L. JJ. 1871 In re KILVERT'S TRUSTS. SIR G. MELLISH, L.J.: I am of the same opinion. The language of the bequest shews that the testatrix had some particular society in her mind, and the question is what society? There is no difference between the course to be adopted here and in any other case of finding who answers the description given in a will of a legatee. If there were no society answering the description sufficiently to enable it to claim the legacy, it may be that the Court would carry the gift into effect as a gift for the relief of the widows and orphans of the clergy of the diocese. Here, however, I think it clear that the Appellants come near enough to the description to be entitled to the legacy if there were no other society to compete with them. There is a description of the society by its old name; its name has been changed, but its object is precisely the same as at first, and the old name is not wholly inapplicable to it. Then, assuming another society to come near enough to the description to have ground for claim, parol evidence is admissible to remove the ambiguity, and the evidence adduced is decisive. Solicitors: Messrs. Merediths, Roberts, & Mills; Messrs. Duncan & Murton. L. J. J. 1871 Dec. 16, 18. In re OGILVIE. Judgment Creditor-27 & 28 Vict. c. 112, s. 4—Railway Company-Separate Undertakings-Superfluous Lands. An existing railway company was authorized to make an extension line, by an Act which enacted that the capital might be raised by an issue of new shares, to be called extension shares, and that the works authorized by it should," for financial purposes, form a separate undertaking," and that the capital and new shares created under its powers should constitute a separate capital; and that the profits of the extension line applicable to dividend should be wholly applied in payment of dividend on the extension shares; and that the extension shareholders should not be entitled to dividends out of any other profits of the company, and that the company might raise by mortgage, any additional sums not exceeding £28,000; but not till all the extension capital had been subscribed for and half of it paid up; and that the money raised by new shares or mortgage, should be applied only for the purposes of the extension Act. A contractor, to whom the company was indebted in respect of the construction of the original line, obtained judgment against the company, extended certain surplus lands acquired under the powers of the extension Act, and then applied to the Court for a sale: Held (affirming the decision of Wickens, V.C.), that the creditor was entitled to an order for sale; for that, whatever might be the rights of the different classes of shareholders inter se, the lands were lands of the company, liable to be sold for payment of any judgment debts of the company. THIS The company were incorporated by the Tendring Hundred Railway Act, 1859 (22 & 23 Vict. c. cxix.), for making a railway from Hythe, near Colchester, to Wivenhoe, in Essex; and by the Tendring Hundred Railway Act, 1862, 25 & 26 Vict. c. xxxiv., they were authorized to extend the railway to Colchester. Ogilvie was employed by the company to construct the lines authorized by these Acts, and on the 1st of April, 1863, the company gave him an acknowledgment under their corporate seal that they were indebted to him in the sum of £2000, which was to bear interest at £5 per cent. per annum, payable as therein mentioned. On the 7th of February, 1868, they gave him an acknowledgment under their corporate seal that they were indebted to him in the sum of £2820 for work done and materials supplied by him for the purposes of the undertaking authorized by the two above-mentioned Acts, or one of them, which sum was to bear interest at £5 per cent. payable as therein mentioned. In 1869 Ogilvie commenced an action against the company, in which he recovered judgment against them for £5734 0s. 8d., the amount due to him for work and materials, and on the 12th of July, 1870, lodged a writ of elegit with the Sheriff of Essex. On the 13th of August an inquisition was held before the sheriff, and it was found that the company had no goods or chattels in the company, but were seised in fee of certain specified lands, being surplus lands. These lands were delivered by the sheriff to the judgment creditor, who presented his Petition under 27 & 28 Vict. c. 112, s. 4, for a sale of the lands. The company resisted the application, and set up the defence that the lands were surplus lands taken under an extension authorized by the Tendring Hundred Railway Extension Act, 1863, L. JJ. 1871 In re OGILVIE L. J. J. 1871 In re OGILVIE. 26 & 27 Vict. c. cxliii.; which extension, they contended, formed The solicitor for the company deposed that he accidentally found out that the inquisition was being held, and appeared at it; but that the under-sheriff held that he was not entitled to attend or be heard. On the 10th of November, 1871, Vice-Chancellor Wickens made an order directing inquiries-first, what was due to Ogilvie on his judgment; secondly, what lands and property had been extended under the elegit, and what were the nature and particulars of the interest of the company in them, and of their title thereto, and whether any and which of such lands were superfluous lands within the meaning of the Lands Clauses Consolidation Act; fourthly, an inquiry as to incumbrances on the lands. From this order the company appealed. Mr. Greene, Q.C., and Mr. Millar, for the company, referred to the provisions of the last-mentioned Act, and contended that the undertakings were distinct, and that the company were in the position of trustees of their surplus lands for the extension shareholders, and that such lands could not be taken for the purpose of paying debts contracted exclusively for the purposes of the original undertaking. [They referred to Great Northern Railway Company v. South Yorkshire Railway Company (1); Ames v. Trustees of the Birkenhead Docks (2); Gardner v. London, Chatham, and Dover Railway Company (3); Bowen v. Brecon Railway Company (4); In re Potteries, Shrewsbury, and North Wales Railway Company (5).] Mr. Dickinson, Q.C., and Mr. W. P. Beale, for Ogilvie, were not called upon. SIR W. M. JAMES, L.J.: I am of opinion that the Vice-Chancellor could not have done otherwise than make this order. It appears to me that, under 27 & 28 Vict. c. 112, s. 4, a judgment creditor is entitled to ask, ex debito justitiæ, for a sale of the debtor's land. Of course only the debtor's interest in the land can be sold; and if any third party has an equitable claim upon the land he is not bound by the order, but can take steps to enforce his right in the regular way. If there were any collusion between a railway company and a judg L. J. J. In re L. J. J. 1871 In re OGILVIE. ment creditor to give the creditor a remedy affecting the interests of parties whom the company had no right to affect, the Court would interfere to prevent effect being given to such a scheme. But a company, like any other debtor, is bound to pay its debts, and cannot escape from this obligation by saying that its property, which the creditor seeks to attach, ought, as between different classes of shareholders, to be applied in a particular way. It may be that, as between the extension shareholders and the original shareholders, the lands now in question are the property of the former, and that they have rights against the latter, if such property is applied in payment of this debt; but the fact that, for the financial purposes of the company, the extension line is treated as a separate undertaking, does not make these lands cease to be property of the company, liable to be taken by any bona fide judgment creditor of theirs. The appeal must be dismissed with costs. Solicitors Messrs. J. B. Batten; Messrs. F. & T. Smith & Sons. L. JJ. 1871 Dec. 7. Ex parte HONEY. In re JEFFERY. Bankruptcy-Double Proof-Several Contracts-Bankruptcy Act, 1869, s. 37. A joint and several promissory note was signed by two members of a firm, by the firm, and by several other persons. The firm having become bankrupt, the holder of the note carried in proofs against the joint estate of the firm, and against the separate estates of the two partners who had signed the note: Held (affirming the decision of the Registrar), that the holder was entitled to prove against, and receive dividends from, both the joint estate of the firm and the separate estates of the two partners who had signed the note. THIS was an appeal from a decision of Mr. Registrar Pepys, sitting for the Chief Judge, admitting a proof. James Reddecliffe Jeffery, F. J. Jeffery, J. Barnard, W. H. Watts, and W. Heard, were carrying on business in co-partnership, under the firm of " J. & W. Jeffery & Co." In 1869 it was arranged that William Samuel Jeffery should join the firm, and borrow £10,000, which he was to bring in as his share of the capital. Accordingly |