trust for the children or child of each daughter, as she might appoint, and in default of appointment equally; and if there should be no such child, then in trust for the executors, administrators, and assigns of each of his said daughters respectively; but in case of the decease of either of his said daughters "unmarried and without leaving lawful issue," then the testator bequeathed the share of the one so dying unmarried and without issue to the surviving sister. The plaintiff, one of the testator's two daughters, had married, but had had no children, and she was a widow over seventy years of age. The question was, whether she was now absolutely entitled to her share of the fund. Held, that the plaintiff was not absolutely entitled, the words "unmarried and without leaving lawful issue" meaning not under coverture at the time of her death. Re Sanders' Trusts (L. Rep. 1 Eq. 675) followed. ADJOURNED SUMMONS. Robert King, who died in 1840, by his will dated the 23rd April 1838, after making various bequests as therein mentioned, directed his trustees therein named out of the residue of his estate to invest sufficient to produce the yearly sum of 2001., and to pay the dividends on such investment to his wife Ann King for life, and after her decease the testator directed his trustees to stand possessed of the securities and the interest, dividends, and produce thereof upon trust to pay the interest, dividends, and produce to his two daughters Sarah King and Anna Ardlie King, for their respective lives in equal shares, for their separate use without power of anticipation; and after the respective deceases of his said daughters the testator directed that the principal of their respective shares should be in trust for the children or child of each of his said daughters as they should appoint, and in default of appointment in trust for the children or child of each said daugther as therein provided; and if there should be no such child then in trust for the executors, administrators, and assigns of each of his said daughters respectively. But in case of the decease of either of his said daughters" unmarried and without leaving lawful issue," then the testator gave and bequeathed the share of the one so dying unmarried and without issue unto the survivor for her separate use. The testator's daughter Anna Ardlie King was born on the 23rd Dec. 1814. She had been married once only, namely, on the 10th Dec. 1861, to the Rev. Charles Salisbury, who died in July 1869. No settlement or agreement for a settlement was made or entered into either before, upon, or subsequent to the marriage, and there was no issue. born of the marriage. The testator's daughter Sarah King was born on the 23rd Nov. 1813. She had been married once only, namely, to William Parton, and there had been issue of such marriage six children only, three of whom died under the age of twentyone years and unmarried. The trustees named in the testator's will were all dead. William Walford Ridley, John James Allen, John Hutley, and Francis Hutley had since, by an indenture dated the 30th Sept. 1889, been appointed new trustees of the will, and the funds representing the investments made to produce the annuity of 2007. consisted of 67451. 19s. 2d. [CHAN. DIV. 21. 158. per Cent. Annuities standing in the name of the new trustees. Upon the death of the testator's widow Ann King the question arose whether the testator's daughter Anna Ardlie Salisbury was absolutely entitled to her share of the fund, she being a widow and past the age of childbearing. An originating summons was taken out on behalf of Anna Ardlie Salisbury, against the trustees of the will and Sarah Parton and her children, to have this question determined. The summons was adjourned into court, and now came on to be heard. H. Fellowes, for the plaintiff, contended that the term "unmarried" in the will meant never having been married; that, as the plaintiff had been married, the gift now could not possibly take effect; and that the plaintiff, being past the age of childbearing, was entitled to have her share of the fund paid to her at once. He relied upon Clarke v. Colls, 9 H. of L. Cas. 601. He referred also to Heywood v. Heywood, 3 L. T. Rep. N. S. 429; 29 Beav. 9. Renshaw, Q.C. (with him Frank Evans), for the defendants Sarah Parton and her children, argued that "unmarried" in the present case meant not having a husband alive at the time of the plaintiff's death; for that, if the word meant never having been married, the words "without leaving lawful issue were unnecessary. referred to 1 Jarm. on Wills, 4th edit., pp. 521, 552; He Re Lesingham's Trusts, 49 L. T. Rep. N. S. 235; 24 Ch. Div. 703. Kenyon Parker, for the defendants, the trustees of the will. KEKEWICH, J. said that the difficulty arose from the testator, when he prepared his will, not having observed the inconsistency between the gift over and the preceding clause. The will could not be read in the manner suggested by the argument on behalf of the plaintiff without the words "without leaving lawful issue" being treated as surplusage; and even if those words were omitted the clause would not be consistent with the former part of the will, which contained an absolute gift. If the contrary construction were adopted there would not necessarily be any inconsistency. His Lordship thought the case most resembling the present was Re Sanders' Trusts (L. Rep. 1 Eq. 675), and following the reasoning of Page Wood, V.C. in that case he held that the plaintiff was not absolutely entitled, the words "unmarried without leaving lawful issue meaning not under coverture at the time of her death. Solicitors for the plaintiff, Vallance and Vallance, agents for W. B. Blood and Son, Witham, Essex. Solicitors for the defendants, Parish and Hickson. CHAN. DIV.] Re THE LENNOX PUBLISHING COMPANY LIMITED; Ex parte STOREY. June 6 and 7. (Before KAY, J.) Re THE LENNOX PUBLISHING COMPANY LIMITED; In May 1889 S. applied for shares in a company, Held, that S.'s application could not, under the circumstances, be acceded to, his name being properly on the list of contributories. Oakes v. Turquand (6 L. T. Rep. N. S. 808; L. Rep. 2 E. & Ir. App. 325) followed. ADJOURNED SUMMONS. The Lennox Publishing Company Limited was incorporated under the Companies Acts on the 13th Feb. 1889. The capital of the company was 50007. divided into 5000 shares of 11. each. On the 29th May 1889 Samuel Storey signed the usual application form for 500 shares in the [CHAN. DIV. In April 1890 Samuel Storey took out a summons asking for the removal of his name from the list of contributories, on the grounds stated in the affidavit sworn by him in support of the summons. In his affidavit Samuel Storey deposed that he was first spoken to as to taking shares in the company by Allison Bell Lennox, the managing director of the company, who explained the objects of the company to him, and asked him to meet the directors; that he met the directors accordingly at their office on the 29th May 1889 and discussed with them the objects and prospects of the company; that he asked to see a list of the shares subscribed for, which list was read to him, and he asked the secretary to give him a copy; that he inquired what the directors had subscribed, and upon the information then given to him he understood that the directors had subscribed for and would pay for their shares in the ordinary way; and that he expressed his willingness to subscribe 500l., and he signed the form of application. Samuel Storey also deposed that about the end of June or beginning of July 1889, hearing certain statements, he inquired and ascertained for the first time that the directors had not paid, and never had intended to pay, for their shares, and that the company was in fact a bogus company; that to be sure of this he went to the registered offices of the company and saw the secretary; that he obtained from the secretary the particulars of the cash received for shares, and found out that the directors had got their shares for nothing, with the exception of one small sum paid by one of them; that A. B. Lennox at that stage of the interview came into the room; that the deponent said that this was a very different state of things from what he understood, and that he must decline to have anything to do with the company where the directors had not paid for their shares; that he at once gave notice to the secretary that he could have nothing to do with an affair of this kind; and that he withdrew his name from the company. Samuel Storey further deposed that after that date he knew nothing about the affairs of the company excepting that he received a letter from the secretary, dated the 11th July 1889, telling him that the affairs of the company had been placed in an entirely altered position; that he looked upon this as an attempt to alter his deci sion, and he put the letter in the fire and never answered it; that on a subsequent occasion A. B. Lennox informed him that at the meeting of directors of the company the solicitor of the company had advised the directors that they could not make him pay as a shareholder; that since his repudiation to the secretary, and having been informed that the solicitor had so advised the directors, he never took any steps to have his name removed from the list of shareholders; and that he had not had any further application for the amount due for any shares from the com CHAN. DIV.] Re THE LENNOX PUBLISHING COMPANY LIMITED; Ex parte STOREY. [CHAN. DIV. The following authorities were referred to in¦pany Limited; Wallace's case (49 L. T. Rep. the course of the arguments : Re Canadian Native Oil Company Limited; Fox's Re Hull and County Bank Limited; Burgess's case, The Reese River Silver Mining Company Limited v. Re London and Mediterranean Bank Limited; Oakes v Turquand, 6 L. T. Rep. N. S. 808; L. Rep. 2 E. & Ir. App. 325; Kent v. Freehold Land and Brickmaking Company Limited, 17 L. T. Rep. N. S. 77; affirmed L. Rep. 3 Ch. App. 493; Re Estates Investment Company Limited; McNeill's case, 23 L. T.Rep. N. S. 297; L. Rep. 10 Eq. 503; Re Estates Investment Company Limited; Pawle's case, 20 L. T. Rep. N. S. 589; L. Rep. 4 Ch. App. 497. KAY, J.-It seems to me, upon the authorities, that Mr. Storey has not done enough to enable him to have his name removed from the list of contributories, seeing that a winding-up has taken place. [His Lordship stated in detail the facts of the case, and observed that the letter of the secretary to Mr. Storey subsequent to his repudiation was written to him as though he were a shareholder in the company, and in point of fact his name was on the register of shareholders and was never removed from it.] Mr. Storey now applies to have his name removed, on the ground of misrepresentation. I will assume that he had a right to repudiate the shares on that ground. But, if so, his contract to take shares, though voidable, was valid until he avoided it. Has he avoided it? He has not entered into any agreement with the company that his name shall be removed, or that he shall not be a shareholder. He alleges that the company never treated him as a shareholder, because they never proceeded to enforce their claim against him for the money which he was bound to pay. He further says that he was informed that the directors had been advised by their solicitor that they could not make him pay. He does not say, however, that the directors came to any resolution that no proceedings should be taken against him, still less that he was not a shareholder. There is no binding agreement to that effect between him and the company, and it is admitted that he never took any proceedings to have his name removed from the register before the winding-up. It is difficult to see how, under those circustances, Mr. Storey can escape the decision in Oakes v. Turquand (6 L. T. Rep. N. S. 808; L. Rep. 2 E. & Ir. App. 325). It is said that there is authority in his favour, and Re Canadian Native Oil Company Limited; Fox's case (L. Rep. 5 Eq. 118) is relied on. There is a considerable distinction between that case and this, because there the ground of repudiation was not the same as here. The ground was, not that there had been misrepresentation, but that the company, having been formed for one purpose, had proceeded to carry on business on a perfectly different footing. However, Fox's case has not been altogether approved in later cases. For that I would refer to Re Scottish Petroleum Com N. S. 348; 23 Ch. Div. 413, 436), and in particular to the observations of Lindley, L.J. In that case the learned judge said: “If we look at these cases to see what principle is to be deduced from them, I think we find that the shareholder who seeks to be discharged must have done two things: he must have repudiated the contract and have got his name taken off the register, subject to the qualification that if he has before the commencement of the winding-up taken proceedings to have his name removed, that will be sufficient. There is a further encroachment on this rule, namely, that if one shareholder commences a litigation to have his name removed, and there is an agreement between the company and other repudiating shareholders that all the cases shall stand or fall by the result of his litigation, then if that case is decided in favour of the litigant shareholder the others will be relieved: (Pawle's case, 20 L. T. Rep. N. S. 589; L. Rep. 4 Ch. App. 497.) But there is no authority that can be relied on for carrying the modification of the rule any further. I say none that can be relied on, for there is a case, Fox's case (L. Rep. 5 Eq. 118), which it is difficult to reconcile with the principle established by Oakes v. Turquand (6 L. T. Rep. N. S. 808; L. Rep. 2 E. & Ir. App. 325) and Kent v. Freehold Land Company (17 L. T. Rep. N. S. 77; affirmed L. Rep. 3 Ch. App. 493)." In Kent v. Freehold Land Company Lord Cairns said: “As for the argument that the plaintiff had shown a clear intention to repudiate as early as the 24th July 1866, the fact that he had then written intimating his repudiation of the shares, when coupled with the fact of his delay to file his bill for two months from that time, put his case really in a worse position than it would have been otherwise." The case, however, which seems to to me to be one of the nearest to the present is Re London and County General Agency Association Limited; Hare's case (20 L. T. Rep. N. S. 157; L. Rep. 4 Ch. App. 503), which shows that what the court has to look for is either a removal of the shareholder's name from the register, or a binding agreement that the name shall be removed. From that case and from Re Scottish Petroleum Company Limited; Wallace's case (ubi sup.) it appears that there must have been either a repudiation and a binding agreement by the company to accept the repudiation, or the repudiation and actual proceedings commenced by the shareholder for the purpose of getting his name removed before the winding-up, or such proceedings commenced by another shareholder and an agreement by the company to treat that as a test case, and binding on them in the case of the particular shareholder, although he was not a party to it. Not one of those elements exists in the present case, and I am therefore of opinion that Mr. Storey has not done enough to escape liability to this company now that a winding-up order has been made. In my opinion the case is governed by Oakes v. Turquand (ubi sup.), and Mr. Storey's name must remain on the list of contributories. Solicitors for the applicant, Johnson, Weatherall, and Sturt. Solicitor for the liquidator, W. Alexander Colyer. CHAN. DIV.] PHILLIPS v. THOMAS. [CHAN. DIV. May 7, 8, 9, and 10. (Before CHITTY, J.) PHILLIPS . THOMAS. (a) Nuisance-Public shows, sports, and exhibitions -Apprehended repetition of nuisance— Quia timet action-Injunction. An action was brought by inhabitants of houses abutting on an open and unbuilt-on area of land situate in the centre of a town, adjoining the Market-place, and known as Market-square, for an injunction to restrain the owner thereof from using, or causing or permitting the same to be used for the purpose of any sports, exhibitions, entertainments, or otherwise whereby a nuisance might be occasioned to the annoyance and injury of the plaintiffs. It appeared that in June 1889 the defendant's agent licensed S. to use Market-square for holding a public show for several days, S. paying 61. The show consisted of a large circular roundabout worked by a steam engine, which engine also worked an organ; a large circular mechanical switchback worked by another steam engine, which worked a second organ; a shooting gallery; and a boxing booth. Whilst the show was going on, the plaintiffs complained to the defendant's agent, and a correspondence ensued, which resulted in the defendant's agent declining to give an undertaking, and expressing his intention of allowing persons to use Marketsquare for public shows. Held, that as the defendant contended that he had the right to do the thing complained of, and had refused to give an undertaking, the inference was that there would be a repetition of the nuisance; and that therefore the plaintiffs were justified in bringing the action, and were entitled to an injunction. TRIAL OF ACTION. The plaintiffs in this action, which was commenced on the 19th June 1889, were David Phillips, Gwilyn Cristor James, and Charles Russell James. The defendant was Robert Christopher Thomas, the owner in fee simple in possession of a large part of the town of Merthyr Tydfil, in the county of Glamorgan, including two open and unbuilt-on areas of land situate in the centre of the town, adjoining the Market-place, the High-street, the police-station and police and County Courts, an Independent chapel, and the best shops and offices in the town. One of such areas (hereinafter referred to as "Market-square") contained about 990 square yards. The other area was situate to the northwest of Market-square (hereinafter referred to as "the second area"), and contained 197 square yards. The defendant was in the actual possession and occupation of both Market-square and the second area. Both areas were surrounded and inclosed by dwarf iron posts and chains belonging to the defendant, and were managed and controlled by the defendant's agent or servant. The defendant allowed the second area to be used at certain seasons of the year on Saturdays (Saturday being market day) for the standing of cows and calves for sale, and received tolls for such user, which were collected by his agent. The plaintiff David Phillips was a draper, silk (a) Reported by A. COYSGARNE SIM, Esq., Barrister-at-Law. mercer, and general outfitter, carrying on an extensive business in Merthyr Tydfil. He occupied a large house and shop situate on the north side of and abutting upon Market-square, and between the High-street and the second area. The basement floor of the premises was lighted by seven windows, to which there was an access of light and air through seven iron gratings in the pavement abutting on Market.square and the second area. The plaintiff was entitled to the access of light and air through the windows and gratings. He employed about thirty-five people, who resided and slept in his house, and had their meals in a room in the basement thereof, where also the kitchen was situate. The plaintiffs Gwilyn Cristor James and Charles Russell James were solicitors carrying on business in Merthyr Tydfil, and occupied as offices two houses in the High-street, fronting and looking out upon Market-square. By their statement of claim, delivered on the 4th July 1889, the plaintiffs alleged that the defendant had recently formed the design of causing and procuring Market-square and the second area to be used for the purpose of holding public shows, exhibitions, and entertainments in consideration of a money payment, whereby the defendant expected to derive a profit of upwards of 2001. a year. In pursuance of such design the defendant caused and procured Market-square and the second area to be used from about the 6th to the 12th June 1889 for the purpose of public shows belonging to J. Studt and others. Such shows consisted of a large circular roundabout, containing forty-two wooden horses, worked by a steam engine, which engine also worked an organ; a large circular mechanical switchback, capable of holding about ninety-six persons, and worked by another steam engine, which worked a second organ; a shooting gallery; and a boxing booth. The shows were accompanied by three caravans, being the dwelling-places of the persons employed in connection with the shows. Access to Market-square and the second area was given to J. Studt and the other showmen by a servant of the defendant, who removed the chains by which Market-square and the second area were usually surrounded and inclosed, and gave directions as to the portions of those areas where the several shows were to be held. The shows commenced about three o'clock in the afternoon of Saturday, the 8th June 1889, and were not closed until after midnight. During the interval a very loud and constant noise was made by the working of the roundabout and the switchback, and the two organs worked in connection therewith, both of which were worked at the same time. There were also loud and constant reports and noises during the interval from the shooting gallery, and from the springing of a rattle used in connection with the boxing booth. Generally a loud and constant noise and disturbance, which was distinctly audible at a considerable distance from Marketsquare, was created by the shows between those hours. Merthyr Tydfil and the adjoining town of Dowlais, and the adjoining villages of Cefn and Troedyrhiw, form practically one large town of nearly fifty thousand inhabitants, who are for the most part dependent upon the large iron and steel works and collieries carried on by the Dowlais Iron Company, Messrs. Crawshay, and the mortgagees of Plymouth. A large proportion of the inhabitants are of the labouring class employed in connection with such works and collieries. The shows caused large crowds of idle and disorderly persons of the lowest class to assemble and be in Market-square and the High-street, and the adjacent part of the town, who did not disperse until after midnight on Saturday, the 8th June 1889. The crowds made a great noise and disturbance, and caused great disorder and confusion in Market-square and High-street, and the adjacent part of the town, and rendered it difficult, and in fact impracticable, for respectable persons to pass through that part of the town, or to have access to the houses in and near to Market-square, and greatly impeded and obstructed the access to the houses of the plaintiffs. A great and intolerable nuisance and annoyance were consequently occasioned to each of the plaintiffs, and to the residents in their respective houses. Great interruption was occasioned to the plaintiff David Phillips's business. The persons employed by him were unable to pursue their ordinary business occupations, and were moreover unable to retire to rest until after midnight on the said Saturday. The plaintiffs Gwilyn Cristor James and Charles Russell James, and their clerks, were unable to pursue their business occupation on the Saturday afternoon. All the plaintiffs were unduly and unreasonably interfered with and annoyed in the occupation and enjoyment of their respective houses, and their peace and comfort were destroyed. Saturday is the market day in Merthyr Tydfil, and is by far the busiest day of the week for the professional men and tradesmen engaged there. These events were repeated on the afternoons and nights of Monday, Tuesday, and Wednesday, the 10th, 11th, and 12th June 1889, and on each of those days a great and intolerable nuisance and annoyance were occasioned to each of the plaintiffs and the residents in their respective houses, and the plaintiffs were unduly and unreasonably interfered with and annoyed in the occupation and enjoyment of their respective premises, and their peace and comfort were destroyed. Between the 7th and 12th June 1889 large quantities of filth were thrown into the coal cellar of the plaintiff David Phillips through an opening in the pavement abutting on the second area, and thereby horrible smells and stenches were occasioned in the house occupied by the said plaintiff, and particularly in the basement thereof, which was in fact rendered unfit for occupation or use, and the said plaintiff and the residents in his house were greatly inconvenienced and annoyed. Whilst the shows were going on, crowds of people congregated over and remained upon the gratings, and obstructed the access of light and air to the windows of the plaintiff David Phillips, and rendered his basement dark and unfit for use. The plaintiffs claimed an injunction restraining the defendant from using, or causing or permitting to be used, Market-square and the second area, or any part thereof, for the purpose of any sports, exhibitions, entertainments, or otherwise, whereby a nuisance might be occasioned to the [CHAN. DIV. annoyance and injury of the plaintiffs and any of them. The action now came on for trial. Romer, Q.C. and Upjohn, for the plaintiffs, submitted that the character of the shows contemplated by the defendant could be inferred from that of the show held in June 1889, which the defendant, to all intents and purposes, had admitted to be a nuisance. Maclean, Q.C. and Charles Browne for the defendant. This action is in the nature of a quia timet action. It is founded on the short and isolated occurrences of June 1889. The defendant admits that the shows then held were objectionable, but the plaintiffs do not ask for damages. That being so, it will be time enough for the plaintiffs to institute proceedings when and if shows of a similar character are repeated. Inasmuch as the defendant admits that wrong has been done, it must be assumed that he has no intention of repeating the wrong. Market-square and the second area had been let for shows before the year 1873, and, although the defendant desires to continue letting Market-square and the second area for shows, it does not follow that the shows to be held there in future will be objec tionable. The shows held there in former years, far from being objected to, received the support of the neighbouring tradespeople. The following authorities were cited in the course of the arguments: Rex v. Moore, 3 B. & Ad. 184; Bostock v. The North Staffordshire Railway Company, 5 De G. & Sm. 584; Walker v. Brewster, 17 L. T. Rep. N. S. 135; L. Rep. Inchbald v. Robinson; Inchbald v. Barrington, 20 White v. Jameson, L. Rep. 18 Eq. 303; Harris v. James, 35 L. T. Rep. Ñ. S. 240; 45 L. J. Earl of Ripon v. Hobart, 3 My. & K. 169; Salvin v. The North Brancepeth Coal Company, 31 Laugher v. Pointer, 5 B. & C. 54, 60, 75; Quarman v. Burnett, 6 M. & W. 499, 510; Rich v. Basterfield, 9 L. T. Rep. O. S. 356; 4 C. B. Todd v. Flight, 9 C. B. N. S. 377; 30 L. J. 21, C. P. ; Gandy v. Jubber, 9 L. T. Rep. N. S. 801; 5 B. & S. 78; 33 L. J. 151, Q. B. CHITTY, J.-The plaintiffs claim an injunction to restrain the defendant from using, or causing or permitting to be used, certain premises, which are described in the statement of claim, and are called Market-square and the second area, or any part thereof, for the purpose of any sports, exhi bitions, entertainments, or otherwise, whereby a nuisance may be occasioned to the annoyance and injury of the plaintiffs, or any of them, and the costs of the action. The plaintiffs do not claim specifically damages. Of course there is the ordinary claim for general relief, which need not, according to the General Orders, be now pleaded specifically. It is competent for me to grant the injunction, or, in lieu of the injunction, |