Wombwell v. Hanrott. Mr. Heberden, for other parties in the same interest. Fenwick v. Greenwell, 10 Beav. 412. Mr. Cory and Sir Walter Riddell, for the trustees. The MASTER OF THE ROLLS, without hearing any reply. It is necessary first to consider whether the deed made any valid appointment. It is said to be invalid, because it is made in favor of the husband of Georgiana, a stranger to the power, who might never have any right to receive it, as it might not fall into possession during the coverture; but such I do not consider to be the effect of the deed, which was, I think, an appointment made to her, and its effect was not destroyed by the words subsequently introduced. Her husband became entitled to receive the fund, if he was living, when the fund fell into possession; but in case he had died, she alone would have been entitled to receive it upon the decease of both her father and her mother. It is next to be considered whether there is not an appointment, express or implied, in favor of the other daughter, Charlotte, or whether there had been any introduction of the hotchpot clause, which would prevent Georgiana from having any claim upon more than a moiety of the fund. The rules in these cases are clear, the burden of proof rests upon the persons who wish to prevent the gift over from taking effect in default of appointment. Now, there is nothing to shew that Mr. Hunter intended that Georgiana should not have a further share of the fund, or any express intention that Charlotte should take the remaining moiety; at the same time it was admitted that Mrs. Hunter might have appointed a moiety of the remaining half of the fund to each of her daughters, which would seem to conclude the question, as no benefit, express or implied, could arise to one daughter if the power of appointing in favor of the other daughter remained. I do not consider that the cases of the defendants apply. In Fortescue v. Gregor there was a power of appointment among three, which was executed by a transfer of one portion under an order on petition, stating that the person having the power was desirous that the fund should be equally divided; that person having died without any further execution, the court gave the remaining two thirds respectively to another of the objects, and to the administratrix of the third, who was dead, but had survived the person executing the power. In Alloway v. Alloway Sir Edward Sugden, after noticing the case of Fortescue v. Gregor, considered that 3,000l. alone had been given to the two daughters, and that the remainder of the fund was not given to the younger children, and that there was no intention to make any appointment of the whole fund. In this case, a moiety was appointed to Georgiana as her part, share and proportion, but it did not express that it was to be brought into hotchpot, and it gave the money to her after the marriage: more was required before it could be implied that the remaining moiety was given to her sister. Words of exclusion, as in Fitch v. Weber, Onions's Case. would not have been sufficient to imply an appointment in favor of Charlotte. I am, therefore, of opinion that one moiety of the fund is unappointed, and that it is now divisible between the two daughters equally. IN THE WINDING-UP OF THE DIRECT BIRMINGHAM, OXFORD, Reading, AND BRIGHTON RAILWAY COMPANY; ONIONS'S CASE.1 May 28, 1851. Joint-stock Companies winding-up Acts-Contributory-Acceptance of Shares. The secretary to a company wrote to A, a member of the provisional committee, informing him that the managing committee had apportioned one hundred shares to each member of the provisional committee, and requesting to be informed, on or before a certain day, whether A would take that or any less number of shares, otherwise the committee would consider that he declined taking any. A, in answer, requested that the one hundred shares might be reserved for him. The court directed an issue to try whether A had accepted the shares. THE secretary to the company wrote a letter to Mr. Onions, a provisional committee-man, dated Moorgate Street, 10th of October, 1845, and in the following words: "Sir: I am requested to inform you that the committee of management has apportioned one hundred shares in the company, to each member of the provisional commitee. You will please inform me, on or before Wednesday morning next, whether you will take that or any less number of shares. Should you not reply by that time, the committee will consider you decline taking any." Mr. Onions's answer to that letter was dated Brosley, the 14th of October, 1845, and was as follows: "Sir: In reply to your circular of the 10th instant (which only came to hand this morning) informing me that I am entitled to one hundred shares in the Direct Birmingham, Oxford, Reading, and Brighton Railway Company, and requesting an answer on or before to-morrow morning, I have to request that number of shares be reserved for me." The question was whether Mr. Onions's letter amounted to an acceptance of the shares. The VICE-CHANCELLOR said that his acquaintance with mercantile language was not sufficient to enable him to decide that Mr. Onions had accepted the shares by requesting that they might be reserved for him; and that he should direct an issue, in order that the question might be determined by a jury. Mr. Bethell, Mr. Rolt, Mr. W. T. S. Daniel, and Mr. Roxburgh, were the counsel in this case. 11 Simons, N. s. 394. Ex parte Riddell. IN THE WINDING-UP OF THE SHREWSBURY AND LEICESTER DIRECT RAILWAY COMPARY; Ex parte RIDDELL.1 May 1 and 2, 1851. Joint-stock Companies winding-up Acts—Certificate — Contributory. The master certified that he had included A's name in the list of contributories, not as a shareholder, but as a contributory in respect of any expenditure which he might be proved to have incurred. The court held the certificate to be informal, and directed the master to review his certificate, with liberty, to either party, to adduce further evidence. RIDDELL was a member of the provisional committee and a trustee of the company, but not an allottee of shares in it. The master charged with the winding-up of the company, certified that he had included Riddell's name in the list of contributories: "not as a shareholder, but as a contributory in respect of any expenditure which he might be proved to have authorized." Mr. Rolt and Mr W. T. S. Daniel, for Riddell, now moved that his name might be expunged from the list, on the ground that the evidence produced before the master on the part of the official manager, did not show that Riddell had contracted or authorized the contracting of any debt or the incurring of any expenditure. Mr. Bethell and Mr. Glasse, for the official manager, said that, in November, 1845, Riddell attended a meeting held at the company's offices, and concurred in resolutions which authorized the incurring of expense. The VICE-CHANCELLOR said that the certificate was incorrect in point of form: that the master ought to have ascertained that Riddell had authorized the incurring of some expense and to have made him a contributory in respect of it: that it appeared that he had concurred in a resolution for appointing a gentleman, named Jellicarse, secretary to the company, at a salary of 350l. per annum, in respect of which he was liable; and therefore, it must be referred back, to the master, to review his certificate, with liberty to either party to adduce further evidence; and that Riddell's costs of the application must be paid by the official manager. 6* 11 Simons, N. s. 402. Myers v. Watson. MYERS V. WATSON.1 March 18, 19, 20; April 16, 1851. Specific Performance-Vendor and Purchaser. A agreed to purchase part of an estate, on the faith of representations made to him by the vendor's agent, that the vendor would do certain acts on the remainder of the estate. Those acts, however, were not done; in consequence of which the value of the land purchased was considerably diminished. A bill for specific performance, filed by persons claiming under the vendor, was dismissed with costs. On the 1st of November, 1844, William Potter who, not long before, had purchased an estate called the Flaybrick estate, situate partly in the township of Birkenhead and partly in the township of Claughton in Cheshire, on a building speculation, agreed to sell two portions of it to R. and H. Watson, one containing 4482 square yards, and the other containing 4680 square yards, for 5872l. 16s. and 23401. respectively. The purchase-money was to be paid by certain instalments; the last of which was to be paid on the 1st of November, 1847. The pieces of land were described, in the agreement, as being bounded, on the south, by a road or street called Bailey-street, on the north, by Norman-street, and, on the east and west by two intended new streets of certain widths; and R. and H. Watson agreed to pay to Potter, one moiety of the expense of making a sewer under so much of the streets on the north, east and west sides of the first piece of land, and under so much of all the sides of the second piece, as was coextensive with the lands thereby contracted for, and one moiety of the expense of forming and laying down such part of the same streets, with rock and macadam, and also of forming and laying down the parapets of footwalks of such part of the same streets, with curb and channel stones, and of keeping the same streets, sewers, footwalks or parapets in good repair until the same should be adopted by the township of Claughton or of Birkenhead; and also to make, form and lay down, through the centre of the first piece of land and extending from Bailey-street to Norman-street, a public highway or street twelve yards wide, with rock and macadam, and also to form and lay down the parapets and footwalks of such street with suitable curb and channel stones, and to keep such street and footwalks in good repair until the same should be adopted by the township; but R. and H. Watson were not to be required to make such street and footwalks, until Potter should have made a similar public highway or street, with footwalks immediately opposite, through other land of his to the westward, and extending, in a direct line, from Bailey-street to the turnpike-road leading to Upton. On the 1st of May, 1845, Potter agreed to sell two other portions of the Flaybrick estate, to the same gentlemen, for 8225l. One of those portions was situate in Birkenhead and contained 6060 square yards. The other was situate partly in that township and partly in 11 Simons, N. s. 523. Myers v. Watson. Claughton, and contained 10,530 square yards. One was described as bounded by Bailey-street and new streets and intended streets of certain widths, and the other, as bounded by a certain turnpike-road and new streets and the purchasers were to have the use of the said streets or intended streets, and of all other streets then made or thereafter to be made over Potter's land adjoining or contiguous to the land thereby contracted for: and Potter agreed, forthwith, to make sewers under the streets surrounding those pieces of land, and to form and lay down the same with rock and macadam, and also to make and lay down the parapets or footwalks thereof with suitable curb or channel stones; and R. and H. Watson agreed to keep such streets, sewers and footwalks or parapets, after the same should have been so made and formed, in good repair, until they should be adopted by the Birkenhead commissioners. By each of the agreements, the purchasers agreed not to make or suffer to be made any lime-kiln, soapery or tanyard on the pieces of land therein comprised, nor to carry on or suffer to be carried on any offensive trade or business thereon; nor to erect any court or courts of houses thereon; nor to permit the cellar of any house to be erected thereon, to be used as a separate dwelling. In August, 1847, Potter mortgaged the whole of the Flaybrick estate to the Earl of Devon and others, for 40,000l. In April following he became bankrupt; and in May, 1849, (at which time the estate remained nearly in the same state as it was in when the agreement was entered into) his assignees filed a bill to compel R. and H. Watson to perform the agreements. The Watsons insisted that they were not bound to perform the agreements, because they were induced to enter into them by representations made to them by William Cole, (who was Potter's agent and with whom they treated for the purchase of the pieces of land) that Potter intended, with all reasonable despatch, to lay out the whole of the estate in streets and to build houses upon it, and to erect a church on a certain part of it, according to a plan which Cole showed them; but that none of those acts had been done, and the omission to do them rendered the value of the pieces of land vastly inferior to the sums which the defendants had agreed to pay for them. Evidence was entered into on both sides; and, on the cause coming on to be heard, Mr. Bethell and Mr. Bigg, for the plaintiffs, cited Herriot's Hospital v. Gibson, 2 Dow, 301; Squire v. Campbell, 1 Myl. & Cr. 459; The North British Railway Company v. Todd, 12 Cl. & Finn. 722; Higginson v. Clowes, 15 Ves. 516; 1 Ves. & Beam. 524; and Croom v. Lediard, 2 Myl. & Keen, 251, 293. Mr. Rolt and Mr. Kinglake, for the Messrs. Watson, cited Underwood v. Hitchcox, 1 Ves. Sen. 279; Twining v. Morrice, 2 Bro. C. C. 326; The Marquis Townshend v. Stangroom, 6 Ves. 328; 1 Sudg. Vendors, 10th edit. p. 228; Mortlock v. Buller, 10 Ves. 292, see 313; Mason v. Armitage, 13 Ves. 25; Clarke v. Grant, 14 Ves. 519; Harnett v. Yielding, 2 Scho. & Lef. 549; Beaumont v. Dukes, Jacob, |