situated in the parishes or hamlets of Otford or Kemsing, or one of them. The leaseholds are included in the residuary bequest to the wife, so that no part of the will is inoperative or inconsistent. The decision in [503] Lane v. Lord Stanhope proceeded upon the ground that the testator bequeathed his "farms"; and the land in dispute was a farm, partly leasehold, and partly freehold, and the whole of which had time out of mind been let to one tenant. Pistol v. Richardson (2 P. Wms. 459, n.), and Watkins v. Lea (6 Ves. 633), are also authorities that leaseholds do not pass under a devise like the present.

Channell Serjt. in reply. The words in Davis v. Gibbs and in Whitaker v. Ambler were clear and explicit, giving the whole of the personal estate (including leaseholds) to another devisee. But here, the leaseholds are not devised specifically to the widow; and the general bequest to her is restricted by the gifts which precede it.

Cur. adv. vult.

The following certificate was afterwards sent :

"This case has been argued before us; and we are of opinion that neither of the leasehold properties therein mentioned, passed, under the testator's will, to Sir Timothy Shelley and Sir John Shelley Sidney.

[504] MATTHEW LYON v. WILLIAM HAYNES, JOHN HUNT, JAMES PICKFORD BLOOR, WILLIAM ECKERSLEY, JOHN HAIGH, ALLEN ROBINS, AND ALEXANDER OGILVIE. February 8, 1843.

[S. C. 6 Scott, N. R. 371.]

A. and B., C., and D., and others, carried on the business of bankers, under the provisions of the 7 Geo. 4, c. 46, for some years prior to and upon the 29th of August, 1839, upon the terms contained in two deeds of the 1st of July, 1834, and the 30th of August, 1836, the former deed stating the circumstances under which, and the manner in which, the company might be dissolved at an extraordinary general meeting of the shareholders, called for that purpose by a certain board of directors, of which B., C., and D. were members. In the company A. held 100 shares of 101. each. The board called an extraordinary general meeting of the shareholders, to be holden on the 29th of August, 1839, pursuant to the provisions of the deed of 1834. At the meeting so called, the shareholders present passed resolutions, in conformity with the provisions of the deed of 1834,-that the company was thereby dissolved; that the winding up of its affairs should be entrusted to the then board of directors, with power to employ and pay for such assistance as might be necessary; that any three directors might act; that the assets should be realised with all convenient speed, and that the portion not required to meet the engagements of the company should be divided amongst the shareholders ratably, in such dividends as the directors might deem fit; a dividend to be declared at least once in every six months; a copy of the proceedings and resolutions to be transmitted to each shareholder; no transfer to parties not already shareholders to be permitted. No shareholder present at the meeting was desirous of continuing the concern. Neither A. nor B. was present at the meeting, but a copy of the state of the said proceedings and resolutions was transmitted to A. and the other shareholders.

(c) This certificate was confirmed, after argument, by Sir J. L. Knight-Bruce V. C. (March 7th).

But now by s. 26 of 1 Vict. c. 26, in wills made on or after the 1st of Jan. 1838, a devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person, mentioned in his will, or otherwise described in a general manner, and any other general devise, which would describe a customary, copyhold, or leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will.

From the 29th of August, 1839, the business of the company, except so far as was necessary for winding up the affairs, was discontinued, and B. and C. and D., in pursuance of the said resolutions, proceeded to wind up the affairs of the company.Held, that the company was duly dissolved, and that, notwithstanding the power to wind up the concern, an allegation in a declaration that the company had altogether ceased and determined, was correct.-Held, also, that the partnership having been dissolved, the shareholders present had no authority to pass resolutions binding those who were absent, and that such resolutions could only be considered as an agreement by and amongst the individual parties present, and did not support an allegation in a declaration that the agreement was by and between all the shareholders.-Held, also, that an allegation that B. and C. were allowed and permitted to realise, and were entrusted with, the assets of the company, by the other shareholders, was not supported by the facts.-Held, also, that the resolutions contained no contract upon which any right of action arose, even as between B., C., and D., and the other shareholders present at the meeting, or as between B., C., D., and A. The directors of a dissolved joint-stock company who, at the request of the shareholders, undertook the winding up of the concern, were held not to contract at law with the shareholders for the due performance of the terms upon which the winding up of the concern was to take place.

Assumpsit. The first count of the declaration stated, that before the making of the defendants' promise, the plaintiffs and the defendants, and divers other [505] persons, being more than six, had for three years carried on together the business of bankers in England, with certain capital, and upon certain terms under and by virtue of, and according to, the provisions of the 7 Geo. 4, c. 46, and were called and known by the name of "The Northern and Central Bank of England;" that, according to certain of the said terms, the plaintiff, the defendants, and several other persons, whilst carrying on business together as aforesaid, were respectively holders of, and possessed, divers shares in the capital of the said bank, which capital was, during the same time, divided into shares of 101. each, and, amongst others, the plaintiff was, during the same time, and from thence until the making of the promise thereinafter mentioned, and the instalment or dividend thereinafter mentioned being deemed fit and becoming due and payable, and from thence thitherto, the lawful holder of, and possessed of, divers, to wit, one hundred of the said shares in the said capital; that the plaintiff, the defendants, and the said other persons so carrying on business together and being such holders of shares as aforesaid, shortly before the making of the promise thereinafter mentioned, to wit, on the 29th of August 1839, the said bank, and the said business and trade thereof, had been and were duly dissolved, and altogether ceased and determined; that the defendants, before and at the time of the said dissolution, had been and were shareholders as aforesaid in the said capital, and directors of the said bank, and afterwards, to wit, on, &c., a certain general meeting was held of the several persons shareholders in [506] the said capital of the said bank, and members thereof at the time of the said dissolution; that at the said meeting it was, amongst other things, agreed by and amongst the said shareholders and members that the assets of the said bank should be realised with all convenient speed, and that such portion of them as might not be required to meet the engagements of the said bank should be divided amongst the said shareholders ratably, and in proportion to the said shares respectively held by them as aforesaid, in such dividends as the directors might from time to time deem fit, a dividend to be declared at least once in every six months; that thereupon then, in consideration of the premises, and that the defendants, then being directors as aforesaid, were then, at the request of the defendants, allowed and permitted to realise, and were then entrusted with, the assets of the said bank by the said other shareholders of the said capital and members of the said bank, for reward to them, the defendants, in that behalf, the defendants then promised the said several shareholders and members respectively to realise the said assets with all convenient speed, and to divide such portion of them as might not be required to meet the engagements of the said bank, amongst the said shareholders ratably, and in proportion to the said shares respectively held by them, in such dividends as the defendants might from time to time deem fit; a dividend to be declared at least once in every six months.

First breach that, although from the time of the said meeting the defendants

were allowed and permitted to realise, and were entrusted with, the said assets of the said bank, and although the defendants did afterwards, to wit, on the 27th of February 1840, realise a large amount, to wit, one half thereof, and although a large portion of that amount, amounting to a large sum, to wit, 300,000l., was not then, or at any subsequent time, [507] required or necessary to meet the engagements of the said bank, and the same portion was sufficient, when divided amongst the said shareholders according to the said agreement and promise, to allow to each shareholder an instalment or dividend of 10s. in respect of every one of the said shares respectively held by them, and although the defendants did, on, &c., deem fit that such an instalment or dividend of 10s. in respect of every one of the said shares so respectively held by each and every of the said shareholders should be paid to, and divided amongst, the said shareholders on, &c., and although the defendants were afterwards, to wit, on, &c., requested by the plaintiff, still being and continuing such shareholder as aforesaid, to pay him the said instalment or dividend due and payable in respect of the said shares so held by him as aforesaid, amounting in the whole to a large sum of money, to wit, 501., according to the promise of the defendants, of all which premises the defendants afterwards, to wit, on, &c., had notice, yet the defendants did not nor would declare to or pay the plaintiff the said instalment or dividend, or any part thereof, but then and from thence thitherto neglected and refused so to do.

Second breach of the same promise: that although from the time of the said meeting, the defendants were so allowed and permitted to realise, and were entrusted with, the said assets as aforesaid, and although the defendants did afterwards, and after the expiration of the two first six months from the said agreement and promise, to wit, on the 27th of February 1840, realise a large amount, to wit, one half thereof, and although a large portion of that amount, amounting to a large sum, to wit, 300,0001., was not then, or at any subsequent time, required or necessary to meet the engagements of the said bank, and the same portion was sufficient, when divided amongst the said shareholders as aforesaid, to allow [508] to each said shareholder an instalment or dividend of 10s. in respect of every one of the said shares respectively held by him being so divided as aforesaid, and although the defendants did, in part performance of their said promise, within the two first six months after the said meeting and promise, deem fit to declare, and did declare, two instalments or dividends, according to their said promise; of all which premises the defendants afterwards, to wit, on, &c., had notice, yet the defendants did not nor would, within the third space of six months from the said agreement and promise, or at any other time afterwards, although the said space had elapsed long before the commencement of this suit, deem fit to declare or declare any instalment or dividend upon or in respect of the said shares as aforesaid, according to their said agreement and their said promise, but wholly neglected and refused so to do, by means whereof the plaintiff had lost, and been deprived of, the said instalment or dividend of 10s. in respect of every share held and possessed by him as aforesaid, which he might, and otherwise would, have been entitled to, and had been otherwise damnified.

The declaration also contained a count for money had and received.

The defendants pleaded, first (to the whole declaration), non assumpsit; secondly (to the first count), that the plaintiff was not the lawful holder, nor possessed, of the said shares in the said capital in the said first count mentioned or any of them, modo et formâ ; concluding to the country; thirdly (to the first count), that the said bank and the said business thereof had not been nor was duly dissolved, nor had the said bank and the said business thereof ceased and determined, nor did the same cease or determine, concluding to the country; fourthly (to the first count), that it was not agreed by and amongst the said shareholders [509] and members at a general meeting of the said shareholders and members, modo et formâ; concluding to the country; fifthly (to the first count), that the defendants were not allowed or permitted to realise, nor were they entrusted with, the assets of the said bank, modo et formâ; concluding to the country; sixthly (to the first breach in the first count), that the defendants did not realise the said amount in the first count mentioned, or any part thereof, modo et formå; concluding to the country; seventhly (to the first breach in the first count), that the said portion of the said amount so realised as in the first count in that behalf mentioned, was required and necessary to meet the said engagements of the said bank, and that there never was any portion of the said amount, not being required or necessary to meet the engagements of the said bank or company, which was sufficient when

divided, as in the first count mentioned, to allow to each shareholder such instalment or dividend as is in the first count in that behalf mentioned, modo et formâ; concluding to the country; eighthly (to the first breach in the first count), that the defendants did not deem fit that such an instalment or dividend should be paid and divided amongst the said shareholders, modo et formâ; concluding to the country; ninthly (to the said first breach), that the defendants had no notice of the said several premises, modo et formâ; concluding to the country; tenthly (to the said first breach), that the defendants did, on the 27th of February 1840, declare to, and pay, the plaintiff the said instalment and dividend; concluding to the country; eleventhly (to the second breach in the first count), that the defendants did not realise the amount in the said second breach in that behalf mentioned, or any part thereof, modo et formâ; concluding to the country; twelfthly (to the second breach in the first count), that the portion in the said second breach mentioned, of the said amount was [510] required and was necessary to meet the engagements of the said bank, and that there never was any portion of the said amount not being required and necessary to meet the said engagements, sufficient, when divided amongst the said shareholders as aforesaid, to allow to each shareholder such instalment or dividend as in the said second breach in that behalf mentioned; concluding to the country; thirteenthly (to the second breach), that the defendants had not notice of the several premises modo et formâ ; concluding to the country; fourteenthly (to the second breach), that the defendants did, within the third space of six months in the second breach mentioned, and before the commencement of this suit, to wit, on the 31st of December 1840, deem fit to declare, and did declare, a certain instalment and dividend of 10s. upon and in respect of the said shares in the said bank; concluding to the country; fifteenthly (to the two last counts of the declaration), that after the accruing of the causes of action in the declaration mentioned, and before the commencement of this suit, to wit, on, &c., the defendants paid to the plaintiff a large sum of money, to wit, the money in the two last counts of the declaration mentioned, in full satisfaction and discharge of all the causes of action in those counts mentioned, which the plaintiff then accepted and received of and from the defendants, in such full satisfaction and discharge of the causes of action in those counts mentioned. Verification.

The plaintiff took issue upon the last plea, and joined issue upon the other pleas. At the trial a special verdict was found, which stated the following facts:— "Divers persons, to the number of one hundred and upwards, after the passing of the 7th Geo. 4, c. 46, to wit, on the 1st July, 1834, commenced carrying on together, and from thence until the 29th of August, 1839, carried on together, and were then carrying on together [511] in partnership as a company, by virtue and in pursuance of the said act, the business of bankers in England, by the name and under the style of "The Northern and Central Bank of England," with certain capital and upon certain terms contained in a deed of settlement of the said bank, bearing date the first of July, 1834, and a supplementary deed of settlement containing, amongst others, the clause following:

"That if at any time hereafter it shall appear to the board of Manchester directors, that losses have been sustained or incurred by the company, not only to the whole amount of the fund hereinafter mentioned, called 'The Reserved Surplus Fund,' but also to the amount of one fourth part of the capital which, for the time being, shall have been actually advanced and paid up by the proprietors (and for the purposes of ascertaining the amount of such losses it shall not be necessary for the said board of directors to take into their calculation or account any rise or fall which may have taken place in the price of any of the parliamentary stocks or public funds of Great Britain or Ireland, in or upon which any part of the funds or moneys of the company may have been invested or placed, but such stocks or funds shall be calculated at the cost price), then the said board of directors shall, and they are hereby required to, call an extraordinary general meeting of the proprietors, for the purpose of taking into consideration the propriety of dissolving or continuing the company; and the directors shall submit to such meeting a full and general statement of the affairs and concerns of the company; and it shall thereupon be lawful for any one proprietor personally present at such meeting, in writing, to require that the company be dissolved; and the company shall therefrom be dissolved accordingly, unless such a number of the proprietors personally present at the meeting as shall amongst them be entitled to two [512] thirds of the votes to be given at any ballot as aforesaid,

shall be desirous of continuing and carrying on the said concern, and shall then and there, in writing, undertake so to do, and to purchase the shares of the dissentient proprietors at the then value thereof, and to indemnify the dissentient proprietors against all future losses of the company and from the existing debts and engagements thereof, such value and the nature of such indemnity to be ascertained, in case of difference, by reference to arbitration, as hereinafter mentioned, and on such undertaking being given, the dissolution of the company shall be suspended for the space of sixty days next after such meeting; and if within that time the purchase of the shares of the dissentient proprietors shall be completed in manner hereinafter expressed, then such dissolution shall not take place, and the purchase of the lastmentioned shares shall be considered as completed for the purposes of this provision whenever the said proprietors proposing to continue the company as aforesaid shall, by writing, having given notice to the dissentient proprietors that they are prepared to pay the purchase money for the said shares, on application by the parties entitled thereto for the same, at the banking-house of the company in Manchester, and shall, in accordance therewith, have actually paid the same to such of the parties as shall have applied for the same, or, in case of difference as to the amount of such purchasemoney, shall have offered to refer the question of such amount to arbitration as aforesaid, and have proceeded in such arbitration, and have complied with the award made therein, or have been prevented from so doing by the neglect or default of the other party, and the company, as reduced or newly constituted from time to time, shall be liable to dissolution or to continuance from time to time, in like [513] manner, and under and subject to the same or the like regulations as aforesaid."

The deed of settlement also contained the clause following:-"That_all_the directors, trustees, public officers, local directors, and other officers, for the time being, of the company, shall be indemnified and saved harmless out of the funds, or property of the company, from and against all costs, charges, losses, damages, and expenses which they respectively shall or may sustain, pay, or incur in or about any action, suit, proceeding, or arbitration to be brought, commenced, carried, or prosecuted, defended, or entered into, by the order or direction of the board of Manchester directors, or in any wise relating thereto, respectively, or otherwise in or about the execution of their respective offices or trusts, except such costs, charges, losses, damages, and expenses, as shall happen by or through the wilful neglect or default of any such directors, trustees, public officers, local directors, or other officers respectively; and that the directors, public officers, local directors, trustees, or other officers for the time being of the company, and each and every of them, their, and each and every of their heirs, executors, administrators, and assigns, shall be charged and chargeable only for so much money as they and every of them shall, respectively, actually receive by virtue of their respective offices or trusts, and that any one or more of them shall not be answerable, or accountable, for the other or others of them, or for the acts, receipts, neglects, or defaults of the other or others of them, but each of them for his own respective acts, receipts, neglects, and defaults only; nor shall they or any of them be answerable or accountable for any person or persons who may be appointed by the said board of directors to be the collector or collectors of the rents, profits, or annual produce of the houses, estates, or other property, for the time being, of the company, or in [514] whose hands the same or any of the moneys of the company shall or may be deposited or lodged for safe custody, or for the insufficiency or deficiency of the title to any house, estates, or other property, which may from time to time be purchased by, or by the order of, the said board of directors, for or on behalf of the company, or for the insufficiency or deficiency of any security or securities in or upon which any of the moneys shall or may be placed out or invested by or by the order of the said board of directors, or for any misfortune, loss, or damage which may happen in the execution of their respective offices or trusts, or in relation thereto, respectively, unless the same shall happen by or through their own wilful neglect or default respectively."

The capital of the bank and of the said persons so carrying on together the said trade or business of bankers, was, during all the time aforesaid, that is to say, from the time when the said trade or business was so as aforesaid commenced to be carried on until the day of the dissolution thereof as hereinafter mentioned, divided into divers shares of 101. each; and the plaintiff, before and at the time when the said bank and the said trade or business were so as aforesaid dissolved, was, and during all the time