V.C. B.]

right to allege and prove all that was requisite to be proved. The office copy of the articles of association is, in my opinion, properly admitted as evidence for that purpose, and it is not disputed that they had authority to execute and create these debentures. The notion that the authority of the company, therefore, was ultra vires, in my opinion, cannot be entertained in this case. Then the main objection which, I take it, was founded upon the Catholic Publishing, &c., Company's case (ubi sup.), and others that were referred to, is that there was a bona fide disputed debt. Now where in this case can I find materials for drawing that conclusion ? I find that both the liquidators treated with the holders of these bonds-this does not apply to all of the bondholders, but to two at least it applies without qualification-treating them as regular bonds, and for which the company were liable. Dispute there is none. There is the faintest suggestion, founded upon nothing, that these bonds must have needs been obtained by fraud. Why? Because two persons, who are absent, not able to answer for themselves, no parties to this litigation, are said to have had the means of committing frand within their power-the secretary and the stockbroker. It would be the perversion of every rule which governs such cases if I paid the slightest attention to that suggestion. I find when Mr. Hassall first presented his bonds, or Mr. Laxall afterwards, the liquidators readily treated with him, and also treated with the application made by the petitioner upon their own terms; and when a second time they came, Mr. McClure says he thought that they were the same bonds which formerly had been in somebody else's hands, but no objection was made to their validity. Even taking it through all the statements made, there is the last letter of Mr. McClure, which is no longer ago than the 2nd Dec. 1874, in which he says: "I have yours of yesterday applying for payment of bonds of the above company, and beg to say that we are about offering 12s. 6d. in the pound on these bonds; if your client consents to come into this we shall pay them at once, but I must first see them to identify their genuineness." He has had the means of seeing them. He does not suggest any fact which induces me to believe that he doubts their genuineness. There is no allegation in his affidavit that he himself doubts their genuineness, except that he believes that the two persons named, and who hardly ought to have been named under the circumstances, may have had the means of committing fraud. Where can I find any trace that the debt payable to the petitioner is bona fide disputed? The contrary, in my opinion, is proved very distinctly, viz., that there never has been any dispute as to the bona fides of this debt, nor, after reading that letter from the liquidator, can I hesitate to say that the company have avowed that they are unable to pay their debts in fullfor what other construction can I put upon the offer to pay 12s. 6d. in the pound upon debts, the genuineness of which, subject to their production, is not disputed? It only remains to see whether this 145th section is not that which applies directly to this case. It is proved that this company had money enough to pay all their debts. They have paid some of them, and, with respect to others, the payment has been conducted in such a manner as perfectly justifies the petitioner's assertion that the voluntary winding-up will be prejudicial to his interests. That gives him not only a

[V.C. B.

locus standi, but it gives him, as I conceive, a right to the order which he asks for. It will directly prejudice his interests if he is to be driven into the composition which is offered to him when, if matters had been properly conducted, there would have been money enough to pay him in full, and whatever remains he is entitled to have in satisfaction of his debt with other persons who have similar claims. I cannot shut my eyes to that which has been introduced into this case, and which Mr. Locock Webb says is wholly irrelevant to the petition, and to the relief which is to be granted upon the petition. Surely, when a company comes to the resolution to wind-up voluntarily, every thing they do with regard to that is to be looked at with care and caution-I may even say, not without suspicion. And when I find Mr. McClure (whose duties were plain) conducting himself in such a manner as is inconsistent with the plain discharge of those duties, to permit that winding-up to go on in his hands would be to disappoint justice and to deprive the petitioner of rights which I cannot entertain a doubt that he fully possesses. There is a conflict of evidence, no doubt, with respect to the three transactions which have been mentioned, but each of them is conducted in a way not the most straightforward. As to one of them, the sum of 75l. is retained, and although a receipt is given for the full sum of 2501., of which that 751. forms a part, yet the evidence is clear that he was permitted to retain the 751. in consideration for some services, real or supposed, which he had performed in founding and estab lishing the Caerphilly Colliery Company. That is not the sort of conduct on the part of a liquidator which this Court can be expected to countenance, because impartiality and purity are the requi sites which the Court expects to be fulfilled by any person holding the office of liquidator. With respect to the other sum, he says, "he did retain 201. which belongs to the company.' That, I say, is a transaction which cannot be justified; and, although Mr. Schofield's conduct seems to me to have been wholly without blame, straightforward, and that of a man of business, who, having got the money to pay the company's debts, was ready to pay them, and did, as far as he could while the funds lasted, pay them, and was willing to pay further as far as his means extended, I say, as to Mr. McClure, that the manner in which he, as the instrument of this company, has conducted this voluntary winding-up, prevents me from putting any confidence in his future administration of its affairs, and justifies the petitioner in asking for the compulsory

order which he seeks at the hands of the court.

Eddis, Q.C.-Your Honour makes the compulsory order to wind-up, and you will give Mr. Schofield the costs of his appearance ?

The VICE-CHANCELLOR.-I think he is entitled to his costs, as also is the petitioner; but I will reserve the costs of the company and of Mr. McClure.

Solicitor for the petitioner, T. D. Bolton. Solicitors for Mr. Schofield, Van Sandau and Cumming, agents for Mills and Mellor, Huddersfield.

Solicitor for the company and Mr. McClure, H.

J. Riches.

V.C. B.J

Tuesday, Feb. 9.

Re THE IMPERIAL MERCANTILE CREDIT ASSOCIATION (LIMITED); Ex parte RICHARDSON. W. A. R. purchased shares in a company, and on the shares being transferred to him, signed the deed of transfer with the name of F. W. R., his infant son, in whose name they were registered. On the company being wound-up

Held that W. A. R.'s name must be substituted on the register and list of contributories, in place of that of F. W. R.

THIS was an adjourned summons by which it was sought to rectify the register of shareholders, and amend the list of contributories of this assoctiation by substituting the name of William Arthur Richardson for that of Frank William Richardson, an infant, in respect of twenty shares in the company.

as of

By a deed of transfer dated the 31st Jan. 1865, E. J. Coleman purported to transfer to Frank William Richardson, therein described Walthamstow, Essex, gentleman, ten shares in the above named company, and by a similar deed, dated the 28th March 1866, F. G. Westmoreland purported to transfer to Frank William Richardson, therein described as of Edith-road, Belvidere, Kent, Esq., ten shares in the same company.

The company was subsequently wound-up under the supervision of the court, and the name of Frank William Richardson was placed upon the list of contributories in respect of the twenty shares above mentioned; it was, however, ultimately discovered that Frank William Richardson was at the time of the transfers of shares a boy at school (he being nine or ten years of age at the date of the first transfer), and that the shares had been bought and paid for by his father, William Arthur Richardson, who had himself signed the transfers, but using his son's name instead of his own, the addresses which were given being the then residence of the father. The shares were registered in the name of the son. The company was subsequently wound-up, and on application being made to Frank W. Richardson, he stated that he was not liable as he was a minor. This summons was accordingly taken out and adjourned into court.

Kay, Q.C. and Ince for the summons.-The only difference between this case and Pugh and Sharman's case (26 L. T. Rep. N. S. 274; L. Rep. 13 Eq. 566), is that here the shares were taken by transfer, while in those cases there was an application to the company. This cannot make any difference as the object of the execution of the deed of transfer by the transferee is to contract with the company. At the time of the respective transfers there was no such person as "Frank William Richardson, Walthamstow, gentleman, or Frank William Richardson, of Belvidere, Esq." The father bought the shares himself and used an "alias." They cited also Weston's case (L. Rep. 5 Ch.614).

H. A. Giffard for Mr. Richardson.-There is nothing to prevent a father purchasing shares for his son. There is no authority showing that where a father has purchased shares for his infant son in the market, and the shares have been transferred to his son, the father has been held liable. In Weston's case the father was held liable because he had used his son's name instead of his own, but Mr. Richardson deposes that he bought these

[V.C. B.

shares for his son. The transfer to an infant is voidable only. If void ab initio, it is the transferor who remains the legal owner, and in such cases the application has always been to substitute his name for that of the infant transferee. He cited

Capper's case, L. Rep. 3 Ch. 458.

Mann's case, ib. 459, n.

Ebbett's case, 22 L. T. Rep. N. S. 424; L. Rep. 5
Ch. 302.

Kay, Q.C., was not called upon to reply.

The VICE-CHANCELLOR said it was one of the most transparent cases he ever saw. It was an entirely new principle, that because a man went into the market and took shares, and signed the transfer under an alias, he was to escape liability. The case would hardly bear statement; Mr. W. A. Richardson's name must be put upon the list.

Solicitors, Geo. Davis, Phelps and Sidgwick.

Wednesday, Feb. 10. OLIVANT v. WRIGHT.

Will-Gift over on death without issue-Previous life estate-Divesting.

N., by her will in 1844, gave real and personal property to her husband for life, and after his decease to be divided among her five children, share and share alike, and if any of them should die without children, that child's share to be divided among the children then living; but if any of her children should die leaving issue, that child, if only one, should take its parent's share; if more than one, to be divided equally.

N. died in 1846. The husband died in 1857, leaving the five children. M., one of the children, died in 1868, leaving four children.

Held, that the gift over of M.'s share was not restricted to the event of her dying without issue in her father's lifetime, but that her children were entitled to her share.

By her will dated 29th Nov. 1844, Ann Nicholson gave and bequeathed unto her husband James Nicholson all her real and personal property, whether houses land, or whatsoever else she was entitled to from her late aunt's estate, and all other effects belonging to her wheresoever they might be at the time of her decease, during his natural life, to receive all the rents, interests, and profits arising from them, for his own use, and after his decease to be divided amongst her five children, share and share alike, and if any of her children should die without issue, then that child or children's share should be divided share and share alike among the children then living, but if any of her children should die leaving issue, then that child (if only one) should take its parent's share, if more than one to be divided equally amongst them, share and share alike.

The testatrix died in August 1846, leaving her husband, James Nicholson, and five children surviving her.

James Nicholson died in 1857, leaving the five children still living.

Martha, one of the children, married Richard Parkinson, and died in 1868, leaving four children.

A summons having been taken out to obtain a declaration that, under the will of Ann Nicholson, the children of Martha Parkinson were entitled as

Q. B.]

tenants in common to one fifth share of the estate of Ann Nicholson, it was adjourned into court.

Everitt for the summons.-The question is whether the children of Ann Nicholson took absolute interests under her will. It is submitted that they took practically only life interests, there being a gift over if the daughters die without issue, and again if they die leaving issue. The divesting clause is not limited to death during the life of the tenant for life. Edwards v. Edwards (15 Beav. 357) is overruled by Ingram v. Soutten (a) (44 L. J. 55, Ch.), and O'Mahoney v. Burdett, cited in a note to that case.

He cited also Bowers v. Bowers (23 L. T. Rep. N. S. 35; L. Rep. 5 Ch. 244.)

Ince for two of the children of the testatrix.The court always aids that course of construction which soonest vests the estate indefeasibly. As Martha Parkinson outlived Mr. Nicholson, the tenant for life, her estate became indefeasible. He cited

Da Costa v. Keir, 3 Russ. 360;
Galland v. Leonard, 1 Sw. 161;
Home v. Pillans, 2 My. & K. 15.

Everitt was not called upon in reply.

The VICE-CHANCELLOR. I find two cases in which the matter was very fully considered. It is impossible in my opinion to distinguish Ingram v. Soutten and O'Mahoney v. Burdett from this

case.

Solictor, T. Johnston.

Common Law Courts.

COURT OF QUEEN'S BENCH, Reported by J. SHORTT and M. W. MCKELLAR, Esqrs., Barristers-at-Law.

Thursday, Nov. 5, 1874. HOWELLS V. LANDORE SIEMEN'S STEEL COMPANY. Negligence-Fellow servant-Certificated manager of colliery-35 & 36 Vict. c. 70 s. 26. By the Coal Mines Regulation Act 1872, s. 26, every coal mine is to be under the control and daily supervision of a certificated manager. A miner was killed in consequence of the negligence of the manager appointed under that section. Held, in an action by the personal representatives of the miner for the benefit of his widow against the owners of the mine, that the miner and the manager were fellow-servants, and, therefore, the defendants were not liable.

THIS was an action brought under 9 & 10 Vict. c. 93, for the benefit of the widow and child of John Howells to recover damages for negligence causing his death.

At the trial before Quain J. at the last Glamorganshire Summer Assizes, it appeared that the defendants were the owners of the Worcester Colliery, within the meaning of the Coal Mines Regulations Act, 1872 (35 & 36 Vict. c. 76, sect. 72), and they had appointed one, Thomas, a certificated manager of the coal mine as required by sect. 26. The deceased was a miner working in the colliery, and was killed when in the mine by an explosion of fire damp; and the death was owing, as the jury found, to the negligence of Thomas, the manager, in disregarding the ob

(a) Reported, Cor. L. JJ. 29 L. T. Rep. N. S. 445; L. Rep. 9 Ch. 45, sub. nom. Re Heathcote's trusts.

[Q. B.

servance of rule 6 in sect. 51, and not withdrawing the workmen after noxious gas had been found to prevail in the mine.

By 35 & 26 Vict. c. 76 sect. 26: "Every mine to which this Act applies, shall be under the control and daily supervision of a manager, and the owner or agent of every such mine shall nominate himself, or some other person (not being a contractor for getting the mineral in such mine, or a person in the employ of such contractor), to be the manager of such mine; and shall send written notice to the inspector of the district of the name and address of such manager. A person shall not be qualified to be a manager of a mine to which this Act applies, unless he is, for the time being, registered as the holder of a certificate under this Act." And a penalty is imposed for working a mine without a certificated manager.

By sect. 51: "The following general rules shall be observed, so far as is reasonably practicable, in every mine to which this Act applies."

By rule 6: "If at any time it is found by the person, for the time being in charge of the mine, or any part thereof, that by reason of noxious gases prevailing in such mine, or such part thereof, or any cause whatever, the mine, or the said part, is from the mine, or such part thereof as is so found dangerous, every workman shall be withdrawn dangerous, and a competent person, who shall be appointed for the purpose, shall inspect the mine, or such part thereof as is so found dangerous, and if the danger arises from inflammable gas, shall inspect the same with a locked safety lamp, and in every case shall make a true report of the condition of such mine, or part thereof, and a workman shall not, except in so far as is necessary for inquiring into the cause of danger, or for the removal thereof, or for exploration, be re-admitted into the mine, or such part thereof as was so found dangerous, until the same is stated by such report not to be dangerous. Every such report shall be recorded in a book which shall be kept at the mine for the purpose, and shall be signed by the person making the same.

Section 60 imposes a penalty of 201. on owner, agent or manager, if guilty of any offence against the act, and 21. on any other person so guilty.

The jury found a verdict of 150l. for the plaintiffs, but the learned judge was of opinion that the manager must be taken to be a fellow-servant, within the decision of the House of Lords in Wilson v. Merry (19 L. T. Rep. N. S. 30; L. Rep. 1 Sc. App. 326), and directed a verdict for the defendants, with leave to move to enter it for the plaintiffs for 150l., on the ground that the negligence being that of the certificated manager appointed under the Act distinguished this case from that.

Field, Q.C. (with him J. W. Bowen, Q.C., and B. T. Williams), moved in pursuance of the leave reserved on behalf of the plaintiff.-The case of Wilson v. Merry has now clearly settled the law as to an employer's liability in ordinary cases, but although that decision was with respect to a death caused similarly to this in a colliery, yet it was before the Act of 1872, which renders a certificated manager necessary in every mine. [BLACKBURN, J.-The captain of a ship must be certificated under the Merchant Shipping Act 1855 (17 & 18 Vict. c. 104) s. 136; but it has never been suggested that by reason of that requirement he is no longer the shipowner's servant.] The Act makes

Q. B.]

the certificated manager the agent of the owner. The other cases which most nearly resemble the present are quite consistent with the defendant's liability under the circumstances here:

Murphy v. Smith, 19 C.B., N.S., 361; Feltham v. England, L. Rep. 2 Q.B., 33. Further, the defendants are a corporation, and can only act by their manager. [BLACKBURN, J.-That cannot affect their liability. It was not even suggested that it could in Morgan v. The Vale of Neath Railway Company, 13 L. T. Rep. N. S. 564; L. Rep. 1 Q. B. 149.]

COCKBURN, C.J.-Since the case of Wilson v. Merry in the House of Lords, it is not open to dispute that in general the master is not liable to a servant for the negligence of a fellow-servant, although he be the manager of the concern; and the only question is, whether the Act of Parliament puts a certificated manager of a mine, appointed under the Act, in such a position as to distinguish him from the person for whose negligence the master was held not liable to a fellowservant in Wilson v. Merry. I cannot say that Thomas was here anything more than a vice-principal, or manager, and he was therefore a fellowsevant. If he had been appointed irrespectively of the Act he would have had precisely the same authority, neither more nor less; and it therefore makes no difference that, instead of being appointed by the defendants proprio motu he is appointed pursuant to the requirements of the

statute.

BLACKBURN, J.-I am of the same opinion. It is a rule of law that the master who employs a servant (not an agent) is responsible for the negligence of that servant in matters in which he is employed; but there is this exception, which has been established by a series of decisions, that with regard to a fellow-servant the master is held not so responsible, because this negligence is to be taken as one of the ordinary risks which the servant contemplates and undertakes when entering into his employment. When the master personally interferes he is liable for his personal negligence, just as the individual servant would be. In the present case Thomas was appointed manager pursuant to the Act; can that make any difference? It is essential for the plaintiff's case to make out that Thomas was a servant of the defendants, and I think he was; and I cannot see anything in sect. 26 to make him, though a servant, yet not a fellow-servant. There have been several cases in which whether vice-principal or manager, the person has been held a fellowservant. In Scotland it seems that a viceprincipal had been held to be in a different position from an ordinary fellow-servant. But the decision of the House of Lords is distinct, at least so far as this, that the fact that the servant held the position of vice-principal does not affect the non-liability of the master for his negligence as regards a fellow-servant.

QUAIN, J.-I am of the same opinion. I thought at the trial that the case of Wilson v. Merry governed the case, and that the statute made no difference; and I remain of the same opinion

now.

ARCHIBALD, J., concurred. Rule refused. Attorney for plaintiff, Woodward, Swansea.

[Q. B.

Wednesday, Jan. 20.

THE LOCAL BOARD OF HEALTH OF ABERDARE (apps.) v. HAMMETT (resp.) Voting paper – Local Fabricating-Mens reaGovernment Act 1858 (21 & 22 Vict. c. 98), sect. 13, sub-sect. 5.

Respondent called at the house of a voter to canvass in favour of one of the candidates at an election for members of a local board of health. The voter was absent, but his wife, being authorised by her husband to act for him in the matter, placed her mark on the voting paper, to which respondent added his signature as attesting witness. Respondent also, bona fide believing in the authority of the wife to act for her husband, and in the propriety of what he was doing, affixed in the margin the husband's initials to the name of the candidate for whom he was canvassing.

Held, that respondent was not, under the circumstances, guilty of "fabricating in whole or in part a voting paper, within sect. 13, sub-sect. 5, of the Local Government Act 1858 (21 & 22 Vict. c. 98).

CASE stated under 20 & 21 Vict. c. 43, for the opinion of the court upon a question of law.

At a petty sessions held at Aberdare, in the county of Glamorgan, on the 21st Oct. 1873, an information of the Local Board of Health of Aberdare was heard against one John Hammett, under the 21 & 22 Vict. c. 98, s. 13, sub-sect. 5, "for that he, the said John Hammett, did fabricate a certain voting paper."

From the evidence it appeared that an election took place in August last for a member to serve on the board of health.

That there were two candidates, a Dr. Price and Mr. Howell Williams.

That Edward Richards was a voter duly qualified to vote at that election.

That Henry Davies was duly appointed by the said board of health to deliver the voting papers on the 22nd Aug. to those persons entitled to vote at the said election, and to collect them on the day of election, the 26th Aug. following.

That on the 22nd Aug. a voting paper was left by the said collector at the house of the said Edward Richards, of which fact the said Edward Richards was aware.

That on the following day, the 23rd Aug., the respondent, John Hammett, with Howel Williams, one of the candidates, called at the house of the said Edward Richards to canvass him for his vote on behalf of Mr. Howel Williams.

That Edward Richards was not at home, but his wife was, and upon being asked for her husband's vote in favour of Williams she consented to give it, and made her mark at the bottom of the voting paper, the said respondent at the same time witnessing the mark of the said wife and affixing the initials of the said Edward Richards to the name of the said Howel Williams in the margin.

That the said Edward Richards was aware that his wife had so signed the paper, as he swore upon the hearing of the information, "I leave such matters to her, and I did so this time, as I have done many times before, because I think she is wise and capable enough to do it."

That the respondent affixed his signature as witness to the mark of the wife, describing it as the mark of the voter, and the initials of Edward Richards in the margin, bonâ fide believing that