarded his bill of costs, which included a further sum for costs in the present suit. On the same day the company's solicitor wrote in answer, declining to pay the costs of the bill, as being unnecessary and uncalled for, on the ground that the matter was not pro perly ripe for completion until three days before the filing of the bill, namely, the day on which they received the letter of the plaintiff's solicitor, agreeing

CHESTER V. THE METROPOLITAN RAILWAY COMPANY. accept their offer as to costs.

-Jan. 20.
Practice-Costs.

The plaintiff's solicitor wrote to the defendants complaining of delay in completing a contract of purchase, and say ing, that, unless an early day was appointed, he was instructed to take steps at once to enforce completion of the contract. A few days afterwards the defendants wrote in reply, making an appointment for the following week, which the plaintiff's solicitor, two days after, agreed to, at the same time stating that he had filed a bill for specific performance. The bill was filed on the same day, but was being printed two days previously. The defendants having refused to pay the costs of the bill, the plaintiff moved to stay all further proceedings, and for the defendants to pay the costs of the suit. The Court stayed proceedings in the suit, but directed the plaintiff to pay the costs of the suit and of the motion.

to

To this letter the plaintiff's solicitor on the 24th November replied as follows:-" The bill in Chancery had been throughout considerable delay on your part: was certainly not unnecessary or uncalled for. There and my client had been put to great inconvenience and expense by reason of the non-payment of the money. So far from the matter not being ripe for completion until three days before the bill was filed, it was so in tion. If you still dispute the company's liability for September, when you sent the ingrossment for execu the costs, the question must be decided by the Court. Please let me know at once, and I will proceed without delay."

The bill was filed on the 19th November, but it was being printed for filing on the 17th. The purember. The bill was served on the 16th January, chase was completed, under protest, on the 28th No

1865.

Motion by the plaintiff, that the defendants might pay the plaintiff the costs of this suit, and that there-ard v. Attwood (27 Beav. 85). upon all further proceedings therein might be stayed.

Collins, in support of the motion, referred to Trou

Bovill, for the company, cited Burgess v. Hill (26) Beav. 244) and Wilde v. Wilde (10 Weekly Rep. 503). Collins, in reply.

On the 19th June, 1863, the company gave the plaintiff notice of their intention to take his land. The company, being desirous to obtain possession at Sir J. ROMILLY, M. R.-I am of opinion that the once, on the 1st January, 1864, paid into the bank the plaintiff is wrong in the course which he has taken. sum of 5501., the amount at which the plaintiff's land Though there was some delay, the negotiations went was valued by the company's surveyor, and entered on amicably for a long time; and on the 15th Nointo the usual bond. On the 21st January, 1864, arbi-vember the parties came to an agreement upon the trators were appointed, who, on the 24th March, question of costs. On the 17th the plaintiff received awarded to the plaintiff the sum of 18657. On the an appointment to complete on the 28th. After that 14th May the plaintiff delivered his abstract of title. he filed the bill. He ought to have at once gone to On the 19th July the requisitions were sent in, and the defendants, have stated the facts, and asked them they were answered on the 5th August. On the 22nd for the costs of giving instructions to draw the bill. September the company's solicitor forwarded the in- Whether the defendants would have paid these costs grossed conveyance for execution. On the 27th Sep-is doubtful, but at any rate the suit ought not to have

been proceeded with after the appointment was made for completion.

The defendants submitting to the jurisdiction of the Court to make the order, I shall order all further proceedings in the suit to be stayed; the plaintiff to pay the costs of the suit and of the motion.

VICE-CHANCELLOR KINDERSLEY'S COURT.

TRAVIS V. ILLINGWORTH.-Feb. 28.
Trustee-Retiring-Appointment.

A testator by his will appointed three trustees, and em-
javered “the surviving or continuing trustee or trustees"
to appoint new trustees. Two of the trustees disclaimed;
the third acted, and by deed, reciting that he "now de-
clined to act," appointed new trustees:-Held, that such
retiring trustee was not a surviving or continuing trus-
be within the power, and that the appointment was in-
ralid.

Morion for decree.-The suit was instituted to administer the real and personal estate of George Travis, and the principal question was as to the validity of the appointment of new trustees by a retiring trustee.

these trustees were not duly appointed. The first question is, under what circumstances is this power to appoint new trustees to be exercised? And the second question is, by whom is the power to be exercised? With regard to the first question, it was no doubt a case of a trustee declining to act, and a question has been raised, whether a trustee declining to act, means only a trustee who declines to act before he has ever accepted or acted, in the trust. But, I confess, I see no more reason to suppose that a construction so much tending to narrow the utility of the power is to prevail, than that a trustee dying, or becoming incapable to act, must have died or become incapable before he acted, in order to be within the power.

66

66

The intention was, to make the sense of the word declining" as large as that of the word "dying" or becoming incapable to act." It appears to me, therefore, that the contingency upon which new trustees were to be appointed, did here arise.

With reference to the second question, whether John Travis was the person who could appoint, it appears to me that he was not. The power of appointment is given to "the surviving or continuing trustee or trustees, his executors, administrators, or assigns." The clause is very inaccurately worded, but the word 'his" must mean the surviving or continuing trustee's executors, administrators, or assigns; that is, supThe testator by his will appointed Messrs. John posing one dies leaving the other surviving, in that Travis, Milne, and Crompton his executors and truscase the power is given to the executors, administratees, and the power for the appointment of new tors, or assigns of the latter; but a continuing or trustees contained therein was as follows:-"If the surviving trustee cannot mean a retiring trustee. The trustees hereby appointed, or who may be appointed question is, as to the meaning of the words "suras hereunder mentioned, shall depart this life, or de- viving or continuing trustee;" are they to apply to the cline or become incapable to act in the trusts hereby case of a retiring trustee who appoints? Can he be in them reposed, and hereby created, then and so regarded as a surviving or continuing trustee? In often as such shall happen it shall be lawful for the the case of a trustee dying, they are then appropriate; surviving or continuing trustee or trustees, his execu- also, in the case of a trustee declining or becoming intors, administrators, or assigns, in writing, to appoint capable to act, where the words "continuing or surone or more person or persons to be a trustee or trus-viving" apply to any other trustee there may be; and tees in the room of the trustee or trustees so dying, the words following bear out that view, because the declining, or becoming incapable to act herein as afore-estate is to be vested in the new trustees jointly with Said. And thereupon the said trust, estate, moneys, and premises shall be vested in the new trustee or trustees jointly with the surviving or continuing trustee or trustees, or solely, as occasion should require." Messrs. Milne and Crompton disclaimed by deed. John Travis proved the will, and acted, and subsequently by deed, reciting that he "now declined to act in the trusts of the said will," appointed two persons to be trustees in his place, and purported to convey the estate to them. The question now was, whether such appointment was good.

Glasse, Q. C., and F. Waller, for the plaintiffs, contended that the appointment was valid. [They cited Lewin on Trusts (p. 566 et seq.), and the cases there cited.]

Toller, Q. C., and H. Leeson, for the defendant John Travis, the original trustee, and for the new trustees, contended, that John Travis might be considered a surviving trustee for the purposes of the appointment of new trustees, and that this Court would enlarge the interpretation of the expression "surviving trustee," so as to include him.

Little, for other defendants.-This appointment is invalid, being exercised by a retiring trustee. (Stones v. Rowton, 17 Beav. 308; Nicholson v. Wright, 5 Weekly Rep. 431). Moreover, a "declining trustee" is a trus

tee who declines before he has acted.

Glasse, Q. C., in reply.-Stones v. Rowton and Nicholson v. Wright were not followed in Pell v. De Winton (2 De G. & J. 17), and "declining" must mean declining whether before or after the acceptation of the

the surviving or continuing trustee. It is clear, there-
fore, that a retiring trustee is not the person in whom
the power is to be vested. In the case that has oc-
curred there was no surviving trustee, and Mr. Travis,
the retiring trustee, is not a continuing trustee, and
has no power to make the appointment.
Notes for reference--Sharp v. Sharp (2 B. & A. 405);

Lewin on Trusts, 570.

VICE-CHANCELLOR STUART'S COURT.
MAKEPEACE v. ROGERS.-Feb. 21.
Principal and agent-Bill for account of receipts and
payments-Demurrer.

Demurrer to a bill by a landowner against the agent and
manager of his estates, for an account of all moneys re-
ceived, and for all payments made by such agent, and
for a decree for payment of any balance that might be
certified to be due, overruled with costs.

Demurrer. The bill prayed that an account might be taken of all moneys received by the defendant for or on account or on behalf of the plaintiff, or which might have been received by the defendant, but for his wilful default or neglect; that an account might be taken in like manner of all moneys paid by the defendant to the plaintiff or to his use, or on his behalf, and that the defendant might be decreed to pay to the plaintiff what should be found due on the balance of the said accounts; the plaintiff being willing to pay to the defendant what, if anything, might be found due to him.