in the registrars' offices, held that a testamentary guardian was not a guardian within the meaning of the Act. And here I would draw attention to the fact that the Leases and Sales of Settled Estates Act, 1850, does not, any more than does the Act now under consideration, contain any provisions for the appointment of guardians to make application or give consent under it; and, further, that—while provision is made by the latter portion of the 36th section of the former Act that no application or consent shall be made by any guardian or committee without the special direction of the courtsuch direction is given in the case of a father by appointing him to act as guardian for the purpose of making such application or giving such consent, and not by simply directing him as guardian to make or give the same. On the whole, I am of opinion, though much regretting to differ from the other members of the court, that the Marquis of Salisbury is not the guardian of his infant son, Lord Cranborne, within the intent and meaning of the Places of Worship Sites Act, 1873. It has been suggested in the course of the arguments in this case that no provision is made by the Act now under consideration for the appointment of guardians, and the Master of the Rolls appears, from the printed report of his judgment, to have inclined to the opinion, though he was not called upon to decide and did not decide the question, that the court had no power to appoint a guardian to give the necessary consent. Now if such were the case it would afford some slight additional force to the reasons urged in support of the view that the Legislature contemplated the case of the father acting as the guardian of his infant son in cases like the present, as the Act would otherwise be in so many cases inoperative; but the reasons so supplemented would not, in my opinion, be sufficient to outbalance those in favour of the opposite view, to which I have already adverted, and I should be disposed to agree with the Master of the Rolls in thinking it was not a case provided for by the Act. In the view, however, which I take of the question, the court has power to appoint a guardian to concur in a grant by a tenant for life under the Act, though I desire to be understood as not expressing a positive opinion upon the question, as it has only been incidentally raised, and has not been argued before us. This view appears to me to be supported by the practice adopted in the Court of Chancery with reference to the concurrence of the guardians in grants under the Act in question. So far as I have been able to ascertain the practice has been uniform in all branches of the court, including the court of the Master of the Rolls, previously to his order in this case, to appoint a guardian of an infant tenant in tail for the purpose of concurring in grants made under the Act, when the tenant for life has been the father of the infant remainderman; and this practice would not have been adopted had it not been considered, not only that the father, as such, was not a guardian of his child within the intent and meaning of the Act, but also that the court had the power of appointing such a guardian. As at present advised, I concur in this view; it appears to me reasonable, and would certainly be convenient in its results. I think also that it is consistent with the general principle that the Lord Chancellor has the power of appointing a guardian, not only for the protection of the infant, but for the protection of any other person who is presumably unable to protect himself whenever the need for such protection arises. The court in Ex parte Woolcombe, reported in 1 Mad., appointed a guardian to consent to the marriage of an infant, such consent being rendered necessary by the Marriage Act then in force, and it is to be noted that in that case the infant had no property, and that the guard. COURT OF APPEAL. ian was not required by the Act then in force, as is the case under the subsequent Act, to be a guardian appointed by the Court of Chancery. The Act required the consent of a guardian, there was no guardian capable of giving such consent, the Act contained no provision for the appointment of a guardian, and the court consequently interfered and supplied what was required. Again, in the case of Teynham v. Lennard, 4 B. P. C. 302 (Tomlins' edition), the House of Lords, reversing the decision of the Lord Chancellor Macclesfield, appointed a grandfather, tenant for life of certain estates, guardian of his infant grandson, who was tenant in tail in remainder of the same estates and had no other property; and it appears from a note to Ex parte Myerscough, 1 Jac. & W. 152, that the House of Lords confined itself entirely to the question of guardianship, and made no order as to maintenance, as had been assumed in previous comments upon it. It was with reference to this case that Lord Hardwicke, in Ex parte Whitfield, 2 Atk. 316, observed that the exercise of such a jurisdiction was not only conducive to the interests of the infants, but operated as an inducement to persons of worth to accept the office of guardians when assured of the protection of the court, which they might have declined if left to act on their responsibility and at their own risk. I have thought it desirable to allude to these authorities, because, while I entirely concur in the view of the Master of the Rolls as to the question upon which alone, it appears to me, he decided the case before him, I do not entertain the doubts expressed by him as to the power of the court to appoint a guardian in a case like the present. The further point suggested by the Master of the Rolls, that it is the duty of the guardian to protect, and not to give away, the property of the infant, would appear to be one for the consideration of the court on the application for the appointment of a guardian in a particular case, and not to affect the general question of the power to make such an appointment; for it may well be that though the court has such power, it will decline to exercise it unless satisfied that it is for the benefit of the infant, pecuniarily or otherwise, that it should do so. BLACKBURN, J.-I agree with the judgment of Lord Justice James both in the result to which he comes and the reasons he gives, for which I refer to his judgment without repeating them. I will only add that the scheme of the Act in the 36 & 37 Vict. c. 50, seems to me to show that the Legislature thought that sites for places of worship not exceeding one acre would generally be of inconsiderable value, and therefore have endeavoured to make the conveyances simple and cheap, and have not put the matter under the control of the Court of Chancery, which might, perhaps, afford protection to the property, but would certainly cause some trouble and some expense. It is true that an acre of land, situate near the Exchange in London for instance, may be of immense value; but the Legislature either overlooked this, or thought it sufficient to trust to the tenant for life's regard to his own interest to prevent his granting such an expensive site for a place of worship. But it seems that the Legislature did think that the grant of a site or sites for places of worship scattered over an estate might be very annoying personally to the persons entitled to the next estate of inheritance, if, as may not improbably be the case, he was of a different religious persuasion from the tenant for life. To provide against the risk of this annoyance the assent of that person, if legally competent, is rendered necessary; but the Court of Chancery has no control over the remainderman, either to compel him to give the assent, which he unreasonably refuses, or to prevent his assenting. If he is not legally competent the assent of the CT. OF APP. RE MARQUIS OF SALISBURY'S ESTATE.-GAMBLES v. OCEAN MARINE INS. Co. OF BOMBAY. CT. or App. guardian of the infant person under disability is made necessary, but there is no provision here expressly referring the matter to the Court of Chancery. The husband of a married woman is the guardian of her person; he is not interested in the property, but it is thought sufficient to protect a married woman, if the owner of the next estate of inheritance, from the risk of personal annoyance to make the assent of the husband necessary. In the case of a lunatic the consent of the committee is necessary. Whether this means the committee of his person, or the committee of his estate, or both, I do not know. In the case of such unfortunate persons the whole case is already in chancery, and it may be that the sanction of that court is requisite. I give no opinion on this, nor do I give any opinion as to the cases in which the infant is already a ward in chancery. But in general, the necessity for obtaining the assent of the guardianthat is, the personal guardian of an infant-would protect that infant from the risk of annoyance. It is true that where the guardian is, as in the present case, himself the tenant for life, the necessity for his assent gives no additional protection. Perhaps the Legislature thought that the instances in which an infant tenant in tail had religious views strongly opposed to his father and guardian were too rare to be worth providing for. And this is rendered more likely, as there is no provision for any protection for unborn tenants in tail, who will probably be educated in the persuasion of their father, but not more probably than young infants. I see nothing in previous legislation adverse to this view. In the Settled Estates Act, 1856, the whole question is one of property, and there are careful provisions that all shall be done under the control of the Court of Chancery, and in section 36 there is a proviso that the guardians shall act only by order of the court. These form excellent reasons for requiring nothing to be done till there has been a suit or other proceeding in chancery. In the Act before us there are no such provisions. Either the father tenant for life must wait till his son attains full age, or he must apply to the Court of Chancery for the purpose of making his son a ward in chancery, which is not always practicable. If the whole matter is to be brought to the mind of the court so that the court may apply some principle (I own I do not see what), and according to its view give or refuse assent, it might perhaps afford some protection, but it would cause much trouble and expense even when practicable. If, as is suggested, it would be sufficient to obtain, as a matter of course, an order appointing the clerk of a solicitor guardian ad hoc for the purpose, the trouble would be slight and the expense not great, but there would be no protection or benefit at all. And, to bring about this inconvenient result, we are asked to depart from the prima facie meaning of the words, and say guardian" here means, not the guardian, but the person appointed by the Court of Chancery to act as deputy for her Majesty in protecting an infant, who is not in strictness a guardian at all, or else to say that there is an exception to be interpolated that where the guardian is himself the tenant for life he shall not act as such. 66 I think we ought not to do this, especially when the result is to do no good, and to frustrate the object of the Act by rendering the proceedings, intended to be simple and cheap, complicated and expensive. Solicitors, Nicholson & Herbert; White, Borrett, & Co. From Ex. Div. Feb. 1. GAMBLES AND OTHERS v. OCEAN MARINE INSURANCE COMPANY OF BOMBAY. Marine insurance-On voyage to port "and for fifteen days whilst there after arrival"-Voyage and time policy-Termination of risk. A ship was insured “at and from P. to N., and for fifteen days whilst there after arrival," the policy being stamped both as a voyage and time policy. She arrived safely at N., and there completed the discharge of her cargo. Being chartered to load in the port of N. a cargo of coals for delivery at G., she received on board two heels of coal as a stiffening, and was moved to a loading place within the port of N. to complete her loading. While moored there and waiting her turn to go under the loading spout, within fifteen days from her original arrival at N., she received injuries in a storm for which the owner now sued the underwriters upon the policy. Held, reversing the decision of the Exchequer Division (Kelly, C.B., and Amphlett, B.; Cleasby, B., diss.), that the loss was directly within the terms of the policy, and the underwriters were therefore liable. Appeal from the decision of the Exchequer Division (Kelly, C.B., and Amphlett, B.; Cleasby, B., diss.) in favour of the defendants, reported ante, p. 178, where the facts are fully set out. Herschell, Q.C. (Rolland with him), for the plaintiffs (the appellants) cited The Mercantile Marine Insurance Company v. Titherington, 13 W. R. 141, 5 B. & S. 765; Haughton v. The Empire Marine Insurance Company, 14 W. R. 645, L. R. 1 Ex. 206. Cohen, Q.C. (J. H. Crawford with him), for the respondents, cited The Company of African Merchants v. The British and Foreign Marine Insurauce Company, 21 W. R. 484, L. R. 8 Ex. 154. Lord CAIRNS, C.-In this case there is a policy of insurance upon a ship at and from the port of Pomaron to Newcastle-on-Tyne, and for fifteen days whilst there after arrival. The ship arrived at Newcastle, and, having unloaded her cargo, moved afterwards to another part of the port, took in, with reference to a new voyage on which she was chartered, some stiffening, and was then lost within the fifteen days inside the port. The question is whether the underwriters are liable. Now, according to the natural construction of the words the ship was clearly lost whilst at the port of Newcastle within the fifteen days, during the period therefore covered by the insurance, and under circumstances which those words are apposite to describe; but the ground on which the majority of the learned judges in the court below proceeded, as I understand, is thisthey say that this is a voyage policy, and therefore everything in the policy must be construed so that the risk may be considered to cover all that is done with reference to the voyage, and nothing more, and therefore the fifteen days must be construed with reference to the voyage; and if, during those fifteen days, the ship was doing anything with reference to the voyage, then the underwriters are liable, otherwise not. Now it appears to me, speaking with great respect to the majority of the learned judges in the Exchequer, Division that that is really assuming the whole question in the case. The question appears to me to be this, Is this purely a voyage policy? Undoubtedly so far as regards the transit of the ship from Pomaron to Newcastle-on-Tyne it is a voyage policy, and I will assume that, as regards the conduct of the ship during that period, it is to be judged of as the conduct of any ship subject to a voyage policy ought to be judged of; but then it appears to me that, unless these words "for COURT OF APPEAL. GAMBLES V. Ocean MARINE INS. CO. OF BOMBAY.-RUMMENS v. HARE AND ANR. Court of Appeal. fifteen days whilst there," that is, at Newcastle after arrival, have obtained some peculiar mercantile meaning, usage, or otherwise (which is not contended), there arises, after the voyage is completed, an addition to, an excrescence upon the voyage policy, in the shape of a stipulation which carries the persons interested in the ship safely over a further period of fifteen days, and that, therefore, it is not a voyage policy, but a time policy. There is, therefore, a stipulation for a voyage, and engrafted upon that a further period of fifteen days during which the loss of the ship is insured against. I may say that no authority for the view taken by the majority of the judges in the court below has been cited, except upon the hypothesis that this throughout is to be looked at as a voyage policy. Unless that hypothesis is conceded the authorities to which the Chief Baron has referred are not applicable, and I think that hypothesis cannot be conceded. The case, The Mercantile Marine Insurance Company v. Titherington, 13 W. R. 141, 5 B. & S. 765, that was referred to, of a ship insured in the south seas where she was insured for thirty days after her arrival at the port of discharge, is much more applicable to the present case than the other authorities, because there the voyage was treated as one separate thing, to this extent, that the twenty-four hours, the usual time, was added after the arrival of the ship to make the termination of her voyage, and then upon that was engrafted the stipulation for her safety for thirty days. Surely there the two insurances must be looked at as being separate, and I think that is so here, and that, therefore, the appellants are entitled to re cover. Gift of security-Handing over policy without assignment-Property in document as distinguished from that in the money secured thereby. R. having insured his life, handed the policy over to his mother, telling her that she might keep it; and he subsequently handed over to her two receipts for premiums paid by him on the policy. There was no assignment of the policy, but R.'s mother retained it in her possession and had it in her possession at the time of his death. In an action by R.'s administratrix for the recovery of the policy and receipts, Division), that though the gift passed no right to the Held (affirming the decision of the Exchequer mother to recover the money secured by the policy, the administratrix nevertheless could not maintain detinue or trover against her for the documents. Barton v. Gainer, 6 W. R. 624, 3 H. & N. 387, followed. Declaration by the plaintiff as administratrix of J. E. Lord COLERIDGE, C.J.-I am of the same opinion. If this were a voyage policy the judgment of the majority of the court below would be right, but that is the point which we have to consider. A point which has struck me in favour of Mr. Cohen's contention is that here there is a silence as to any time at all after the arrival in port, and therefore there may be some foundation for the contention that the fifteen days is merely a substitution for the ordinary twenty-four hours, and if it is to be a mere substitution for the twenty-four hours the longer period is to be judged of by the same princi-Rummens, deceased, for that the defendants detained ples that apply to the shorter, but upon consideration I do not think that is the true view of the policy. It is always my desire to give the ordinary meaning to words, except it is shown that there is some usage which has deprived those words of their ordinary sense. Here the words are the insurance is to last for fifteen days after arrival. What happened was within the fifteen days, and whilst the ship was there, as is found in the case, within the meaning of the policy. Therefore it appears to me the risk was covered by the policy, that the judgment of Mr. Baron Cleasby was right, and the judgment of the majority of the court below should be reversed. from the plaintiff, as such administratrix, a certain policy pur To this declaration the defendants pleaded a general denial of the plaintiff's property in the documents, a denial of the detention, and not guilty. MELLISH, L.J.-I am of the same opinion. I think there is no reason, or no sufficient reason, for departure from the plain meaning of these words. If the words had been simply " for fifteen days after arrival" then it might have been necessary to put some limitation upon them, because the underwriters could hardly have intended to be liable for a ship going out to sea within that time, but when the express terms are there, it shows the stipulation is that whilst the ship is at Newcastle the underwriter is to run the risk of what may happen to the ship while she remains in the port. I cannot help thinking that if we decided for the underwriter, not only should we not further the intention of the parties, but defeat the object of the shipowner in insuring in these terms; because what he intends is that his ship may be always covered. In the ordinary way the shipowner insures until a ship arrives and twenty-four hours afterwards; After the death of the intestate, he having married in then he insures "at and from" for the next voyage, so the meantime, his wife, as administratrix, brought this that the ship is always insured, but then in order to in-action, the second defendant being joined as having At the trial in Middlesex before Cleasby, B., in Hilary Term, 1875, it appeared that the deceased having insured his life, in consequence of the remonstrances of his mother, Sarah Rummens, one of the defendants, at his leaving her unprovided for in the event of his death, handed the policy to her with the remark, "If I die there is the policy," and, further, the intestate having paid two premiums on the policy, gave his mother the receipts for those premiums. There was no assignment of the policy, but the defendant Sarah Rummens retained it, and had possession of it at the time of the intestate's death. COURT OF APP. MORRITT v. N.-E. RAIL. Co.-IN RE LON. & MANCHESTER INDUSTRIAL ASSURANCE CO. HIGH COURT. actual possession of the documents on behalf of Sarah Rummens at the time of action brought. On these facts a verdict was found for the defendants, and a rule was afterwards obtained to set aside that verdict on the ground that no interest passed to the defendant Sarah Rummens in the policy itself. The rule was discharged on the authority of Barton v. Gainer, 6 W. R. 624, 3 H. & N. 387. Against this decision the plaintiff appealed. Tapping, for the plaintiff, relied upon Searle v. Law, 15 Sim. 95. [MELLISH, L.J.-Could the deceased have insisted in his lifetime on his mother's giving up the policy?] Grantham, for the defendants, was not called upon. Lord CAIRNS, C.--This is not an action involving any question as to the right to the actual money secured by the policy; it is an action to recover the paper writing which is the evidence of the policy. I say that, because different considerations apply to proceedings for the recovery of the paper writing to those in which questions as to the right to the money secured by the writing are raised. The facts may be assumed to be as follows: The intestate having insured his life, in consequence of the remonstrances of his mother as to what would become of her in the event of his death, told her that she might take the policy and keep it. She took it and kept it until the time of the intestate's death; and, further, the intestate having paid two premiums on the policy gave her the receipts for those premiums. After his death, he having married in the meantime, his wife, as administratrix, sues the mother for the policy. The court below held, upon the authority of Barton v. Gainer, that the administratrix could not maintain an action for trover or detinue for the recovery of the policy, and I think they were quite right in so holding. This was a gift, no doubt, and there was no consideration for it, but, still it was a gift of the policy to the mother for whatever advantage she might derive from it, and, as was said by Lord Justice Mellish in the course of the argument, the deceased could not have insisted in his lifetime on her giving the policy up, nor can his administratrix after his death. It is one of those cases in which the plaintiff may not be able to recover the evidence of the debt due from the insurance company, yet the person who holds that evidence may not herself be able to recover the debt. But that we have nothing to do with. Lord COLERIDGE, C.J.-I am of the same opinion. And I think the question put by Lord Justice Mellish in the course of the argument, and to which no answer could be given, was really decisive. Carrier Railway Company - Negligence Valuable goods sent without notice of value-Goods carried beyond their destination-Injury to goods-Carriers Act (11 Geo. 4 & 1 Will. 4, c. 68), s. 1. The plaintiff was a passenger from York to Darlington by the defendants' railway. At York he handed two pictures securely packed, but so that it could be seen what they were, to the guard of the train, who labelled them and put them into the van. At Darlington the plaintiff asked for his luggage and was told that it had been taken out; the pictures, however, were left in the train and carried on to Durham. After leaving Durham they were seriously damaged, and were returned to the plaintiff in a mutilated condition. No declaration had been made by the plaintiff of their nature or value, nor any extra charge paid by him on their account. Held (affirming the decision of the Queen's Bench Division), that the defendants still held them as carriers after they left Darlington, and were entitled to the protec tion of the Carriers Act. This was an appeal from a decision of the Queen's Bench Division, reported ante, p. 235, where the facts and arguments are stated. C. Russell, Q.C. (G. Bruce with him), for the appellant. Herschell, Q.C., and Crompton, for the respondents, were not called upon. The Court (JAMES and MELLISH, L.JJ., BAGGALLAY, J.A., CLEASBY, B., and GROVE, J.) affirmed the decision of the court below, and on the same grounds. Solicitors for the appellant, Ridsdale, Craddock, & Ridsdale, for Watson, Barnard Castle. Solicitors for the respondents, Williamson, Hill, & Co. High Court of Justice. Chan. Div. Dec. 16, 17. In re LONDON and Manchester IndustrIAL Practice-Winding up-Assurance Companies Act, 1870 A petition was presented for the winding up of an assurance company on the ground that it was practi cally insolvent. Upon an application ex parte a provisional liquidator was appointed. This order was discharged upon motion by the company, it being contrary to the practice of the ing of the petition unless the petition is by the company court to appoint a provisional liquidator before the hearor is unopposed. It was also held, on the facts, that a primâ facie case of insolvency was not established. Motion. This was a motion on behalf of the London and Manchester Industrial Assurance Company to discharge an order obtained ex parte for the appointment of a provisional liquidator on the 7th of December, 1875, together with an adjourned summons to proceed with the inquiry directed by the fiat indorsed upon the petition for winding up the company. The facts of the case were as follows: The above-named company was duly registered and incorporated in 1869, with limited liability, under the Companies Act, 1862, with a capital of £100,000, divided into 100,000 shares of £1 each. The memorandum of association stated that the objects of the company were:-(a) The carrying on of the business of a life assurance company in all its branches, the granting of endowment policies to be paid to the parties therein named on their attaining a given age, the granting of annuities, and the transaction of all kinds of assurance business other than "fire and marine" assurance; (b) The granting of policies in case of death from acci HIGH COURT. IN RE LONDON AND MANCHESTER INDUSTRIAL ASSURANCE CO. dent, and for compensation in cases of disablement from sickness or accident; (c) The transaction of the business of a general loan company. The company carried on its business at its registered offices in the Southwark Exchange, in the county of Surrey. Four thousand seven hundred and ninety-one shares were allotted, the full amount on which was paid up, except the sum of £150. The company had issued life policies assuring the sum of £136,543, or thereabouts, the premiums on which were payable weekly, monthly, and quarterly. It had issued endowment policies for a sum of upwards of £6,600, payable at certain ages, many of which, at the time of the presentation of the petition for winding up, were shortly falling due. It had also issued policies for assuring medical aid, &c., in cases of accident and sickness, the liability in respect of which amounted to £500 a year. HIGH COURT. W. R. 785, L. R. 2 Eq. 231, 236; Re Railway Finance Company, 14 W. R. 754. The petition, moreover, is presented for winding up an assurance company, and it is provided by the Life Assurance Companies Act, 1870 (33 & 34 Vict. c. 61), s. 21, that the court shall not give a hearing to the petition until security for costs for such amount as the judge shall think reasonable shall be given, and until a prima facie case of insolvency shall also be established to the satisfaction of the judge. These requisitions have not been complied with; the prima facie case of the insolvency of the company has not been established: In re European Life Assurance Society, 18 W. R. 9, L. R. 9 Eq. 122. Kay, Q.C., and Grosvenor Woods, for the petitioner.The real question to be decided is whether a prima facie case of insolvency has been made out. If it has-and we submit that it has the court will not remove the liquidation, as we submit that it is the best thing that can be done, under the circumstances, for the company, the shareholders, and policyholders that the assets of the company shall be realized and the existing liabilities paid off. They cited Reeve v. Parkins, 2 Jac. & Wat. 390; and referred to the Life Assurance Companies Act, 1870 (35 & 36 Vict. c. 41); Re Railway Finance Company, 14 W. R. 754; Re European Life Assurance On the 6th of December, 1874, a petition was presented by one Squire, who was the holder of 760 fully paidup shares, for winding up the company, marked before Bacon, V.C., which, after stating the above-mentioned facts, alleged that the assets of the company consisted of a sum under £1,000, that no funds had been set apart to meet the liabilities, and that the company was practi-Society, 18 W. R. 9, L. R. 9 Eq. 122. cally insolvent, having regard to its present and future liabilities, and it was just and equitable that it should be wound up as claims were daily being made, the satisfaction of which would be detrimental to the shareholders and of persons having claims against the company, and the petition therefore prayed that the company might be wound up, and a provisional liquidator appointed. On the 6th of December, 1874, an order was made in pursuance of the provisions of the 21st section of the Life Assurance Companies Act, 1870, for an inquiry in chambers whether a prima facie case within that section was established, and to consider the security for costs to be given. On the 7th of December, Bacon, V.C., being engaged in bankruptcy, the petitioner applied ex parte to Malins, V.C., and obtained an order for the appointment of a provisional liquidator. Bacon, V.C.'s, chief clerk, upon the summons directed by the fiat, held that a primâ facie case had not been established. The company moved to discharge the order of the 7th of December, and the summons was adjourned into court to come on with the motion. The evidence adduced in support of the motion showed that the company had an income of about £13,000 per annum, which was more than sufficient to cover its liabilities as they would become due. Evidence was also given to the effect that Squire, who was one of the directors of the company, and had, until a short time before the presentation of the petition, been one of the committee of the company, from which post he had been discharged, had with motives of revenge presented the petition, having previously issued to all the agents of the company a circular of a new assurance company of which he had been appointed secretary, with a view to supplant the existing company, and to transfer the business to the new company. Jackson, Q.C., and E. S. Ford, in support of the motion.-The order for the appointment of the provisional liquidator was made on an ex parte application and ought to be discharged, as it is contrary to the general practice for a provisional liquidator to be appointed before the hearing of the petition unless the company be shown to be insolvent or unless the petition be presented by the company itself or be shown to be unopposed: In re Cilfoden Benefit Building Society, L. R. 3 Ch. 362; 16 W. R. Ch. Dig. 75, Emmerson's case, 14 J. H. Bourne, for certain policyholders, supported the petition. BACON, V.C.-The first thing to be considered is the order which was obtained ex parte. The matter having been transferred to me it is competent for me to deal with that order without the chance of its being supposed that I am discharging the order of a judge of co-ordinate jurisdiction with myself, and I must treat it as if I had made the order myself. The rule of practice enunciated by Lord Romilly in Emmerson's case, 14 W. R. 785, L. R. 2 Eq. 231, 236, adopted by the Lords Justices on appeal, acted on, as far as I know, ever since, in several instances, is one so perfectly just, so reasonable, and so applicable to the subject, that no one can hesitate to say that it ought to be the guide in all like proceedings. The rule is this—the 85th section of the Companies Act, 1862, having provided, for the purpose of preventing the present destruction or needless embarrassment of a going company, that a provisional liquidator may be appointed at any time after the presentation of a winding up petition upon the application of anybody, shareholder or creditor, who has interest enough-that if the winding up is not assented to by the company, or is opposed, there can be no such order made. How can it be said that that rule has any application to this case? Who could oppose the application when it was made ex parte? That very condition, therefore, is not complied with; and it cannot be said that the petition is unopposed, because the petitioner gets his order ex parte. The persons who were to oppose it were totally unacquainted with what was going on behind their backs, and if that had been called to my attention (putting myself in the position of Vice-Chancellor Malins) I should have refused to make the order. The law provides against throwing the company into inextricable confusion. The order was, in my opinion, altogether wrong, and must, without hesitation on my part, be discharged. Upon the other point the case is most abundantly clear. There is no prima facie case of insolvency made out. How can I undertake to say, in the case of a going concern like this, that, because at present they have not the means of meeting all the claims that may be brought against them, they are therefore insolvent ? How do I know when any such claim may be made? How do I know how many years may elapse before any such claim is made? How do I know how many new shares will be issued or capital got in before that time? These questions must be taken into consideration, if the question is, in |
