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persons interested in the assets, for as the cost of his so doing could not be thrown upon the applicant, they would have to be borne by the assets. [They stated that in the present case the papers and books in the possession of the official liquidator would fill several considerable rooms. Besides, how is the liquidator to decide what is material to the matter in question?] They also referred to The Companies Act, 1862, ss. 92, 94, 154, and the general rules 58, 74.

Mr. O. Morgan and Mr. Bagshawe, for Mr. Gooch, contended that the official liquidator must be considered as a person made party to a suit for the purpose of discovery, and ought to make the same affidavit as such party would do. They referred to

Re Barned's Banking Company; ex
parte The Contract Corporation, 36
Law J. Rep. (N.S.) Chanc. 262;
8. c. Law Rep. 2 Chanc. 350;
Ranger v. Great Western Railway,
4 De Gex & J. 74 ; s. c. 28 Law J.
Rep. (N.S.) Chanc. 741;
Rochdale Canal Company v. King, 15
Beav. 11,

and as to the case which would arise for discussion relative to the liability of a past member they referred to

Weston's Case, 37 Law J. Rep. (N.S.) Chanc. 617; s. c. Law Rep. 6 Eq. 17.

Mr. Chitty, in reply.

The judgment of the Court was delivered by

LORD JUSTICE JAMES, who said-This is an appeal from an order of the Master of the Rolls, directing the appellant, the official liquidator of this company, to make an affidavit as to documents in his possession.

The respondent is a person who is sought by the official liquidator to be placed on the list of contributories, on the ground that an alleged transfer made by his testator, being to an infant, was a nullity, and that he continued to be a shareholder. There is an alternative claim under these circumstances: The infant himself made a transfer, which was accepted and registered, and there have been subsequent dealings with the shares, and it is suggested that, if these dealings

with the shares preclude the right to go back to the original void transfer, so avoiding everything since, at all events there was a time during which the infant alone was the nominal shareholder, and during that time the transferor is liable to be treated as the then shareholder, and liable to be placed on list B. This is the contention on the part of the liquidator. The respondent of course denies that his testator was a continuing shareholder, and with respect to the claim to put him on list B he alleges that the statutory requisites do not exist; that is to say, that there are no debts of the company dating back beyond the time at which he ceased to be a member, or at least none which there were not assets of the company sufficient to discharge. It is with a view to discovery in support of this contention that the appellant is asked to make the affidavit as to documents. The argument of the appellant is that he is not a litigant or in the position of a litigant with respect to the questions at issue; that he is an officer of the Court, and nothing but an officer of the Court, who has neither power nor duty to do anything except under the orders and direction of the Judge, and that his possession of the books and papers of the company is in truth as much the possession of the Court by him, as if they were deposited with the Clerk of the Records and Writs, or with any other officer of the Court. It has been pointed out to us that by the Act of Parliament provision is made for giving to every person interested access to all the books and papers in the liquidator's possession, and it has been argued with great force before us that if in every question to be settled in the winding up of a company every creditor, every contributory, every officer of the company is entitled ex debito justitiæ to treat the official liquidator as a litigant, and to compel him to make discovery, and for the purposes of such discovery to make the necessary examination of all the books and papers in his custody, in order to ascertain which of them relate, or contain entries relating, to the matters in controversy, it would add enormously and fearfully to the costs, already enormous and fearful, of a winding up. We think that there is very great weight in the consideration so

presented to us. A winding up is in truth a partnership suit, and the official liquidator is the receiver and manager of the partnership assets, and also fills the character of an accountant to make up the books and accounts, so as to ascertain each partner's share of liability, and share of surplus, if there should be any. And it would certainly be a very novel thing to treat a receiver and manager appointed by the Court, or an accountant appointed by the partners themselves, as a person liable to be treated as a defendant for the purposes of discovery. And we can find nothing in the Act of Parliament which authorises an official liquidator to be treated otherwise than such a receiver or manager or accountant would be liable to be treated. The express provision that the official liquidator is to act in every respect under the authority of the Court would seem, on the contrary, to shew that there can be no necessity for treating the liquidator as a litigant defendant. In truth, it is of the utmost importance that the liquidator should, as the officer of the Court, maintain an even and impartial hand between all the individuals whose interests are involved in the winding up. He should have no leaning for or against any individual whatever. It is his duty to the whole body of shareholders and to the whole body of creditors and to the Court to make himself thoroughly acquainted with the affairs of the company, and to suppress nothing and to conceal nothing which has come to his knowledge in the course of his investigation which is material to ascertaining the exact truth as to every case before the Court. And it is for the Judge to see that he does his duty in this respect. If a person interested in any such case desires to see any books or papers it is the duty of the liquidator to give him, not only access to them, but to give him every assistance and facility in finding out what are the relevant books and papers he requires; and if the liquidator has already ascertained any books or papers bearing on the subject, he should frankly place this information at the service of the party. But this is a very different thing from the liquidator being obliged, at the instance of every person interested in every question arising, to em

ploy that time, which, unfortunately is so costly to the contributories, in making that fresh and careful investigation of the papers and documents in his possession which is requisite to enable him truthfully to make the ordinary affidavit which is required from a party, or quasi-party, called to make discovery. Our attention has, however, been called to the language of the Lords Justices (Turner and Cairns), in a case relating to this very company (1), who, in their observations, refer to the liquidator as being in a position analogous to that of the secretary, or other public officer of a corporation made a defendant for the purposes of discovery, and who is compellable to make the same discovery as a defendant proper would be. The point which actually arose in that case was whether an official liquidator, examined as a witness, could protect himself from answering, and it was held that he could not. We see no reason to dissent from that decision, nor from the reasons or observations of our predecessors, when rightly applied to the proper kind of case. Among the other duties of an official liquidator it may fall to him to represent the company as a party litigant. The company can only sue or be sued through him, and where there is such a suit, or where there is in the winding up a proceeding which is in substance, though not in form, a bill or action by or against the company, there, from the very necessity of the case, the adverse party has a right to deal with the official liquidator as the litigant, and to obtain from him the same measure of discovery in the same manner as he would from any other litigant. That is the principle of that case; and that principle sufficiently indicates the limits of its application. It has, however, in our judgment no application, except to a very limited extent, to the case before us. far as there is any question whether the respondent is or is not still liable to be put on the list as an actual present shareholder, that is a question between him on the one side and the company on the other side, and the respondent is entitled to

So

(1) 36 Law J. Rep. (N.s.) Chanc. 262; s. c. 2 Law Rep. Chanc. App. 350.

have, if he requires it, the usual discovery as to that liability-that is to say, a discovery of everything relating to the particular shares in question since the transfer by the respondent to the infant out of which the question arises. But, with regard to the real question between the parties, namely, whether the statutory requisites exist for placing the respondent on list B, and if so, what is the extent of his liability, that is a question with which the existing company has really no concern. That company must pay to its uttermost farthing in any event; and whether, beyond the claim against the company, any particular creditor or creditors has or have claims against any past member or members of the is a company, question as to which every creditor may have his hand against every other creditor and against every past shareholder, and every past shareholder may have his hand against every other past shareholder and against every creditor. The official liquidator, as the officer of the Court, is bound to see that in this free fight everybody has a fair field and no favour, and to act strictly in the interest of truth and justice, and none other. But the official liquidator, as the representative of the existing body, is no party or quasi-party either for discovery or otherwise to any such litigation. This case, in truth, shews how impossible it would be to proceed with a winding up if this distinction were not observed. The real controversy is whether there were at a particular date debts which have not since been discharged wholly or partially, and which there are not or were not assets available to satisfy. The discovery sought would be a discovery of all the books and papers relating to every debt due or claimed at that date, and to everything done subsequently with reference to such debts, and all the books and papers shewing the assets of the company which are or ought to be forthcoming. We are of opinion that the order of the Master of the Rolls should be discharged; but, if the respondent desires it, we will substitute for it an order on the official liquidator to make the usual affidavit as to documents relating to the particular shares in respect of which the respondent is sought to be placed on the list of present

contributories. There will be no costs, but the official liquidator will take his costs out of the estate.

Solicitors-Messrs. Linklater, Hackwood, Addison & Brown, for appellant; Mr. H. Wellington Vallance, for respondent.

LORDS JUSTICES. 1872. Jan. 31.

In re THE NATIONAL AS

SURANCE AND INVESTMENT
SOCIETY.

Practice-Appeal for 1l. 15s.

No appeal will be allowed where the amount in dispute is 11. 158.

This was an appeal from a decision of the Master of the Rolls. The facts were shortly as follows: The appellant, C. S. Edmands, in 1861 acted as solicitor for P. Cross, in respect of a claim by Cross in the winding up of the company for 1,000l. The claim was admitted, and the chief clerk in 1864 certified for 17. 158. as the costs of proof in the case of every claim exceeding 10l., the costs to be added to the claim. Two dividends were paid to Cross. A third dividend was now about to be paid, under which Cross would be entitled to 5l. 4s. 2d. Edmands, never having received the 17. 15s., applied to the Master of the Rolls for a declaration that he had a lien upon the dividend then or thereafter to become payable to Cross for the 17. 15s., the amount of his costs, and he asked that the official manager of the company might be directed to pay the 17. 15s. to him out of the dividends then or thereafter to become payable to Cross. The Master of the Rolls having refused the application, the present appeal was brought. It was stated that the matter was of considerable importance to Mr. Edmands, inasmuch as he had acted for a large number of claimants, and was in a similar position as to his costs in the other cases.

Mr. Fry and Mr. Caldecott, for the appellant, contended that Mr. Edmands was entitled to a lien, either by virtue of the

general rules applicable to such cases, or at least by 23 & 24 Vict. c. 127. s. 28.

[THE COURT took objection to the appeal, on the ground of the trifling amount involved, the Lord Justice James remarking that a suit could not be instituted for less than 101.]

We submit that this is very different from a suit. The expense of our application, if it had been acceded to in the judges' chambers as it ought to have been, would have been trifling. Unless this order is made Mr. Edmands is practically without a remedy. Moreover, this is a representative case.

Mr. Cross did not appear. Mr. Roxburgh and Mr. Gardiner appeared for the official

manager.

LORD JUSTICE JAMES.-Unless I am ordered to do so by the House of Lords or some other competent authority, I will not entertain an appeal for a sum of 11. 158.

LORD JUSTICE MELLISH Concurred.

Solicitors -Messrs. Edmands & Mayhow, for appellant; Messrs. Travers Smith & De Gex, for official manager.

WILSON v. O'LEARY.

LORDS JUSTICES. 1872. Mar. 2, 4, 7. Legacies-Cumulative or Substituted— Two Codicils-Repetition of Gifts-Extrinsic Evidence.

A testator made two codicils to his will. By the second he gave to five legatees, named in the first codicil, legacies of the same amount that they took under the first codicil and to three legatees, named in the first codicil, legacies of half the amount they took under the first. By the first he gave a legacy to one legatee not named in the second, and by the second, a legacy to one legatee not named in the first. By each codicil he gave to his servants one year's wages, but by the second he directed that this gift was to be liberally interpreted. The legacies given by the

second codicil were to be free of legacy duty; there was no such provision regarding the legacies given by the first codicil. The language of both codicils was almost identical, and they both commenced with the words, "This is a codicil to the will of, &c." -Held (affirming a decision of BACON, V.C.), that the legacies given by the second codicil were cumulative and not substitutionary. The Duke of St. Albans v. Beauclerk (2 Atk. 636); and Heming v. Clutterbuck (1 Bligh, N.S. 479), commented on.

Held also, that a letter from a solicitor to the testator, written before the execution of the second codicil, and containing advice to the testator to recopy the first codicil, was not admissible for any purposes of con

struction.

The question on this appeal from a decision of Bacon, V.C., was, whether two series of legacies given by two codicils to the will of General Sir De Lacy Evans were cumulative or substitutionary. The Vice Chancellor decided that they were cumulative, and the residuary legatees appealed.

The will, codicils, facts, arguments and cases cited are set out at length in the report of the case in the Court below, 40 Law J. Rep. (N.S.) Chanc. 709.

Mr. Kay, Mr. W. Pearson, and Mr. Phear, appeared for the appellants.

Sir R. Palmer, and Mr. Everitt, Mr. Eddis and Mr. C. Hall, argued the case for the respondents.

Mr. Amphlett, Mr. Renshaw, Mr. Milman, Mr. Montague Cookson, and Mr. Bowen May, appeared for other parties.

LORD JUSTICE JAMES.-I am of opinion that the decree of the Vice Chancellor must be affirmed. The basis of the elaborate and able arguments which were addressed to us by Mr. Kay and Mr. Pearson was that, taking the two codicils out of which the question has arisen and putting them side by side, we, as men of the world accustomed to know how testators make testamentary instruments, and judging of all the probabilities of the case, cannot avoid arriving at the conclusion, that the one codicil was a corrected and revised transcript of the other and that the omission to deal expressly

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with the legacy to Deborah Ware the housekeeper, of 2,000l., which alone has saved the first codicil from entire destruction, was a casual omission which has enabled her to claim her legacy, but which is not otherwise sufficient to induce us to avoid the inference which we are called upon to draw. In my judgment the whole of that contention is precluded by positive rule of law. The law has provided that no testator's testamentary intentions can be expressed or gathered from anything except the testamentary instrument duly executed and attested as required by law; and that a testamentary intention once so expressed cannot be deemed or taken to have been altered by any codicil unless such change of intention is manifested by the same statutory evidence. We are, therefore, as it appears to me, bound to presume that the testator intended to do that which he has done in this case, that he intended to leave the two codicils to co-exist as effective codicils to his will, and being bound to assume that, that he intended the two codicils so to exist, the appellant is at once confronted with this monstrous improbability as it seems to me, that the testator is to be assumed to have intended to have left one codicil to exist for the sole purpose of giving the legacy to the housekeeper of 2,0007., which he could have given by a mere additional line to that which is supposed to have been the corrected transcript of the first codicil. That is an intention which it appears to me is in the highest degree capricious, improbable and incredible; on the other hand, what is there that is either capricious, improbable or incredible in imputing to the testator the intention which the respondents say must be imputed to him? It is to be observed that this testator did not give the residue only to the persons whom he named residuary legatees, but that those same residuary legatees were made by him, both in the will and in the first codicil, pecuniary legatees to a large amount.

The probability is, if we may guess at probabilities, that he never contemplated leaving a large residue at all, but that he was providing for them by the pecuniary legacies that which he thought would be substantially what they would derive from

his estate. Then having given them pecuniary legacies by his will, by his first codicil he again gave them, amongst others of his friends and relatives, two large pecuniary legacies, one of 4,000l., and one of 3,000l., apparently having the same idea that they would share with the other legatees, if the estate proved less than he expected.

Then that being so, having made the codicil in which he makes disposition of his property between his friends and relatives, he six months afterwards makes another codicil, which in effect may be accounted for in this way: he found that his estate was considerably more than he had thought it would be, that he had reason to believe that he had undervalued it. In that state of things there does not seem to be any great improbability in supposing that he intended to add to the legacies to his friends; for instance, to his dear friend, Colonel Wilson, 50 per cent., to other legacies, 50 per cent., to double the legacies to his two nephews, and in the same manner to double the legacies to the other legatees mentioned in the will, until he comes to the last, and then probably thinking that the housekeeper was sufficiently provided for by the 2,000l., instead of giving her the 2,000l. which he would give according to the scheme of that codicil, he gave the 2,000l. to another friend, whom he introduced for the first time in the second codicil. It appears to me, then, that looking at the question in this way, the balance of probability is not in favour of but against the appellant.

Then beyond that, I entirely concur in the passage that was read to us nearly in the same words from two or three of the judgments which have been delivered in similar cases, that is, that where there is a positive rule of construction, such as exists in these cases, which says that gifts by two testamentary instruments to the same person are to be construed cumulatively, that plain rule of law and construction is not to be frittered away by a mere balance of probabilities. I am therefore of opinion that the gifts ought to be construed as cumulative. There is a dif. ference perhaps with respect to the gifts to the servants, the gift of 5001. extra to his old servant and friend, as he calls him

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