Held, on the evidence, that the defendant did bid for the property under a bona fide mistake, which prior to the Judicature Acts would have been fatal to the action; but that, having regard to the decision in Tamplin v. James (43 L. T. Rep. 520), it was not so, and the plaintiffs were still entitled to relief.

After the sale the defendant, who had left the room and was called back, refused to sign the memo, randum which had been prepared by the auctioneer's clerk, or to pay the deposit, and such memorandum was thereupon signed by the clerk. A week later, at the instance of the vendors, a duplicate memorandum, altered so as not to refer to payment of deposit, was signed by the auctioneer.

Both these documents having been objected to by the defendant as insufficient to satisfy the requirements of the Statute of Frauds :

Held, that neither of them was sufficient for that purpose. As to the first, because, on the authority of Pierce v. Corf (29 L. T. Rep. 919) the auctioneer cannot delegate his authority; and as to the second, because, according to Buckmaster v. Harrop (13 Ves. 456), the signing must be contemporary, so as really to constitute part of the transaction of sale.

备

Held, accordingly, that the action failed, and must be dismissed with costs.

THIS was an action for specific performance of an agreement for the sale of a freehold house known as The Riddings, No. 73, Tulsehill.

The plaintiffs were the vendors, and the defendant, who was the purchaser, raised two defences: the first, that he entered into the contract under a mistake; and the second, that there was no memorandum in writing of the contract sufficient to satisfy the Statute of Frauds. The plaintiffs' case was, that the property was put up for sale by public auction by Messrs. Herring, Son, and Daw, at the Mart, Tokenhouse-yard, on the 25th Nov. 1895. The terms were expressed in the particulars and conditions of sale, at the end of which was the usual memorandum of agreement in blank, intended to be filled up by the purchaser and the auctioneer. The defendant, along with a friend named Wyatt, attended the sale. Mr. Daw conducted the sale. sonally, and when he entered the sale-room a conversation took place between the de

short

He knew the defendant per

fendant and himself with reference to the biddings just before he entered the rostrum. In the course of it Mr. Daw asked the defendant to give him a

bid.

some

The sale then proceeded. It consisted of

five properties, of which this was the third, and the reserve on this lot was fixed at 16001. After a short conversation between Mr. Daw and the biddings the defendant bid 15501., and after vendors, the lot was knocked down to the defendant at that price. The sale of the two remaining pro

perties defendant left the room. was proceeded with, and at the close the The auctioneer's clerk then mentioned to the auctioneer that the defendant had not signed the memorandum, and a

messenger

and was

was sent after him, and he returned

asked to sign, but refused on the ground that he made the bidding not on his own behalf

[CHAN. DIV.

a copy of the conditions of sale, in the appropriate. way. It ran thus:

I, George Balls, of Brixton-hill, S.W., do hereby acknowledge that I have this day purchased the property described in the within particulars of sale for the sum of 15501., and having paid into the hands of Messrs. Herring, Son, and Daw, the auctioneers, the sum of 155l. as a deposit and in part payment of the purchase money, I hereby agree and bind myself, my heirs, executors, administrators, and assigns, to pay the balance of the said purchase money, and complete the said purchase in all respects according to the within conditions of sale. As witness my hand, this 25th day of November 1895. [Then followed the account of the purchase money, the deposit and balance owing, and then] as agents for the vendors, Peter Bell and William Dickson, we hereby ratify this sale, and as auctioneers acknowledge

The defendant refused to sign it, and Mr. Daw, the auctioneer, did not sign it. A week later, namely, on the 2nd Dec., Mr. Daw, at the instance of the vendors, filled up and signed his name as an agent of the defendant on a memorandum on another copy of the particulars. That memorandum was slightly altered, because no deposit was paid, but otherwise it was the same as before.

Both these documents were relied on by the plaintiffs as sufficient to satisfy the Statute of Frauds.

Grosvenor Woods, Q.C. and Ingpen, for the plaintiffs, submitted that in these circumstances they were entitled to judgment for specific performance or damages. The auctioneer is clearly the agent of both parties:

Pierce v. Corf, 29 L. T. Rep. 919; L. Rep. 9 Q. B. 210.

The subsequent signature of the auctioneer to the copy memorandum was sufficient to bind the defendant:

M Mullen v. Helberg, 4 L. Rep. Ir. 94;
Dyas v. Stafford, 9 L. Rep. Ir. 595.

The defendant authorised the clerk to sign the memorandum :

Sims v. Landray, 70 L. T. Rep. 530; (1894) 2 Ch. 318;

Debussche v. Alt, 38 L. T. Rep. 370; 8 Ch. Div. 286. The court will be slow to allow the defendant to withdraw his authority to the auctioneer after the hammer has fallen:

Day v. Wells, 30 Beav. 330.

Even if the defendant bid under a mistaken idea still that is no defence to the action:

Tamplin v. James, 43 L. T. Rep. 520; 15 Ch. Div. 215.

Hastings, Q.C. and Stallard for the defendant. -The defendant is not liable, because he only bids as the vendor's agent. But if your Lordship be against us as to that, then we say the auctioneer's clerk was not authorised by him to sign the memorandum :

Sims v. Landray (ubi sup.);

Bird v. Boulter, 4 B. & Ad. 443.
The auctioneer cannot delegate his authority:
Henderson v. Barnewell, 1 Y. & J. 387.

But he practically can sign for both parties:
Farebrother v. Simmons, 5 B. & Ald. 333;
Wright v. Dannah, 2 Camp. 203;
Pierce v. Corf (ubi sup.);
Emmerson v. Heelis, 2 Taunt. 38;
Bramley v. Alt, 3 Ves. 620.

When the auctioneer did sign his authority was gone:

Mews v. Carr, 1 H. & N. 484;

Seton v. Slade, 7 Ves. 276.

And it had been revoked:

Manser v. Back, 6 Hare, 443;

Farmer v. Robinson, 3 Camp. 338.

The memorandum did not accurately describe what had taken place :

Jones v. Rimmer, 43 L. T. Rep. 111; 14 Ch. Div. 588.

Woods, Q.C. in reply.-There was a complete contract when the hammer fell, and the defendant cannot turn round and say he was asked to bid. That the parties were not ad idem is not arguable:

Preston v. Luck, 27 Ch. Div. 477.

As to the effect of the Statute of Frauds, the defence is unreasonable. The signing of the memorandum by the clerk was a purely ministerial act, and may well be delegated having regard to the exigencies of a public auction. [STIRLING, J.-I am not sure the act is purely ministerial.] It is not reasonable to suppose that the auctioneer can draw out the contract himself. I submit that a memorandum signed by the clerk is sufficient. In Bird v. Boulter (ubi sup.) there was no evidence of an express authority given to the clerk. The purchaser is bound by the entry of the clerk made in his presence. Farmer v. Robinson (ubi sup.) ought not to be followed.

Cur. adv. vult.

March 10.-STIRLING, J. (after stating the facts) continued:-The first question, which is one of fact, is, whether the defendant really bid for the property as he alleges, or, in other words, as a puffer at the sale. The story told by the defendant is somewhat strange; but having seen him in the box and heard the evidence of Mr. Wyatt, and seen the memoranda produced, I believe he did act under the belief which he professes; but that, on the other hand, there was no reasonable ground for his so acting, and what passed between him and Mr. Daw ought not to have misled him into that belief. The question then is, what is the legal result? It seems to me that, assuming a memorandum to exist which satisfies the requirements of the Statute of Frauds, there was a valid contract, and that the mistake does not affect the validity of the contract at law between the plaintiffs and defendant, and that at the utmost it constitutes a defence so far as the action seeks specific performance. Prior to the Judicature Act there would have been an end of the matter; but, as the matter now stands, according to Tamplin v. James (ubi sup.) the court is bound to go on and give the plaintiffs such relief as they are entitled to. Therefore it becomes necessary to consider the second defence, namely, that neither of these documents was sufficient to satisfy the Statute of Frauds. First, as to the auctioneer's clerk's memorandum, it is decided and established by a case to which I will refer later, that in a sale by auction the auctioneer has authority to bind both parties if he sign the memorandum on a copy of the particulars, and the question is, if that memorandum be filled up by a clerk, is that sufficient? An agent, however, cannot delegate his authority, and the law with

[CHAN. DIV.

The

reference to a clerk is thus stated in Pierce v. Corf (ubi sup.): "I take it as quite clear that the auctioneer's clerk has no authority to sign by the general custom; although, as Bird v. Boulter decided, there may be special circumstances to show that an auctioneer's clerk had authority to sign; when the bidder, that is the person to be charged, by word or sign authorises the auctioneer's clerk to sign on his behalf, he makes him his agent to sign, although by the general custom the auctioneer's clerk would not be the bidder's agent." In the present case he did not sign, nor did he otherwise authorise the auctioneer's clerk to sign, and therefore the case of Bird v. Boulter (ubi sup.), referred to by Lord Blackburn, has no application. It was urged, however, that the exigencies of the case require the clerk to be held authorised to sign the memorandum on behalf of the purchaser. ordinary practice on a sale of real estate, as stated by Mr. Daw, appears to be for the auctioneer, after a lot is knocked down, to proceed with the sale, leaving the clerk to find out the name of the purchaser and to prepare the memorandum on two copies of the particulars, one for the signature of the purchaser and the other for that of the auctioneer. That there is some convenience in that practice there can be no doubt; but as to its validity it seems to me that the mere statement of it shows that there is no sufficient ground for alleging that the exigencies of the case require that the authority should be delegated. The practice contemplates that one part should be signed by the auctioneer, and if this be consistent with the requirements of business, it is difficult to see why the auctioneer himself should not sign the other. This appears to me an answer to the contention which was forcibly urged in argument. There can be no difficulty in writing his name down at the time on a copy of the particulars, and any way that has been held sufficient in several cases: (White v. Proctor, 4 Taunt. 209; Bramley v. Alt, ubi sup.; Kemeys v. Proctor, 1 Jac. & W. 350). I come, therefore, to the conclusion that the memorandum filled in by the clerk is not sufficient to satisfy the statute. Then is the memorandum sufficient which was signed by the auctioneer on the 2nd Dec.? It is contended by the purchaser that, although the auctioneer signed it, yet he had no authority to do so, because the authority conferred at the time of the sale had expired long before that, and at all events could not be exercised at that date; and, secondly, that whatever authority was originally given had been actually revoked. In these circumstances it becomes necessary to consider the ground on which it was originally held that, on a sale by public auction of an interest in land or chattel subject to the provisions of the Statute of Frands, the auctioneer is authorised to sign the memorandum. It was first established in the case of Emmerson v. Heelis (ubi sup.), and Lord Mansfield, in giving his decision, says: Now this memorandum is more particular than most memorandums of sale are, and upon it the auctioneer writes down the purchaser's name. By what authority does he write down the purchaser's name? By the authority of the purchaser. These persons bid, and announce their biddings loudly and particularly enough to be heard by the auctioneer. For what purpose do they do this? That he may write down their names opposite to

66

CHAN. DIV.]

the lots therefore he writes the name by the authority of the purchaser, and he is an agent for the purchaser; and it does seem, therefore, that this is a contract signed by an agent for the purchaser, and consequently is binding." In the Earl of Glengal v. Barnard (1 Keen, 788) Lord Langdale, M.R. thus explains the ground of that decision = The nature of the proceeding by auction the bidding for the purpose of making the purchase-the necessity of making a statement of the bidding-the direction to the auctioneer to write down the bidding, which is perhaps involved in the very process of bidding, and some other circumstances, afford intelligible ground for the decision in Emmerson v. Heelis, and the approbation which has since been bestowed upon it." These cases appear to me to show that the authority conferred on an auctioneer by a purchaser is to write down the bidding, and thus to make a minute or record of it at the time as part of the transaction. Such a record is held to be a

memorandum sufficient to satisfy the statute. But I do not see anything which justifies him in making such a minute except at the time when the writing down of the name has been fairly held to be a part of the sale by auction. If the auctioneer were allowed to postpone putting down the name to a later time, evils might arise similar to those which the statute was intended to prevent. Such authority as he has appears to have

been considered in several cases. The case of Mews V. Carr (ubi sup.), relied on by the defendant, cannot, I think, be regarded as an authority, because there the lots were unsold, and the de

fendant in the case having called on the auctioneer and agreed to purchase certain lots the auctioneer entered the defendant's name in his presence in the catalogue. But all that did not take place until several days after. The other point was raised in the case of Buckmaster v. Harrop (13 Yes. 456). There appears from the report on p. 457, that the evidence of a memorandum in writing by the auctioneer did not show that he had made entries of the biddings at the time of the sale, and an objection was taken upon that ground by the residuary legatee. Two objections were in fact raised: one, that the memorandum was not made at the time; and the other, that the auctioneer had an interest. Now, dealing with that, the Lord Chancellor says on p. 473: "The only evidence that I can receive is the written memorandum itself, unless it is lost; and it must be a cotemporary memorandum, especially in this case, as the auctioneer being himself the vendor, though only as a trustee, could not in strictness be the agent of the purchaser." The Lord Chancellor therefore says that the memorandum must be contemporary, so as to constitute part of the transaction of sale. If the auctioneer had proceeded to sign immediately after the conclusion of the sale, I should have been slow to hold that it was beyond his power; but the memorandum of the 2nd Dec. was signed at a time when the authority had ceased. It becomes, therefore, unnecessary to consider the question which was discussed, whether the purchaser could revoke the authority conferred on the auctioneer before he signed the memorandum. Without entering into a discussion of the cases cited, I will content myself with saying that I share with Lord Romilly the reluctance with which he held that upon a sale by auction under ordinary circum

[Q.B. DIV.

stances the vendor (or, as in the case before me, the purchaser) can say, after the lot has been knocked down to him, that he is not satisfied, and desires to withdraw his authority: (see Day v. Wells (ubi sup.). The result is, that the defence succeeds, and that the action must be dismissed with costs.

Solicitors: Beaumont, Son, and Rigden; C. Butcher.

QUEEN'S BENCH DIVISION.
Nov. 8 and 23, 1896.

(Before CHARLES, J.)

FINLAY V. THE MEXICAN INVESTMENT
CORPORATION. (a)

Insurance of securities-Debenture-Contract of insurance to pay debenture if not paid at maturity-Postponement of payment of debentures by special resolution-Liability of insurer under policy.

The plaintiff, who was the holder of a debenture for 500l., in Oct. 1891 insured his debenture with the defendants from the date of the policy until the 4th Nov. 1895, the date at which the debenture matured and was to be paid, and in this policy the defendants guaranteed to the plaintiff the payment of the principal sum secured by the debenture if the debtors made default in the payment of "any principal money due under the debenture," and the policy was stated to be subject to a condition indorsed thereon that the plaintiff should not assent to any arrangements modifying his rights under the debenture without the defendants' consent. In 1892 some of the debentures issued by the debtors were maturing, and, as the debtors were not able to meet them, a special resolution of the debenture-holders binding on all the debenture-holders—was passed postponing the date of payment of the debentures, including the plaintiff's debenture. The plaintiff had notice of the meeting of the debenture-holders, but took no part therein. After the 4th Nov. 1895, the date on which the debenture ought to have been paid, the plaintiff claimed payment from the defendants under "the policy, but the defendants refused to pay on the ground that by the special resolution the date of payment was postponed, and as such date had not yet arrived there had been no default in such payment by the debtors.

Held, that the plaintiff was entitled to recover, on the ground that the contract between him and the defendants was a contract of insurance against a particular event, namely, the default by the debtors to pay the plaintiff the amount of his debenture on the 4th Nov. 1895, and that the words in the policy "payment under the debenture" meant payment on the day mentioned in the debenture, and as that day had passed without payment the defendants were liable, though they would, upon payment, be entitled to the rights of the plaintiff under the special resolution, assuming it to be valid.

ACTION tried before Charles, J. without a jury.

The facts as stated in the written judgment of the learned judge were as follows:

The plaintiff in this case sought to recover from the defendants, an insurance company, the (a) Reported by W. W. ORR, Esq., Barrister-at-Law.

Q.B. Div.]

sum of 5001. under a policy effected with them dated the 14th Oct. 1891. He was then the holder of a mortgage debenture issued by the Capitol Freehold Land and Investment Company, whereby that company contracted to pay him 5007. on the 4th Nov. 1895, or on such earlier day as the principal moneys thereby secured should become payable in accordance with the conditions indorsed thereon.

The debenture was issued subject to the indorsed conditions, by the tenth of which the debenture-holder was subject to the provisions of an indenture dated the 24th Feb. 1896, to which reference will presently be fully made.

The policy whereby the plaintiff insured his debenture with the defendants, after reciting that the plaintiff was the holder of 500l. of the debentures of the Capitol Company bearing interest at the rate of 51. per cent. per annum, "which debenture matured on the 4th Nov. 1895," and that he desired to be insured by the defendants in the manner therein appearing, and had paid a premium of 51. for such insurance until the 4th Nov. 1895, witnessed as follows:

The corporation do hereby guarantee to the assured the due payment of the principal moneys and interest by the debentures in manner following, that is to say, (1) If the debtors make default for more than sixty days in the payment of any interest due under the debentures, the corporation will pay the amount thereof to the assured at the expiration of fourteen days after the assured shall have demanded payment thereof from the corporation; (2) If the debtors make default for more than three calendar months in payment of any principal money due under the debentures the corporation will pay the same principal moneys to the assured at the expiration of three calendar months after the assured shall have demanded payment thereof from the corporation; (3) This policy is issued subject to the conditions indorsed hereon which are to be deemed part of it. One of the conditions was that "the assured must not without the consent of the corporation assent to any arrangements modifying the rights or remedies of the assured under the debentures."

The debentures of the Capitol Company were issued sometimes singly and sometimes in batches at various dates between the 5th March 1886 and the 2nd Dec. 1892. Many of them were repayable in ten years, whilst others were repayable in five or seven years. In Dec. 1892 a number of the debentures were maturing, but the company was not in a position to meet them. The directors under these circumstances resolved to ask the debenture-holders to consent to a modification of their rights, and for that purpose the trustees for the debenture-holders summoned a meeting at the request of the directors on the 10th Jan. 1893; this was done under the provisions of the deed dated the 24th Feb. 1886, already referred to. That deed, which was entered into for the purpose of securing the debentures, provided (by clause 15), amongst other things, for the creation of a sinking fund for the redemption of the debentures, but so as that in every case overdue debentures should be redeemed before debentures not overdue, and those maturing at an earlier date before those maturing at a later date; but as between debentures maturing at the same date, then by a drawing in the manner therein prescribed. The fourth schedule, which took effect as a part of the deed, gave to a general meeting of debenture-holders duly summoned the follow

[Q.B. DIV.

ing power, exercisable by special resolution, namely,

A power to sanction any modification or compromise of the rights of the debenture-holders against the company or against its property, whether such rights shall arise under the debentures or under these presents or otherwise, provided such modification or compromise is approved in writing by the trustees.

The meeting was duly held, and the prescribed majority of three-fourths passed a special resolution of which the second and third clause are alone material. The second clause provided that

Subject to the provisions of clause 15 of the trust deed of the 24th Feb. 1886 relative to the order in which debentures are to be redeemed, the outstanding debentures shall be redeemed, but without premium, as follows: in 1898 and 1899, 2 per cent. of the whole; in 1900 and 1901, 5 per cent. ; in 1902 and 1903, 7 per cent.; in 1904 and 1905; 10 per cent.; and in 1906 and 1907; 25 per cent. The drawings as prescribed by clause 15 to be made on the 1st May in each year.

Provision was also made for an increase of the sinking fund. The third clause provided that:

No debenture due according to its tenor at the date of this resolution, or becoming due before the 31st Dec. 1907, is to be payable unless and until it be drawn for redemption, provided that the company is to be at liberty in any year to increase the percentage of the debentures to be drawn in that year, or to redeem by drawings any debentures prior to the year 1898.

These resolutions were afterwards embodied in a supplemental trust deed, which recited that previously to the holding of the meeting a considerable number of the debentures had become due, and the company was unable to pay them. The plaintiff, who had been duly informed that the meeting would be held, communicated with the defendants; but they declined to interfere, and he accordingly did nothing.

After the lapse of the three months from the 4th Nov. 1895, the plaintiff demanded payment of the 5001. from the defendants under the policy, but the defendants refused to pay upon the ground that by the special resolution the payment of the plaintiff's debenture was postponed to a future date, and that as such date had not arrived, there had been no default by the Capitol Company in the payment of the debenture.

Channell, Q.C. and Montague Lush for the plaintiff.

Joseph Walton, Q.C. and Hollams for the defendants.

The arguments appear fully in the judgment. Cur. adv. vult.

Nov. 23.-The following written judgment was delivered by

CHARLES, J.-[After stating the facts as above set out, the learned judge proceeded:] It will be remembered that by a condition indorsed on his policy the plaintiff was bound not to assent to any arrangement modifying his rights without the defendants' consent. It will be seen that the effect of the resolutions on the plaintiff's rights was to postpone the payment of his debenture to a date not earlier than 1898; and it was contended by the defendants that under these circumstances there had been no default within the meaning of the policy. The defendants were liable to pay only if the Capitol Company made default in payment of moneys due "under the

Q.B. Div.]

debentures," and here, by a special resolution binding on all debenture-holders, payment of all debentures was postponed until a time not yet arrived. The plaintiff's debenture, although it named the 4th Nov. 1895 as the day of maturity, was subject to the conditions indorsed, and by the tenth condition was subject to the provisions of the indenture of the 24th Feb. 1886, and, therefore, as regards him, the day for payment was put off, and the company had been guilty of no default. To this argument the plaintiff made two answers. First, he said that the policy guaranteed payment of the principal on a fixed day, and that there was default if payment was not made on that day. Payment "under the debenture meant payment on the day named in the recital in the policy, namely, the 4th Nov. 1895, and there has been default on that day. Indeed, there had been a default from Dec. 1892, when the Capitol Company had announced their inability to pay the debentures then maturing. The defendants, no doubt, would be entitled to the benefit of the modified right of the plaintiff under the special resolution, assuming it to be valid; but their liability under the policy was untouched by the modifying resolution. The policy was only to continue until the 4th Nov. 1895; and if this contention were to prevail, the policy would be wholly nugatory. Secondly, the plaintiff submitted that the special resolution was beyond the scope of the authority conferred upon the general body of debenture-holders by the deed of the 24th Feb. 1886; in other words, that the "modification determined upon was not, as it ought to have been, for the common and equal benefit of all the debenture-holders, but created an inequality amongst them; and it was not disputed that if the true effect of the resolution was to benefit one set of debenture-holders at the expense of another it was ultra vires. With regard to the first point, in my opinion the plaintiff's contention is well founded. The contract appears to me to be really one of insurance against a particular event, namely, the default by the Capitol company to pay the plaintiff the amount of his debenture on the 4th Nov. 1895. That event has happened, and the defendants must, therefore, pay, and cannot rely on the terms of the special resolution postponing the date of payment as exonerating them from liability. The contract, however, being one of indemnity, they are entitled upon payment to be subrogated to the plaintiff's rights as modified by the special resolution if it be valid. It is indeed, they, and not the plaintiff, who are to assent to or dissent from the proposed modifications. They have reserved that right to themselves by the condition indorsed on the policy, to which I have already referred, forbidding the plaintiff from acting without their consent. I may add that, although not an authority upon the question involved in this case, my judgment is, I think, in accordance with the principles laid down by the Master of the Rolls in Dane v. The Mortgage Insurance Corporation Limited (70 L. T. Rep. 83; (1894) 1 Q. B. 54). In this view it becomes unnecessary to decide the question secondly raised as to the validity of the modifications; but I think 1 ought to express my opinion upon it. The difficulty is caused by the third clause of the resolution, which does not preserve the priority of date amongst the debentures, and under its terms

[Q.B. DIV.

the later debentures might be drawn and paid before the earlier, and if this clause stood alone. I think there would be great force in the plaintiffs objection. But it should be read, it seems to me, in conjunction with the second clause, which is expressly made subject to clause 15 of the deed which preserves the priority of date; and the effect of the two clauses is, I think, that all debenture-holders shall be postponed until 1898; in other words, for five years or thereabouts of the passing of the special resolution no debenture is to be redeemed, and then drawings are to be recommenced and the debentures paid off according to their dates. As a matter of charge, all debentures rank pari passu without any priority by reason of date (see clause 17 of the deed; but with regard to drawing the dates are by the original deed to be regarded, and, by the modified scheme, taken as a whole, the privilege given by priority of date appears to me to be preserved. I cannot see how an agreement to postpone all payments for a limited term, and then to go on paying according to the same rules as before, ought to be held invalid as creating an inequality among the debenture-holders. It is said, indeed, that, inasmuch as clause 3 provides that no debenture is to be payable until "drawn" for redemption, the plaintiff will only be paid at some uncertain time at which his debenture may be drawn. But, although the word "drawing" is used, it is, when clause 15 of the trust deed and clause 2 of the resolution are examined, obviously an inappropriate term to use concerning a debenture issued singly which is to be redeemed in order of its date, as provided by the earlier words of clause 15. A " drawing" properly so called can only take place among several debentures of even date. This conclusion is consistent with the judgment of Day, J. in Tod v. New Zealand Agricultural Company (unreported), with a note of which I was supplied. There, however, there was not only a clause similar to clause 3, but also power by special resolution "to accept any other property or securities instead of the debentures, and in particular any debentures or debenture stock of the company; and Day, J. thought that the major power included the minor, and that if the resolution could provide, as it lawfully might, that the debenture-holders should never be paid off at all, it certainly could provide that for a definite period for the common good the due dates of the debentures should be suspended, although in some cases the postponement might be for a longer period than in others. In that case, it may be observed, there was no clause similar to clause 2 in the present case, and the learned judge bases his decision mainly upon the provision as to the power to take debenture stock for debentures. The decision, therefore, cannot be regarded as an authority for the defendants here, where the deed contained no such power as that on which he so strongly relied. I base my decision in their favour upon this point, as I have said, on clause 2, which must, in my judgment, be read with clause 3. The observations of the learned judge in the case referred to, on the power of the general body of the debenture-holders to alter the due dates of debentures for the common good, must be taken in conjunction with the other facts to which I have just alluded. They are far-reaching, but would not warrant me in holding that clause 3, standing