to the case of Legg v. Cheesebrough, where the clause, which did not in terms bind the non-executing creditors, was held not to bind them in spite of the words of section 224 of the Bankruptcy Act of 1849, which says that every such deed shall be as effectual and obligatory on all the creditors who shall not have signed, "as if they had actually signed the same." Now it is perfectly clear that a deed containing a clause of release, with a proviso for forfeiture of the debt in case of creditors suing, may be valid, provided that the clause is limited only to act against creditors who choose to execute. Legg v. Cheesebrough (loc. cit.) stands on the ground that a deed is not avoided by an extraneous clause in its terms binding on executing creditors only, and not binding on nonexecuting creditors. In the present deed, however, there is maintained a marked distinction between executing and non-executing creditors. The release in its terms binds only the parties of the third part; that is to say, creditors who have executed. Now those parties may, if they like, come in and execute a deed containing a release in that form; but if the statute brings the non-executing creditors within the clause, then it is unreasonable. I need not say that the distinction between executing and non-executing creditors is not so clear here as it was in the case of Legg v. Cheesebrough (loc. cit.), for in that case the words were, any creditor who has "actually executed." In the present case it is perfectly clear that defendant is in this dilemma, that if the clause of release is not binding on non-executing creditors, then it is not binding on the plaintiff, and then, according to Eyre v. Archer, the deed cannot be pleaded in bar to the action; but if the clause of release is binding on non-executing creditors, then the deed is void, as being unreasonable, and cannot be pleaded in bar to this action. Our judgment must be for the plaintiff. BYLES, J.-I am of the same opinion. On the face of the plea it appears that the deed contained a covenant on the part of the executing creditors that they, the said parties of the third part, should not sue, arrest, attach, or take in execution the debtor, and that if any of them should do so, then the debtor should be declared discharged from the debt of the suing creditor." Now, if the statute makes this covenant binding on non-executing creditors, it is a very unreasonable covenant as to non-executing creditors; for although they may not have the least notion that there exists such a deed, yet the moment they issue the writ it is brought up against them. Dell v. King shows the unreasonableness of such a covenant. The only distinction between that case and the present is, that the covenant here in terms is only to act against executing creditors. Without the help of the Bankruptcy Act, there is no release binding on plaintiff; and if by the help of the Act the plaintiff is to be bound as if he had executed, then the clause of release is unreasonable. Dell v. King, as far as it relates to this point, is upheld by the Exchequer Chamber. MONTAGUE SMITH, J.-I am of the same opinion. According to Legg v. Cheesebrough, if the plaintiff has not executed, the deed has no operation as a release as against him. Defendant here must contend that the clause of release binds non-executing creditors by able? No. The cases clearly show that such a clause is unreasonable, for it provides not only for a release, virtue of the statute; if so, is such a clause reason or a covenant not to sue, but also for a forfeiture of the debt in case of action. Coram- ERLE, C.J., CHANNELL, B., BLACKBURN, MELLOR, and MONTAGUE SMITH, JJ. Culpable Negligence-Dangerous Animal Proximity to Public Footpath. On a trial for manslaughter it was proved that the prisoner had knowingly turned a vicious horse on to a common, across which there was a public unenclosed footkilled by a kick from the horse. The jury found that path. A child was on or near the footpath when it was the prisoner was guilty of culpable negligence, and that the death was caused by such culpable negligence, but they could not say whether the child was on or only near the path at the time : the child should have been actually on the path. Held, that it was not necessary to a conviction that Barnes v. Ward, followed. The prisoner was tried before Montague Smith, J., at the last assizes for Cambridge, and convicted of manslaughter, subject to a case, which was to the following effect : The deceased, a child of about eight years of age, was killed by a kick from a horse belonging to the prisoner. It was proved that the horse was a dangerous animal, and that the prisoner, knowing that it was so, had turned it out on to a common belonging to the Corporation of Cambridge, on which he had a right to turn out cattle, and which was traversed by an uninclosed footpath, which the public had a right to use. There was evidence that, at the time of the accident, the child was either on or near the path, but whether on or not the witness could not say. The jury found that the prisoner was guilty of culpable negligence in putting the horse on the common, and that such culpable negligence caused the death of the child, but could not find the fact of the child being on or off the path either way. The point reserved was, whether the fact of the child being on or off the path was material. In other words, the ques tion was, whether the Judge would have rightly told the jury that unless they were satisfied that the child was on the path, they ought to acquit the prisoner. Naylor for the prisoner. In favour of innocence, it must be taken, that the child was off the path. If it was an inch off, it was a trespasser. The prisoner only put a vicious horse on his own close, which he had a right to do. If the path ought to have been fenced, it was for the owners, the Corporation of Cambridge, to do that. The prisoner only had the right to put a horse on the common. [CHANNELL, B.-Culpable negligence is found. The only question is, whether that verdict is cut down by the inability of the jury to find whether the child was on the path or not.] [BLACKBURN, J.—Even if the Corporation of Cambridge were guilty too, that does not exonerate the prisoner.] The right of the public is limited to the breadth of the path. There was contributory negligence here. [BLACKBURN, J.-It is not to be held in criminal cases, that the person killed, being himself somewhat to blame, exonerates the prisoner.] [MELLOR, J., referred to Regina v. Swindall, 2 C. & K. 230, on that point.]. [THE COURT referred to Barnes v. Ward, 9 C. B. 392, as explained by the risk of accidentally deviating from the road." So it is here. I entirely differ from Mr. Naylor, in his contention, that the parties, who gave the right of way, were bound to fence it. Our decision turns on the danger of turning out dangerous animals near the road. There is a distinction shown by the cases, where persons trespass far from the road. It is unnecessary to go into the question of contributory negligence. The facts here show culpable negligence on the part of the prisoner. CHANNELL, B.-I am of the same opinion. There was ample evidence for a conviction, and the Judge was not bound to tell the jury, that they must, before convicting, be satisfied that the child was on the path. BLACKBURN, J.-I am of the same opinion. The child was using the path, but it is uncertain whether it was on it, or only very near it. Barnes v. Ward (loc. cit.) shows, that what makes it dangerous to use a path is a nuisance. Perhaps this would extend to dangers far from the path, but certainly it includes dangers so close as this. MELLOR, J.-I am of the same opinion. I agree with Barnes v. Ward (loc. cit.). There may be a difference between a roaming animal and a stationary pit at some distance from the road. Even if the child had been some way from the pathway, I incline to think there should have been a conviction. But cer Hardcastle v. The South Yorkshire Railway Com-tainly the conviction is sustained here. pany, 28 L. J. Exch. 139.] He cited, Hounsell v. Smyth, Bart., 29 L. J. C. P. 203. [MELLOR, J.-Is there not a distinction between cattle, which may rove all over the common, and a pit in a fixed place?] Markby (Witt with him) for the Crown, were not called upon. MONTAGUE SMITH, J.-I agree. I reserved the point from my recollection of Hounsell v. Smyth, Bart., cited in the argument. But that case was different, as the pit there was at some distance from the road. Conviction affirmed. C. C. R. A letter guaranteeing certain persons against any ERLE, C.J.-This conviction must be affirmed. The defendant turned on to a common, with a public footpath across it, a very dangerous animal. It is found by the jury that he was guilty of culpable negligence, and that the death of the deceased child was caused by that culpable negligence. This would in general be sufficient to support a conviction for manslaughter. But Mr. Naylor's main point is, that the loss, costs, charges, or expenses whatever which they child, for the purpose of the argument, must be taken may incur by reason of J.'s culpable negligence or disnot to have been on the path at the time. The words honesty in a situation to the extent of 201. sterling, is of the witness were "on or near, but whether on or "undertaking for the payment of money" within | an not, I can't say." We take it for the purpose of the 24 & 25 Vict. c. 98, s. 23. argument that the child was not on, but near. Still the defendant ought to be responsible. It is not a ground of acquittal, that the child had strayed. In Barnes v. Ward, the defendant was held "guilty of public nuisance, even though the danger consisted in The prisoner was tried at Manchester before Hindmarch, Q.C., on an indictment charging him with forging or uttering a certain document, set out below, and was convicted of uttering, subject to the opinion of this Court, whether the document in ques tion amounted to an "undertaking for the payment of money" within the meaning of statute 24 & 25 Vict. c. 98, s. 23. The document was as follows: "To the Directors of the British Prudential "35, Ludgate Hill, London, E.C. "In consideration of your appointing Mr. Patrick Joyce, of 8, Rochley Street, Pendleton, as agent for your company, I do hereby guarantee you against any loss, costs, charges, or expenses whatever which you may incur by reason of his culpable negligence or dishonesty in such situation to the extent of 201. sterling; and I do hereby undertake that this guarantee shall be in force as long as the said Mr. Patrick Joyce is in your employment, and in whatever capacity he may be engaged, and you are quite at liberty to alter and vary his duties and emoluments from time to time without giving us notice, The prisoner was unrepresented. Holker for the Crown. This is an undertaking for the payment of money on a contingency. [BLACKBURN, J.-Is not the 207. only the limit to the extent of the liability?] Regina v. Read, 2 Moo. C. C. 62; 8 C. & P. 623. The only difference is, that there the specified sum comes first, Regina v. Stone, 2 C. & Kir. 364. [BLACKBURN, J.-This difference may be made : one is an engagement to indemnify against a debt. The other is an engagement to indemnify against loss by a breach of duty.] Against a pecuniary loss by a breach of duty. I see no distinction, and the conviction must be affirmed. The rest of the Court concurred. Conviction affirmed. Lord Chancellor. 6 MAY, 1865. EQUITY. Re THE SHEFFIELD AND Winding Up-Contributory-Industrial and Provident Society-25 & 26 Vict. c. 87, ss. 17, 20-25 & 26 Vict. c. 89, ss. 74, 194. A society was formed in 1861, under the Acts then in force for the regulation of industrial and provident | societies, and carried on business as a company with unlimited liability till March, 1863, when it was registered, under 25 & 26 Vict. c. 87, with limited liability; and it was subsequently ordered to be wound up : Held, that persons who had been members of the society before its liability was limited, but whose shares were fully paid up, could not be made contributories in respect of debts incurred previous to the registration. Section 194 of the Companies Act, 1862, has no application to a case of pure contribution between the members of a company, whose liability, inter se, must be wholly regulated by the contract of partnership. This society was formed in April, 1861, and was for some time carried on as a society with unlimited liability under the Acts then in force for the regulation of industrial and provident societies. In March, 1863, it was registered as a limited company under the Industrial and Provident Societies Act, 1862; and subsequently an order was made, under section 17 of that Act, for winding up the company in the District County Court. Fountain had been a member of the company while the liability was unlimited, but his shares were fully paid up, and he had also ceased to be a member for upwards of one year prior to the commencement of the winding up. It was, nevertheless, sought to place his name on the list of contributories, on the ground that he was liable for all debts contracted previously to the registration of the company under the Act of 1862. The County Court Judge declined to put his name on the list; and this was an appeal from his decision. Druce, for the appellant, the official liquidator. If Fountain cannot be placed on the list of contributories, persons who were members of this society while its liability was unlimited, will be released from all liabilities whatsoever. Under the old law judg. ment might be recovered in an action against the trusVOL. VI. tees of the society, and then the individual members might be proceeded against on a scire facias, Myers v. Ransom, 29 L. J. Q. B. 217; but since the passing of the Act 25 & 26 Vict. c. 87, it has been held that no action will lie against the trustees, Toutill v. Douglas, 33 L. J. Q. B. 66. It cannot have been the intention of the Legislature that the liabilities of members of a company with unlimited liability should be extinguished by simply registering the company as limited. Section 17 of the Industrial and Provident Societies Act of 1862, enacts that a society may be wound up under the provisions of any Act for the time being in force for the winding up of companies, and that the provisions of such Act with respect to winding up shall apply to the society. Under this provision, it must be held that sections 74 and 194 of the Companies Act, 1862, are incorporated in the former Act, and by the latter section the liability of any company incurred previous to registration is to be unaffected by the Act, and thus the Court has authority to make calls for debts incurred previous to the registration with unlimited liability, as in Re The Plumstead, &c., Waterworks Company, 2 De G. F. & J. 20; Ex parte Stevenson, 1 N. R. 145; Garnett Mosely, &c., Co. v. Sutton, 5 N. R. 336. Elderton, for the alleged contributory, was not called upon. THE LORD CHANCELLOR said: He could not accede to the application. He was asked to make an order for contribution as between the members of a company. In making such an order he must take the company as he found it,-viz., a company with limited liability. The shareholders were, therefore, not liable to contribute beyond the amount of their shares, and, as Fountain's shares were fully paid up, he could not be placed on the list of contributories. It was said, that the Companies Act, 1862, was incorporated into the Industrial and Provident Societies Act of the same year, under which these proceedings were taken; that, therefore, section 74, which defined the meaning of contributory, was incorporated. If so, the words "under this Act" in that section must also be incorporated, and a contributory would mean a person liable to contribute as between himself and the other members of a limited company. It was said, however, that this definition was qualified by section 194. But that section had no application to a case of pure contribution. The ques E tion, what persons were contributories, must be determined according to the contract of partnership, and that contract, in the present case, excluded all liability when the shares were fully paid up. It was unnecessary, on this occasion, to determine what the rights of creditors might be; all that his Lordship had to decide was, whether members of a company who, on the principle of limited liability, could not be made to contribute, could be made to do so in respect of the claims of external creditors, persons not parties to this proceeding, and it was clear that they could not be made to contribute, because contribution was founded on the contract of partnership, and that contract, in this case, excluded liability. It might be that there was a failure of justice, because no machinery had been provided to enable the creditors to get at a company which had been transmuted into one with limited liability, but his Lordship could not add to the enactments of the Legislature. The subject of the winding-up order was a limited company, and it must be wound up as such. testator's two sons, Arthur Quin Hopper and Harman Baillie Hopper, and his daughter, Eleanor Hughes, the wife of Captain Henry Philip Hughes; and to divide and pay over the same to and among them, in such shares and proportions, and in such manner, that the shares and proportions of A. Q. Hopper and E. Hughes should be less than the share of H. B. Hopper by the sum of 20,000 sicca rupees,— which he had then already settled upon each of them, A. Q. Hopper and E. Hughes. And the testator directed that the shares or proportions of A. Q. Hopper and H. B. Hopper in the residue should be paid to them, as soon as conveniently might be after the same should be got in and recovered, for their own respective use and benefit, to be divided among them share and share alike; and to be paid over to them respectively, in the same manner as therein before directed with respect to their original shares; and with respect to the share of his daughter, Eleanor Hughes, he directed that it should not be paid to her, but that a sufficient portion of his Government securities, then deposited in the General Treasury at Calcutta, Minute.-Application refused, with costs to be paid should be retained, and not sold by his executrix and out of the assets of the company. In this case, reported in the Court below, 5 N. R. 235, his Lordship came to the conclusion that there was an agreement binding on Mr. Gray not to execute the power of appointment, so as to exclude Mrs. Walford from her one-third, and dismissed the appeal with Will, Construction-Thellusson Act-39 & 40 Where a will contained a gift of a share of property to testator's danghter, and afterwards provided that the income of the daughter's share should be accumulated during her husband's lifetime, and then contained trusts of the share, which in terms only dealt with it after the death of the husband:- Held, that the daughter was entitled-during the joint lives of herself and her husband, after the expiration of twenty-one years from the testator's death-to the income of the original share and of the capital fund, arising from the accumulation during the twenty-one years. The costs of the suit were directed to be paid out of the fund not in dispute. The testator in this cause by his will gave certain property to trustees upon trust for sale; and to stand possessed of the proceeds thereof upon trust for the executors, as might be equal to her share of the residue, and that it might be allowed to accumulate, with the growing interest continually added thereto, during the lifetime of her husband, Captain H. P. Hughes, and upon the death of her husband, should there be any child or children living, that the property should be secured for their benefit and that of their mother; but should, there be no child or children living, then the share of his daughter might be, by his executrix and executors, paid to her for her own use and benefit; but, provided that his daughter should depart this life before her share or proportion in the residue should become payable, then the testator directed that his executrix and executors should stand possessed thereof for his two sons, A. Q. Hopper and H. B. Hopper, equally to be divided among them and their respective heirs, executors, administrators, and assigns. The bill was filed at the expiration of twenty-one years after the testator's death, to determine who was then entitled to the income. The defendant, Mrs. Hughes, claimed it under the gift to her. The defendants, the sons of the testator, claimed it as undisposed of by the will, regard being had to the Thellusson Act (39 & 40 Geo. 3, c. 98). The decree of the Master of the Rolls, dated the Sth of February, 1865, gave the income to Mrs. Hughes, from the expiration of the period of twenty-one years after the testator's death until the death of Captain Hughes. From this decree the sons of the testator and his next of kin appealed. Selwyn, Q.C., and Russell, for the appellants, contended that the effect of the statute was merely to cut |