The Express.
London, England, 1853-01-24 00:00:00

Katy intelligence.

EQUITY COURTS.—SATURDAY.
Ilarosa rum Lou) Qum:lw= aOD TEO Lours iceman.
THE UNION BANK OF AUSTRALIA.
WICLINS V. C171E11120 AND 0111111.5.
Thia was an appeal from a decision of Vice-Chancellor Page
Wood.

Oa Thursday last a motion was made before the Vice-
Ohaneellor for an injunction to restrain the defendants, the
directors, and two of them shareholders, of the Union Bank
of Australia from making a dividend or any division of
profits or transferring eertain reserved shares otherwise
Nan in proportion to the number of " shares" held by each
proprietor. The Vice-Chancellor refused the motion, and
a special application was made to this court on Friday to
hear an appeal to-day, as a dividend was to be declared on
Monday. 'The CMS accordingly came on by order. It appeared
that the company was established in 1837 as a joint stick
banking eompany under a deed of settlement, by which the
capital was to be 600,0001., divided into shares of 251. each,
with power to the directors, with the consent of two-thirds
in value of the proprietors present at any special general
meeting,. to inereese the capital to any sum not exceeding
lone million, by the imam of new shares of 251. each, the
right being reserved to the old shareholders to take the
new shares before they were offered to the public. The
whole of the original capital was paid up, and by resolu-
tions passed in 1840 the capital was increased to 800,0001.,
by an issue of shares, each proprietor of two old shares hav-
ing the option of taking one new share. The whole of the
shares were thus taken by the proprietors, and the whole
261. on them paid up. In 1841 it wee amain determined to
roans, the capital to a million, by the further issue of
shares of 251. each, the holder of four old shares being en-
titled to one new share. On these last shares only 21. 10s.
had ever been paid up or called for. The plaintiff was the
holder is this third class, having purchased 75 shares in
1841, and 161 shares mere in 1851, and filed the bill on
behalf of himself and all other shareholders in the same
class. In 1947 the directors had found it desirable to con-
tract the capital of the company, but being advised they
could not legally do so, but Nat they could invest the
unemployed capital in the purchase of shares, they deter-
mined to buy up all the shares that could be had at par ;
and previous to October 1848, they thus became the owners
on behalf of the company, of 4,651 shares on which 2.51.
had been paid, and 824 on which the smaller sum had been
paid. At the general meeting of 1852 it was proposed to
dispose of these shares at the market price of 421. for those
on which the whole was paid, and in the same proportion
' for the others among the 'proprietors in proportion to the
amount of paid up capital ; end at the same meeting a divi-
dend of 6 per sent. on the paid up capital was declared, and
• bones of fifteen shillings per share on the shares on which
261. was paid, and in the same proportion on the shares on
which the lesser amount was paid up. By the 33rd section
of the deed of settlement, it was provided as follows.—lt
shall be lawful for the Board of Directors (subject to the
provisions next hereinafter contained), to declare • dividend
•r dividends from time to time out of the profits
of the company, to be calculated on a statement
to be made to the proprietors at the annual general
meeting, as hereinafter provided; and that it shall be
optional with the board to apply such dividends either
sea beaus to be added to the respective shares, or as in-
terline/ dividend on such shares, or on the amount paid up
in respectof such shares, or as part bonus and part interest
and dividend or otherwise, as they may think most expe-
dient, and to divide such dividend or bonus into as many
equal parts as there shall he share, then held in the capital
of the company. By 44th section full power was given to
the directors to regulate sad control the affairs of the com-
pany. By 67th section the proprietors, with the consent of
the board of directors, were to have liberty to pay in advance
the capital subscribed for by them, and to receive interest
not exceeding five per rent. on such &natured capital. By
107th section the shareholders as between one another were
to be liable for the debts and liabilities of the company in
proportion to their share and interest for. the time being
in the company, and not farther or otherwise. The bill
was filed by the plaintiff as one of the shareholder of the '
3rd series, on whleh2l. 10s. had been paid up, on behalf
of himself and all ether shareholders in the same class, and
prayed that it might be declared that the plaintiff and the
other proprietors of new 251. shares of the third series in
the said company, were entitled to share equally in the
profits ad the said company with the proprietors of the other
shares therein, according to the number of shares held by
them respectively; and that all divideads and boluses
thereafter declared oat of the profits ought to be divided I
intern many equal parts as there were shares in the corn-'
pray, and not in proportion to the amount of paid up capi-
tal ra respect of each share. And that it might be declared
that the shares reserved for the proprietors ought to be ap-
portioned amongst the plaintiff and the other proprietors of
the new 261. sham of the third series, end all the' other
proprietors in proportion to the number of shares held by
each proprietor, and not in proportion to the paid up capi-
tal. And that the defendants, the directors of the company,
might be ordered to transfer to the plaintiff and other
holders of 261. shares of third series who might be willing
to accept them,the shares they might be entitled to on that
principle, the plaintiff being willing to pay 421. per share
for those upon which 261. had been paid, and 41. 4s. for
those on which 24 10s.had been paid. And for the injunc-
tion se before stated.
_ _

Mr. Rolt and Mr. Speed appeared in support of the op-
peal, and urged that as by the terms of the deed the 3rd
class shareholders, who had only paid 21. 10s. on their
shares, were liable for all losses of the company, in propor-
tion to the number of shares, they were entitled to a parti-
cipation in the profits according to the number of their
thane, and not manly on the amount of capital paid up,"
inasmuch as they were any time liable to immolate the pay-
ment for their shuns to the full amount of 261. The only
difference that ought to be made between them and those
shareholders who had paid up in full was, that interest on
the "paid up capital " shook be deducted for the benefit
of the first and second clue shareholders before the general
division of profits was declared.
The Solicitor-General and Mr. Selwyn, who appeared for
the directors, and Mr. J. Russell and Mr. Robhouse for the
shareholders who were defendants, wen not heard.
The Lord Chancellor said that this wawa motion for an
injunction to prev..nt the directors dealing with the funds
oldie compaity in the manner in whieh they had dealt with
them for the lest 10 years, so far as the 'present plaintiff
was concerned; during which time he had been a share-1
holder, but in fact sines 1837 also. If that were all, the
plaintiff must have made out a very strong- ease to induce
the court to interfere by injunction to disturb • coarse so '
long pursued in dealing with the affairs of a concern in-
solving a million of money. But he did not rely merely on
that ; for, in spite If an acquiescence of 10 years by the '
off; and stead it were shown that these acts done
by him, which proved his cognises*, of this course of pro-
esedinit—if he could show that all that had been done was
done in error, the court might be unwilling to permit that
error to be, persevered in. But not 'only wss the court
satisfied at the defendants had not proceeded in
error, bit they wen of opinion' that the construction of
the deed on which they had echidnas the right one. There
could be no doubt that it wu the general rule of partder-
ship that the division of profit. should be equal, without
reference to inequalities in the amount of capital brought
in; but that was unless there was an express contrast
otherwise providing for the division of profits. Now
here there was an express contract, and the
question turned on the construction of the deed of settle-
meat. The 33rd union provided for the division of profits
which was to be paid on the respective shares, or on the
"amount paid up" in respect of such shares. Up to that
section then•was no neensity foe ugh • provision, because
there could be no possibility of any difference in the
amount paid on any ahem, as the capital was to he imme-
diately called for; Ind eitheush there were powers given
by other nations to Winans the espstal, yet if the deed had
stepped at that section' there would have been no unequal
shares for which dividuid were to be provided. It was
untended that the Sed elate shareholders who bad only
paid 21. 10• per aim were entitled to an equal division of
prts on the M. dome as those who paid up in full, but
he (the Lord Chanulior) was of opinion that the stipula-
tion, " or on the amount paid up in respect of such shares,"
fully met that argument. Again, the 33rd section pro-
vided that the profit& were to be paid either as dividend
bonus, or " interest " on the capital, and " interest " must
always be paid in proportion to the capital from which is
was derived. The motion mast, therefore, be refused.
The Lords Justices both • concurred, reserving to them-
selves the right to deal with the question involved at the
hearing of the BMW
The appeal was dismissed, with costs.
BAIL COURT.—Beruzu.a.

Owns= as Kies Puma Barons Ma. aimnapCiaimeon ANSI
Oiikrox luaus.
L•rtum e.
This was an action to recover compensation in damages
for certain slanderous expressiona of the defendant, whereby
the plaintiff alleged that he had sustained 'pedal dr
=age.
It appeared that both the plaintiff and defendant were
bakery, the former carrying onbusineseat 57, Lower
Marsh, Lambeth, and the latter at 14, Lower Maria. The
plaintiff wok the benefit of the Insolvent Debtors' Ast in
July last, and in the following month he commenced buil-
nem again, and gave an order to a Mr. Wood, who travelled
for • Mr. Rockliffe, for 50 sacks of now. 20 of the each,
were sent by a carman, who forgot the number, and, see-
ing the defendant's shop, called there to ask where Leptis=
lived. The defendant said, " You.are never going to take
Soar to Lapham, you will
and advised him to take it back to his master, r Lapham
got Seer from everybody and never paid for it. He fur-
cher advised the carman not to leave the flour without the
money, as If he did his master would n get it,
for Lapham n paid anybody. The CaTMILLI then
proceeded to the plalatiff, and told him what he had beard,
upon which he went to the defendant and remonstrated
with him. The carman having delivered the 20 sacks of
Sour, returned to his employer and informed him of what
had occurred, in consequence of which he wrote to the
plaintiff, refusing to deliver the remaining 30 sacks, and
demanding immediate payment for what had been left at
his shop. Plaintiff upon this was obliged to borrow money
to pay for the 20 sacks, and to. buy more emir.
Mr. Chambers urged upon the jury that the defendant
had been actuated by most malicious motives towards the
plaintiff, who bad been unfortunate, and he trusted the jury
would show their sense of his conduct by awarding such
damages as be ought to be called on to pay.
Mr. Bramwell, for the defendant, contended that the de-
fendant had only done what an honest man was bound to
do. Knowing the circumstances of the plaintiff he had put
Mr. Bockliffe on his guard. The communicatiou ought to
be regarded is the nature of a privileged one ; but if the
jury were not disposed to put that construction upon it, he
trusted they would not think that the defendant had been
actuated by any improper motive.
The jury found a verdict for the plaintiff—damages, Os.

WORT OF COMMON PLEAS.—SsruhDa
Sorrow a asnao.-11svosa Pus Ivories Imams. Ma. !earns
Kamm M. Jam= Cannwsz.z. sap lea. Jenne,' Vet Lumes.
ETILYN O. WILLIAM AND 0711.111.—ElECTILINT UNDIN
7111 Maw ACT.
This was ea action of ejectment, commenced under the
new act, against four persons, who oteupied four tenements
at Deptford, and was founded upon a breach of covenant,
and a sight of reentry, under the lease. The four defend-
ants were only weekly tenant', and they occupied under
the lessee of the property. On the 16th day after the pro-
ceedings were commenced no appearance was entered, and
on the 17th day the plaintiff signed judgmert. This 16at
day was the 20th of December, and on that and several
previous days, the public office where appearances are ea-
tered was closed fur the Christmas holidays. On en ap.
plication being made to Mr. Justice Talfourd at chambers,
he held that the appearance was good, and he act aside the
judgment.
Mr. Bramwell, Q.C., now moved for a rule to set aside
the two orders of Mr. Justice Talfourd, to restore the judg-
ment signed by the plaintiff, and to set aside the appear-
ance entered by the defendants, and also to call upon the
defendants' attorney to show cause why he should not pay
the costs. To support this application the learned gentle-
man said that two of the defendants, and a wife of a third,
had sworn that they never authorised any person to appear
for them, and the other defendant had stated the same, bat
declined to make an affidavit. The lessee of the property
was a person who could pay costs, but the defendants were
not in a situation to do so, and if the appearance was held
to be good, and the judgment bad, the plaintiff would have
to try the case with defendants who could aot pay his coats
if he got a verdict.