Glasse, Q. C., and Cotton, for the official liquidator, asked that the shares of class B might be made liable to pay the calls. Baily, Q.C., and Wickens, for Barrett, said the new shareholders could not have been sued for debts incurred previously to the issue of the shares, they were only liable, if at all, as between the co-partners; and that depended on the particular bargain. And there was no bargain which would make them liable. KINDERSLEY, V.-C., without calling for a reply, said: He could not entertain any serious doubt upon the question now before him. The shares upon which the disputed calls were made, had, by the Court, been held to have been duly allotted. It was true that the allottees were not to have any share of the profits till a subsequent time, receiving interest for what they might have paid until that time, on account of the shares; but this did not constitute a bargain, that the new shareholders should not be liable, as between them and the other shareholders, for losses previously incurred; and in the absence of such a bargain he must hold the new shareholders to be liable equally with the old. It would be unnatural to suppose such a bargain was intended from the difficulty in working it out. And though the shareholders would not receive any profits declared till after the period agreed upon, they might receive profits arising out of transactions which took place previously to that period. The costs of both parties would be allowed out of the assets. Since the Wills Act, 7 Will. 4 & 1 Vict. c. 26, an estate included in a residuary devise is liable in order of administration before specifically devised estates. This was an administration suit. The plaintiff was executor of the testator in the cause, and devisee of an estate which was subject to a mortgage. The testator had, by his will, declared that his personal estate should be liable to the payment of all his just debts and funeral expenses; and had devised the residue of his real estate. Two questions arose. First, whether the declaration as to the payment of debts was such an expression of a contrary or other intention, as, would under Locke King's Act (17 & 18 Vict. c. 113), exonerate the mort gaged estate out of realty, the personal estate being insufficient. Secondly, whether the estates comprised in the residuary devise were to stand in the order of administration on the footing of specifically devised estates, or to be liable in priority to them. Bovill, for the plaintiff, on the first point, cited, Eno v. Tatham, 1 N. R. 529; 4 Giff. 181. It was necessary for the testator to indicate that he meant to exonerate the estate, but not in what way showed any intention of exoneration took the estate he proposed to exonerate it. An expression which entirely out of the Act. On the second point he cited, Spong v. Spong, 3 Bli. (N. s.) 105, 106; 2 Jarman on Wills, 588. [THE VICE-CHANCELLOR intimated that the defendant's counsel might confine their argument to the second point.] Jason Smith, for persons interested in the residuary devise, contrà, cited, Emuss v. Smith, 2 De G. & Sm. 722; Clark v. Clark, 6 N. R. 86; Rickard v. Barrett, 3 Kay & J. 289; Dixon in same interest. KINDERSLEY, V.-C., without calling for a reply, said: He desired to follow the opinions of other Judges, but he did not see how he could depart from the opinion he had given in the case of Dady v. Hartridge (loc. cit.). He had arrived at that decision after most careful and mature deliberation. Under the old law, which had not been changed, when a testator had bequeathed all the residue of his personal estate, the legatee took all that was over after satisfying the specific gifts; and he took nothing specific. But with regard to realty it was just the other way, the testator could only by law devise what he had at the date of the will, and if a devise failed or lapsed the property descended, and did not go with the residuary devise. Therefore the residue of the realty was just as much specific, as if the particular property of which it consisted had been named. The Wills Act did away with these distinctions. As the reason for the distinction as to liability had ceased, the distinction itself ought to cease. Moreover the doing away with the distinction as to liability enabled the Court more nearly to apply to real estate the principles applicable to personal estate in the matter of liability to payment of debts, which had been the object of all legislation on the subject. He adhered, therefore, to his former opinion, that the residuary real estate was liable before that specifically devised. Upon the question, as to whether the devisee of the mortgaged property was entitled to be exonerated, not merely out of the personal estate, but also out of the real estate specifically devised, he thought it was competent for a testator to say that Locke King's Act should not apply as far as his personal estate was concerned, but that the mortgaged estate should not be exonerated from its incumbrances to any greater extent. And though the testator had not expressed himself in so many words, yet that was his intention. TALBOT v. MARSHFIELD. Kindersley, V.-C. Trustees sent a case for opinion of counsel with respect to a power of advancing part of the trust funds. Litigation afterwards ensued, one of the matters in dispute being whether the trustees had exercised the power of advancement wrongly : for the benefit of those of the cestuis-que-trustent only, in whose favour the advances were made, to the detri ment of the others. But it was for the benefit of all the cestuis-que-trustent to have the trust properly adminis tered; and to that extent it concerned the interests of all the cestuis-que-trustent. The first case and opinion must be produced. The second case and opinion were clearly privileged, as the case had been submitted to counsel since hostile proceedings were threatened. The Court will, as a general rule, require an undertaking as to damages, from a party in whose favour an interim injunction is granted, or continued. In this suit an interim injunction had been obtained to prevent the Duke of Buccleuch and his tenant from working an ironstone mine, so as to produce a subsidence of the plaintiff's lands. This was a motion for a perpetual injunction to restrain the working of the mine; but it was arranged Held, that any of the cestuis-que-trustent had a that the motion should stand over until the hearing, right to the production of the case and opinion. the injunction being continued as against the tenant only. This was an adjourned summons by the plaintiff, a cestui-que-trust for the production of documents which the trustees had refused to produce. The plaintiff alleged that the trustees had made advances in favour of other of the cestuis-que-trustent beyond their power, to the detriment of the plaintiff. Among the documents which the trustees refused to produce, were two cases and opinions of counsel. The first case was submitted and opinion taken before any litigation was begun or threatened, and related to the power of the trustees to advance among their cestuis-quetrustent. The other case was submitted to counsel after litigation had begun or was threatened, and was in reference to the matters in dispute. Glasse, Q.C., and Dixon, for the plaintiff, asked that the trustees might be compelled to produce the cases and opinions, inasmuch as they related to the management of the trust property. H. Palmer, Q.C., and Higgins, contended that the opinions referred to the matters in litigation, and a trustee would not have to produce them to a hostile ccstui-que-trust more than to any one else, Ford v. Dolphin, 1 Drew. 233; Brown v. Oakshott, 13 Beav. 252. Dixon, in reply. KINDERSLEY, V.-C., said: The first opinion had been taken by the trustees for their guidance in the execution of a power. It was said that this opinion was Shapter, Q.C. (Druce with him), for the plaintiff, objected to continuing an undertaking as to damages, which had been given upon the ex parte application for an injunction,— -on the ground that he was fore going his right to bring the motion on then. Glasse, Q.C. (Freeling with him), for the tenant, said, that the Lords Justices now made it their invariable custom to require an undertaking, Tuck v. Silver, John. 218; Chappell v. Davidson, 8 De G. M. & G. 1; Baily, Q.C., and Hardy, for the Duke of Buccleuch. able that there should be some invariable rule on KINDERSLEY, V.-C., said: It was exceedingly desir the subject. It was the object of the Court not to express any opinion on the merits of the case until the hearing, such a rule would promote that object, and it seemed to him otherwise reasonable: however, he must inquire whether the Lords Justices did make it their invariable practice. After inquiry, his Honour said he had found the practice of the Lords Justices to be as stated: and, in future, he would (unless under exceptional circumstances), make it his invariable rule to require an undertaking as to damages from the party in whose favour an interim injunction, or restraining order, should be granted, or continued. being asked by them to sign, refused, giving no reason; but on being pressed by the plaintiff's employer to give his reasons, said he would never sign "to keep a big rogue like Cowles in the trust," that the plaintiff had left the parish, as other rogues did, without pay In order to justify the publication of slanderous words primâ facie actionable, on the ground that the occasioning his creditors, adding, "He has robbed me of forty shillings.' This was explained to mean, that the plaintiff had obtained from the defendant goods to that amount without paying for them, and the plain is a privileged one, the words used must be strictly relevant to the occasion. Though in such a publication the use of language intemperate and unnecessarily strong is rightly left to the jury as evidence of malice, yet such language, if spoken honestly, without malice, and strictly with reference to the occasion, does not take away the privilege. C, the plaintiff's employer, asked the defendant to sign a protest against a proposal to dismiss the plaintiff from a trusteeship. The defendant refused, and upon being pressed to give his reasons, said he would never sign to keep a big rogue like the plaintiff in the trust," that the plaintiff had left the parish, as other rogues did, without paying his creditors, and that he had robbed him (the defendant) of forty shillings, and added, "I am surprised you (C) should keep him in your service to contaminate your son, he is such a rogue." In consequence of this conversation C dismissed the plaintiff. In an action for these words, the jury having found that the words were spoken without malice: Held, that the communication was privileged, since there was a duty towards those who were concerned in the trusteeship, and an interest of the defendant's own, making it a reasonable occasion warranting the defendant's statement of that which he believed, so far as it was pertinent to the fitness of the plaintiff for the trusteeship: Held, also, that the intemperance of the defendant's language, and the unnecessary force of his expressions, were rightly left to the jury as evidence of malice, but (the jury having negatived malice) did not take away the privilege. Fryer v. Kinnersley (33 L. J. C. P. 96), commented on. Declaration for slander, whereby the plaintiff lost a situation as farm bailiff. Plea. Not guilty. Issue thereon. At the trial before Channell, B., it was proved that the plaintiff had long been a trustee of a certain charity, and a proposal having been made to dismiss him from the trusteeship, two persons of the name of Cooper, one of whom was the plaintiff's employer, at the plaintiff's request, canvassed for signatures to a protest against such dismissal. The defendant, on tiff's employer so understood it at the time. The defendant proved that he added the words (not com plained of in the declaration), "I am surprised you should keep him in your service to contaminate your The plaintiff's employer, son, he is such a rogue.' plaintiff from his service (this being the special in consequence of this conversation, dismissed the damage), saying that "he would not have a big rogue and swindling thief in the house where his son was." His son was about eighteen years old. Channell, B., directed the jury that the occasion was not privileged, but asked them to say whether, in their opinion, the words were spoken with or without malice. The jury found that the words were spoken without malice. Verdict for the plaintiff for 107. Keane, Q.C., having obtained a rule nisi to set aside the verdict and enter it for the defendant, pursuant to leave reserved by Channell, B., at the trial, on the ground that the communication was privileged, and that the jury had negatived malice, O'Malley, Q. C., and Bulwer, Q.C., now showed cause. The verdict ought to stand for the plaintiff, the jury having found "no malice," to make it a verdict palatable to the defendant. See Milne v. Marwood, 15 C. B. 778. In cases of slander, there are always two questions for the Judge. 1st. Is the occasion privileged? 2nd. Assuming a privilege to utter slander A, is there any privilege for slander B? Here 1st. The occasion was not privileged, Martin v. Strong, 5 Ad. & E. 536. 2nd. The defendant said more than was necessary. He was justified in saying, "I won't sign, because he acted so-and-so towards me;" but not in saying, “He is a rogue." [MELLOR, J.-Has he not a right to say, bond fide, "He has cheated me; he may cheat the trust?" This trust required an honest trustee.] He may state facts, but not his own inference or suspicions, Robertson v. McDougall, 4 Bing. 670; Godson v. Home, 1 B. & B. 7; Wenman v. Ash, 13 C. B. 836. [MELLOR, J. cited, Somerville v. Hawkins, 10 C. B. 583.] [BLACKBURN, J.-In answer to the question, "Does your servant understand horses, and know London ?" is a man privileged in saying, "He neither knows London nor understands horses, and he has been convicted at the Old Bailey?" I should be sorry to hold that a master must answer exactly by the card, and only the questions asked.] In Cooke v. Wildes, 5 El. & Bl. 343, t was held that and Wright v. Woodgate, 2 Cr. M. & R. 573; Gilpin v. Fowler, 9 Exch. 615, utweigh Tuson v. Evans, 12 Ad. & E. 733. The present case comes clearly within is conclusive in our favour. Cooke v. Wildes is an 31 MAY, 1865. BLACKBURN, J., delivered the judgment of himself, Mellor, and Shee, JJ. In this case the action was for words spoken to one Cooper, imputing to the plaintiff that he was a rogue, in consequence of which, the plaintiff lost his situation as servant to Cooper. Plea, not guilty. On the trial before my Brother Channell, it appeared that the plaintiff was a trustee of some local charity, that it had been proposed to remove him from that trust, and that Cooper, to whom the plaintiff was then farm bailiff, at the request and instance of the plaintiff, was canvassing for signatures to a protest against his being turned out of the trust. Cooper requested the Fryer v. Kinnersley, 3 N. R. 125; 33 L. J. C. P. defendant to sign this protest: and he having refused 96; and, assuming the occasion to be privileged, there was a clear excess in the expression of surprise that Cooper should keep the plaintiff near his son, Stark. Libel, Preliminary Discourse, lxxxvii. Toogood v. Spyring, 1 Cr. M. & R. 181. The Judge who tried the case and heard all the evidence, is the best judge of the privilege, and he decided there was no privilege; and this Court will not say that he was necessarily wrong. The finding of the jury that there was no malice was outrageous, and ought to be set aside. Keane, Q. C., and Markby, in support. The conversation was all connected together; it is clear that, in answer to questions, the defendant was privileged in saying what he knew and thought. Whether the defendant went beyond the privilege, was a question for the jury, and they have found that there was no malice, George v. Goddard, 2 F. & F. 689; Peacock v. Reynal, 2 Brownl. & Gold. 151; to do so, was pressed to give his reasons, and gave them, namely, that he would not keep a big rogue like the plaintiff in the trust. Being further pressed, he explained the reasons for this opinion, which were that the plaintiff had left the parish under discreditable circumstances, and without settling with his creditors, including the defendant, so that it was plain that the words were used in a sense disparaging to the plaintiff, but not actionable without special damage. Cooper gave evidence that he, in consequence of these words, dismissed the plaintiff, not wishing, as he said, to have him near his son, a boy of about eighteen. At the close of the plaintiff's case, the defendant's counsel submitted that there was no case, as the words were privileged by the occasion. The learned Judge said, that he should reserve the question for the Court above, and in the meantime leave to the jury the two questions, whether the special damage did result from the words spoken, and the amount of damages, and also (in case the Court should think the words privileged by the occasion) whether there was malice? The defendant's counsel then called witnesses, and amongst others the defendant himself, whose account of the conversation with Cooper did not [MELLOR, J.-It certainly is at variance with a materially differ from that given by the plaintiff's great many other cases.] [Bulwer pointed out that witnesses, except that defendant stated, that towards the end of the conversation he told Cooper that he Whiteley v. Adams, 33 L. J. C. P. 89, and 3 N. (defendant) was surprised that he kept such a man as R. 126, was decided the day before the considered judgment in Fryer v. Kinnersley was delivered.] [BLACKBURN, J.-With the greatest respect for the Common Pleas, we say we cannot understand Fryer v. Kinnersley.] the plaintiff on with his son. The jury found that the dismissal was in consequence of the slander uttered by the defendant, and assessed the damages at 107., but they negatived malice. The verdict was then entered for the plaintiff, with leave to move to enter a verdict for the defendant if Whiteley v. Adams is very like the present case, and the Judge ought to have held that the words were privileged. A rule nisi was obtained accordingly, which was argued before my Brothers Mellor and Shee, and myself, during last Term. During the argument a doubt occurred to some of us, whether the words which, according to the defendant's own account, he had spoken, as to his surprise that Cooper should keep the plaintiff near his son, were not so disjoined from the discussion about the trusteeship as not to be privileged, whatever might be the case with regard to the other words; but, on reference to the learned Judge, we are informed that the whole of what was said about the plaintiff's character was said with reference to the discussion, whether it was proper that he should be continued as a trustee of the charity; and that the question reserved to the Court was, whether, that being the ease, words imputing roguery to the plaintiff were prima facie privileged or not. The intemperance of the defendant's expressions, and the assertion on his part that the roguery of the plaintiff was so great, that he was not fit to be near young Cooper, were left to the jury as evidence of malice, but that being negatived, the question reserved is, whether the occasion excused language strongly disparaging the plaintiff's character for honesty, but bonâ fide spoken with reference to the discussion, whether it was proper to take steps to retain him as a trustee of the charity. No motion has been made to set aside the finding as to malice as against evidence, nor would the Court, according to its usual practice, have granted a rule on that ground where the damages were so small. We are, therefore, now to take it as decided that the words were bona fide spoken with reference to the propriety of taking steps to retain the plaintiff in his trusteeship, that discussion having been brought on by the plaintiff himself causing the defendant to be canvassed for that purpose. 66 The principle on which it depends whether words or writing, prima facie actionable, are justified by the occasion on which they are published, so as to put the plaintiff on proof of actual malice, has been laid down in Toogood v. Spyring (1 C. M. & R. 181), by Parke, B., in the following terms: The law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his own interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits." This exposition of the law has always been approved of, the difficulty felt being in the application of the rule to the particular case; and in the more recent decisions, such as Whiteley v. Adams (15 C. B. (N. s.) 392), the tendency has been to extend the limits of the moral duty or reasonable exigency which authorises the publication of defamatory matter. But we think that the present case falls strictly within the limits as laid down in Toogood v. Spyring. When the defendant was requested to join in taking steps to retain the plaintiff in his trusteeship, or to state the reasons why he so refused, we think that there was a duty towards those who were concerned in the trusteeship, and an interest of his own, making it a reasonable occasion warranting his statement of that which he believed, so far as it was pertinent to the fitness of the plaintiff for that office. And this was still more clearly the case when we find that the defendant was canvassed at the instance of the plaintiff himself. Under such circumstances the plaintiff cannot, as we think, complain of any statement honestly made, if pertinent to the question whether the plaintiff was fit to be trusted, and every statement relating to his honesty and previous conduct in business was pertinent to such a question. If the defendant had made statements injurious to the plaintiff's character on some matter not in any way connected with the subject of his fitness to be a trustee, as if, for instance, there had been a statement made that he had beaten his wife, that would have been wholly unwarranted by the occasion, and would consequently not have been privileged. But all the words of which evidence was given in this case were relevant to the question whether the plaintiff was fit to be trusted or not; and that being so, we think that according to the decision of this Court in Cooke v. Wildes (5 El. & Bl. 328), of which we approve, the intemperance of the defendant's language, and the unnecessary force of his expressions, formed evidence of malice, which it was proper to leave to the jury, but did not take away the privilege, the jury having negatived malice. We think, therefore, that the rule must be absolute to enter the verdict for the defendant. Ship-Authority of Master to Sign Bills of Lading in Foreign Port, making Freight Payable to Others than Owners-Shipowner's Lien. Where a vessel is chartered out and home for lump freight, part whereof is to be paid on final discharge, and the charter provides that bills of lading may be signed at any rate without prejudice to the charter, the master has not authority upon advances (not stipulated for in the charter) being made to him for the ship's use, by the charterer's agent in the foreign port, to sign bills of lading making freight payable to other parties than the shipowner, and any such bill of lading in the |