I. agreed to accept as trustee fifty shares, to be transferred by K. A transfer in blank was executed, which was afterwards filled up with numbers not corresponding to any of K.'s shares. K. had, however, fifty shares whose numbers differed only as to one digit from those described in the transfer. The transfer was with I.'s consent registered before the mistake was discovered. Upon the company being subsequently ordered to be wound up,-Held, that I. was properly placed on the list of contributories for fifty shares. This was an appeal from an order of Vice-Chancellor Wickens made on the 5th of December, 1871, refusing an application by the appellant, R. L. Ind, to have his name removed from the list of contributories in the above company. The facts were shortly as follows. Ind was, in 1866, a clerk in the company's office. For reasons which it is immaterial to mention, it was desired that certain shares standing in the names of some of the directors should be transferred to persons as trustees for the company. Ind agreed to take a transfer of fifty shares from G. P. Kitson, the chairman of the company. A transfer of fifty shares was accordingly prepared and executed by Kitson and Ind. When so executed the numbers of the shares were left blank. Ind at the same time executed a blank transfer, and gave it to Kitson on behalf of the company. Such blank transfer however was never completed so as to put a transferee on the register in Ind's place. The numbers in the transfer to Ind were afterwards filled up 11,105 to 11,154, and the transfer was so registered. Afterwards, it was discovered that a mistake had been made, Kitson not having fifty shares so numbered, but having shares numbered 11,005 to 11,054. The transfer from Ind was filled up with the latter numbers. The company being ordered to be wound up, Ind's name was, in June 1869, settled upon the list of contributories for fifty shares, the certificate being filed in March, 1870. In June, 1871, Ind took out a summons to have his name removed from the list of contributories, and to rectify the register of members by removing his name therefrom. Mr. De Gex and Mr. Horton Smith, for the appellant. The transfer to Ind was void, as Kitson had no such shares as were expressed to be transferred. Mr. Hardy and Mr. Higgins, for the official liquidator, contended that Ind, who clearly had intended that the transaction should be substantially such as it was, could not, after allowing his name to remain on the list, now raise an objection. Saunders' case, 2 De Gex, J. & S. 101, was referred to in the course of the appellant's argument with reference to the general character of the transaction. Mr. De Gex, in reply. JAMES, L.J.-A creditor has a right to look at the register of members, and is not supposed to examine it so minutely as to ascertain the title to the shares, whether a shareholder is rightfully placed on the list. The particular numbers of the shares for which a man is registered is of no interest to a creditor who looks only to the fact that fifty shares are held by the shareholder. Mr. Ind in this case clearly undertook, when he executed this deed, to accept fifty shares. He held himself out to the world as the owner of fifty shares, and he took upon himself the powers and liabilities of a shareholder. He was, it is true, a nominee of and trustee for the company, but being upon the register for those fifty shares at the time of the winding up, he must be fixed with that liability. He must seek such indemnity as he may from the company or persons who induced him to incur that liability. I cannot think that he can be allowed to avail himself of a mistake, one which, from the figures, it appears was very easily made. The substance of the transaction was that he was to take fifty shares; he took fifty shares, and the creditors and others interested in the question have a right to hold him to his bargain. MELLISH, L.J.-I am of the same opinion. I think that numbering the shares is simply directory for the purpose of enabling the title of particular persons to be traced. One share, an incorporeal right to a portion of the profits of the company, is exactly the same as another, and share No. 1 cannot be distinguished from share No. 2 in the same way that a horse of one colour may be distinguished from a horse of another colour. If, therefore, a holder of shares has the number which he professes to transfer, or a larger number, and, by mistake, wrong distinguishing numbers are put into the transfer, that will not make the transfer void; it will not prevent the fifty shares, which belonged to the transferor, passing to the transferee. The figures can be rectified. The substance of this case is that Ind agreed, as between himself and creditors of the company, to take fifty shares. He has been registered with his own consent as to fifty shares, and he is properly on the list. The appeal must be dismissed, with costs. Solicitors-Messrs. Tilleard, Godden & Holme, for appellant; Messrs. Lewis, Munns & Longden, for official liquidator. Administration of Estate--Assets-Marshalling-Priority-Pecuniary Legatee and Residuary Devisee. A pecuniary legatee has no right to call upon a residuary devisee to contribute to the payment of debts. Hensman v. Fryer (37 Law J. Rep. (N.S.) Chanc. 97), not followed. The testator in this case by his will dated in 1859 gave his wife a legacy of 500l., and gave all his manors, lands, hereditaments and premises to trustees upon trust to pay one moiety of the rents, &c., to his wife for life, and subject thereto he devised all his said real estates to his children. The testator died in 1869, and this suit was shortly afterwards instituted for the administration of his estate, his personal estate being insufficient to pay his debts. By the decree the ordinary accounts and inquiries were directed, and the cause now came on to be heard upon further consideration. The only question requiring a report was whether, following the decision in Hensman v. Fryer (ubi supra), the debts should be paid out of the legacy of 5001. and the real estate rateably or otherwise. At the original hearing of the cause the Vice-Chancellor intimated an opinion that Hensman v. Fryer (ubi supra), appeared to have been founded upon a misapprehension of the previous cases, and could not be treated as a binding decision on this point, but did not finally dispose of the point. Mr. Glasse and Mr. E. S. Ford appeared for the trustees and cited In Hensman v. Fryer, 37 Law J. Rep. (N.S.) Chanc. 97; s. c. Law Rep. 3 Chanc. 420. Collins v. Lewis, Law Rep. 8 Eq. 708, Stuart, V.C., had refused to follow Hensman v. Fryer (ubi supra). Mr. John Pearson and Mr. Bedwell, for the testator's children. Mr. Cotton and Mr. William Barber, for the widow. MALINS, V.C., said that although as a general rule a Vice-Chancellor was of course bound to defer to the authority of a Lord Chancellor, yet that, where it was clear that a misapprehension had occurred, cases were not wanting in which Vice-Chancellors had declined to follow decisions made by a Lord Chancellor. A remarkable example of this was to be found in Drummond v. Drummond (1), where Stuart, V.C., had refused to follow a decision of Lord Westbury; and on appeal to the full Court the decision of the Vice-Chancellor had been upheld. In the present case he should decline to follow the case of Hensman v. Fryer (ubi supra), and the order would be drawn up without regard to the principle supposed to be laid down in that case. Solicitors-Messrs. Milne, Riddle & Mellor, agents for Messrs. Creeke & Sandy, Burnley, for trustees; Messrs. Johnston & Jackson, for defendants. BACON, V.C. 1872. Feb. 23. Foreign Law-Evidence-22 & 23 Vict. c. 63. MACDONALD v. MACDONALD. An opinion of a Scotch advocate was in evidence. The judge considering that there was implied therein an opinion on a question of Scotch law raised in the suit, decided the question on that evidence. The testator in this cause died a domiciled Scotchman, possessed of considerable real and personal estate in India. Before his death he executed a document valid as a testamentary instrument to pass real estate under the law of India, and to pass personal estate under the law of Scotland. He appointed three persons executors and trustees of his Indian property, both real and personal, and three others executors and trustees of his other property. He directed his Indian trustees to pay 10,000l. to his other trustees, and gave the residue in (1) 36 Law J. Rep. (N.s.) Chanc. 153; s. c. Law Rep. 2 Chanc. 32. certain proportions among certain persons named in the will absolutely. He directed that 10,000l. and the capital of a certain 6,000l. subject to a life interest (which 6,000l. formed part of his Scotch estate) should be applied to the founding and maintaining a hospital in the Isle of Skye. By the law of India, under the Succession Act of 1865, the bequest of 10,000l. to the hospital would have been entirely void, because the formalities required to make such bequest valid had not been complied with. The question to be decided was, whether, under the law of Scotland as the bequest failed so far as it was to be paid out of the Indian immoveable property, the whole of the Indian personalty was liable to pay the 10,000l., or whether, by any principle analogous to the English rule of marshalling applied to charitable gifts, the bequest was to be abated and a part only to be paid, according to the proportion the Indian personalty bore to the whole Indian fund. opinion of a Mr. Gordon, a Scotch advocate, had been taken by the Scotch trustees and was put in evidence, which was as follows An "According to the law of Scotland, the bequest of 10,000l. is a valid charitable bequest. "The Indian estates, real and personal, if regard be had to the law of Scotland, are liable in payment of that bequest, assuming these estates to be effectually conveyed to and vested in his trustees. "According to international law, the personal estate in India is liable in payment of the legacy of 10,000l., which is valid according to the law of Mr. Macleod's domicile." Inquiries had been made in the suit, and it was found that the moveable Indian personalty was amply sufficient to pay the whole 10,0007. Mr. Kay and Mr. William Barber, for of the residue of the Indian property. the plaintiff, who was entitled to a share Mr. Cracknall and Mr. Everitt, for persons in the same interest, and Mr. Eddis and Mr. Bell, for the Indian trustees, contended that the bequest failed, or at any rate abated. Mr. Amphlett and Mr. Kekewich, contra. The defence that the transaction under which the plaintiff claims was illegal, must be pleaded in distinct terms. The plaintiff conveyed an estate to the defendant by a deed which purported to be executed on a sale. No money was in reality paid. The defendant, in a suit to obtain a reconveyance, stated in his answer that the conveyance was executed by the plaintiff in fear of an adverse decision in certain litigation then pending against him: -Held, that this was not, as pleaded, any defence. The defendant admitted that the conveyance was upon a verbal understanding that the estate should be reconveyed when called for, unless in the meantime arrangements for a purchase by him should be completed. He alleged that such arrangement had been completed, and claimed to retain the estate, and he claimed the benefit of the statute of frauds as a defence to the case of trust set up by the plaintiff. The evidence did not support the allegation as to the arrangement for a sale being complete :— Held, that the statute of frauds afforded no defence to the defendant. In the year 1860 the plaintiff was absolute owner of certain freehold property called the Thorncliffe estate. For a reason which did not clearly appear, but was connected with a litigation then pending against him, the plaintiff entered into the following transaction, the account of which, as given by the defendant, is added in the words of the answer. The plaintiff conveyed the property to the defendant by a deed dated the 8th of December, 1860, in consideration of the sum of 8501. In fact, no such sum was paid by the defendant to the plaintiff. The defendant entered into possession of the property, and received the rents. The object of the present suit was to obtain a reconveyance and an account, upon the footing that the defendant was a trustee for the plaintiff. The plaintiff alleged that the value of the property was 1,600l., or thereabouts. The defendant's account of the transaction, given in his answer, was as follows "Near the end of the year 1860, the plaintiff, who is my brother-in-law, being a party to the suit of Haigh v. Haigh, and fearing an adverse decision therein, made overtures to me for the sale of the said estate; but I was unable at that time to withdraw from my business the money required to pay for the purchase thereof. The plaintiff had, as I believe, previously attempted to sell the said estate to another person, who, however, would only give 600l. for it. The plaintiff then being desirous to sell the said estate for the reasons above referred to, and being also desirous that I should purchase such estate, and that the same should be vested in me (but not, save as appears by this my answer to the statements in other parts of which I refer, as trustee for the plaintiff), induced me to take a conveyance thereof, it being understood that I should account to the plaintiff for the rents and profits, until such time as I could make arrangements for purchasing or paying the purchase money for the property. The defendant, in his answer, admitted that it was intended that he should reconvey the property to the plaintiff when required, unless arrangements should have been made for the payment of the purchase money, and that meantime he should account for the rents or profits, but he contended that such an arrangement had been made on the 3rd of February, 1863, and that he had accounted for all rents and profits up to that date. He in his answer also took an objection to the bill upon the statute of frauds. In his evidence he stated that on the 3rd of February, 1863, it was arranged between him and the plaintiff that he should pay 8001. for the property by instalments, and that he had paid all such instalments. Evidence as to this was gone into on both sides. The suit on the death of the original plaintiff was revived by his son, and was then brought to a hearing. The Master of the Rolls made a decree in favour of the plaintiff, and directed an account, and gave the defendant a lien upon the property for all sums expended in permanent improvements. From this decision the defendant appealed. Sir R. Baggallay and Mr. C. Hall, for the appellant. First, the object which the plaintiff had in conveying the property was a fraud, and therefore the Court will give him no relief. It is like those cases in old times when land was conveyed to give a person a qualification to shoot or sit in Parliament, or to serve the office of sheriff Birch v. Blagrave, Amb. 264. Childers v. Childers, 3 Kay & J. which case was reversed on appeal 1 De Gex & J. 482; s. c. 26 Law J. Rep. (N.S.) Chanc. 743; but upon the grounds that the conveyance of a mere legal estate to qualify a person to be a bailiff under the Bedford Level Act, was within the meaning of the Act, and was also in conformity with the usage Davies v. Otty, 35 Beav. 208. Next, the plaintiff cannot sue, because there is no declaration of trust within the statute of frauds. Our claim is that we are legal owners free from any trust; if, then, the plaintiff desires to prove a trust, he must produce a declaration in writing. In the answer we admitted only a trust for a certain period which has expired, viz., until, according to the facts, the 3rd of February, 1863. There is no exception in the statute except in the case of resulting trust. But this is not a resulting trust Saunders on Uses, 356, 5th ed.; Lloyd v. Spillet, 2 Atk. 148. They also referred to Mitford on Pleading, 310. Mr. Fry and Mr. T. C. Wright, for the plaintiff, were not called upon. JAMES, L.J.-I am of opinion that the decree of the Master of the Rolls must be affirmed. The defendant admits that the conveyance to him, purporting to be executed as if on a sale, in consideration of the sum of 8501., paid by him to the original plaintiff, and by which he became legal owner of the estate, was a conveyance made, in fact, without such consideration. He admits that there was no such transaction as a sale, and that there was no such payment; and that the expenses of the conveyance were paid by the plaintiff. He also admits that he was to hold the property in trust for the plaintiff, and to pay the rents and profits to him, and when called upon, to execute a reconveyance. But being now called upon to do so, he suggests vaguely that this transaction was not a straightforward transaction, but was intended to defraud some third person. He says, in effect, "I will remain in possession, because we were both engaged in an illegal transaction, and the estate cannot be taken from me to be given to a person who was as bad as I was in the matter: the transaction was fraudulent against someone else, and the maxim in pari delicto melior est conditio possidentis must apply." Now, in my opinion, this defence, if a defence it can be, has not been raised in such a manner as to avail the defendant. If a defendant intends to say that |