1849. YETTS v. NORFOLK RAILWAY CO. The bill further alleged, that in June, 1848, the first call of 51. per share was made, and was paid by the plaintiffs and other shareholders, and that the total amount realised was 60,7157., which was more than sufficient to pay such of the sums as had then become payable on mortgages and bonds, for the payment of which the shares were issued. The bill further alleged, that, on the 6th of November, 1848, a second call of 5l. per share was made for the 15th of December following. The bill then alleged, that the defendants were about to apply the money thus raised to other purposes than those mentioned in the 7th resolution; and that, on the 14th of November, 1848, the secretary had written to one Mr. Maxwell a letter, containing the following passage: "The Company have to meet liabilities, consisting of a re-payment of a temporary loan, and of law agents' bills, which must be provided for, and they have no other source open to them than by making a call upon these shares." The bill also charged, that the defendants threatened to sue the shareholders at law for the last call, and to declare the shares forfeited, and to withhold the dividends payable to the plaintiffs. The prayer was for a declaration that the 7th resolution was binding, as a contract between the Company and the holders of the new shares, as to the application of the capital to be raised thereby, and as to the time of raising such capital. The bill also prayed, that such contract should be decreed to be specifically performed; and that the defendants might be restrained from prosecuting certain threatened actions at law, and from declaring forfeited the plaintiffs' shares, and from withholding of the dividends, and from applying the capital in their hands in any manner otherwise than according to the 7th resolution. To this bill the Company and the directors demurred separately. 1849. YETTS v. NORFOLK Mr. Bacon and Mr. Speed in support of the demurrers.— The intended acts with which the defendants are charged, if wrong, are a wrong to the Company generally, and, therefore, not the proper subjects of a suit framed as the RAILWAY Co. present is: Mozley v. Alston (a), Foss v. Harbottle (b), Exeter and Crediton Railway Company v. Buller (c), Lord v. Copper Miners' Company (d). Moreover, the suit is defective as regards the parties to it. Mr. Wigram and Mr. Campbell for the plaintiffs.-The cases cited do not apply. The intended wrong is one which the Company at large are about to commit against the particular class of shareholders which the plaintiffs represent. It is not a case, therefore, in which they could sue in the name of the Company; nor one in which the acts complained of could be made binding upon the shareholders in the same position as the plaintiffs, by any resolution of the Company at large, being, as the plaintiffs insist, a breach of the contract entered into between that class and the rest of the Company. The VICE-CHANCELLOR : I give no opinion upon the question as to the parties to the suit. Upon the question of equity, I am not sure that, independently of recent authorities which have been cited at the bar, I should not have held the demurrers sustainable; but those decisions, and the judicial opinions expressed with reference to them are, as it appears to me, inconsistent with sustaining the bill. What course I should have taken in a different state of the authorities, it is needless to say. As it is, I allow the demurrers; but I do not understand why there should have been two. The costs of one only can be allowed. (a) 1 Phil. 790. (b) 2 Hare, 461. (c) 11 Jur. 527. (d) 2 Ph. 740; and see Ed wards v. Shrewsbury and Bir- 1849. Jan. 19th. The 29th section of the Joint-stock Companies Re- pany. TEVERSHAM v. CAMERON'S COALBROOK STEAM COAL THIS The agreement in question was entered into under a getor to the Com- neral resolution of the Company, passed in July, 1847, whereby the directors were authorised to borrow on mortgage, bond, or other assurance, such sums, at such periods and rates, as they should deem expedient. Upon the faith of this resolution, the plaintiffs made the advance in question to the Company, upon an agreement that it should be a lien on the calls. The bill stated the above circumstances, but it did not allege that the agreement had been confirmed as required by the 7 & 8 Vict. c. 110, s. 29, which provides, that if any director "be either directly or indirectly concerned or interested in any contract proposed to be made by or on behalf of the Company, whether for land, materials, work to be done, or for any purpose whatsoever, during the time he shall be a director, he shall, on the subject of any such contract, in which he may be so concerned or interested, be precluded from voting or otherwise acting as a director; and that, if any contract or dealing (except a policy of assurance, grant of annuity, or contract for the purchase of an article or of service, which is respectively the subject of the proper business of the Company, such contract being made upon the same or the like terms as any like contract with other customers or purchasers,) shall be entered into, in which any director shall be interested, then the terms of such contract or dealing shall be submitted to the next general or special meeting of the shareholders to be summoned for that purpose; and that no such contract shall have force, until approved and confirmed by the majority of votes of the shareholders present at such meeting." The question was, whether the agreement between the plaintiffs and the Company required to be confirmed under this section. Mr. Russell and Mr. W. W. Cooper, in support of the demurrer, contended, that the section applied to all contracts and dealings except those particularly specified in sect. 29, and exempted from the scope of the Act. Mr. Swanston and Mr. H. Prendergast, for the plaintiffs, contended, that the words "contract or dealing" in the second branch of the section, must be construed by referring to the description of the transactions mentioned in the former part of the clause, viz. "for land, materials, work to be done," or other similar objects, and did not refer to a loan of money. The VICE-CHANCELLOR thought, that the agreement fell within the meaning of the section, and allowed the de murrer. 1849. TEVERSHAM v. CAMERON'S COALBROOK STEAM COAL AND SWANSEA AND LOUGHER RAILWAY Co. 1849. Jan. 20th. A testator, GRAYSON V. DEAKIN. MR. WILLIAM GRAYSON, deceased, made his will, being seised of dated the 26th of October, 1839, and thereby, after direct copyhold on his death, became subject to custom ary freebench, gave to trustees the resi lands, which, ing the payment of his funeral and testamentary expenses, and after specifically devising a part of his real estates, and giving certain pecuniary and specific legacies, he gave, devised, and bequeathed to Martha Deakin, James Benn, George Grayson, and John Ford, their heirs, executors, administrators, and assigns, all the residue and remainder of his real and personal estate, upon trust to invest the moto receive the ney in the funds, and to receive the dividends thereof, and the rents and annual produce of his real estate; and, after payment of his just debts, funeral and testamentary ex due of his real and personal estate upon trust to invest the money in the funds, and dividends thereof, and the rents of his real estate; ment of his debts and tes tamentary expenses, to pay to his widow, during her life, the annual sum of 20%., and to pay the residue of such annual produce to his and, after pay. penses, to pay to Mrs. Ruth Grayson, (the testator's wife,) during her life, the clear annual sum of 201., and then to pay to the said Martha Deakin an annuity of 100%, and to pay the residue of such annual produce to William Grayson (the testator's son) for his life, and, after his death, to hold the real and personal estate so devised and bequeathed upon trust for the benefit of the children of the testator's son William Grayson; with a trust to sell the real estate when son, and, after the youngest child of the said testator's son William Grayson should attain the age of twenty-one years. The will contained the following declaration: "And I do declare personal estate and hereby empower my said trustees, to lease any lands which they may hold upon the trusts of this my will, for The not more than twenty-one years, at rack rents, subject to will contained the usual covenants." his death, the trustees were to hold the said real and upon trusts for the chil dren of his said son. the following declaration:"I empower my said trus tees to lease The testator died in 1843, leaving his widow Ruth Gray any lands, which they may hold upon the trusts of this my will, for not more than twentyone years, at rack rents:"-Held, that, with this power of leasing in the will, the widow was put to her election between the annuity given to her by the will and her freebench. Observations on Holditch v. Holditch, 2 Y. & C. C. C. 22. |