CHAN.] Re BARNED'S BANKING COMPANY, ex parte THE OFFICIAL LIQUIDATORS. operates as a judgment for the creditors, and I think that it must be the duty of the court, if not to provide for the payment of the creditors, at all events to provide for the debts which are due to them being in some way secured; and in no way that I can see can they be secured except by a call being made. [CHAN. a call of 40% per share. I say nothing upon many of the arguments which have been addressed to us in this case. I do no not think that they bear very strongly upon it, and I do not think there are any of them which have not been to a certain extent answered in the course of the argument before us. I leave the case, therefore, as it stands, with a direction that the motion should stand over until the 11th Feb., in order that we may know what is done by the M. R. in the adjourned hearing before him. Now, in the course of the argument before us, our attention has been very much called to the position of shareholders who have come forward to oppose the present motion, and it is said that these shareholders who are upon the list have made a primâ facie case to have their names removed, and to be relieved from the obligations which would attach to them as shareholders of this company. These gentlemen are not only on the list of contributories, but they are on the list of members of the company. They have incurred, therefore, a legal liability, and the position of their case is that they have obtained the leave of the court to dispute a legal liability. Now what is the course of this court in cases of that description? Suppose an action to be brought against a man in respect of a legal liability, and that he says, "I have an equitable right to be relieved against that legal liability," and accordingly, when the action is brought, he files his bill in equity for relief; is it the habit of this court to give him that relief upon any other terms than security being given for the payment of what is claimed by the plt. in the action at law? The ordinary course of the court is to say, "Give judg-cations which might come before him. But I own ment at law to be dealt with as this court shall direct, and then we will give you the opportunity of contesting the case in equity." It seems to me that these shareholders, who are seeking to be relieved from the legal liability which they have incurred, stand precisely in that position, and that, therefore, they cannot have any just reason to complain of a call being made upon them under the provisions of the Act of Parliament. Another reason which operates in my mind very strongly in favour of this call is, that it does not follow that, because a call is made, the court will of necessity sanction proceedings for enforcing payment of it. If this call is made upon these parties, and if they can make a sufficient case for the purpose, they may come to the court to suspend the execution of the call, and the court will undoubtedly have power to deal with it; of course I cannot agree with these shareholders, that if the call is made they will be liable as a matter of necessity, and will be bound to pay it. Now then the question is, what, in this state of circumstances, is the right order for this court to make? And I think that the proper order will be that the application stand over to the 10th Feb., in order that we may see whether the M. R. will or will not order a call to be made upon these contributories. There remains then the question upon the amount of the call; and certainly the observations which have been made as to this court not being in a very good position to judge what the amount of the call ought to be, are just and well founded. Upon the facts as they stand before us I entertain no doubt of the necessity for a call being made to the extent of 40% per share, because it does not seem to me that the amount which would be obtained by a call of 407. per share will enable either the full payment of the debts, or anything more than a dividend upon them, and I think the first duty of the court is to provide for the payment of the creditors. But still that is a matter which will be in the discretion of the M. R. when he has to deal with the case on the 9th Feb., to which day he has adjourned the consideration of the matter. I am content to leave it in his discretion, intimating my own opinion that, upon the facts as they stand before us, there is a case for Lord Justice CAIRNS said:-In the case of The Contract Corporation, which lately came before us, we took occasion to observe on the inconvenience which would arise if a court of appeal were, as a general rule, to interfere with, or profess to review, the discretion of a judge who had made a call, either as to the amount of the call, or the time or mode of payment. To what was then said I entirely adhere, and if any question arose here as to the amount of the call, I certainly should be extremely unwilling to express any difference of opinion from the judge who had made the call as to the amount which he had thought fit to call up on the shares. Further than that, I should perhaps be still more unwilling to intimate any suggestion that we would interfere with the discretion of the judge as to the arrangement of the business in his own court, in postponing for such time as he thought fit applicait appears to me that in this case, although the order brought before us for review is merely an order for the adjournment for a month of the application which was made to the M. R. for a call, there is in that order involved a question of principle of considerable importance, and I cannot think that the official liquidators were wrong in bringing the order of the M. R. under the review of this court; because, if I understand the order aright, and the principle on which it proceeded, it might well have been that the following out of that same principle on which it proceeded would have led to the postponement for a much longer period, certainly for several months if not for a year, of making a call in this company. Now, the view of the case which it is necessary to bear in mind is this: the list of contributories so far as it is settled was settled on the 24th July, and the ordinary time for objecting would expire eight days afterwards. In all respects except as regards that ingredient in the case which I am going to refer to of applications on the part of some of these contributories, the case is obviously one, in my opinion, in which it would be fit and proper at the very earliest moment to make a call for the payment of debts. I concur entirely with my learned. brother, and if I am called upon to form an opinion upon the amount of the call, I should say that the call proposed would not be too much for the payment of debts which would obviously have to be paid. The list having been settled, applications have been made by certain contributories for leave to apply to have their names removed from the list; leave has been given to some of the contributories, as I understand, to make that application, and it is said that a similar leave will be given to other contributories who will apply on the same grounds. I should be extremely unwilling to intimate any opinion, and indeed we have no materials before us which would warrant us in expressing the slightest opinion as to the probability of success or nonsuccess of a case such as, it is suggested, is about to be made; but the case which is about to be made by these contributories, so far as it has been stated to us, clearly is a case of this kind. It is a case to undo an executed transaction, to have dissolved the CHAN.] CRUMP v. LAMBERT. [ROLLS. As to the order now to be made, I concur with my learned brother that the most convenient course, and the course most respectful to the very learned judge from whom this appeal comes, will be that nothing shall be done till the time arrives when his Lordship proposes to reconsider the matter. It may be that his Lordship will then think it right to make the call, and certainly I should prefer very much that his discretion should be exercised as to the amount of the call, and the time and mode in which it should be made payable. I think, therefore, that this motion should stand over until the 11th Feb. Solicitors for the official liquidators, Freshfields and Newman. Solicitors for the various resps., Linklaters, Hackwood, and Addison; Pattison and Wigg; J. Emmanuel. ROLLS COURT. Reported by H. R. YOUNG, Esq., Barrister-at-Law. Jan. 23, 25, and Feb. 8. The nuisance arising from smoke alone, unaccompanied by noise, or from noise alone, or effluvium alone, may be the subject of substantial damages to a plt. in an action at law; and wherever a jury would give substantial damages at law in respect of any of those causes of action, this Court will grant an injunction to restrain the continuance of them. bond which has hitherto bound certain shareholders | should not be required. All that will be for the to a partnership, or a corporation which has been consideration of the court in such a case. carrying on trade, in which debts have been incurred, and in which it is said that profits have been actually divided. Now, that is a case which may possibly succeed I do not desire to intimate any opinion at all upon the point, but every person, I think, must see that it is a case which requires to be proved with considerable strength of evidence. It is case to undo a clear primâ facie liability, and I cannot at all accede to the argument that the mere leave which has been given to the contributories to attempt to prove such a case is an admission that they have already made out a prima facie case for the removal of their names. Well, in that state of things, pending proceedings to establish such a case, the question which we have to consider is, who are the persons who require the interim protection of the court against any consequences which may result from delay. In the first place, we have got the creditors to protect. They have no means of bringing actions for themselves. They can only be protected through the process of the winding-up, and if it should turn out that the case which has been suggested is not established, and if in the meantime a loss should occur of the property from which payment of the said call is to be made, it appears to me that this court would, by postponing the call, have undertaken towards creditors a heavy responsibility, and the creditors might justly complain of the loss which they had incurred in consequence of the delay. But it is not a case merely of the creditors, it is also a case in which the interests of other contributories have to be considered. There may be, and we are told there are, many other contributories who either have not, or who do not suggest that they have, such a case as I have referred to. As to them it must be a matter of vital consequence that any persons who are to share their burdens should not be permitted, through the medium of delay, to put themselves in a position in which they will be unable to contribute towards the burden which they are to bear when the proper time comes. If a call is made this advantage is at once gained, that upon the order for the call, or the order consequential upon it (it is immaterial which), that which is equivalent to a judgment may be obtained for the proper amount which, upon the balance, each particular contributory, if not relieved from the obligation, would have to pay. That judgment, at all events, will be valeat quantum a security for the amount which may ultimately become payable if the court should decide that the contributory would have to pay it; all that is quite consistent with an application which may be made by any one or more contributories, that in his, or in their particular cases the payment of the call which has been made should be suspended. That would be quite analogous to the case suggested by my learned brother, of persons coming to this court and admitting there is a primâ facie legal title against them, but stating that they have a case which will controvert and overthrow the apparent legal title against them, in which the habit of this court is to judge in the first place whether there is a prima facie case, or any case really to try, and in the next place what terms pending that trial should be put on the persons appealing to the court. It is clear that the court on an application of that kind will have to consider, and in that form of application might conveniently consider, what are the character and hopefulness of the case which is alleged by the contributories, and further, whether the judgment against them which has been obtained through the medium of the call order, or the subsequent order, is a sufficient security, or whether, as the term for not enforcing payment of the call, some further security, or even payment into court, The bill in this suit was filed to obtain an injunction to restrain the defts., who were the owners of an iron bedstead and general iron working factory at Walsall, from carrying on their business otherwise than in a fit, proper, and convenient place, or in any manner other than such as should not be a source of annoyance and a nuisance to the plt. The facts of the case, and the nature and result of the evidence in it, will sufficiently appear from the judgment of the M. R. infrà. Southgate, Q. C. and Robinson appeared for the plt., and Jessel, Q. C. and Everitt for the defts. The following authorities were cited in the argu ments: Walter v. Selfe, 4 De G. & Sm. 315; Bamford v. Turnley, 3 B. & Sm. 63; St. Helen's Company v. Tipping, 11 H. of L. Cas. 642; Elliotson v. Feetham, 2 Bing. N. C. 134. Lord ROMILLY.-The plt. in this case is the occupier of a house at Walsall, and the defts. are the owners of an iron bedstead manufactory in that neighbourhood. The bill prays an injunction to restrain the defts. from so carrying on their business as to be a nuisance to the plt. The grounds on which he relies for his relief are three, viz., that (1) the smoke, (2) the noise, and (3) the effluvia, caused by the works of the defts. prevent the plt. and his household from enjoying their home in health and comfort. The question involved in the case is a mixed one of law and of fact. The defts. deny the existence of any such nuisance as that of which the plt. complains. They say that smoke ROLLS.] Re THE BRITISH OIL AND CANNEL COMPANY. alone is not a ground for an injunction; that noise alone will not support a prayer for one; and that effluvia alone will not be enough; and that all three causes together will not be sufficient to support the plt.'s case. They further say that the plt.'s evidence is much exaggerated, while theirs shows that no noxious gases are emitted from their works. Moreover, they also contend that their present factory is only an addition to their former one, in the working of which the plt. acquiesced, and that he came to the alleged nuisance, and not the nuisance to him. In my opinion, the law of these cases is this: the annoyance arising from smoke alone unaccompanied by noise, or from noise alone, or effluvium alone, may be the subject of substantial damages to a plt. in an action at law; and wherever a jury would give substantial damages at law, in respect of any of those causes of action, this court will grant an injunction to restrain the continuance of them. Wherever any one or more of those causes may exist, or where the plt.'s enjoyment of his health or property is injured by the operations of the defts., by noise, smoke, smell, or damage by water, to such a degree as to interfere with the ordinary comforts of human existence, then this court will interfere-subject to this, that where the case is one of what is termed a dominant and a servient tenement, if the owner of the servient tenement has acquiesced for more than twenty years in an interruption of his light and air by the owner of the dominant tenement, that owner acquires a right on his part to the maintenance of his position. But until that period of twenty years' acquiescence has elapsed, the owner of the servient tenement has a right-whether he came to the nuisance or the nuisance to him-to the uninjured use of his own property. The question whether the spot on which the nuisance is placed is a fit or an unfit one has no bearing upon the case. It is no excuse, either at law or in equity, for the creation of the nuisance. The real matter to be con sidered is one of fact. Now here the evidence shows that, before the defts. commenced or used their present works, there certainly was more or less of smoke in the neighbourhood. I think, however, that the smoke from the defts.' present factory has produced a decided change in that state of things; and has seriously interfered with the plt.'s enjoyment of his house and garden. In truth, I consider that the plt.'s evidence is, in that part of the case, overpowering. I need not read the paragraphs in the evidence at length. I admit that it appears from them that the new chimney which the defts. have put up has, to a certain extent, diminished the nuisance in the neighbourhood; but still, the plt.'s "human existence," if I may say so, has been, and is, materially and injuriously affected by it. Upon the whole, I must come to a conclusion in favour of the plt. I think the distinction between the old works of the defts. and their new works is clearly established. The old works were mere workshops; their new and present works are large factories; and the smoke and noise caused by them is manifest. I must hold that the plt. is entitled to an injunction to restrain the defts., their workmen and agents, from allowing smoke and effluvia to issue from their works, to the detriment of the plt.; and from making or causing to be made any noises to his annoyance. I regret that I cannot make the declaration more precise; but I cannot, because, obviously, the question of annoyance is one of degree. Looking at the great inconvenience which my decree must necessarily entail upon the defts., I think they should have a reasonable time for appealing. The decree will be therefore dated as of to-day; but the injunction will not begin to take effect till the 10th March next. In the meantime, the defts. must do their best to obey the spirit of the order; [V.C. S. | and I shall consider the injunction complied with if there is no substantial issue of smoke, or other annoyance, to the plt. in the interim. V. C. STUART'S COURT. Reported by EDWARD WINSLOW, Esq., Barrister-at-Law. Friday, Jan. 25. Re THE BRITISH OIL AND CANNEL COMPANY. Company-Winding-up-Companies Act 186225 & 26 Vict. c. 89, s. 79, rule 5. Where it appears just and equitable the court, under the 79th section of the Companies Act 1862, has power to order a company to be wound-up, notwithstanding such winding-up is contrary to the wishes of a majority of the shareholders. This was a petition for a compulsory order to wind-up the above company, on the ground that the circumstances in which the company were placed brought the case within the 5th rule of the 79th section of the Companies Act 1862, which empowers the court to wind-up a company court is of opinion that it is just and equitable that the company should be wound-up." 66 whenever the The petitioner was a holder of twenty shares, and he alleged that the assets of the company were not equal to their liabilities; that there had been a loss of 13517. on their first year's trading, and that they had virtually ceased to carry on business. He also stated that the vendor of the company's works had guaranteed to the shareholders à dividend of 10 per cent. for the first three years, but had been unable to fulfil his agreement, and that the company had, since the date of the petition, brought an action against him to enforce the agreement. On the part of the company it was stated that they were not insolvent, and that twenty-nine out business. of forty-two shareholders wished to continue the Bacon, Q. C. and Graham Hastings for the petitioner. Little, Q. C. and Eddis, for the company, contended that the court could not take upon itself the responsibility of winding-up the company without a special resolution of the shareholders to that effect. The 51st section of the Companies Act 1862 enacted that no resolution should be deemed special unless it had been passed by a majority of not less than three-fourths of the shareholders, and here twenty-nine out of forty-two shareholders wished to go on with the business. Moreover, the company, although not at present in a very flourishing condition, did not come within the statutory definition of a company not able to pay its debts. They cited Re The Patent Artificial Stone Company (Limited), 34 Beav. 185. The VICE-CHANCELLOR, after reviewing the facts of the case, said, that the assets and the way in which the company had been managed were both unsatisfactory The question was, whether the case came within the 5th rule of the 69th section of the Companies Act 1862, and he was of opinion that it did. It would, however, be best that the company should, if possible, be wound-up voluntarily, and nothing should be done until a meeting had been held to effect this purpose; but, if a voluntary winding-up were not then agreed upon, he would order the company to be wound-up compulsorily. Solicitor for the petitioners, T. E. Harper. V.C. S.] PowrS v. SHREWSBURY, &c. RAIL. Co.-Re THE SCINDE, &C. BANK CORPORATION. [V.C. W. Wednesday, Jan. 30. Powys . THE SHREWSBURY AND POTTERIES Railway company-Amalgamation-26 $ 27 Vict. c. 92, s. 43-Parties to suit-Leave to amend. In a suit for the specific performance of a contract against a company, who stated in their answer that since the filing of the bill they had become amalgamated with another company under a different title, the Court refused to decree specific performance until the amalgamated company had been made a party to the suit by amendment. This was a suit for the specific performance of an agreement for the purchase of land by the above company for the purposes of their undertaking, and for payment of the purchase-money into court. The defts. in their answer stated that since the filing of the bill they had been amalgamated with another company under the title of "The Potteries, Shrewsbury, and North Wales Railway Company." By sect. 43 of the Railway Clauses Consolidation Act, 26 & 27 Vict. c. 92, it is enacted, That nothing in the amalgamating Act should cause the abatement, discontinuance, or determination of, or in anywise prejudicially affect any action, suit, or other proceeding at law or in equity, commenced by or against the dissolved company but that the same might be continued, prosecuted, or enforced by or against the amalgamated company. amalgamated company being considered as identical with the dissolved company. the The amalgamated company had not been made a party to the suit by amendment. R. A. Douglas, for the plt., asked for a decree in the terms of the prayer of the bill, and submitted that, having regard to the above section, it was not necessary to make the amalgamated company a party to the suit by way of amendment. The defts. were not represented. The VICE-CHANCELLOR.-As the suit is at present constituted I cannot make the decree asked, but the plt. may take leave to amend by adding parties. Solicitors, West and King, for How, Shrewsbury. Thursday, Jan. 31. Re THE SCINDE, PUNJAUB, AND DELHI BANK CORPORATION (LIMITED). Company-Voluntary winding-up-Agreement by liquidators-Agreement confirmed by the court-Companies Act 1862, ss. 138, 161. On an application for the court's confirmation of an agreement made between the liquidators of a company, in the course of being voluntarily wound-up, and another company, the Court, on its appearing that such agreement was fit and proper, and for the benefit of the company, granted, under the 138th section of the Companies Act 1862, the order asked for. This was a petition praying that an agreement, dated the 29th Jan. 1867, might be approved of and confirmed by the court under these circumstances: The above corporation was constituted in 1862, under the Companies Act of that year, and in March 1866 it was resolved, at a meeting of the shareholders, that it should be wound-up voluntarily, and three liquidators were appointed. In Dec. 1865, the agent of the corporation in Calcutta made an arrangenent with the National Bank of India (Limited) for the sale to them of the capital of the corporation on certain terms. Subsequently some of the shareholders of the corporation objected to this arrangement, and gave the notice required by the 161st section of the Act of 1862. In this state of things it became impossible to carry out the arrangement; but in Jan. 1867 the agreement in question was entered into between the liquidators of the corporation and the National Bank of India, which was to the effect, that the arrangement of Dec. 1865 should be rescinded; that the bank should purchase the premises of the corporation in London, and should be paid 3875. commission at the rate of 1 per cent, on 310,000, the amount liquidated by them for the compensation under the arrangement of 1865. There had been no meeting of the shareholders to confirm this agreement. The liquidators now sought the court's approval of the agreement under the 138th section of the Act, which provides that, if Where a company is being wound-up voluntarily, the liquidators, or any contributory of the company, may apply to the court to determine any question arising in the matter of such winding-up, or to exercise, as respects the enforcing of calls, or in respect of any other matter, all or any of the powers which the court might exercise if the company were being wound-up by the court; and the court satisfied that the determination of such question, or the required exercise of power, will be just and beneficial may accede wholly or partially to such application, on such terms and subject to such conditions as the court may think fit, or may make such other order, interlocutor, or decree, on such application as the court thinks fit. Greene, Q. C. appeared in support of the petition, and submitted that the court had power under the above section to confirm the agreement. A. G. Marten represented the directors of the corporation. The VICE-CHANCELLOR said that, as it appeared fit and proper, and for the benefit of the corporation, that the agreement should be confirmed, he would make an order to that effect. Solicitors: Clarke, Son, and Rawlins; Thomas and Hollams. V. C. WOOD'S COURT. Reported by W. H. BENNET and R. T. BOULT, Esqrs., Barristers-at-Law. Jan. 23, 25, 28, 29, and Feb. 8. Companies Act 1862-Prospectus-Misrepresentation. The prospectus of a steam navigation company, issued subsequently to the memorandum and articles, stated that the company would commence operations with six steamships which were guaranteed to steam ten knots, and “being fully rigged as clipper sailing ships, would perform the voyages regularly," within certain specified times. The company was a bona fide undertaking, but at the time the prospectus was issued the directors had only entered into contracts for the purchase of two ships. On an application by the plt. to be relieved from his contract to take shares on the ground of misrepre sentation in the prospectus : Held, that though the plt. had not been guilty of any laches, the misrepresentation in the prospectus was not such as to entitle him to relief. This was a suit instituted by James Hallows, holder of fifty shares in the British and South American Steam Navigation Company (Limited), on behalf of himself and all other the original members of the company, other than the defts., against the directors of the company and the company, seeking to be relieved from all liability in respect of his shares on the ground of misrepresentation in the prospectus. The company was formed in the spring of 1864 for the purpose of establishing a line of steam communication between England, Brazil, the River Plate, and the West Coast of South America via the Straits of Magellan. A prospectus was issued early in April 1864, which stated that the company was incorporated with limited liability under the Companies Act, and that the nominal capital was 1,000,000l. in shares of 20., the first issue to consist of 25,000 shares. The names of eleven gentlemen were given as directors, and after stating the special advantages offered by the company, and giving various statements as to the amount of exports of British manufactures to Brazil, Chili, &c. in 1863, and the amount of exportation of produce from Chili, &c., the prospectus stated as follows: The company will commence operations with six screw steamships of 2230 tons and 300-horse power each (having capacity for 2000 tons cargo, thirty-five days' fuel, and accommodation for fifty to seventy first, and a similar number of second class passengers), leaving Liverpool and Falmouth once a month, calling at Bahia, Rio Janeiro, and Montevideo, taking goods and passengers for Buenos Ayres, thence proceeding vid the Straits of Magellan to Valparaiso and Lima, Arrangements will be made to take cargo to and from Arica, Islay, and other ports on the west coast. The vessels are guaranteed to steam ten knots, and being fully rigged as clipper sailing ships, are calculated to perform the voyage regularly in, say, from Falmouth to Rio Janeiro, calling at Bahia, 25 days; ditto to Montevideo, 34 days; ditto to Valparaiso, 50 days; ditto to Lima, 60 days; the average passage of sailing ships to the west coast being over 90 days. The Chilian Government has long wished to see such a line established, and some years ago offered a subsidy for the purpose. It is hoped that, at the least, liberal concessions will be obtained not only from the Chilian, but also from the Peruvian, Argentine, and Brazil Governments, which will tend to facilitate the cperations of the company. [V.C. W. tors were jointly and severally liable to repay to the plt. the deposit and allotment-money paid by him, and to indemnify the plt. against all calls, the plt. being willing to transfer the shares to the defts. ; for an account of what was due to the plt. in respect of such deposit and allotment-moneys, and that, until the amount which should be found due should be paid, the defts. might be restrained from carrying on the business of the company, and that, if necessary, the company might be wound-up. The following statements were made in the answer of the company : Par. 12. It was our intention to commence business with six screw steamships of such capacity and power as are in that behalf mentioned in the prospectus, and as soon as practicable after our incorporation we took such steps as we deemed expedient and proper for carrying our said intention into effect. Par. 13. By two several agreements in writing, dated respectively the 15th March 1864, and made between certain persons therein named as trading under the style or firm of The Union Shipbuilding Company of Glasgow, of the one part, and the said Edmund Thompson, therein described as trading under the style of E. Thompson and Company, of Liverpool, merchants and shipowners, of the other part, the said Union Shipbuilding Company contracted to build and deliver to the said Edmund Thompson, upon the Clyde, two several iron screw steamships, according to the specifications and within the time therein mentioned, which in effect provided that the said steamers should respectively be built of such capacity and power as in that behalf mentioned in the said prospectus, and that the same should be delivered over in complete working order to the said Edmund Thompson, on the Clyde, as to one of such steamers, on the 31st day of Dec. 1864, and as to the other of such steamers on or before the 1st day of March 1865. The services of a firm well acquainted with the trade and James, Q.C., and W. F. Robinson, for the plt., con the management of screw steamers have been secured on satisfactory terms, and the business of the company will be conducted on the most economical scale consistent with efficiency. Among the articles of association were the following: Art. 5.-Any branch or kind of business, which by these presents is either expressly or by implication authorised to be undertaken by the company, may, but without prejudice to the powers hereinafter given to general meetings, be undertaken by the directors at such time or times after the incorporation of the company as they shall think fit; and further, may be suffered by them to be in abeyance, whether such branch or kind of business may have been actually commenced or not, so long as the directors may from time to time deem it expedient to commence or proceed with such branch or kind of business. Art. 7.-The directors shall be at liberty to commence the business of the company as soon as they shall think fit, notwithstanding the whole of the capital shall not have been subscribed or taken. The bill stated that on the faith of the statements contained in the prospectus, and in the belief that the persons therein named as directors had consented to act as such, the plt. was induced to apply for fifty shares in the company. In April 1864 fifty shares were allotted to the plt., and he paid 17. per share on application and 17. per share on allotment. The case alleged was, that at the time of issuing the prospectus no ships capable of fulfilling the representations therein contained had been secured, and that any contract for the construction or purchase of such ships had to be given up in consequence of the small number of shares subscribed for, and the consequent inability of the company to pay for them. It was also alleged that of the eleven gentlemen whose names were put forward as directors, three of them were never directors or even members of the company. The bill also impeached, as ultra vires, certain transactions for the purchase of ships subsequently entered into between the company and Messrs. Fernie Brothers, of Liverpool. The Attorney-General (Sir John Rolt). W. M. tended that the plt., having been guilty of no laches, was entitled, in consequence of the misrepresentation in the prospectus, to the relief asked. They cited Rawlins v. Wickham, 3 De G. & J. 304; Claremont v. Tasburgh, 1 Jac. & W. As to the appointment of the directors: The Howbeach Coal Company (Limited) v. Teague, 5 Sir R. Palmer and Locock Webb, on the part of the company, contended, first, that the plt. had no right to sue on behalf of the other shareholders so far as his bill was not to set aside a common contract, but only a particular contract of a particular shareholder; secondly, that by not giving up his shares when he first discovered the transactions in respect of which the bill was filed, he had bound himself to take to his shares for better or worse; thirdly, that though it was open to the plt. to file a bill to be relieved from his contract to take shares, he could not ask to be allowed to retain the shares as a trustee for the company; fourthly, that matters of internal arrangement of a company were matters with which the court always declined to interfere. They cited Jones v. Garcia Del Rio, 1 Turn. & Russ. 297; Re Royal British Bank, 3 De G. & J. 483; Briggs' case, 14 L. T. Rep. N. S. 39; and L. Rep.. 1 Eq. 483; Steward's case, L. Rep., 1 Ch. 574; 14 L. T. Rep Foss v. Harbottle, 2 Hare, 461; Ross v. Estates Investment Company, 15 L. T. Rep Giffard, Q. C., Druce, Q. C., Kay, Q.C., Eddis, Aikin, C. T. Simpson, F. C. J. Millar, and Bardswell for the other defts. The Attorney-General in reply. The bill prayed for an injunction to restrain the Jan. 29.-The VICE-CHANCELLOR said he should defts. from enforcing against the plt. any call on the reserve his judgment upon that part of the case shares; for a declaration that the defts. the direc-which related to the alleged misrepresentation in |