Bright's Case.

IN THE WINDING-UP OF THE DIRECT BIRMINGHAM, OXFORD, READING, AND BRIGHTON RAILWAY COMPANY; BRIGHT'S CASE.1

July 3, 1851.

Joint-stock Companies Winding-up Act-Contributory.

A had been a member of the provisional committee and had accepted shares in a company which was ordered to be wound-up. The master placed A's name on the list as a contributory to the expenses of the committee incurred between the 14th October, 1845, the day on which he accepted his shares, and the 30th of November, 1845, on or before which day the company ought, according to the standing orders, to have deposited their plans, &c., in order to obtain an act of incorporation in the then next session. But they did not do so; nor did they, after that day, take any steps towards the establishment of the company:

Held, that A was liable to contribute to the expenses incurred between the 14th of October and 30th November, 1845, both inclusive; but was not liable to contribute to the expenses incurred before the former day or after the latter.

MR. BRIGHT had been a member of the provisional committee and had accepted shares in the above-mentioned provisionally registered company; and, therefore, according to the decision of the House of Lords in Upfill's case, 2 House of Lords Cases, 674; s. c. 1 Eng. Rep. 13; he was liable to pay his ratable proportion of the necessary expenses of the committee incurred in preparing to launch the common concern. According to the standing orders of parliament, the company, in order to obtain an act of incorporation in the then next session, ought to have deposited their plans, sections, and books of reference on or before the 30th of November, 1845; but they did not do so; nor did they take any steps, after that day, towards the establishment of the company.

Under those circumstances, the master charged with the winding-upof the company, considered that the expenses of preparing to launch the concern, were those which were incurred up to and inclusive of, but not subsequently to the 30th of November, 1845; and he placed Mr. Bright's name on the list as a contributory to the expenses incurred between the 14th of October, 1845, when Mr. Bright accepted his shares, and the 30th of November, 1845, both inclusive.

Both the official manager and Mr. Bright were dissatisfied with what the master had done, and a motion was now made, on behalf of the official manager, that the master's report, so far as it declared that Bright was liable to pay his ratable proportion of the expenses of preparing to launch the concern incurred between the 14th of October and the 30th of November, 1845, both inclusive, might be reversed, and that it might be declared that Bright was liable to pay not only a ratable proportion of the expenses incurred between those days, but also a ratable proportion of the expenses incurred before the 14th of October and after the 30th of November, 1845, down to the final abandonment of the company. At the same time a motion was made, on behalf of Mr. Bright, that an order for a call of 107. per

Moore v. Darton.

share, which the master had made on certain of the contributories including Mr. Bright, might be discharged, on the ground that Mr. Bright had never authorized the incurring of any of the expenses of the company.

Mr. Bethell and Mr. Roxburgh appeared for the official manager.

Mr. Cooper and Mr. Morris for Mr. Bright.

The VICE-CHANCELLOR said that the master had rightly considered the 30th of November, 1845, as the day up to and inclusive of which the committee were preparing to launch the common concern, and had rightly held, according at least to the decision in Upfill's case, that Mr. Bright was liable to contribute to the expenses incurred between the 14th of October and the 30th of November, 1845, both inclusive, but was not liable to contribute to the expenses incurred prior to the former or subsequently to the latter day; and he refused both the motions with costs.

Both parties have appealed to the House of Lords.

MOORE v. DARTON.1

June 13, 1851.

Donatio Mortis Causá- Gifts - Declaration of Trust.

A lent B 500/. in October, 1843, on which occasion B wrote and signed the following document: "Received of A 500l., to bear interest at 4. per cent.," and gave it to A. In June, 1845, A being dangerously ill, gave the document to her servant, with an expression to the effect that she wished the debt to be cancelled. Ten days after this delivery, A died: ;-

Held, that this was a donatio mortis causâ in favor of B.

Gifts of this nature have not been abolished by the last Wills Act.

A lent B 100%. in October, 1843, on which occasion B wrote and signed the following document: "Received of A, for the use of C, 100l., to be paid to her at A's death, but the interest at 41. per cent. to be paid to A." Underneath was written, "I approve the above," which was signed by A. This document was given to A. The money was not paid to A in her lifetime. In June, 1845, A died:

Held, that B was a trustee for C of 100l. at the death of A.

MISS DARTON lived at Hitchen, in Hertfordshire, and was on terms of great intimacy with Mr. Moore, and made frequent visits to him at his house in London. In 1831, Ann Dye became lady's maid and general attendant of Miss Darton, and continued in her service until her death.

In October, 1843, Miss Darton lent Mr. Moore 6007. On this occasion the two following documents were written and signed by Mr. Moore:

120 Law J. Rep. (N. s.) Chanc. 626.

Moore v. Darton.

"Received 22d October, 1843, of Miss Darton, 500, to bear interest at 47. per cent., but not to be withdrawn at less than six months' notice. “500%. WM. MOORE."

"Received 22d October, 1843, of Miss Darton, for the use of Ann Dye, 100%, to be paid to her at Miss Darton's decease, but the interest at 41. per cent. to be paid to Miss Darton.

“100%.

Underneath these receipts was written,

approve the above.

WM. MOORE."

BETTY DARTON."

These documents were delivered to and kept by Miss Darton. In June, 1845, Miss Darton fell into a declining state of health. On the 18th of June, being confined to her bed, she had a conversation with Ann Dye as to the money lent to Mr. Moore. The evidence of Ann Dye as to this point was as follows:-" I assisted Miss Dar-" ton from her bed, and she took from a drawer the two receipts, and placed them in my hands, and, at the same time, requested me to take care of them, and be sure and not let Mr. Thomas Harwood Darton (who was her nephew, and the executor named in her will,) see them, and not to let either of them go out of my possession until after her death; and she then directed me, that, immediately upon her death, I was to give the two receipts or memorandums to William Moore. Her object or purpose in giving me such directions as aforesaid, as she told me, and as I believe, was that she wished that at her death the debt or sum of 600l., so due to her from the said William Moore, should be cancelled."

Ten days after this event took place, Miss Darton died. She had been all the time dangerously ill. The day after her death, Ann Dye gave the two receipts to Mr. Moore.

This was a suit instituted for the administration of the estate of Miss Darton. The master, in his report as to the debts due to the estate of the testatrix, reported that there was an outstanding debt due from Mr. Moore in respect of the loan to him.

To this report exceptions were taken by Mr. Moore, the question being whether the circumstances above-mentioned amounted to a donatio mortis causâ from Miss Darton to him.

Mr. Swanston and Mr. Moxon, for the exceptions, cited Drury v. Smith, 1 P. Wms. 404; Snellgrave v. Baily, 3 Atk. 214; Hill v. Chapman, 2 Bro. C. C. 612; Gardner v. Parker, 3 Madd. 185; and Walter v. Hodge, 2 Swanst. 92.

Mr. Walker and Mr. Pryor, for the report, cited Miller v. Miller, 3 P. Wms. 357; Ward v. Turner, 2 Ves. sen. 443; Tate v. Hilbert, 2 Ves. jun. 120; Bunn v. Markham, 7 Taunt. 224, and referred to the 4th section of the 8 & 9 Vict. c. 76, whereby it is enacted, "that every gift which shall have effect as a donatio mortis causâ, shall be deemed a legacy within the true intent and meaning of all the several acts granting or relating to duties on legacies in Great Britain and

Moore v. Darton.

Ireland respectively, and shall be subject and liable to the said duties accordingly."

KNIGHT BRUCE, V. C. The case as to the 100%. is, I think, beyond the influence of the argument whether there was a donatio mortis causâ, for, in my opinion, an effectual declaration of trust inter vivos was created in favor of the maid. The document, apparently contemporaneous with the creation of the debt, was thus: "Received the 22d of October, 1843, of Miss Darton, for the use of Ann Dye, 100%., to be paid to her at Miss Darton's decease, but the interest at 47. per cent. per annum to be paid to Miss Darton. William Moore. 1007." Now, although this was not signed by the giver of the money, yet it is probable that, she having so intended the transaction, and having received the document, there would have been considered a sufficient assent on her part to it. The matter, however, does not rest there, for she afterwards signed it, the words being "I approve the above. Betty Darton." The consequence is, that Mr. Moore, having received this money, became trustee of it for the use of Miss Darton for life, and subject to her life interest, for the use of Ann Dye, whom I think entitled accordingly. Whether effect is to be given to that upon the exceptions, or upon the further directions, or both, is immaterial.

With regard to the 500l., the case is much less simple. I confess 1 think it a question not wholly free from difficulty, whether the recent Wills Act has not precluded any such donations; but it does not appear to have been so decided, or even argued. If, against the ordinary rule, a revenue act can be referred to upon a question of law beyond its scope, it appears that a revenue act, passed since the Wills Act, has, in a manner, seemed to recognize its existence. I do not, however, rely upon that. My impression is that the act does not abolish such donations, for the reason which I have stated, that there does not appear any trace of judicial opinion or even of argument. As far as I am aware, the act does not interfere with them, and I shall act upon that impression.

The next question is, whether there was here a donatio mortis causâ of this debt. Now, it must be recollected that the debt was due from Mr. Moore himself. The document now before me, the delivery of which is said to have operated as a donatio mortis causâ, delivered with the intention with which it is said to have been delivered, was placed in the hands, not of Mr. Moore, but of Ann Dye. I think, however, upon the evidence, that it was placed in the hands of Ann Dye sufficiently in the character of agent for Mr. Moore to make it equivalent to a delivery to Mr. Moore; and I think that the intention was that which was sufficient to create a gift mortis causa; and if, therefore, by law, an interest of this description is capable of being made the subject of a donatio mortis causa, this was so. Now, in deciding this case as I mean to do, I certainly have not the slightest intention of contravening any thing that has been said by Lord Hardwicke, Lord Rosslyn, or Lord Eldon. I consider that my decision in this case may well stand consistently with all that has been attributed to each of those eminent judges.

Moore v. Darton.

Now, it is true, certainly, that the delivery of a bond is the delivery. of something more than the mere evidence of the debt, because it is the delivery of that without which the debt could never have been a specialty. Its continuance in existence is now material, however that matter may have been considered at the time when Lord Hardwicke decided Ward v. Turner. The instrument making it a specialty, namely, a bond in the case of a bond debt, is that of which the delivery will constitute a good donatio mortis causa of the bond debt; and Lord Eldon, and, I believe, the House of Lords, have decided the same with reference to a legal mortgage. Still, I agree that does not go to the length of saying that a delivery merely of what is evidence of a debt will amount to a gift of the debt.

Here, however, there is something more. The document here has been called a receipt, and in a sense it is so, but it is not a receipt in the ordinary acceptation of that term; it is a document which, like the other, I must take to be contemporaneous with the creation of the debt. The instrument is this: "Received the 22d of October, 1843, of Miss Darton 500l., to bear interest at 4l. per cent. per annum, but not to be withdrawn at less than six months' notice. William Moore. 5001" Now, this is the document which is delivered to the debtor himself, and I have already said, in my opinion, in the circumstances of this case, the delivery to Ann Dye was equivalent to the debtor himself. The debt was a debt carrying interest. A mere debt for the 500l. would have arisen upon a loan or advance without writing. It would not be a loan or a deposit carrying interest without a special contract beyond the mere advance. That particular contract I agree might have been created without writing, but, being created by writing, the proof of what the writing was is essential to recovery upon the contract. For instance, if this lady had sued for the interest as well as the principal, and had attempted to give parol evidence of a contract to pay her interest, evidence might then have been given that the contract for interest was in writing, upon which the case would have been stopped until it had been proved what the writing was. The writing, therefore, was in a manner. was in the sense which I have mentioned-essential to the contract, for it was contemporaneous with it, and this paper, essential to the proof of the contract for the interest as well as the principal, is that which is delivered mortis causâ to the person who owed the money. In my opinion, consistently with all that has been laid down by Lord Hardwicke, Lord Rosslyn, and Lord Eldon, consistently with the doctrine of the civil law, and consistently with all our own law, this was a sufficient delivery, in the circumstances of this case, to constitute a donatio mortis causâ, which in my judgment it was intended to be.

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