alleged to have been made by the latter to leave to all the children of George Ridley "at least as much as they would get under the will of their father," if they would concur in conveying a copyhold estate to Edward Ridley, the brother of Samuel and George Ridley. There were two questions in the case, one of fact, and one of law. The first question was, Whether any such promise was made? The second question was, Whether, assuming it was made, this Court could legally enforce the specific performance thereof? The facts were as follows George Ridley made his will in the year 1844, and appointed his widow and her brother, Thomas Eaton Lander, and Samuel Ridley to be his executors, and left them all his property, upon trust for the sole use of his widow during her widowhood, and then upon trust to apply the income to the joint use of his children until the youngest of them attained the age of twenty-one years, when the property was to be equally divided between the children. George Ridley died in the month of August, 1846; and his will was proved by all his executors. He left six children, of whom five were infants at the time of his death. Two of the children were since dead, and the remaining four were co-plaintiffs with their mother. George Ridley's personal estate was small, and his debts were considerable. His property consisted principally of a copyhold estate, called Oxtone, which was mortgaged to the extent of 40007. This estate was conveyed to Edward Ridley, by a deed dated the 27th of March, 1847. This deed purported to be made between the executors of George Ridley of the first part, his widow of the second part, his children of the third part, Edward Ridley of the fourth part, and one George Potts of the fifth part. It recited the mortgage debt; the will of George Ridley; that two of his children had attained the age of twenty-one years; that they and their mother were convinced that it would be for the benefit of the children of George Ridley that his real estate should be sold, at a price fixed by two disinterested land-valuers; that the said land-valuers had valued the real estate at the sum of 7,3017., free from incumbrances; or 3,3017. for the equity of redemption, subject to the mortgage for 40007. upon the Oxtone property; and that the widow had prevailed upon her co-executors to concur in the sale. There were other recitals, as to the apportionment of the purchase-money, which are not material; and the deed proceeded to convey the estate to Edward Ridley, at the price fixed by the valuers. In the month of June, 1847, the deed was executed by all the parties thereto, other than four of the children of George Ridley, who were still infants. Edward Ridley was the partner of Samuel Ridley; they lived together, carried on business together, and, as between themselves, they kept no accounts. Edward Ridley made his will in the month of October, 1852, and left the estate called Oxtone to Samuel Ridley for life, with remainder to the widow of Edward Ridley for life, and after her decease to his children successively in tail. He died in the same month. The four children of George Ridley who in the month of June, 1847, were still infants, attained the age of twenty-one years and executed the deed as follows: George Samuel Ridley attained the age of twenty-one years, and executed the deed in the year 1849; Mary Helen Ridley attained the age of twenty-one years, and executed the deed in the year 1852. She died shortly afterwards intestate and without issue, and administration to her estate was granted to her mother. Harriette Anne Ridley attained the age of twentyone years, and executed the deed in the year 1855; and John Richard Ridley attained the age of twentyone years, and executed the deed in the month of November, 1857. He died in the month of November, 1861. The plaintiffs asserted that their execution of the deed was obtained by the repeated asseverations of Samuel Ridley, that he would fulfil his promise. Samuel Ridley made three wills; he made the first on the 8th day of December, 1852. By this will he gave 1,1007. unto the children of George Ridley. Afterwards, by a codicil, he revoked this legacy in the event of any one of the children of George Ridley refusing to execute the deed. On the 3rd day of June, 1857, Samuel Ridley made a second will, and thereby revoked the first will and codicil, but bequeathed other sums, amounting together to 1,100., unto the children of George Ridley, except Mary Helen Ridley, who was then dead. On the 22nd day of May, 1858, Samuel Ridley made a third will, and thereby reduced the legacies left by him to the children of George Ridley to the sum of 6007. Samuel Ridley died on the 26th day of March, 1861; and his third will was shortly afterwards proved by the defendants, who were his executors. The plaintiffs insisted that the defendants ought to make good the difference between the amount of the benefit derived by the children of George Ridley, under the will of their father, which amount they estimated at the sum of 1,1407., and the value of the legacies bequeathed to them by the will of Samuel Ridley. They prayed for a declaration that they were entitled to receive from the estate of Samuel Ridley such a sum as should be sufficient to make up the difference between the amount of the legacies provided for the children of George Ridley by the will of Samuel Ridley, and the amount of the clear residue of the estate of George Ridley, and that they were creditors of the estate of Samuel Ridley to the extent of such difference. 7, 9 MARCH, 1865. Selwyn and G. N. Colt, for the plaintiffs. A party making a representation upon which other persons rely, is bound to make good that representation, and if the party himself is dead, the representation must be made good out of his estate, Bold v. Hutchinson, 20 Beav. 250; The agreement is founded upon a sufficient consideration; and, as it might have been performed within a year, it does not fall within the 4th section of the Statute of Frauds, Smith on Contracts (3rd ed.), 104; Wells v. Horton, 4 Bing. 40; Souch v. Strawbridge, 2 C. B. 808. Southgate, Q. C., and Eddis, for the defendants. The plaintiffs, coming into Court so long after the promise was made, should have produced some authority to show that the Court will act upon such a promise as the present. The case of Hammersley v. Du Biel (loc. cit.) was decided upon the construction of a written instrument. In the present case there is no sufficient evidence of the promise, Maunsell v. White, 4 H. of L. Ca. 1039; The claim of the plaintiffs is a mere money demand, and a proper subject for an action at law. As there is no written evidence in the case, the Court will require the promise to be made out distinctly, Jameson v. Stein, 21 Beav. 5; Bold v. Hutchinson (loc. cit.). Selwyn, Q. C., in reply. The consideration for the promise is sufficient. If I ask a man to convey an estate to my brother, it is the same as if I ask him to convey it to myself. The Statute of Frauds does not apply to the present case. In Maunsell v. White (loc. cit.), the Lord Chancellor observed that, "representation might constitute contract." Samuel Ridley has made a representation in order to induce the plaintiffs to act, and accordingly they have acted. In Maunsell v. White (loc. cit.), there was no conclusive representation. The party had made no representation by which he was bound. This is a promise made eighteen years ago, but it was acted upon as each member of the plaintiff's family came of age. Here the contract has been rendered certain, and I have no occasion to refer to the rule "Id certum est," for the person who made the promise knew the amount of the surplus of the estate of George Ridley; and when the promise was made, the amount of that surplus was ascertained. THE MASTER OF THE ROLLS having disposed of the question of fact, and having determined that the pro mise was made, said: The next question was, what were the legal consequences which flowed from the expression. Did it amount to a binding legal obligation. The promise was not in writing, but it did not fall within the 4th section of the Statute of Frauds, which did not extend to cases where the agreement might by possibility or accident be extended beyond the space of one year from the making thereof, but was confined to cases where the agreement could not be performed within one year. It was said there was no consideration for the promise, but his Honour was of opinion that, upon this point, ; the case of the defendants failed. The evidence showed that Samuel Ridley was interested in the purchase of the estate, and that, being a trustee, he could not be himself the purchaser, and, although the estate was sold for its full value, still he was anxious that his brother should become the purchaser. This anxiety was shown by the condition introduced into the codicil to the will of Samuel Ridley, whereby he revoked the legacies left by him to the children of George Ridley, in the event of any of them refusing to complete the conveyance. These circumstances constituted a sufficient consideration, as amounting to an agreement, namely, the execution of the deed, in which Samuel Ridley took an interest, moral or pecuniary. As his Honour believed from the fact of the partnership between his brother and himself, Samuel Ridley had a pecuniary interest in the execution of the deed. It was said the words of the promise were too vague to be carried into execution by this Court; but his Honour was against the defendants upon this point. Samuel Ridley was the executor of George Ridley. He therefore knew, or could estimate, what the estate of the latter would produce, and, knowing this, he promised least as much as they would get under their father's to leave by will to the children of George Ridley, "at will." This was vague, and if the plaintiffs had sought to obtain more than they could have got have been upheld. Still the bequest was to be conunder their father's will, their contention could not had promised; and that amount his estate was bound fined to that amount; that amount Samuel Ridley to make good. Stress had been laid upon the fact that Samuel Ridley had given legacies to other persons, which legacies he had subsequently reduced; treated other legacies in the same way as those which but the case was not altered by the fact that he had were in question. He denied to various persons that Honour did not find that this was done prior to the he had made such promise as was alleged; but his execution of the deed by any of the children, nor did Samuel Ridley make his will till after that event. His Honour had not been free from doubt, but was influenced by the fact, that this claim was not got up after the death of Samuel Ridley, but was insisted upon during his life. His Honour was of opinion that Samuel Ridley must either have forgotten his words, or must have thought them not to be binding upon him. The plaintiffs were entitled to have made good to them out of the estate of Samuel Ridley as much as they might have received out of the estate of their father; and inquiries must be made to ascertain that amount. The defendants must admit assets, or accounts of Samuel Ridley's estate must be taken. The costs would come out of Samuel Ridley's estate. Note.*-See also, Shadwell v. Shadwell, 7 Jur. 311, and cases there cited at Common Law. The Merchant Shipping Acts-25 & 26 Vict. c. 63, s. 54-9 & 10 Vict. c. 93-Lord Campbell's Act-Collision at Sea-Loss of Life-Liability of Ship-owner. Under 25 & 26 Vict. c. 63, s. 54 ("The Merchant Shipping Act Amendment Act, 1862"), where loss of life is caused by a ship to the crew of another vessel, the destroying ship is to be estimated at not less than 151. per ton, for the purpose of adjusting the compensation to be paid to the claimants in respect of such loss of life. This was a question upon the construction of the Merchant Shipping Acts as to the liability of a vessel which has run down another to make compensation. On the 13th day of February, 1864, the plaintiffs' brig, "Edith Mary," ran into the collier "Thomas Barker," and eight of the crew of the latter vessel perished. The representatives of the eight seamen instituted actions against the plaintiffs to recover from them damages for the loss of the lives of the seamen. This suit was then instituted by the plaintiffs to have the amount of their liability determined, and the actions stayed, under the 514th section of the Merchant Shipping Act, 1854. The plaintiffs admitted that they were answerable in damages in the manner mentioned in part 9 of the Merchant Shipping Act Amendment Act of 1862 to the extent of 87. per registered ton of the "Edith Mary," which, the plaintiffs submitted, was, according to the Act, the limit of their liability, where there had been no loss of life or personal injury to any passenger. The defendants submitted that the amount of the plaintiffs' liability in respect of the collision, ought, according to Merchant Shipping Act Amendment Act of 1862, to be declared at the rate of 157. per registered ton of the "Edith Mary," and not 81. per ton only. Hobhouse, Q.C., and Druce, for the plaintiff. The question is, whether there is any power in the representatives of seamen who have lost their lives to recover more than the value of the ship and freight, under the Merchant Shipping Act of 1854,-or 87. for each ton of the ship's tonnage, under the Merchant Shipping Amendment Act of 1862. The important thing is to see what law there was enabling representatives of seamen to recover damages when the Act of 1862 was passed. They could maintain an action under Lord Campbell's Act (9 & 10 Vict. c. 93), but that Act, so far as it was inconsistent with the provisions of the Merchant Shipping Act, 1854, was repealed by 17 & 18 Vict. c. 120, s. 4 (the Merchant The Act of 1862 does not Shipping Repeal Act). give any right to sue; it is in a negative form; it does not say that a shipowner shall be liable to the amount of 157. a ton, but that he shall not be answerable for more than that amount. The words 'loss of life" in the 54th section must, in analogy with the repealed section (17 & 18 Vict. c. 104, s. 504), be taken to mean loss of life to passengers only. sentatives of seamen could not maintain actions for more than the value of the ship and freight, there is nothing in the Act of 1862, which enables them to do The only effect of that Act is to limit the value of the ship and freight to Sl. a ton. They cited, So. If, therefore, previously to the Act of 1862, repre Nixon v. Roberts, 1 J. & H. 739. Osborne, Q.C., and Haddan, for the representatives of the seamen who were drowned. The plaintiff seems to admit that under the Merchant Shipping Act of 1854, we have a right to recover to a certain amount. If the representatives of seamen are within the Act of 1854, they are included in the provisions of sections 504 and 514 of that Act. It has been decided that a shipowner suing in equity under section 514, must admit that he has incurred liability before he can obtain the assistance of equity, Hill v. Audus, 1 K. & J. 263. The plaintiff, however, does not admit that he is liable for "loss of life" under the Act of 1862. The present case comes under the third clause of the 54th section of the Act of 1862, and an aggregate amount of 157. a ton must be paid for loss of life and damage to goods. They also cited, Straker v. Hartland, 5 N. R. 163; The Fusilier, and Cargo, 5 N. R. 453. Hobhouse, Q. C., in reply. The case of Hill v. Audus (loc. cit.) does not apply. The plaintiff admits his liability to any extent the Court may determine, and the sole question is, to what extent that liability must be limited. Under the Merchant Shipping Act, 1854, the representatives of seamen could only recover the value of the ship and freight. Lord Campbell's Act cannot be fitted to the Act of 1862, for it was repealed by 17 & 18 Vict. c. 120, s. 4, so far as it was inconsistent with the 504th section of the Merchant Shipping Act of 1854; and although the latter section has been repealed by the 2nd section of the Act of 1862, yet Lord Campbell's Act has not been thereby revived, for in order to revive an Act which has been once repealed, express words are necessary, 13 Vict. c. 21, s. 5. The Act of 1862 was intended only to give additional protection to shipowners; before the Act of 1854, their liability in cases of personal injury was unlimited; by the Act of 1854, their liability was limited to the value of the ship and freight; but in favour of passengers the value of the ship and freight was to be estimated at 15l. a ton. In the whole of the Act of 1862, there is not one affirmative clause. The Act is entirely negative; it provides that in no case shall shipowners be liable for more than 157. a ton; in every case the amount of damage is limited to that amount. The words "loss of life" in the 54th section refer only to passengers' lives, and the extent of the plaintiff's liability is measured by the Act of 1854, with a further limit under the Act of 1862. THE MASTER OF THE ROLLS said: The history of legislation on this subject was one of interest. Before Lord Campbell's Act, no action was maintainable against a person who had caused death by his wrongful act; for the injury created only a personal action; and Lord Campbell's Act first gave a right of action against the wrong-doer to the legal personal representative. The effect of this Act became of importance in cases of collision at sea. Prior to this, it was necessary to limit the liability of the owners of a vessel which had injured another; and, accordingly, by a statute of George the Second, their liability in respect of damage to cargo was limited to the value of their ship and freight. But to personal injuries no limit was fixed, the liability in respect of them remained limited only by the extent of the damage done. But such actions were extremely rare, for the injuries were almost always fatal. Lord Campbell's Act, in 1846 gave leave to bring actions in cases of death. This Act imposed no limit to the damage to be recovered; the liability of the shipowners was measured only by the extent of the injury. By the 504th section of the Merchant Shipping Act of 1854, the liability of the shipowner was limited to the value of the ship and freight, with this proviso, that if a passenger was killed, the value was to be taken at a rate not less than 157. a ton. Subsequently, in the same Session, the Act 17 & 18 Vict. c. 120, s. 4, repealed all such Acts, and parts of Acts as were inconsistent with the Merchant Shipping Act, 1854. In the year 1862, the Merchant Shipping Amendment Act was passed, whereby (s. 54) it was enacted that, "The owners of any ship shall not where any loss of life or personal injury is, by reason of the improper navigation of such ship as aforesaid caused to any person carried in any other ship... be answerable in damages in respect of loss of life or personal injury, either alone or together with loss or damage to ships, boats, goods, merchandise, or other things, to an aggregate amount exceeding 157. for each ton of their ship's tonnage; nor in respect of loss or damage to ships, goods, merchandise, or other things, whether there be in addition loss of life or personal injury, or not, to an aggregate amount exceeding 81. for each ton of the ship's tonnage." By this Act, therefore, the liability of shipowners in cases of loss of life, either alone or together with loss to goods, was limited to 157. a ton. In addition to which the Act (s. 2) repealed the enactments in Table (A.) in the schedule thereto, among which was the 504th section of the Merchant Shipping Act, 1854. In this state of things the plaintiffs contended, that either the right of the representatives of seamen to sue was put an end to altogether, or was limited to an amount not exceeding 87. a ton of the wrong-doing vessel's tonnage. But his Honour was of opinion, that one thing was obvious, either that the right of action was altogether taken away, or that the liability of ship-owners extended to 15l. a ton of their ship's tonnage. The argument of the plaintiffs was, that by the Merchant Shipping Act, 1854, no right of action was given in the case of loss of life to seamen beyond the value of the ship and freight; that by the 4th section of the Act, 17 & 18 Vict. c. 120, all Acts inconsistent with the provisions of the Merchant Shipping Act, 1854, were repealed; that Lord Campbell's Act was inconsistent therewith, and was repealed; that the Merchant Shipping Amendment Act of 1862, which repealed the 504th section of the Act of 1854, did not revive Lord Campbell's Act, because of the Act, 13 Vict. c. 21, s. 5; and, in addition that the 17 & 18 Vict. c. 120, remained still in force: And the plaintiffs further contended, that no action in respect of any collision at sea could be brought under Lord Campbell's Act. His Honour was, however, of opinion that the Act 17 & 18 Vict. c. 120, s. 4, did not repeal Lord Campbell's Act; that section only repealed all such provisions of any Act as were inconsistent with the Merchant Shipping Act, 1854. Lord Campbell's Act, however, was not inconsistent therewith, it merely gave a right of action; it said nothing about amount; the Merchant Shipping Act limited the amount to be recovered. How was this inconsistent? His Honour could not find a word in Lord Campbell's Act that ought to be struck out in order to allow the Merchant Shipping Act to have force; indeed the 504th section seemed to be confirmatory of Lord Campbell's Act. If that Act had expressly enacted that the liability should be to the full extent, then that clause would have been repealed by 17 & 18 Vict. c. 120. And if that meaning was attributable to Lord Campbell's Act, as if there had been an express clause to that effect, then, to that extent only, was that Act repealed by 17 & 18 Vict. c. 120. But the right to bring an action was not repealed, and this right was not touched by any subsequent statute; and, by the 54th section of the Act of 1862, the liability in respect of actions, as regarded collisions at sea, was limited to 157. a ton of the vessel causing the injury. The plaintiffs could not get out of this dilemma, -either their case did fall within the Act of 1862, or it did not; if it did, then section 54 was distinct in fixing their liability, if it did not, then there was no liability at all, and clause 514 of the Merchant Shipping Act, 1854, upon which the plaintiffs relied, had no application, and the actions ought to be allowed to proceed. But if you looked at the Act of 1854, even if the plaintiffs' contention was right, and Lord Campbell's Act was repealed, still a right of action was given by the Act of 1854. By section 504 it was enacted that "no owner of any sea-going vessel shall be answerable in damages to an extent beyond the value of his ship and freight;" and the sections which followed specified the mode of proceeding: under section 511 if the executor of a deceased person was dissatisfied with the amount of statutory damage, he might bring an action on his own account. By the 54th section of the Act of 1862 the liability was fixed at 151. a ton. It was under the 514th section of the Act of 1854 that this bill was filed, and the plaintiffs had failed in their contention; and their liability extended to 151. for each ton of their ship's registered tonnage; accordingly his Honour would make a declaration to that effect. Minute. Declare that the plaintiffs are liable to the extent of 157. per ton; and the plaintiffs undertaking to answer all claims not exceeding that extent, and having regard to such payments as they have already properly made. Direct inquiries as to the existing claims, and ascertain the amounts apportionable among the claimants, and grant the injunction prayed by the bill. Costs to be paid by the plaintiffs. "Form of application for shares to the directors of the Adelphi Hotel Company (Limited). “GENTLEMEN,—I have paid to the bankers of the company the sum of 107., being a deposit of 10s. per share upon twenty shares in the above-named company, and I agree to accept the same or any less number that may be allotted to me, and to pay the calls thereon as they may be made out, and I hereby authorise and empower you to insert my name on the register of shareholders of the company for the number of shares which you may allot me. "WILLIAM BEST." On the 11th of October, 1862, the secretary of the company sent to Best the receipt of the bankers of the company, for the deposit of 10s. per share upon the said twenty shares, which deposit Best had paid. The secretary of the company kept a list of the names of the persons who had applied for shares in the company, and the name of Best was in the list. There never was any formal allotment of shares in the company, but Best's deposit was retained and used by the company and Best never received, or claimed to receive, it back. In the year 1863, the winding-up order was made. Baggallay, Q.C., and Fry, for the official liquidator. There is a contract to take twenty shares. There is distinct acquiescence, on the part of Best, to the retention of the money paid upon the shares. The company could not have resisted the claim of Best to have the shares, and Best could not reserve to himself an election not to be a shareholder. As the company could not have refused the shares, the rights of the parties must be reciprocal, and Best cannot draw back from his contract. The case is new, because there was no allotment of shares; but there is no magic in the word "allotment:" the Act makes no provision for it: Company-Winding-up-Contributory-Allot- it is only a domestic act of the directors, and one ment of Shares. with which third parties have nothing to do. Thus it has been held, that the non-communication of an B applied for twenty shares in a company, and paid allotment to the allottee is not material, the deposit: Held, that, notwithstanding there was no formal allotment of shares in the company, B was properly placed on the list of contributories for twenty shares. This was an adjourned summons, and the question was, whether or not William Best should be placed on the list of contributories under the winding up of the Adelphi Hotel Company (Limited). The company was formed in the year 1862, and was registered under the Joint Stock Companies' Act, 1856, in the month of September, 1862. The company issued their prospectus, inviting applications for shares; and on the 10th of October, 1862, Best applied for twenty shares by a letter of application, which was in the following terms Bloxam's Case, 4 N. R. 7, 416 ; Cookney's Case, 26 Beav. 6; 3 De G. & J. 170. If there is the assent of the company to the agreement of the shareholder, that is sufficient. Elderton, for Best. The application is for twenty shares, or such smaller number as the company shall allot: until the allotment of his shares, Best is not a shareholder. In the cases cited, the shares had been allotted, and the contract was complete. The Court cannot say for how many shares Best is liable: there is no contract, and he is not bound. He cited the judgment of Turner, L. J., in Bloxam's Case (loc. cit.), to show that the allotment of the shares was a necessary part of the contract. |