his Lordship,) is very ill drawn. The recital clause mixes and jumbles together a variety of things in such a manner, that it is very difficult to say what is or is not included in it. This is a penal law; and in such statutes the enactment clauses should always describe most accurately what is to be made to amount to an offence. Now, instead of the enacting clauses of this act being expressed with minuteness and distinctness as to what is described to be matter of offence, it leaves us to make out, by any reasoning which we can apply to the clauses of recital, what is to be understood, by implication, to be the matter of offence created by the enacting clauses. This, to say the least, is a very inconvenient mode of legislating in penal matters. But whenever the act of parliament comes again to be considered, I should wish, that the question of construction should be argued upon the effect of the recital, as a recital which takes it for granted, that there are some things so prejudicial to the subjects of the country, as to be manifestly of the tendency described in the act, and to have it considered whether, if within the words that are used, the thing complained of is manifestly to the injury of his Majesty's subjects, cases of this kind are to be left to the decision of a jury; or whether, on the other hand, those kinds of cases are not cases pronounced already by the law, to be manifestly a grievance to his Majesty's subjects.

I should wish it also to be considered, with reference to the recital clauses, whether the assuming to act as a corporation is not an offence, meant to be created by the act, independently of the circumstance of opening books and subscriptions; and I cannot quit the topic without saying, that I can find nothing in this act, which is to confine it to opening books and subscriptions ;-to the opening of books to-day getting out of the concern to-morrow, and shutting the books the next day; and it is impossible, in my judgment, that so limited. a construction can be put upon the act, particularly when we look at the clauses of exception. There are acknowledged companies and chartered companies, the cases of which are contemplated by this act; and in that contemplation, the legislature exempts them from the penalties of the former clauses. Will any one tell me, that the

companies named in the clauses of exception were contemplated by the legislature as companies that were to open a book today and shut it up the next day, or were to engage in extremely fraudulent acts? I have not the least doubt, that, if you could give me a case of parties holding together, and being about to form a company, and it could be made out to the satisfaction of a jury, that they meant to do no more than to bring forward the scheme, which might be the most futile thing in the world, make it the means of raising a price, and getting great premiums, taking care to get themselves out of the scrape before the company is formed:-I have no difficulty to say that this is an indictable offence. With respect to the application of the statute, and of the common law to this particular case, if my opinion should ever be called for upon the legality or illegality of the Real del Monte scheme, I must have a great deal more information concerning their proceedings than is at present before the Court.

In deciding upon the particular grievance complained of by this bill, the Court is placed in some difficulty from the circumstance, that it nowhere appears what the contract is, which is the subject of dispute. Supposing, however, that there is a contract for the Bolanos mine; and that the contract is a beneficial one, let us see how the law will stand. If the members of the Bolanos Company (supposing that there is such a company, and it is very material ' with reference to this suit, whether there be or be not such a company, because, although the Real del Monte directors are before the Court, yet as to the directors of the Bolanos Company, unless they are the same individuals, I have nobody before me to represent the Bolanos Company,) have acquired the interest in the Bolanos mine, under such circumstances as would make that mine a subject of trust for the Real del Monte Company;-I am ready to admit that the latter company has a right to have the management of that subject of trust. But, on the other hand, we must recollect, that it is one thing to say, where an acquisition has been obtained under such circumstances, that the old company might insist upon taking the benefit of it; and quite a different thing to say that they are obliged to insist upon it. For instance, if it should turn

out in this case, that Mr. Vetch has been dealing under the authority of Mr. Taylor; and that Mr. Taylor has been acting under the authority of the directors; and yet, on the other hand, the instrument for the regulation of the company requires, that there shall be a special authority for the adoption of any new contract, which adoption again will depend upon the question, whether it is a benefit to adopt the new contract or not; and further, if those who are intrusted with that special authority do not choose, acting on behalf of the body, to take the Bolanos mine; -then, I say, that the members of the old company cannot be called upon by Mr. Kinder, or any body else, to take a benefit which they might take. Suppose, for instance, in the circumstances of this contract, which took place here and in Mexico, put together, that such a case had been established as would have authorized the directors, at a special general court, to say, that they would have the Bolanos mine; does it at all follow, either in point of law, or in equity, that, if the court of directors, at a special general court, choose to say, that they will not have the mine, any individual member can set up a claim to it?

Nay, I go further; for I say, that, according to law, an old company, with the exception of an individual, may form a new company for new purposes: that was laid down in the case of the Life and Fire Insurance Company. That company set up also a Marine Insurance; but one gentleman was obstinate, and filed a bill, insisting that the Fire and Life Insurance Company, of which he was a member, could not compel him to be a member of any other company; on the other hand it was insisted that his copartners could compel him:-I was clearly of opinion that they could not; and that, if persons entered into a partnership for a particular purpose, they could not engage any person belonging to that partnership in any other pursuit, in which that person had never agreed to be engaged. But if all the other members of that Fire and Life Insurance Company thought proper to form a Marine Insurance Company, he not being one of them, then, unless it could be shown that there was some clause in the original deed or instrument, to prevent them from doing so, I thought that the Court had no authority to

take away from them the power of doing that, if they were desirous so to do. In like manner, if this company thought proper to say, "Well, Mr. Kinder, we are not bound to take the Bolanos mine, and we will not take it;" I cannot undertake to say, that, (as soon as they had divested the Real del Monte Company of the right to the Bolanos mine, by the refusal to accept it), the very individuals, who refused to accept it for the Real del Monte Company, might not form another company, and take it for themselves.

That being the general law, has Mr. Kinder a right to say to these persons." I do insist, that this shall belong to the Real del Monte Company; I do insist that there shall be 200,000l. more subscribed in the same shares as in the Real del Monte Company." A person might be quite right in saying, "If I am entitled to fifty shares in the Real del Monte Company, I am entitled to call upon you to make all the other terms agree in that respect;" but would not all the other partners have a right to say " We will not undertake upon those terms with you?" And what right have I to interdict them from so saying?

The directors of the Real del Monte Company, however, have got quite wrong; and the same error was committed in the Fire and Life Assurance Company, who thought that they could carry on the Marine Assurance Company, by the officers and servants of the Fire and Life Assurance Company. But the Court said, that they had no right to do so. In the same way, there is here a resolution, which directs the employment of the officers and servants belonging to the Real del Monte Company, for the benefit of the Bolanos Company: that cannot be, and therefore must be prohibited, unless this company turns out to be an illegal body.

Upon the whole, even looking at the plaintiff's representation of the circumstances, I do not think that his affidavits are sufficient to raise the trust under which he claims but I am sure that they are not sufficient to raise such a trust, when I look at the affidavits on both sides. Neither do I see any thing which would authorize me to say, that Mr. Taylor was not at liberty to enter into any other mining concern, or to contract for any other mine, with such persons as he might think fit to engage

with. Therefore the ultimate opinion which I have formed, putting all the matter of the legality of the company out of question, is this that there has not been, what (to sustain Mr. Kinder's claim) there must have been, such an adoption, not by Mr. Kinder, but by the Real del Monte Company, of this Bolanos mine concern, as authorizes Mr. Kinder to demand, or rather compels me, upon his call, to grant the injunction which is now sought :-on that ground, I refuse the injunction, with the exception of so much of it as relates to the resolution for employing the agents, servants, &c. of the Real del Monte Company in the management of the Bolanos mine,—a resolution, as I have already said, which the directors were not competent to make.

:

The Lord Chancellor did not think it necessary to pronounce any judgment on the demurrer but he made the following observations with respect to the alleged defect of the suit, in not having all the parties before the Court:

"I have granted injunctions," said his Lordship, "as my predecessors have done, even where all the parties were not before the Court but in all those cases I must have been satisfied, that all the parties, who could be brought before the Court either individually, or by those representing their interest, were brought before the Courtwhich would be quite sufficient for the purpose of enabling the Court to do justice. With respect to those cases in which some individuals sue on behalf of themselves and all others interested, and they bring before the Court all the individuals who are to do the act which must be done in order to give relief, I apprehend there is no difficulty. The difficulty is, how to deal with cases where the plaintiff does not represent all. With respect to the demurrer it will perhaps be found, that, although there are cases in which the Court has gone very far in binding a great many absent persons, by what was done with respect to persons present, yet it will be quite a different question what is to be done in a case where the persons, who are to be bound, are bodies of who are persons called upon to make such new subscriptions and advances as this Bolanos Mine Company must require. When pecuniary

An answer is not irregular, because it has been taken before the defendant's solicitor as one of the commissioners.

In this case, the answer of the defendant had been taken by commissioners, of whom his own solicitor was one.

The plaintiff now moved on that ground, that it should be taken off the file for irregularity.

Mr. Agar, for the motion;

Mr. Horne, contrà.

It support of the motion it was said, that the settled doctrine of the Court on the analogous subject of commissioners for taking evidence was, that the solicitor of either of the parties could not be a commissioner. There was equal reason for holding, that the commissioners for taking an answer should be indifferent persons.

On the other hand, it was said, that the question was not one of principle, for no inconvenience could be pointed out as likely to arise from the attendance of the defendant's solicitor, as one of the commissioners in taking the answer. The point was merely one of positive practice; and that practice had long been, to file answers taken before commissioners, of whom the defendant's solicitor was one; nor had any attempt been made to hold such answers irregular.

The Vice Chancellor ordered the practice to be inquired into.

On a subsequent day his Honour stated, that the most experienced six clerks had informed him, that it was the practice to file answers without objection, although the defendant's solicitor had acted as a commissioner in taking them.

give notice of trial, even though the notice be accompanied with an intimation that it is to be held nugatory, unless the injunction is dissolved before the day of trial.

In this case the plaintiff had obtained the common injunction, which had afterwards been extended to stay trial. The defendant, in equity, having put in his answer, gave notice of trial to the plaintiff in equity, and observed, that the notice was an intimation that it was to be regarded as nugatory, unless the injunction was dissolved before the day of trial.

Mr. Agar now moved against the solicitor, who gave the notice of trial, as for a breach of the injunction.

Notice of trial was, he argued, a necessary step in the proceedings of law; giving such notice was, therefore, doing that which the injunction prohibited; and the notice did. not cease to be a notice by reason of the annexed intimation, that it was to be nugatory, unless a certain thing happened.

Mr. Horne, contrà.

The testator died on the 20th of March, 1815. The bill was filed on the 3d of April following; and on the 22d of June following, amended by adding Prentis and Hughes, who had taken out administration to the deceased, with his will annexed, as defendants. In June, 1816, Prentis and Hughes put in their answers to the bill. In August, 1816, the bill was amended; and, in October, 1817, the administrators filed their answer to the amended bill.

In the mean time, the administrators paid certain debts of the testator. In January, 1816,-May, 1816,-April, 1817,-and July, 1817, they paid four different judgment debts of the testator, amounting in all to upwards of 1,400l. In October, 1817, they paid the sum of 431l. Os. 8d. in part discharge of a simple contract debt; and in June, 1816, they paid a bond debt of 9351. 5s. 2d.

The Master had refused to allow to the personal representatives, in their accounts, any of these six payments, upon the ground that they were payments made after the filing of the bill.

Accordingly six exceptions to the report were taken by the administrators, who contended that these six payments ought to have been allowed to them.

Mr. Horne, Mr. Sugden, Mr. Lovat, Mr. Simpkinson, Mr. Pemberton, &c. appeared for the different parties interested.

In support of the report, it was insisted, that, by filing the bill, the Court acquired the administration of the testator's assets; that the executor could not afterwards, by any act of his own, give any creditor a preference; and, therefore, that these voluntary payments were clearly bad.

On the other hand, it was argued, that till a decree, neither the plaintiff's creditors in the suit in equity, nor the administrators, the defendants, could have prevented a creditor from proceeding at law ;-that it was not their duty to force a creditor, of the justice of whose demand they were satisfied, to proceed at law ;-and that they were, therefore, justified in paying his just claim voluntarily. They relied on the case of Lord Orford v. Daston, (1) in the House

(1) Colles' Cases in Parliament, 229. See also, Precedents in Chancery, 188; and Vener's Abridgment, vol. xi. 298.

of Lords, as an authority directly in point. There a bill was filed by a specialty creditor, against an executrix and her husband, in Michaelmas term, 1692; and in the same term the defendants appeared; on the 25th of March, 1693, they paid a bond debt of the testator's; on the 29th of May, 1693, they put in their answer; and the cause was heard, and the decree made on the 1st of March, 1693. Lord Keeper Wright disallowed the payment; but on appeal to the Lords, his judgment was reversed.

Vice Chancellor.-The moment a suit is instituted, this Court is in absolute possession of the assets for the purpose of administring them. It will take absolute possession of them, either by its own officer, a receiver, or by ordering the whole fund to be paid into court. It is contrary to all principle, that an executor should be allowed to pay debts voluntarily, after a suit instituted. Could he apply, by motion, to have a sum out of court, in order to pay a particular debt? Yet, if the law be as that case in the House of Lords, primá facie, asserts it to be, such a proceeding would be right. Could he apply for an order, that the receiver should pay a particular creditor? I am strongly inclined to think, that there must be some incorrectness in the report, which has prevented the case of Lord Orford v. Daston, from being followed as an authority.

On a subsequent day, the Vice Chancellor pronounced his final judgment on the exceptions, in the following words:

In this case the Master, upon an administrator's account, has disallowed certain payments made by the administrator, on the ground that they were voluntary payments made to creditors after a bill filed; and that a court of equity did not permit such voluntary preference. To this report the executor has taken an exception; and in support of that exception, the counsel have relied upon a case of the Earl of Orford v. Daston, which is first reported in Precedents in Chancery, and afterwards in Colles' Report of Cases upon appeal to the House of Lords. Lord Keeper Wright was of opinion, that such voluntary preference was not to be allowed in a court of equity;

but the House of Lords, in Colles' Cases, is reported to have reversed that judgment.

That an executor should be permitted, after a bill filed, to give a voluntary preference to any creditor, is certainly opposite to the rule and principle, that equality is equity. Even at law, an executor is not permitted to prefer a creditor of equal degree after an action brought, unless, indeed, the creditor first obtains judgment against the executor; and the preference is then given on the ground of greater legal diligence. It is, indeed, true, that courts of law permit the executor to confess judgment in a second action, which is hardly consistent with the principle of greater legal diligence: but it is said that an executor is permitted to confess such judgment, because he is not bound to waste the assets of his testator in improperly defending a suit, when he knows that the debt is justly due. I find, however, upon a reference to the Rolls of Parliament, that the case in Colles is correctly reported; and that the House of Lords did reverse the judgment as stated in that report. I find, further, in a case of Waring v. Danvers in the first volume of Peere Williams,(2) (a case which was not cited at the bar), the case Daston and Lord Orford is expressly referred to, and governs the decision in that case, and is there considered as an authority establishing the doctrine of preference. However much, therefore, I may regret that such a decision has ever been made, and however little it appears to me, to be reconcileable to the general principles of a court of equity; yet I am undoubtedly bound by that authority, and must therefore allow the exception in the present case.(3)

(2) 1 Peere Williams, 295, 296. It is also referred to in 3 P. Wms. 401. See also Bright v. Woodward, 1 Vernon, 369; and Joseph v. Mott, Precedents in Chancery, 79.

Quære, whether it will make any difference according as the executor makes the payment out of legal or equitable assets? See Mason v. Williams, Salkeld, 507.

(3) It may be worth while to recollect, that, at the time of the decision of the Earl of Orford v. Daston, the year began on the 25th of March. If, therefore, the dates are accurately given, the payment of the bond debt, on the 25th of March, 1793, (the first day of the year,) was prior to the 1st of March, in the same year, (the date of the decree), by more than eleven months. But, if there should be any mistake or misprinting in the date,