the costs incurred up to the delivery of the substituted HIL Motion to discharge an order of course for the taxation of a solicitor's bill of costs, or in the alternative, that the Taxing Master might be directed to tax a substituted bill of costs. In the year 1859 Mr. Chambers was retained by Mr. Graves to recover possession of a large estate in Lincolnshire, to which a Mr. Collins laid claim. Mr. ColClins was an insolvent, and Mr. Graves was appointed assignee. A suit of Graves v. Robinson was subsequently instituted, which ended in a compromise, and Mr. Graves was put into possession of the estate. Mr. Chambers alleged that the matters were very complicated, and that his guarantee for costs, in the event of the litigation being unsuccessful, amounted to only 431., and it was accordingly agreed that if the matter was prosecuted to a successful termination, he should be remunerated on a liberal scale. In November, 1864, Mr. Chambers delivered to Mr. Graves his bill of costs, amounting to 5711. 16s. The bill contained charges which, although fair and reasonable under the circumstances, were not such as Mr. Chambers would be allowed on taxation. On the 9th December Mr. Graves's solicitor gave notice to Mr. Chambers of his intention to tax the bill; Mr. Chambers thereupon offered to submit the matter to the decision of some solicitor, admitting that, under the circumstances, he had charged more than would be allowed on taxation; but the offer was declined. On the 29th December a petition for the usual order of course to tax the bill was presented; but, in consequence of the offices of the Master of the Rolls being closed, and the absence from town of his secretary, no order was obtained till the 5th January. The order was dated the 29th December. A warrant to tax the bill was obtained on the 9th January, and on the 11th it was served on Mr. Chambers. On the 6th January Mr. Chambers delivered to Mr. Graves an amended bill of costs, amounting to 4781. 88. 4d, accompanied by the following notice:-"I hereby give you notice that I withdraw and abandon the bill of costs which I delivered to you on the 19th day of November last, by sending the same to you through the post; and that I intend to substitute in lieu thereof the bill of costs now delivered herewith to you, amounting to the sum of 4781. 88. 4d.; and further, that my claim against you in respect of the professional business comprised in such costs is limited to the sum charged in such last-mentioned bill." At the same time he wrote to Mr. Graves the following letter:-"The bill of costs which I sent you on the 19th November was made out by me, in the belief that it was the wish and desire of yourself and Mr. Collins that I should be well and liberally reWarded for my services, and for the time and consideration I have bestowed upon the business, since it first came under my care, nearly six years ago; and I need not remind you that the matter has terminated With much satisfaction and benefit to both of you. In this belief I was strengthened by your expressed intention of making me a present of 1007. over and above my bill of costs. Under such circumstances it is not surprising, therefore, that my bill should contain charges which, however I may consider myself Torally entitled to them, are not such as would be allowed on a strict taxation; and as the gentleman into whose hands you have placed the bill, has refused my offer to submit it to any respectable solicitor in the county, I have no alternative but to abandon that Lill, and substitute another, which I have accordingly done, and in which you will find some of the charges modified." Mr. Chambers did not know, until the order for taxation was served upon him, that any order had been obtained. Selwyn, Q. C., and Nalder, for the plaintiff.-Mr. Chambers had no notice or knowledge, on the 7th January, when he delivered his substituted bill, that an order to tax had been obtained. Upon the receipt of the amended bill, the order to tax ought not to have been proceeded with, and Mr. Graves ought to pay all the costs incurred subsequently. Baggallay, Q. C., and Francis Webb, for Mr. Graves. -A solicitor cannot be allowed to deliver an exorbitant bill of costs, and at the last moment deliver a substituted bill. [Sir J. Romilly, M. R., referred to Re Carvey (8 Beav. 436).] Selwyn, in reply, upon the question of costs. Sir J. ROMILLY, M. R.-I am strongly of opinion that a solicitor ought not to be allowed to deliver an exorbitant bill, and, after an order to tax it has been obtained, to say that he never intended it to be taxed, and ask leave to substitute a reduced bill. But in this case the bill of costs was objected to, and it was at once admitted to contain charges that the Taxing Master would not allow, and the circumstances were explained under which the charges had been made. On the 21st December, Mr. Chambers prepared a second bill, and on the 6th January sent it, in substitution for the first bill. The offices of the Court of Chancery were closed on the 23rd December for the vacation, and were reopened on the 5th January. On the 29th December an application was left for the usual order of course; but the order was not delivered out till the 5th January, and was then of no use till it could be served at the Taxing Master's office, which was not till the 7th; and it was not served upon Mr. Chambers till the 11th. In the meantime, namely, on the 7th January, Mr. Chambers had given notice that he did not intend to stand by his bill; that he had withdrawn it, and had substituted another bill. This was known on the 7th to Mr. Graves and to his advisers, and they ought to have allowed the substitution. An order to tax is not a vindictive proceeding; its object is simply to ascertain what really ought to be paid. Both Lord Langdale and myself have frequently held, that a second bill cannot be substituted as a matter of course; but it has never been held, that this cannot be done under any circumstances. When an error is found in a bill after it has been delivered, whether the error be the insertion of excessive charges, or the omission of proper times, and the solicitor, before an order for taxation is obtained, proposes to substitute another bill, I am of opinion that the Court ought to allow the substitution. I shall, therefore, order the second bill to be substituted for the first, on condition that Mr. Chambers pays all the costs up to, and including, the 7th January; but I shall make no order as to the costs of this application. It Note for reference-Morg. & Dav. on Costs, 341. Re THE GENERAL ROLLING-STOCK COMPANY (LI- Winding-up order-Right of creditor. is the general right of a creditor to have a company wound up by the Court, although other creditors to a much larger amount desire a voluntary winding up, and a meeting of the shareholders has been called to pass a resolution in favour of a voluntary winding up. This was a petition, presented by a creditor, praying for the compulsory winding up of the General Rolling-stock Company (Limited). The company was registered pursuant to the provisions of the Companies Acts, 1856 and 1857; it had not been registered under the act of 1862. The nominal capital of the company was 150,000l., divided into 15,000 shares of 107. each; of which the greater part had been allotted and paid up. The petitioner was a judgment creditor in respect of three several judgments for the respective sums of 2500l., and costs. He had issued execution upon each of the judgments, to which the sheriff had returned nulla bona. The petition was opposed by creditors representing debts to the aggregate amount of 250,000l., and they sought to have the company wound up voluntarily. Notice had been given of a meeting of the shareholders to be summoned on the 16th February, to pass a resolution for winding up the company voluntarily. Jessel and Bruce, for the petitioner. Baggallay, Q. C., and De Gex, and Selwyn, Q. C., and Hemming, for creditors, opposed.-They referred to In re The Factage Parisien (13 Weekly Rep. 214). Druce, for the company. Sir J. ROMILLY, M. R.-I am of opinion that the petitioner is entitled to an order for the compulsory winding up of the company. The position of a creditor presenting a petition to wind up a company, is different from that of a shareholder. As a general rule, it is the right of a creditor to have such an order. It is not disputed that an order must be made to wind up the company. If the company, in asking that the petition might stand over, undertook to find funds in the meantime to pay this creditor; or if the petition had been presented by a shareholder, and it was asked that the petition might stand over to allow the sense of the shareholders to be taken, the Court would give time for that purpose. But that is not so in the present case. The only question is, whether there shall be a compulsory or a voluntary winding up. I am of opinion that the creditor is entitled to determine which form of proceeding he would prefer, and I will make an order upon his petition accordingly. Note for reference-Shelford's Joint-stock Co. Act, 178. VICE-CHANCELLOR KINDERSLEY'S COURT. WHEATLEY V. THE WESTMINSTER BRYMBO COAL COMPANY.-Jan. 31, and Feb. 8, 9, and 11. Arbitration-Mining lease-Staying proceedings-Common-law Procedure Act, 1854, sect. 11. The lease, which gave rise to the question, was dated the 1st July, 1862, and contained, inter alia, the following arbitration clause:— "And it is hereby mutually covenanted, declared, and agreed by and between the said parties hereto, that if at any time or times during this demise, or at and after the end or sooner determination thereof, any variance, controversy, or question should arise and happen between the said lessors or lessor for the time being (on the one part), and the lessees, their succes sors, or assigns (on the other part), relative to or concerning this indenture, or any covenant, clause, matter or thing herein contained or referred to, or the construction thereof, or any matter, cause, or thing in anywise relating thereto; and if such difference shall not be settled by the parties in difference within thirty days next after such difference shall arise, then, and in each such case, the matter or matters in dispute shall, upon the request in writing under the hands of the said lessors or lessor for the time being, or upon the request in writing of the said lessees, their successors, or assigns, signified by writing under the hand of their secretary or agent for the time being, be submitted and referred to the arbitration and decision of three disinterested persons, to be chosen as hereinafter mentioned (that is to say), one by each of the contending parties, and the third by the two persons so to be chosen as last aforesaid; and whatever award the said three arbitrators, or any two of them, shall make and deliver in writing under their hands and seals, within thirty days next after such reference, shall be binding and conclusive between and upon all the said parties in difference, and shall be performed, observed, and kept by then respectively accordingly. Disputes having occurred between the parties, the bill was filed on the 5th January, 1865, and on the 12th January, 1865, a notice in writing, signed by the secretary of the lessees, was served on the lessors. This notice recited, that variances, controversies, or questions had arisen between the lessors and lessees relative to accounts to be rendered under the provi sions of the lease, which differences had not been settled within thirty days after they had arisen, but were still subsisting; and the notice required, on behalf of the lessees, that "the said several matters so in dispute, and all other matters in dispute now existing between the lessees and the lessors, be submitted and referred to arbitration, as in the said indenture of lease provided." The notice then went on to nominate an arbitrator, and to require the plaintiffs to appoint one. By a second notice, dated the 16th January, 1865. A mining lease provided for arbitration in case any contro- which recited the provisions of the lease as to the versy should arise relative to the lease, or any covenant, particular mode of working the mine, and that objec clause, matter or thing therein contained, or the constructions had been raised by the lessors, that the mode in tion thereof, or any matter, cause, or thing relating thereto. which the lessees had been working the mine was not A bill was filed by the lessors to restrain the lessees in accordance with the terms of the lease, and by reafrom working the mine contrary to the provisions of the son of them so doing the royalties payable to the lease. The lessees then appointed arbitrators under the lessors had been less than they would have been if arbitration clause, referring to them all matters in dis- the mines had been properly worked; and that in conpute, and then moved, under the 11th section of the Common-law Procedure Act, to stay proceedings in the suit: had arisen, and had not been settled within thirty sequence of such complaints, differences and disputes -Held, that the case came within the scope of the sec-days; the secretary of the lessees requested that the tion, but that it was one in which the Court, in the exercise of its discretion, ought not to stay proceedings. Motion to stay proceedings under the 11th section of the Common-law Procedure Act, 1854 (17 & 18 Vict. c. 128). several matters of complaint or objection stated in the notice, and all matters in dispute touching such matters, and all variances, controversies, or questions between the lessors and the lessees, relative to or concerning the said indenture of lease or any covenant This suit was instituted by the lessors of the Gwer-clause, matter, or thing therein contained or referred syllt mines, in Denbighshire, to compel the lessees, the above-mentioned company, to conduct the working thereof in the manner provided by the lease, and to restrain them from working one seam alone, or from working the mines contrary to the lease. to, or the construction thereof, or any matter, canse. or thing in anywise relating thereto, touching or concerning the said matters of complaint or objection. and matters in dispute, and every or any of them, should be submitted and referred to arbitration, ac ong to the provisions of the lease;" and the notice Won to name an arbitrator, as in the former notice, one half of lessees. The plaintiffs then moved for an injunction, and the lessees moved to stay proceedings pending the arbitration; and the motion of the plaintiffs for the injunction, and the cross motion of the defendants to stay proceedings pending the arbitration, now came on together. Sir R. Palmer, A. G., Glasse, Q. C., and Nalder, for the plaintiffs.-Before the Common-law Procedure Act. 1854 (17 & 18 Vict. c. 125), legal wrongs and rights could not be ousted by arbitration, nor will the Court, under the 11th section of that act, stay proceedings on account of a pending arbitration, unless, first, there is an absolute agreement between the parties to refer their differences to arbitration, and the suit is commenced in contravention of that agreement; and, secondly, unless the Court be satisfied that justice will be as well done by arbitration as by suit. Both these conditions fail in this case; the first, because there was no agreement nor any violation of agreement; the second, because the arbitrators having no preventive jurisdiction, the Court could not be satisfied that justice would be as well done by their means. This is no question as to the meaning of a particular clause or of account, but simply whether parties who have bound themselves to do a particular thing can escape from their contract. Baily, Q. C., and Freeling, for the defendants, contended that this was no case for the preventive interference of the Court by injunction, inasmuch as nothing new had been done in the mine, but the mode of working pursued which had prevailed from the beginning. They argued that the parties had agreed by the lease that such matters as those in dispute were to be referred to arbitration, and this case came precisely within the 11th section of the act. The Attorney-General, in reply. The following authorities were referred to in the course of the arguments:-Russ. Arb. 559; Russell v. Pellegrini (6 El. & Bl. 1020; 3 Jur., N. S., 184); Hirsch v. Im Thurn (4 C. B., N. S., 569; 4 Jur., N. S., 587); Wickham v. Hardy (5 Jur., N. S., 871); Daunt v. Lazard (27 L. J., Exch., 399); and Cook v. Catchpole (10 Jur., N. S., 1068). Sir R. T. KINDERSLEY, V. C.-The question of staying proceedings in this case depends upon the 11th section of the Common-law Procedure Act, 17 The 11th section of stat. 17 & 18 Vict. c. 125, enacts as follows:-"Whenever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them, shall agree that any then existing or future differences between them, or any of them, shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them, shall bevertheless commence an action at law or suit in equity against the other party or parties, or any of them, or against any person or persons claiming through or under him or them, in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the court in which action or suit is brought, or any judge thereof, on application by the defendant or defendants, or any of them, after appear ance, and before plea or answer, upon being satisfied that no sufficient reason exists why such inatters cannot be, or ought rot to be, referred to arbitration, according to such agreement as aforesaid, and that the defendant was, at the time of the bringing of such action or suit, and still is, ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in such action or suit, on such terms as to costs and otherwise as to such court or judge may seem fit: provided always, that any such rule or order may at any time afterwards be discharged or varied, as justice may require." & 18 Vict. c. 125, which provides as follows:-[His Honor read the section, and proceeded:] In this case the parties have agreed by the lease, that if something is done by one party, namely, the giving the notice, then the matter in dispute shall be referred to arbitration. Now, it appears to me that this clause in the lease comes within the section of the act, and that it being in the discretion of the Court to stay proceedings, it would be competent for the Court to stay proceedings, if it saw that it would advance justice to do so. The arbitration clause in this lease describes the matters to be referred to arbitration, and they are every question arising under the indenture, or relating to the construction of, or otherwise relating to, the deed; but the matters the subject of reference in the notices which have been given since the filing of the bill, comprise not only the matters in dispute in the cause, but everything which is in dispute between the parties, such as making out the accounts. I do not say that this would be conclusive against the Court exercising its discretion, and staying proceedings under the 11th section of the act; but it is a very strong reason why the Court should not exercise its discretion. But, moreover, some of the questions which arise in this suit, although they may be said to have reference to the lease, are, in point of fact, of this sort—viz. that whichever way the Court may determine the question of construction, whether in favour of the plaintiffs or defendants, the question arises, whether the conduct of the parties has not had the effect of waiving and altering the rights which would have existed at the time when the lease was executed. These are questions which do not turn in any way on the construction of the lease, but are independent of it. For these reasons, I am of opinion, that although the case does come within the scope of the 11th section of the act, it is a case in which the Court, in the exercise of its discretion, ought not to stay proceedings, and that the motion must, therefore, be dismissed, but without costs. Notes for reference-Russ. Arb. 46, 3rd ed.; Cook v. Catchpole (10 Jur., N. S., 1068). MORGAN v. MORGAN.-Feb. 22 and March 1. The guardian ad litem of an infant defendant raising an unsuccessful defence, will not be ordered to pay the costs of the suit unless it is a case of gross misconduct on his part. This was a suit instituted by a widow for the purpose of obtaining her dower, out of three undivided seventh parts to which her husband, the intestate, was equitably entitled in fee-simple in certain real estate. The estate was vested in a trustee under the will of the father of the intestate, and the heir, who was an infant, was the sole defendant. The guardian ad litem of the infant filed an affidavit, setting up as a defence to the suit a verbal agreement by the plaintiff to accept an IO U in satisfaction of her dower, and that an I O U, signed by the trustee of the estate, had been handed to her accordingly. The alleged agreement was wholly denied by the plaintiff and her witnesses in the affidavits in reply. J. W. Chitty, for the plaintiff, asked for a declaration of right and for a receiver. Freeman, for the guardian ad litem, insisted upon the agreement. Chitty, in reply.-The agreement is not proved, and if it were, is within the Statute of Frauds. Sir R. T. KINDERSLEY, V. C., having held that the defence failed, made a declaration of right, and appointed a receiver. Chitty then asked that the guardian ad litem might be ordered to pay so much of the costs of the suit as were occasioned by the unsuccessful defence; and cited Bamford v. Bamford (5 Hare, 205). Freeman, contra. Sir R. T. KINDERSLEY, V. C.-The question is, whether a guardian ad litem becomes liable to costs by raising such a defence as would, upon the authority of Bamford v. Bamford, make an adult defendant so liable. I will ascertain, through the registrar, whether there is any fixed practice upon this subject; and if there is none, I must decide upon what I think the practice ought to be. March 1-Sir R. T. KINDERSLEY, V. C.-I have looked into the question, and I think it is impossible in this case to order the guardian ad litem to pay these costs. I do not mean to say there could not be such a case of gross misconduct as to render him liable to do so, but that is not the case here; and your client, Mr. Chitty, is much in the same position as a plaintiff suing a pauper defendant. Each party, according to the ordinary rule in dower suits, will bear his own costs. Notes for reference-Bamford v. Bamford (5 Hare, 205); Morgan & Davey's Costs in Ch. 152, 240. See also Fry v. Noble (20 Beav. 606). THE LEEDS BANKING COMPANY, ex parte BARRETT.— March 13. Companies Act, 1862-Contributory-Misrepresentation -Contract in præsenti. Statements contained in the report made by the directors of a joint-stock company, and adopted at an annual meeting of the shareholders, though untrue, are not such misrepresentations, quoud a shareholder not present at the meeting, as to entitle him to be relieved from a contract to take additional shares, though the contract may have been made upon the faith of the representa tions. There may be a contract in præsenti to take shares, where the day fixed for payment for the shares is future (though the price may be paid beforehand, the purchaser receiving interest), and where the certificates will not be delivered, and there will be no share of profits accruing until that day. Summons from chambers.-The Leeds Banking Company was established in 1832, with a capital of 1,000,0007., in 10,000 shares of 1001. each, on which 157. were paid. In the first instance only 7340 shares were issued, leaving 2660 which were called reserved shares. At the annual meeting of the company, held on the 1st February, 1864, the directors stated by their report that there was a balance of profit for the past year amounting to 44,000l. odd. This report had been circulated amongst the shareholders, and was adopted by the meeting. At this time Mr. Barrett was a holder of fifty-five shares. At a meeting of the directors held on the 26th May following, it was resolved to issue the 2660 reserved shares in the proportion of one to each holder of five shares and upwards, [at the price of 407. per reserved share. This price was, at a meeting held on the 16th June, reduced to 301., being at the rate of 15. premium on each reserved share of 15l. paid up. At a subsequent meeting on the 14th July it was resolved that further allotments of the reserved shares remaining undistributed, in the same proportion, and at the same rate, should be made to those shareholders who had taken up their original allotments, if they desired it. In the meantime a circular, dated the 22nd June, had been sent round to the shareholders, and amongst them to Mr. Barrett, offering the reserved shares for allotment, and proceeding: "I shall be obliged if you will within fourteen days from this date sign and return me the annexed form, stating whether you are desirous of taking up the shares, and also whether, in the event of any shares remaining, you wish to have any more allotted you; if so, please say how many. If taken up, the amount must be paid to the bank on or before the 1st October next (if paid before that time, interest at 51. per cent. will be al lowed), and the shares will then be entitled to one quarter's dividend at the end of the year." In reply, Mr. Barrett wrote, on the 27th June-"I agree to take eleven shares, being my proportion of the allotment, and fourteen shares in addition, if I can have them on the terms stated in your circular.” This letter was acknowleged on the 18th July by the manager, who stated that the directors had allotted to Mr. Barrett "eleven additional shares, in addition to the eleven shares previously accepted by him;" and repeated the terms as to payment. Mr. Barrett soon afterwards paid for the new shares, and his cheque was acknowledged by a letter of the 3rd August, saying-"I have yours of yesterday, with draft 6601. for twenty-two shares allotted to you in this company, for which a certificate will be given on the 1st October." Soon after this it was ascertained that large sums, which had been set down as assets of the company, had been lost, and that the company was insolvent. The bank suspended payment on the 19th September; a petition for winding up was presented on the 24th, on which the usual order was made on the 13th October. By the Companies Act, 1862, sect. 84, the winding up of a company is to be deemed to commence at the time of presentation of the petition. the statement in the annual reports, he should not Mr. Barrett, in his affidavit, stated that, "but for have applied for, nor paid any money in respect of, the reserved shares." On making out the list of contributories in chambers, the question of Mr. Barrett's liability was, without discussion, adjourned into court. tor.-To exonerate Mr. Barrett from being a contriGlasse, Q. C., and Kekewich, for the official liquidabutory in respect of these twenty-two reserved shares, he must shew either that there was a fraudulent statement by the directors, on the faith of which he bought these shares, or that there was no complete contract. As to the first point, the statements were correctly taken from the company's books, and were true at the time they were made. They were not the proximate cause of his taking the shares. (New Brunswick and Canada, &c. Company v. Comybeare, 9 H. L. C. 711; 8 Jur., N. S., 575; Bell's case, 22 Beav. 35; 2 Jur, N. S., 844; Nicol's case, 3 De G. & J. 387; Mizer's case, 4 De G. & J. 575, overruling the decision in Brockwell's case, 4 Drew. 205; 3 Jur., N. S., 879). Secondly, upon the communications between the parties, there was a complete contract to purchase at a present time. (Bloxam's case, 10 Jur. 833). Baily, Q. C., and Wickens, for the defendant.-First, the express statement of Mr. Barrett negatives the argument on the effect of the representations; the directors ought to have known them to be false; if they did not, such negligence amounts to fraud. (Ayres's case, 25 Beav. 513, 527). Secondly, this was a present contract, that at a future time, viz. on the 1st October, Barrett should become a shareholder, as to twenty-two new shares; on that day the price must be paid, the certificates would be issued, and his share in the profits would begin to accrue; the money was paid in advance, but at the time fixed for com 25 tion, there was no possibility of issuing shares. | ing from taking those shares, may not be called into is reservation of shares at the formation of the effect until a future period. Company was only adopted as a convenient mode for readjusting at a future date the interests and liabilities of the partners; such provisions in private partnerships were made by the terms of the deed; in the latter case, a dissolution would be carried out, upon the footing of existing interests, not upon a computation of what the shares of the partners would be at a future time; to decide otherwise in the present case would lay down a principle seriously affecting the whole law of partnership. [They commented on Yelland's Ts case (5 De G. & S. 395; 10 Jur. 509) and Cookney's case (3 De G. & J. 170; 5 Jur., N. S., 77).] Glasse, in reply. Sir R. T. KINDERSLEY, V. C.-I think this case may be divided under two heads-first, whether Mr. Barrett has contracted to become a shareholder at all, in respect of these shares, under the circumstances which have happened; secondly, supposing he has, whether he has been led into that contract by representations under such circumstances as entitle him to be relieved from the liability of it. The next, and the only remaining question is, with regard to the misrepresentation. Now, I am not at liberty to decide this case according to what, if I were unfettered by authority, I confess I should think the just principle to be applied, although whether it would be applied to this particular case is another question. My view would have been (and I expressed that view in Brockwell's case), that if a body of directors, in performing their ordinary functions, make a report at a general meeting of shareholders, for the purpose of shewing them what the state of the company really is with regard to its financial condition, and the company, that is, the meeting of the shareholders, adopt that; and if that report being printed, and without any directions or resolutions for its circulation, get into circulation, whereby what I may call "outsiders," persons not being already shareholders are actually induced to take shares, these persons will not be liable, on account of the misrepresentations which have been made in the report. That is the ground upon which the Master of the Rolls, as I understand it, decided Ayre's case, which has been cited to day. At the same time, it is perfectly true, that if partners or persons having a business of their own, choose to make representations, and make out accounts inter se, and do not themselves voluntarily issue those accounts to the public, if the public happen to get hold of them, no doubt the partners or the shareholders are not to be affected, as a matter of law. I should have thought, however, it would be for the benefit of the public, having regard to the nature of joint-stock companies, that whatever takes place at a general meeting of joint-stock companies, is of necessity, when the report has been adopted at the meeting, made public. I should have thought it for the benefit of the public that the law should have been that that was a representation to the public. However, that has been otherwise decided, and I consider that the law as it now stands, may be stated thus, as far as outsiders are concerned, that, in order to relieve a person who has taken shares on the faith of the report, from his obligation to retain those shares, and undergo the obligations attendant upon the holding of those shares, it must be a representation made by the company, or by those who were authorised by the company to make them public. I think that the first question is entirely new, and that there is not any case at all bearing upon it, or the citation of which would at all assist the Court in coming to a conclusion; and therefore I must deal with it simply upon the facts as I find them, and so far as there is any abstract principle applicable, must apply that principle. It appears to me to be, for this purpose, utterly immaterial whether Mr. Barrett was a shareholder or not; it would be just the same thing if he had not been already a shareholder, and the directors had thought fit to distribute or issue some of these reserved shares to him or to other persons who were not already shareholders. [His Honor, after stating at some length the facts of the case, procecded:] This is not disputed to be a present contract; but the question is, was it a contract that, at a future time, namely, on the 1st October, he would take so many shares, or was it a contract that he would take them in præsenti? It does not at all follow, because terms are made with reference to the shares which postpone the benefit till a future period-postpone, also, the obligation to pay for them, and the right to receive an actual certificate for the shares-that therefore they are not agreed to be taken now; and there is nothing whatever in the resolutions determining that the shares shall be issued, Then comes the question, how does that apply to nor in the circular sent to the shareholders, to point the case of a person who is already a shareholder? I to this contract as being a present contract to take should say it applies à fortiori, and for this reasonshares at a future time. It appears to me that the the person who is already a shareholder is a member contract was to take the shares in præsenti, notwith-of the body of course, and what the body does is done standing that the effect, with regard to profit or dividend, with regard to payment, and with regard to the receipt of the certificate, was postponed until a future period. by himself and his co-shareholders. He may not personally have been an active party in it, or even concurring in it; but still, it is done by that body of which he is a component member. If, then, the direcA little weight to that view may, perhaps, be de- tors make a report to the body, and the body adopts rived from the words, "the amount to be paid to the it, Mr. Barrett, and everybody else who is a sharebank on or before the 1st October next, or the shares holder, has been a party to that adoption; that is, will be forfeited." It is said, how can shares be for- he is a component member of the body which has feited, unless the party has already taken them? adopted it, and I do not see how he can say that The answer to that is, true, if you tie the expression the company, as a company, has made to him a repreto its strict meaning; but when it is said, "or the sentation which turns out to be false. The directors shares will be forfeited," it means, 66 or you will not have made to the shareholders a representation which be entitled to have the shares." That is not the na- turns out to be false; but has the company made a tural meaning of the words. The natural meaning of representation to anybody? Mr. Barrett knew nothe words is, that the shares will be forfeited for thing whatever-has had no representation made to non-payment of the price fixed. I do not attribute him upon any subject whatever, except that which much weight to that, although I think it is worthy of was simply a representation made by the directors to some observation; but the ground upon which I come the body of shareholders. The sending the report to to that conclusion is, that I do not see anything in the him, as it was sent to every other shareholder, was matter which makes it otherwise than a contract in not for the purpose of giving anything more in the præsenti, now to take the shares, although the benefit way of knowledge than that which was given by the resulting from those shares, or the obligations result-report which was presented to the general meeting→ |