give all furniture, pictures, and ornaments that belong to my bedroom, the red bedroom, the back parlour, known as the breakfast room, as well as one-half of the kitchen utensils, to my wife Eugenie Bate, and the furniture belonging to the drawing room, studio, and two bedrooms, to wit, her own and adjoining room, together with half of the kitchen utensils and all of one servant's bedroom, to my dear daughter Harriett Emily Bate, and all the rest of the furniture of or belonging to the dining rooms, bedrooms, and passages, including family and other pictures, to my dear son Charles McGuire Bate, and also all my furniture, books, &c., in my house at Plymouth and all my book-debts arising from my practice, or what moneys may be derivable from my said practice that may not be wanted or required to pay off any of my just debts lawfully incurred by myself or wife, the said Eugenie Bate. And I furthermore give to my son Charles McGuire Bate the sum of 1001., now invested in the Dental Manufacturing Company Limited, for his own personal use. I furthermore give to those to whom they may be indorsed certain policies of insurance in accidental companies, and to my daughter Harriett Emily Bate my silver teapot, the remainder of my plate to be equally divided between my said daughter Harriett Emily Bate and her brother Charles McGuire Bate. I hereby give my gold watch to my dear grandson Spence Bate in memory of the great affection that existed between his grandmother Emily Bate, my first wife, to whom I am indebted for all that I possess, and to my grandson Trenich Bate and his sister Emily Bate, the children of my son Charles McGuire Bate, I give and bequeath And I hereby appoint my son Charles McGuire Bate and my daughter Harriett Emily Bate as executors to this my will.

The codicil was as follows:

To the will of me, Charles Spence Bate, I give and bequeath to my daughter Harriett Emily Bate the sum of 100l., to be paid to her as soon as possible after my decease. And I give and devise my freehold house and cottage gardens, and appurtenances, called The Rock, at South Brent, to my wife Eugenie Bate, for her life, and after her death I give and devise the same to my son Charles McQuire Bate, as mentioned in my will. I revoke the gifts made by my will and codicil to my said wife, and I direct that sufficient of my estate shall be set aside and invested by my executors to pay her the sum of 1201. a year, the interest being reckoned at the rate of 3 per cent. per annum, and that she shall enjoy the same for her life, and that after her death the same shall be divided between her children, Vixen Passmore and Frank Passmore, and I give and bequeath the same accordingly.

It appeared that the testator's real estate consisted of two freehold houses, No. 8, Mulgraveplace, and The Rock, mentioned in his will. There was no residuary bequest of the goodwill of the testator's business, and the furniture and instruments used in the business had been sold for 9001., payable by instalments. The residuary

personal estate was insufficient for payment of the testator's debts, funeral and testamentary expenses.

The summons asked for the determination of the following among other questions: (1) Whether the direction for payment of the testator's debts and funeral expenses operated to charge the same upon his real estate; (5) Whether the "book debts arising from the testator's practice, or what money might be derivable from his said practice "included the value of the goodwill of testator's business of a dentist; and whether the words, "that might not be wanted or required to pay off any of his just debts lawfully incurred by himself or wife entitled the plaintiff, Charles McGuire Bate, to have all the general personal estate not specifically disposed of applied in payment of testator's debts before any payment out of such book-debts and other moneys; and (6) Whether the deficiency

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of the general personal estate for the payment of testator's debts was to be made up by contributions pro ratâ from all the specific legatees and devisees according to the value of the legacies and property bequeathed and devised to them respectively; and if so, a direction to that effect, and that the applicants as such executor and executrix might be at liberty by sale or mortgage of so much of the real and personal property specifically devised and bequeathed as might be necessary, to raise and pay so much of the debts, funeral and testamentary expenses of the tes tator as his general personal estate and book-debts should be insufficient to pay, or if and so far as might be necessary, administration of the real and personal estate of the said Charles Spence Bate, with all necessary and proper directions.

The summons was adjourned into court. The other questions raised in the case do not call for a report.

66

Renshaw, Q.C. (Stock with him) for the plaintiffs.-The first question specifically raised by the summons is, whether the direction for payment of the testator's debts and funeral expenses operates to charge the same upon his real estate. There are only two places in the will in which reference is made to the debts-that is, at the beginning, "I direct that all my just debts and funeral expenses shall be paid as soon after my decease as convenient;" and then there is the reference to debts, in the gift, to his son Charles, of the bookdebts arising from his practice, "and all my book-debts arising from my practice, or what moneys may be derivable from my said practice that may not be wanted or required to pay off any of my just debts incurred by myself or wife, the said Eugenie Bate." The question is, does the direction to pay debts at the beginning of the will create a charge on the real estate? The cases are all collected in Jarman on Wills (4th edit.), vol. 2, p. 589-591:

Clifford v. Lewis, 6 Mad. 33.

The question is, whether the case comes within the exception to the rule, page 591 of Jarman.

KAY, J. decided the first question, namely, "whether the direction for payment of the testator's debts and funeral expenses operated to charge the same upon his real estate," in the affirmative.

66

Renshaw. Then there is the question, whether the gift following on that, "and also my bookdebts arising from my practice, or what money may be derivable from my said practice," includes the value of the goodwill of testator's business as a dentist, and whether the words that may not be wanted or required to pay off any of my just debts lawfully incurred by myself or wife, the said Eugenie Bate," entitle the plaintiff Charles McGuire Bate to have all the general personal estate not specifically disposed of applied in payment of testator's debts before any payment out of such book-debts and other moneys. I contend that the words include the value of the goodwill. The goodwill of the business, and the dental instruments and the furniture have been sold to the testator's late assistant Mr. Taylor, for 9501, payable in ten annual instalments. The bookdebts were estimated to produce 6001.

KAY, J. decided that "the book-debts arising from my practice, or what money may be derivable

case.

That the cases being cases of fraud, evidence that was conclusive in the one was not necessarily conclusive in the other.

Held, therefore, that the solicitor was entitled to charge in both actions, and also that counsel were entitled to fees on both briefs.

Order: Refer the whole bill back for taxation with the direction " that except as regards attendances or other matters which were or ought to have been done at one and the same time in both actions the plaintiff's solicitor is entitled to charge in this action as if he had not been engaged in B.'s action." Costs of applicant to be paid to him in any event.

THIS was a summons on behalf of the plaintiff H. L. O. Grieb that the objections of the applicant dated the 28th Feb. 1890 to the taxation of costs in this matter under the judgment dated the 16th Jan. 1890 might be allowed, and that it might be referred back to the taxing master to vary his certificate accordingly, and that the defendant company, the Metropolitan Coal Consumers Association Limited, might be ordered to pay to the applicant his costs of the application and consequent thereon.

The plaintiff Grieb, a shareholder of the above company, moved to have the register of members rectified by removing his name therefrom as the holder of twenty preference shares. The case was heard on the 16th Jan. 1890, and the following judgment was given by Kay, J.: "Upon motion this day made unto this Court by counsel for Henry Ludwig Oscar Grieb, of No. 7, Moselleterrace, Tottenham, in the county of Middlesex, and upon hearing counsel for the Metropolitan Coal Consumers' Association Limited, and upon reading an affidavit of the applicant filed the 7th May 1889, and the exhibits marked "H. G. 1 to 6" inclusive produced to the applicant upon his examination taken orally before this Court this day, and upon hearing the evidence taken on such examination: This Court doth order that the register of members of the said company or association be rectified by removing the name of the applicant therefrom as the holder of twenty preference shares therein. And it is ordered that the said company do repay to the applicant the sum of fifty pounds. the amount paid by him in respect of the said shares, with interest thereon at 4 per cent. per annum from the day of payment, and also his costs of this application (such costs to be taxed by the taxing master). And notice of this order is to be given to the Registrar of Joint Stock Companies."

On the same day a similar motion had been heard on behalf of one Thursby, a member of the company, and a similar judgment was delivered. Thursby employed the same solicitor and the same counsel as Grieb, but the actions were not consolidated.

By his certificate in Grieb's case, dated the 28th Feb. 1890, the taxing master certified that he had taxed at the sum of 651. 11s. 3d. the costs by the order of the 16th Jan. 1890 directed to be taxed.

The following objections were taken by Grieb to the taxation by the taxing master of the bill

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of costs of the applicant under the order dated the 16th Jan. 1890:

The applicant objects for the following grounds and reasons to the disallowance of the following itemsnamely:

1. Because the said master has proceeded (as to the items he has disallowed) upon a wrong principle. The matter is not one that comes within Order LXV., r. 27, sub-sect. 8 of the Rules of Court 1883.

2. Because the application of the present applicant against the respondent company was a separate and distinct application from that of the applicant Thursby. No agreement or order had been made that the proceedings in or the result of the application by the said Thursby should in any way govern or control the present applicant.

3. The grounds of the respondent company's opposi tion were altogether different and distinct in the present application from those in Thursby's.

4. The whole of the documents used in the said Thursby's application belonged to the said Thursby, and could not in any way be properly utilised by the present applicant.

5. Because the present applicant gave instructions to his solicitor without reference in any way to the said Thursby or to his application. It was a mere accident that the two applicants in the two separate matters were represented by the same solicitor, and that the two applications were heard on the same day. If he had been represented by a different solicitor the items, it is submitted, could not have been properly disallowed.

6. Because all the items disallowed were costs neces

sarily and properly incurred by the present applicant in his application against the respondent company.

7. There was no joint interest between the present applicant and Thursby, and the costs of the items disallowed could not in his own interests have been in any way reasonably avoided.

8. As the whole of the items below have been disallowed upon the same grounds, namely, that there was a similar application by Thursby in which similar documents were used and similar costs incurred, the whole of the objections apply to each item disallowed.

The items to which the objections applied included, among other things, writing to the company's solicitors to know if they would consent to the evidence used in Wainwright's case, also the whole of the documentary evidence including the correspondence to be used in this case, and to know if they had any other documents other than those mentioned in their two affidavits of documents filed in Wainwright's case, which related to this case, and if not, if they would consent to their being used to save applying for another order.

Further correspondence: Applicant's solicitor refusing to consent to a stay of proceedings pending the appeal in Wainwright's case except on the conditions that (1) if the judgment was affirmed the decision to govern this case; (2) if the judgment was reversed, the applicant was to be at liberty to proceed with his application.

Two fair copies of evidence taken in Wainwright's case; of minutes from minute-book; of particulars of applications and allotments of shares to the council of administration; of correspondence between the promoters and the alleged council; of consents to act on the council; of prints, memorandum, and articles of associa tion, and of petition to wind-up the company; copy correspondence for judge; copy particulars for judge.

Opposite the above items was written the word "Thursby."

Then came "fee to senior counsel," and "fee to junior counsel."

In the margin the taxing master had written, The fees paid to counsel were reduced by thes

CHAN. DIV.]

amounts because in the opinion of the taxing master the fees given were excessive, and not justified by the circumstances of the case.

The taxing master reviewed his taxation with reference to the objections, and stated the grounds of his decision as follows:

Wainwright, Thursby, and Grieb, three shareholders in the Metropolitan Coal Consumers' Association Limited brought separate actions to have their names removed form the register of shareholders. The same solicitor acted for the plaintiffs in all the three actions. Wainwright's action, which was treated as a test action, having been tried and decided in favour of the plaintiff, it was arranged that the evidence taken in that action should be used in the other two actions which were set down for trial, and succeeded one another in the list of Kay, J. Both actions were heard on the 16th Jan. 1890, the plaintiffs in the two actions being represented by the same counsel, each of whom was supplied with two copies of all the documents and evidence mentioned on pages 4 and 5 of the within objections-the copies supplied being identical-identical copies being also supplied to the judge. All the items specified in the objections opposite to which the word "Thursby" is written, are disallowed because items similar in every particular are allowed in the bill relating to Thursby's action; the other items are disallowed for the reasons stated in the margin of the objections.

George White, for the summons, referred to

Oppenshaw v. Whitehead, 9 Ex. Rep' 384.

In this case there is no consolidation of the actions: the company refused to postpone the actions pending the appeal in Wainwright's

case:

Sharp v. Wright, 14 L. T. Rep. N. S. 246; 1 Eq. 634;

Robb v. Connor, 9 Ir. Rep. Eq. 373.

Quin for the official liquidator.-The circumstances here were, first, Wainwright's case was heard, and judgment was given in favour of Wainwright; then Grieb's and Thursby's cases came on the same day. The taxing master was right in exercising his discretion: (Rules of Court 1883, Order LXV., r. 27, sub-sect. 8, Appendix, N." Copies"; Ann. Pr. p. 1154.) The separate charges for copy correspondence and evidence, &c., were not proper. I do not dispute the charge for separate briefs.

KEKEWICH, J.-There has been a miscarriage of justice in this case. I regard the question from the client's point of view. Grieb sued the company for rescission of contract. He said that he had been induced to take shares by fraudulent misrepresentations. When he retained a solicitor, Grieb was entitled to say to him, “I will have my case taken into court in the best possible way. The brief and the proofs and the documentary evidence shall be complete; counsel must be instructed; you must go in and win." If the solicitor had said that he was engaged in another case of a similar character, and that it would save expense if he only made one copy of the documents and treated the two actions as one action-if he had said that, Grieb might have said, and if a sensible man he would have said, "I have nothing to do with that action, but I am entitled to the full benefit of your experience, and I ask you to use it for me, and put my case fully

[CHAN. DIV.

before the court." If that is a proper view for the client to take, the solicitor must be entitled to be paid for carrying out those instructions, and if he does the same thing for another client, he is entitled to be paid by him too. It is said that the cases were so much alike that the decision in one must cover the other. But this is a case of fraud, and it does not follow that what was conclusive in one case must be conclusive in the other; and, if so, the defendants ought to have said, "Let us try one case, and we will then submit to a similar decision in the other." In my opinion, the solicitor is entitled to be remunerated as if Grieb's case had been the only case. If he had had to serve a subpoena on the same person in both actions, or make a journey, he could not have made the full charge against both his clients; and there are several other matters of the same character which might require to be done but once for both actions, in which duplicate charges could not be allowed. That was held in Oppenshaw v. Whitehead, which is a useful case, and one which I shall endeavour to follow. Then there is the question of counsel's fees. I am extremely unwilling to refer this matter back to the master. He is competent to decide it, and in an ordinary case I should say nothing about it. But I cannot help seeing that the circumstances on which he relies in making the reduction are that the cases are similar, and that they came on together. I do not think that is right. I think counsel ought to have proper briefs in every case. Accordingly, I will refer the whole bill back for taxation, with the direction that, except as regards attendances or other matters which were, or ought to have been, done at one and the same time in both actions, the plaintiff's solicitor is entitled to charge in this action as if he had not been engaged in Thursby's action. The costs of the applicant will be paid to him in any event. Summons allowed.

Solicitors: W. A. Colyer; Lumley and Lumley.

Feb. 26, 27, and March 6.
(Before STIRLING, J.)

THE HALIFAX SUGAR REFINING COMPANY v.
FRANCKLYN. (a)

Company-Meeting of directors-Directors absent abroad-Notice of meeting to.

The articles of association of a company provided that the number of the directors should not be less than three; that the continuing directors might act, notwithstanding any vacancies in their body, as long as there remained three directors qualified to act; that the office of a director should be vacated if he should absent himself from the meetings of the directors during three calendar months without special leave of absence from the directors.

Of the four directors of the company, two, D. and R., were both absent at the same time. D. was resident in Nova Scotia, and was appointed a director to secure his influence there, and was charged with duties for the performance of which residence there was essential. R. was travelling abroad, and it was not known where he was.

(a) Reported by A. J. HALL, Esq., Barrister-at-Law.

CHAN. DIV.]

Held, that during such absence of D. and R. it was not essential for the validity of every board meeting that notice of the meeting should be sent to them, and the other two directors were entitled to act as a board to bind the company. THIS was an action by the official liquidator of the plaintiff company, in the name of the company, commenced with the leave of the court, asking, so far as the case calls for a report, for a declaration that an indenture of the 21st May 1886 (which was a conveyance to the defendants of certain property of the company upon trusts for securing the payment of debentures issued by the company) was invalid, and to have the same set aside on the ground that no properly constituted board of directors of the company had been convened for the purpose of authorising the execution of the deed.

The company was registered in Dec. 1882, under the Companies Acts 1862 to 1880, with a capital of 125,000l., divided into 25,000 shares of 51. each, and with special articles of association. The property of the company was principally at Halifax, Nova Scotia. The articles material to be stated are the following:

Art. 63. The directors may, from time to time, at their discretion, borrow from the directors, members, or other persons, any sum or sums of money for the purpose of the company, but so that the moneys at any one time owing shall not, without the sanction of a general meeting, exceed half the nominal amount of the capital.

Art. 64. The directors may raise or secure the repayment of such moneys in such manner, and upon such terms and conditions, in all respects as they think fit, and, in particular, by the issue of debentures or bonds of the company, or by the creation of debenture stock, or by making, drawing, accepting, or indorsing, on behalf of the company, any promissory notes, or bills of exchange, or giving or issuing any other security of the company, or by mortgage or charge of all or any part of the property of the company, and of its uncalled capital for the time being.

Art. 100. The number of the directors shall not be less than three nor more than six.

. Art. 106. The continuing directors may act, notwithstanding any vacancies in their body, as long as there remain three directors duly qualified to act.

Art. 107. The office of a director shall be vacated

if he shall absent himself from the meetings of the directors during a period of three calendar months, without special leave of absence from the directors.

Art. 121. The directors may meet together for the despatch of business, adjourn, and otherwise regulate their meetings, as they think fit, and may determine the quorum necessary for the transaction of business. Until otherwise determined three directors shall be

quorum.

Art. 132. The management of the business and the control of the company shall be vested in the directors, who, in addition to the powers and authorities by these presents expressly conferred upon them, may exercise all such powers and do all such acts and things as may be exercised or done by the company, and are not hereby, or by the statutes, expressly directed or required to be exercised or done by the company in general meeting, but subject nevertheless to any regulations from time to time made by the company in general meeting; provided that no regulation shall invalidate any prior act of the directors which would have been valid if such regulation had not been made.

In Nov. 1884 a series of 400 debentures under the common seal of the plaintiff company were issued, each being to secure 1007., with interest at 8 per cent. per annum. They charged the property, whether real or personal, belonging to the company for the time being during the subsistence of the debentures, and all buildings,

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plant, and machinery attached to and connected therewith. By the indenture of the 21st May 1886 the company conveyed to the defendants the lands, sugar refinery, and other buildings of the company at Halifax, Nova Scotia, upon and with certain trusts and powers for securing the payment of the debentures, and the interest thereon, including a power for the defendants, after the making of any order for the winding-up of the company, to enter upon and take possession of the mortgaged premises. The object of having this deed executed was to comply with the law of Nova Scotia as to registration, without sending out the debentures themselves for registration there.

The order to wind-up the company had been made on the 8th Sept. 1886, and the defendants had taken possession of the mortgaged property under their power.

At the time of the execution of the deed of May 1886 there were four directors, Messrs. Fraser, Chapman, Dustan, and Ryder. No notice of the meeting of the board to authorise the execution of the deed of the 21st May 1886 was ever sent to Mr. Dustan or Mr. Ryder, and it was contended that that meeting was therefore not properly convened, and the deed, the execution of which was attested by the other two directors only, was not validly executed.

The defendants admitted that Dustan and Ryder were not present at the board meeting in question, and that notice of such meeting had not been sent to them. They contended that Dustan was not entitled to any notice of the meeting, as, though he had been nominated a director by a resolution of a general meeting of the company, he had never in any way acted as a director, had never held the director's qualification required by the articles of association of the company, and that, being permanently resident in Halifax, he had never attended any meeting of the directors, and that without any special leave of absence from the directors, so that, if he were a director, his office would have beccme vacated under art. 107. As regards Ryder, they alleged that on the 21st May 1886 he was, and for some time previously had been, in America, and it would have been useless to send him notice of the meeting.

Under the circumstances they contended that the meeting in question was a properly constituted meeting of the board, and the deed validly executed.

O. L. Clare and R. N. Arkle for the plaintiff.Directors must meet together for the transaction of business at a meeting duly summoned for the purpose:

D'Arcy v. The Tamar Kit Hill and Callington Rail-
way Company, L. Rep. 2 Ex. 158;

Re Great Northern Salt and Chemical Works
Company, 62 L. T. Rep. N. S. 231.

No doubt a quorum can transact business, and directors who do not attend will be taken as leaving the business to those who do, but all of them must have notice of the meetings:

Re Portuguese Consolidated Copper Mines Limited, 60 L. T. Rep. N. S. 857; 62 Ib. 88; 42 Ch. Div. 160.

In that case it was held that notice ought to have been sent to a director who was in Ireland at the time. In the present case the two directors who purported to authorise the execution of the deed of May 1886 were not competent to do so, and