19 He conduct during that fortnight was very unkind, inas-kindness and stopping away all night, but I was not much as he would go out about nine in the evening, cross very often. When he slept in my bed he left and stay out until five or six in the morning. He my bed for an hour or longer. His dressing room generally did that every evening. Sometimes he stayed was some way off at the end of the passage. After out till three, sometimes till five or six in the morning. an absence for an hour or more he would return and I complained of his conduct, so far as that I told him remain in my bed for the rest of the night. When he I wished he would stay at home sometimes, or take left my bed he did not tell me on these occasions me with him. I did not sit up for him. He took no where he was going. When I was awake he would notice of my complaint. He spent part of the day ask me why I was not asleep, he did not like people during the fortnight with me. He took me to no who were always awake. It would be about twelve places of amusement, either during the day or the o'clock he left my bed; the rest of the family had evening. He did not tell me where he passed his gone to bed. He undressed in his dressing room. On nights. We returned to Bradford together, about the several occasions he came into my room undressed, 17th August following. On his return his conduct and went away again without getting into bed. He vas not so bad; he did not go out at night so much. did not speak to me. After that he would remain an do not recollect he did so more than once. He hour before he came to bed; sometimes I would wake vent to the Isle of Man the third week in September. and find he was away. I spoke to him several times, le did not ask me to go with him. He did not tell and asked him why he went away in that way, but he ne he was going. I only found it out from his friends never gave any reason. I told him his father and he night before. I told him I heard from his friends mother must be surprised to hear him walking about in bat he was going. He said, 'Yes, he was.' He re- that way. From November to July 1862, it occurred ained at the Isle of Man three or four days. On most nights when he was sleeping at home. He came is return I thought he became more unkind, rather into the room and went away, or got up from bed and ore disagreeable in all ways. He shewed it in not went out, more frequently the latter. I was not peaking to me-not speaking so much as before. He always awake when he went out, I woke up and found id not court my society. He very seldom came to him absent. His conduct during the day at this time e. He was out of the house more than once or was generally very unkind. We hardly ever went out rice. He was out late at night. In November he together. At home he objected to sitting in the same ent away about nine one evening, and stayed away room with me. If we were alone he told me to go bout three or four days. I did not know he was off away. He gave me no reason for this conduct. I ntil he had gone. Neither before he went nor after asked him several times, he gave me no reason. e came home did he tell me where he had gone to. never told me he had taken a dislike to me. We had le was away three days. He gave me no reason for no sitting room of our own. Our sitting rooms were is absence. I asked him, but he gave me no reason. common to the family. He sat in the kitchen when cannot recollect that he gave me any reason, except he left the room. If I spoke he would find fault with bat he chose to stay away. When he returned he my manner of expressing myself. Sometimes he emained at home one night. He went away again would give me no answer at all. In January, 1862, I na pony carriage about three in the afternoon, and went over to Leeds with him. We had lunch together. stayed away all night. He did not tell me where he He left me after lunch; he said he would come back vas going. I did not know he was going until he at four o'clock; he left me about two p.m. I objected trove off. I had no quarrel with him. He was away to his leaving, I was afraid I should not find him again. ne night. The next night he came back about twelve. He did not appear the whole evening. I stopped until was in bed. He did not tell me where he had been. seven, when the shop was closed at which I was; I le brought a dog with him. This was the latter end went home. I walked about until four, and stayed in f November. It was a cross bad-tempered dog, not the shop from four to seven. I saw nothing of him very large dog. He insisted on having the dog in that night. I saw nothing of him until nine o'clock the ed between us. I objected to it very much, and following night. When he came home he said he met egged that the dog might be left downstairs. It was some friends who detained him after the hour agreed ot taken downstairs. He insisted on keeping it in upon. He did not say where he had been during the ed all night. We had the dog there the first night, night. Towards the end of March, 1862, I went nd also one or two nights following. I could not to Scarborough on a visit to my mother and ep whilst the dog was there, I was so frightened; it sisters for four or five weeks. He did not object as lying on the pillow between us, near my shoulder. to my going, but he objected to give me money complained to him of this, and said I particularly to pay for my ticket. He did not write to me whilst islike dogs in bed. I do not know that any of his at Scarborough. I wrote once to him, but he took no amily complained to him about the dog at that time. notice of my letter. On my return to Bradford he The dog was afterwards sent away. My husband continued to behave as before, quite as bad. On the rom that time was away for several days and nights 1st June Mr. Cousen went to Inkley, and returned the 00. He remained away the whole night on each oc- following night. I was in bed. He came to my bedasion. Every week he would go away on Friday room. He was undressed. I was awake. He brought Saturday night, and stay until Monday. On the same dog he had before. He went away for a ther occasions he would go away on Wednesday short time and returned, bringing the dog in his arms. Thursday, and stop one night. He never gave any The dog slept in the bed between us. I objected very pason for his absence on these occasions. I asked much, and told him so, for I knew I should get no im several times. I do not think business had any- sleep. The dog remained all night. I was awake. I thing to do with it; he never said that it had. This was awake the whole night, and was stiff and pained conduct continued from November until the time I the next day from lying in one position on account of eft in July, 1862. Whilst I remained in this house it. The next day, in the afternoon, he tried to set Dear Bradford, he continued to live in the same house the dog on me; it was savage. It rushed at me, and with me, and we occupied the same room and the barked every time I came into the room. My husband ame bed. Although we occupied the same bed we urged the dog to bite me. In the evening, in the ceased to cohabit as man and wife from November, kitchen, he took the dog up on his knee, and set the 1861, to July 1862. He gave me no reason for so dog on me. I told him not to do it. My husband perdoing. I used to remonstrate about his general un-sisted, and I took up the poker, and said I would strike not answer. the dog if it bit me. I was very much frightened; I have a horror of being bitten by dogs. My husband knew that. He persevered to make the dog bite me, until his father and mother came in from the noise, and he desisted after that. I said that sooner than have the dog in bed I would sit up all night in the kitchen. I asked his mother to interfere. She told him it was very unreasonable to have the dog in bed, as I disliked it so much; his conduct had an effect upon my health, so far that I felt generally poorly. Shortly before I left, after I came back from Scarborough, several times I asked my husband the reason of his conduct; sometimes he would turn away and On one occasion I said, 'I thought he might answer when I spoke to him;' and he said, 'What do you want me to say?' I said, 'I think you might say you would behave a little better to me; he answered that I need not expect he would ever do so; he was writing all the time; he always pretended to take no notice when I spoke to him. On one occasion I asked him 'Why he behaved as he did, and why he did not live with me as his wife?' His answer was, 'He did not intend to do so again.' He gave no reason, although I asked him several times. This conduct I have been speaking of continued down to the time I left, the 25th July. I then went to Leeds. I knew an old lady who lived there. I told my husband I was going to leave him; he did not endeavour to prevent my leaving him. I have never heard from him since. I have been living with my mother ever since." Cross-examined by Dr. Swabey, on behalf of the respondent. I was on good terms with my mother-inlaw, and living under her roof for some time. I was tolerably intimate with her. Miss Cousen, a sister, and a brother, of my husband lived in the house at Bradford besides his father and mother. I was on good terms with my sister-in-law. Of the stone quarries, one was in Bradford, one two miles from Bradford, one still further distant. The care of the quarries did not oblige my husband to travel; he ought to have been at his office. His office was at Bradford. When I came to London he paid part of my railway fare. He paid all going to Scarborough, after much grumbling. I paid the rest of the fare to London out of my pocket money. I had no income of my own. My mother was in lodgings in Jermyn-street. I occupied a bed room in Jermyn-street, near the top of the house. The size of the dog was not so large as that of a Skye terrier. I did not on the night the dog slept in our bed offer to leave the room. On the first occasion I told my mother-in-law and sister-in-law that I disliked very much the dog being in bed. On the occasion in the kitchen, the dog was never off the knees of my husband. He took it off the floor, and held it; when his father and mother came in he let it down, and it then rushed at me. In the winter of 1861-62 my health was pretty good. I had a cold once, but it was nothing. Besides my husband's conduct as to the dog, I complained to Mrs. Cousen, my husband's mother, of his conduct two or three times, some months before I left. I complained of the manner in which my husband lived with me, and of his general conduct. She said she was sorry to see we lived so unhappily. She did not like to interfere, but if I wished it she would speak to him. I told Mrs. Cousen, before I went away on the 25th July, that I was going, and did not intend to return. Re-examined. My husband got 20001. belonging to me when I married him. It was not settled upon me; he got it altogether. On the first occasion when the dog slept with us, I said I did not offer to leave the room; there was no other room in which I could have slept. I did, when I complained to Mrs. Cousen, the mother, tell her my husband had not lived with me as a husband for some time. I cannot say my exact words When I spoke to Mrs. Cousen about leaving on the 25th July, I told her it was on account of what I had found out about Walker, a servant then in the house. Dr. Spinks argued that the conduct of the husband, taken in connexion with his adulterous intercourse with a servant under the same roof, amounted to cruelty, so as to found a decree of dissolution. Dr. Swabey, for the respondent. THE JUDGE ORDINARY refused to make any decree until the petitioner was able to attend and be examined in court, which she did on the 14th June, and repeated in substance the evidence taken before the registrar On the 15th June, 1865, further evidence was given by the respondent's father. Cur, adr, vult. July 18.-THE JUDGE ORDINARY.-The Court is not at liberty to dissolve this marriage. Proof was given at the trial of a cohabitation extending culy from April, 1861, to the month of July, 1862, whet the petitioner left her husband, and has ever since lived apart from him. That during this period the petitioner experienced much neglect and indifference, there is little doubt: that the husband's ill-conduct extended to acts of positive violence, ill-treatment, or even abusive language, there was no pretence. With the single exception I am about to notice, the whole of the wife's complaint falls within the category of coldness, want of affection, isolation, and the like And the question is, whether conduct of this nature, in the total absence of personal violence or words of menace, can be pronounced legal cruelty? It is not contended that, standing alone, it could bear that character. But it is argued that it does when taken in conjunction with this other fact, that the respondent was proved to have carried on an adulterous intercourse with a female servant in his own house where his wife was residing. And the cases of Popis v. Popkin (1 Hagg. Eccl. 768); Otway v. Otway (2 Phillim. 96); and Smith v. Smith (Id. 207), were cited. But in neither of these cases, nor in any other that I have been able to find, was a decree made on any such ground. the In the first of those cases Lord Stowell spoke of the attempt to debauch servants in the house as a strong act of cruelty, but added that it was not sufficient to divorce, but might weigh, in conjunction with others, as an act of considerable indignity and outrage to the wife's feelings-very cautious language and falling far short of an authority on which to rest a decree. In all three of these cases there was personal violence; and in the two latter the decree passed by the question of cruelty to rest adultery plainly proved. Such being the state law in the Ecclesiastical Courts, it is well also to bear in mind the language of the Divorce Act. The Leg lature granted to a wife the remedy of divorce in cer tain cases of aggravated adultery, "incestuous adal tery," and "adultery coupled with bigamy;" but i: dd not add adultery committed in the household. Whe therefore, the act speaks of "adultery coupled with cruelty," something more, it would seem, was intended than adultery alone, though of an aggravated chara ter. In fine, it is enough to say, nience is likely to attend an evasion of the fixed li within which this flexible charge of cruelty has bee hitherto confined. And as there is no authority t declaring the respondent's conduct to be legal crucity such as to carry a decree, I decline to make one. the petitioner desires a decree of judicial separation the Court is prepared to pronounce it. Attorneys-for petitioner, Paddison & Son; for respondent, Nichols & Clark. that grave inconve 26 COURT OF APPEAL IN CHANCERY. SYMONDS v. WILKES.-June 6. Construction-Articles-Restraint against anticipation. Where articles for a settlement directed the property to be conveyed on trust to pay the income to the wife, or such person as she should appoint, during her life, for her own absolute use and benefit, free from marital control and liability-Held, that in the settlement a restraint against anticipation should not be inserted. Hobhouse and Bristowe, for the plaintiff, cited Owens v. Dickenson (Cr. & Ph. 48) and Torre v. Torre (1 Sm. & G. 518). Selwyn and Boyle, for the plaintiffs. ment on other points, said-The next question is, Sir J. L. KNIGHT BRUCE, L. J., after giving judgwhether the settlement of 1860, properly construed, does contain in effect a restraint upon alienation, or anticipation, as we are in the habit of calling it: and with deference to the Master of the Rolls, if he thought otherwise, I confess my opinion is that it By an indenture, dated the 22nd September, 1860, does not. It was competent to this lady and her inmade between Samuel Wilkes of the first part, Anna tended husband, before the marriage, to contract that Woods of the second part, and William Woods of the the property should be for her separate use, not rethird part, after reciting that, upon the treaty for the strained from anticipation. That appears to me to intended marriage between Samuel Wilkes and Anna be the contract contained in the settlement, and the Woods, it had been agreed that the whole of her real Court would be exceeding its powers in the case of and her personal property therein described should be adults, by inserting in the instrument, either in effect settled for her absolute benefit, it was agreed and de- or expressly, a clause of prohibition against anticipaclared by and between the parties thereto that all the tion. I think, therefore-with great deference, I resaid real and personal estate should, in case the mar-peat, to the Master of the Rolls-that we ought so to riage took place, be conveyed and assigned to the said construe the settlement of 1860, and we must deal William Woods, and that, in the settlement to be with it as if every restraint upon anticipation were thereafter made, it should be declared that the trustee out of the case. That being so, and I have some reashould stand seised and possessed thereof respectively son for believing that my learned brother is of the in trust to sell certain shares, and pay the produce same opinion, we had best refer it to the bar to thereof to the credit of the bankers of the said Anna urge on some mode of arranging the property; not so Woods, and to pay the rents, dividends, and annual as to prevent the parties going to the House of Lords, produce of the real and personal estate unto, or permit but that they may agree now in some mode of arrangeand suffer it to be received by," the said Anna Woods," ment that will be convenient to each of them, so far or such person or persons, for such intents and pur- as the payment of a debt can ever be convenient, and yoses, as the said Anna Woods should, notwithstanding not to inflict unnecessary damage upon any person. ter said intended coverture, by any writing under her We wish the assistance of the bar in that respect, as I and at any time, or from time to time, appoint, for have already said, not at all intending to preclude an and during the term of her natural life, for her own appeal to the House of Lords. absolute use and benefit, free from all marital control and liability; and that her receipts alone should be sufficient discharges to all intents, and for all purposes with remainders in default of appointment. Power was given to the said William Woods, or the trustee for the time being of the said intended settlement, with the consent and concurrence in writing of Mr. and Mrs. Wilkes, "to alter and vary any of the provisions, clauses, matters, or things therein conained, and to add or supply any other provisions, lauses, matters, or things which might be deemed lecessary or proper." Sir G. J. TURNER, L. J.-There have been various points and notices by the respondents in this appeal. It is said that in the case of these settlements there is a distinction made between parts of the property which are to be taken by this lady-property for her absolute and separate use that is, and other parts of the property. It is quite true that there exists that distinction. The question is, what is the inference to be deduced from that distinction which does exist? The only inference to be deduced from it is this: that that part of the property taken by her and separated from the rest of the property is made subject to her absolute and entire control, and of the other part of the property she is made tenant for life; and I think that there is no inference to be deduced that she was intended to be tenant for life, without power of anticipation, because it appears that the said property was settled absolutely, or might have been settled absolutely, for her special use. It seems to me, therefore, that there is no foundation for any of the arguments that have been adduced on behalf of the respondents. With reference to the observation of the Mas By an indenture, dated the 22nd May, 1861, the reeholds were conveyed, and the leaseholds and personlty were assigned, to one Holmes, upon trust to raise 10007. for the sole and separate use of the defendant Mrs. Wilkes, and, subject thereto, to permit her to arry on the business of an hotel keeper as if she were till a widow; but she was restrained from anticipaion, except so far as was necessary for carrying on he business. The deed was never executed by the rustee, and the 10007. was never raised. Mrs. Woods afterwards accepted a bill for 1927. in the course of ter of the Rolls, that all these settlements ought aer business, and this suit was instituted in order to ob- to contain a provision for the separate use of a martain payment of the amount out of the settled property. ried woman, without power of anticipation, I agree in Several questions arose in the course of the suit, but it in all cases where the settlement is made under the the only question now reported is, whether, under the division of the Court-as, for instance, in the case of circumstances, Mrs. Woods was restrained from anti-infants. There the Court undoubtedly takes care to cipation of the rents, dividends, and annual produce. The Master of the Rolls held, upon the construction of the articles, that, in the settlement which was to be made in pursuance of them, the Court would introduce a proviso against anticipation, unless a contrary intention was manifest. The subsequent settlement was not executed by the trustee, who had power to vary the trusts, which was a fatal objection. His Honor was of opinion that she could not bind this property. The plaintiff appealed. No. 555, VOL. XI., NEW SERIES. protect the property of the infant, by limiting it to the separate use of the infant, without power of anticipation; but I cannot go to the length of saying that these cases are to be carried to the extent that parties who are competent to deal with their property are not capable of entering into an agreement that the property which shall be settled for the separate use shall be absolved from the restriction of the power of anticipating it. If such a case is to be made at all, it is my opinion that it must be made by a bill seeking to rectify the settlement, and to alter its terms, by insertg g It ing a limitation for the inalienable separate use. Notes for reference-Owens v. Dickenson (Cr. & Ph. 48); PHILLIPS v. JAMES.-May 3 and July 1. By articles made previously to a marriage, lands were co- On the marriage of Thomas James and Martha Morris, articles of agreement, dated the 14th March, 1825, were made between James James the father of the husband, John Morris the father of the wife, and Thomas James, and were as follows:-First, James James, in consideration of the intended marriage, covenanted with John Morris to execute a proper conveyance of such part of his real estate, called Cwm Crymych, in the county of Pembroke, as was then in his own occupation, unto trustees, for the use and benefit of his said son Thomas James, during his natural life, and provided the said Martha Morris, his intended wife, should survive him, for the use and benefit of the said Martha Morris during the time she should remain his widow. And from and after the decease of the said Thomas James, or the second marriage of his said intended wife Martha Morris, for the use and benefit of the issue of the said Thomas James, by the said Martha Morris, his intended wife, their heirs and assigns, for ever. Pontifex, for other grandchildren. Roddy v. Fitzgerald (1 H. L. C. 823); Mills v. Serard (1 J. & H. 733); and Morris v. Ward (8 T. R. 518), were also cited. July 1.—Sir G. J. TURNER, L. J., after stating the facts of the case, said-It was not disputed in the argument before us, nor, as I conceive, could it have been disputed, that this is a case of executory trust, and the rules to be observed in carrying into effect an executory trust contained in marriage articles are well and compendiously laid down by Lord Redesdale in Taggart v. Taggart (1 Sch. & L. 87). He there says, speaking of such articles, "There are numberless cases to establish that articles are not to be construed in the same manner as formal dispositions. In case of formal disposition the Court has nothing to rectify by; but in case of articles, it has to consider what is the contract which the parties intended to enter into, and where the words are short or defective, to presume what was the probable intent. There is a case, though I cannot find it, which treats articles as short notes, to be afterwards drawn out at length, according to the usual course of settlements; and if the words made use of in this case were laid before any professional man as instructions, there can be no doubt what settlement he would make." The reporter, in a note to this passage, refers, in support of Lord Redesdale's observations as to the cases, to a dictum of Lord Hardwicke in Blandford v. The Duke of Marlborough (2 Atk. 545), that articles are considered in this court as minutes only; and a dictum of Lord Eldon in Ramdall v. Willis (5 Ves. 275), that an article is only the head or minute of an agreement, not to be followed literally. These observations of Lord Redesdale furnish, as it seems to me, some guide for determining the case. Upon the argument before us, it was first contended, on the part of the children of the son and daughters, that the settlement, being to be made for the use and benefit of the issue, ought to be so framed as to let them in independently of, and concurrently with, their parents; but on this point I feel no diffculty. I agree, indeed, that "issue" being the word used in the agreement, and there being no context to control the general and ordinary meaning of that word, it must be taken that it was intended that the settle ment should be so framed as that all the issue might take under it; and I think so the more, as the last clause of the agreement seems to me to shew that it was not contemplated that the settlement would come to an end, so long as there was subsisting any issue of the marriage; but I do not think it follows, that be cause all the issue were intended to be included in the settlement, they were intended to take independently of, and concurrently with, their parents. It is scarcely possible to suppose that this could have been intended; and I am satisfied that no professional man, taking these articles as instructions, would have made the settlement in such a form. I think, therefore, that this argument on the part of the children of the son and daughters cannot be maintained. The real question in this case seems to me to be, whether, as the plaintiffs contend, the son and daughters were intended to take as tenants in common in fee or in tail, or whether, as the defendant William James contends they were intended to take estates tail in the order of succession prescribed by this decree. How this Watson, for some of the grandchildren, contended question would have stood if there had been no authat the issue of the marriage of every degree were thority bearing upon it, it is not necessary to consider. entitled under the word "issue," especially as the In cases of articles for a settlement upon marriage, trusts were executory. (Glenorchy v. Bosvile, Cas. t. using the word "issue" as it is used in these articles, Talb. 3; 1 Wh. & Tud. L. C. 1; Jervose v. Northum-it might, perhaps, have been held, that the settlement berland, 1J. & W. 574; Leigh v. Norbury, 13 Ves. 340). I should be so framed as that the children should take 1 No settlement was ever made pursuant to these articles, but Thomas James was let into possession of the rents, and so continued till his death in 1864. His wife died in his lifetime, and there was issue of the marriage three children, Mary Phillips, Martha George, and William James, each of whom had issue. Mary Phillips and Martha George now filed this bill, each claiming, on the construction of these articles, one-third of the estate in fee against William James the son, in whom the legal estate was vested, and who claimed as tenant in tail, and against the grandchildren of the marriage, who claimed to be entitled equally with their parents. Sir R. T. Kindersley, V. C., decided that a settlement ought to be executed, giving William James an estate tail, with remainder to Mary Phillips and Martha George, as tenants in common in tail, with crossremainders over. The plaintiffs appealed. Glasse and Freeman, for the plaintiffs. as tenants in common in tail, with cross-remainders ROLLS COURT. between them in tail; but I think the authorities (I Re THE BANK OF HINDUSTAN, CHINA, and Japan refer more especially to the case of Dod v. Dod (1 Amb. 274)), are opposed to this view, proceeding, as I understand them, upon the ground that the more common and ordinary form of settlement is to give estates tail to the sons, with remainder in tail to the daughters. It was argued, however, for the appellants, that this case is distinguishable from the decided cases, upon the ground, that in this case the settlement to be made was to be for the use and benefit of the issue, their heirs and assigns; but in the decided cases the words "to the use of the issue" were taken to shew that the intention was to give estates tail to the children; but the Court held, that they were to take those estates in the order and course commonly adopted in settlements, and not as tenants in common. Here, it being intended that all the issue should take under the settlement, and the superadded words, "their heirs and assigns for ever," not being, as I think (having regard to the authorities), sufficient to displace that intention, there is, as it seems to me, no less evidence of intention that the children should This was a motion by Peter Roland Los "for an take estates tail than there was in the cases referred order of the Court, under the Companies Act, 1862, to; and the Court having held in those cases, that the sect. 35, that the register of members of the aboveestates tail to be taken by the children were to be named Bank of Hindustan, China, and Japan (Litaken by them in the order and course usually adopted mited), under the Companies Act, 1862, may be rectiin settlements, I do not see how we could hold other-fied, by omitting therefrom the name of the said Peter wise, in this case, without introducing great confusion Roland Los as a member of the said company holding and uncertainty into the law upon this subject, which the 102 shares therein under the date of the 12th I am by no means disposed to do. Trying this case October, 1864, and that the said company may be by the test of what settlement a professional man directed to pay all the costs of this motion, and any would have made if these articles had been laid before damages the said Peter Roland Los has sustained in him as instructions, I think that, whatever he might the premises." have done before the cases to which I have referred were decided, he would have felt bound to follow the decisions in those cases, and would, therefore, have adopted the form of settlement which the Vice-Chancellor has considered to be right. Indeed, in the case of articles entered into upon marriage by a large landed proprietor, for the settlement of his estates in The 62nd clause of the articles of association profavour of the issue of the marriage, it could not, Ivided, that the directors "may purchase or acquire think, be supposed that he could intend the estates to the rights, business, works, or property of any combe split into as many shares as there might happen to pany, firm, or person carrying on any business inbe children of the marriage; and it would be of dan- cluded amongst the objects of the company; and may gerous consequence that a different effect should be enter into any negotiations, contracts, sub-contracts, given to the same words, according to the extent of or arrangements for any purposes included amongst the property affected by the articles. Upon these those objects, and may amalgamate with any company grounds, my opinion in this case agrees with the Vice-carrying on business within any of those objects, or Chancellor's, and this appeal must, therefore, be dismissed; but I think it should be dismissed without (LIMITED), ex parte Los.-June 22 and 23. Companies Act, 1862, sects. 35, 161-Rectifying register -Jurisdiction-Amalgamation-Compulsory taking of shares in new company. The 35th section of the Companies Act, 1862, confers a jurisdiction upon this Court to rectify the register of shareholders, by erasing a name improperly placed thereon, although the shares have been forfeited and the name removed from the register, previously to the application to the Court. In the case of a company being wound up voluntarily under the 161st section of the Companies Act, 1862, and amalgamated with another company, a shareholder of the absorbed company, who neither assents to the voluntary winding up, nor gives notice of dissent in the manner provided by that section, cannot be compelled to take shares in the amalgamated company which have been allotted to him in pursuance of the terms of agreement for amalgamation. costs. Sir J. L. KNIGHT BRUCE, L. J.-My learned brother being of opinion that this appeal should be dismissed without costs, our order upon it must, of course, be 50. My view of the construction of the agreement of the 14th March, 1825, on which the suit proceeds, is, therefore, immaterial. I may as well, however, state it; and it is, that under the agreement, according to its correct interpretation, the three children of the marriage of Mr. James, in contemplation of which the agreement was made, became, in the year 1864, on his decease, entitled in possession as joint tenants, or equally as tenants in common, to the inheritance of the lands comprised in it. Accordingly, I differ very respectfully from the two learned judges before whom this cause has come; but, as I have said, the difference is rendered by circumstances unimportant. Notes for reference-Glenorchy v. Bosvile (1 Wh. & Tud. LC. 1); Taggart v. Taggurt (1 Sch. & L. 87); and Dod v. Dod (1 Amb. 874). Mr. Los was the holder of 102 shares of 501. each in the Imperial Bank of China, India, and Japan (Limited). The company was incorporated in April, 1864, under the Companies Act, 1862, with a nominal capital of 1,000,000l., divided into 40,000 shares of 50%. each. with any bank, or financial or exchange business; and may pay for any property or rights acquired by the company in money or shares, or partly in one mode, and partly in the other; and may sell, exchange, or otherwise dispose of, absolutely or conditionally, or for any limited interest, any of the property or contracts of the company, upon such terms as they may think fit, and accept payment of any money due to the company in shares or otherwise." The Bank of Hindustan, China, and Japan (Limited) was incorporated in July, 1862, with a nominal capital of 1,000,000l., divided into 10,000 shares of 1001. each, with power to increase the capital to 2,000,000l. In the year 1864 negotiations were set on foot for the amalgamation of the two banks, and on the 28th August, 1864, Mr. Los received a circular letter from the manager of the Imperial Bank, in these terms:— "I have the pleasure to inform you, that the negotiawith the Bank of Hindustan, China, and Japan (Litions which have for some time past been pending mited), having for their object an amalgamation with that very prosperous institution, have now been brought to a successful issue. The directors have finally settled terms which they think highly advan |