The Express.
London, England, 1847-04-01 00:00:00

s

orned applicatimas by infants them•. Ives to Co', e mrt, on
ppoir.tm:..te of guardians, ss Inch m.ght of !our.e he done
ni petition; eeerything ineidentll ta the appointment of
guardians might be done on petition.
The Lord Chancellor—Then, Port be so, has not the
Saud jurisdiction to give the eArd'ouiship in this case to the
`lair ? This court is not in, rag habit of dealing with infants
sy writ of babels forr-..., but by bill or petition.
Mt. Parker—An. *der similar to this of the rice-Chan-
ello+ was made except on writ of habeas corpus ;
and in " et parte Hopkins," the Lord Chancellor dismissed
the pzlition, though he recognised the father's right.
The Lord Chancellor, after looking over the report of that
ease, said it was quite clear it was inaccurately reported.
Mr. P ' —At all events no authority hes been pro-
duced, and none exists, for au order on mere petition to de-
liver children to any one, not even to their father. It should
be taken into consideration, that Messrs. Davidson and
Newby ore strangers, not being parties to any suit.
The Lord Chancellor—The question is as to the power
Of the court, and the right to deliver the children to the
lather.
Mr. Parker—There is no right in this case, except by
habeas corpus; all the modern cases arose in that way. The
cm of " ex parte Werner," cited from 3, Brown's Chancery
Cases, which is also in Jacob's Reports, under the title of
Sk:nner v. Werner," is no authority in support of this
order; neither is "ex parte Bishop," which is furnished from
the registrar's book, f',r there was in that case a contempt
of court. In the present case, the father claimed the pos-
session of his children from strangers, there being no contest
about the guardianship, and the children not being wards
of the court. The Vice-Chanceller's order, made in these
circumstances upon mere petition, is contrary to the practice
of the court. Beside, it was sworn by Messrs. Davidson
and Newby, in their affidavit accompanying tho return to
the writ of habeas corpus, that these children were not re-
moved be their agency or counsel, and are not in their cus-
tody or within their power or control; Mr. Davidson, the
brother of Mrs. Spence, further swearing that he has not
seen her or the children since he accompanied them from
Stocktm to the railway station at Darlington, in 1813.
The Lord Chancellor—He there admits that he was a party,
with the mother, to the act by which the children were
withdrawn from their legal custody, and he refuses to give
the court any information as to where they were taken, or
where they are.
Mr. Parker—lt was said that these gentlemen, being so-
licitors of the court, arc amenable to the jurisdiction. Cer-
tainly they are, in all acts concerning the;r duties as soli-
citors ; but they are not as solicitors in this case.
The Lord Chancellor—Arc you in a position to be able to
say that Mr. Davidson is ready to make an affidavit, deny-
ing all knowledge as to where the children are, or have
been taken to?

Mr. Parker—He h in Stockton; but I am instructed to
say h • is ready,—both are ready to make such affidavit.
Mr. Martindale said an affidavit was just put into his
hand, made by Mr. Spence—not yet filed—sweariug that he
has good reason for oelieving that the children have been
removed out of the jurixliction within the list 21 hours so
that Messrs. Davidson and Newby might be able to snake
the affidavit required.
It aas then settled that the matter should stand over, to
give time for making and tiling thy affidavit which the Lord
Chancellor required from Messrs. Davidson and Newby.

Before the Vice Chancellor of England. •
MOZLZY v. AUTO:.—APPLICATION FOR MY INJCNC•
PION TO HFATIAAIN THE DIRICTORX OP THR OXFORD
ARO BIRMINGHAM RAILWAY CObIPANY FROM ACTING AS
Thaecrusts.—This case came on upon demurrer to a bill
filed by four persons, who alleged that they were share-
holders in the Birmingham arro Oxford Junction Railway
Company, against twelve persons acting as directors
of the company. The bit prayed an injunction
to restrain the defendants front voting or amine as directors
of the Birmingham and Osford Junction Railway Com-
pany, and that they might he ordered to deliver over the
common seal end all the papers, documents, funds, and pro-
perty in their possession relating to the affairs of the com-
pany into the control of the lawful directors for the pur-
poses of the company. The facts of the case were very fee.
and simple. It appeared that the act of parliament au-
thorising the formation of the Oxford and Birmingham Rail-
way received the royal assent on August 3, 1946, and ty
that act a certain number of directors were named who were
to act as the directors till they should be displaced and suc-
ceeded by others, to be appointed under the provisions of
the act of parliament. By the act there was a clause direct-
ing that a meeting should be held within six months
from the passing of the act, at which the pro-
praetors were .o continue the directors thereby nomi-
nated, or to supply their places by others. A meeting was
held in pursuance of this power on the 31st of October,
1846, at which several of the directors were cmtinued, and
the places of soma were supplied by others. On the 27th of
February last, another meeting was held, whirls was con-
tinued lay arliournment at subsequent periods; and it was
contended by some of the sharenolders at those meeting,
that four of the director, ought to have gone out by rotation.
and that four others should have ben appointed, instead of
which no ping out by rotation ever trek place, but the
twelve directors continued in office, and continued to exer-
cise the powers conferred upon them by theact of parliament.
—Sir Fitzroy Kelly, Mr. Stuart, Mr. Rolt, and Mr. Lake
Russell appeared in support of the demurrer to this bill, and
stated that the first point was one of pleading, whether these
four individuals, the plaintiffs to the bill, on behalf of them-
selves alone could file a bill against all the director, of the
company, and against the company itself, for the pur-
pose of turning out the acting-directors on account of
ado done by them which, if unlawfully done, would be, not
:LITto the four plaintiffs, but to the entire body of
Mere, who were, together with the directors, made
elekedants to this bill. Such a complaint as this ought to be
by the whole company, as the object of it was to prevent the
tbasetore from exercising any of the powers under the act to
TM prejudice of the company. If Fuchs bill as this could be
sustained, there would be nothing to prevent every share-
holder from filing a separate ball, and alleging that the
directors were about to do something which it would be
suggested was injurious to the interstate of the company. It
was contended that this point was expressly decided
in a case of " Foes v. Harbittle," 2 Here, 461, when a
tall was filed by the proprietors of shares in a company in-
corporated by act of parliament, on behalf of them-
selves and all other the proprietor, of shares, except
the defendant., against five directors, charging the
defendants with concerting and effecting various frau-
dulcet and illegal transactions, whereby the property
of the company was misapplied and wasted ; and the bill
prayed that the defendants might be decreed to make good
to the company the losses and expenses occasioned by the
acts complained of. The Vice-Chancellor held that upon
the facts stated, the continued existence of a board of
directors de Joao must be intended ; that the possibility of
convening a general meeting of proprietors capable of con-
trolling the acts of the existing board, was not excluded by
the allegations of the bill ; that in such circumstances there
was nothing to prevent the company from obtaining re-
deem in its corporate character, in respect of the matters
complained of; that therefore the plaineffs could not sue in
a form of pleading, which assumed the practical dissolution
of the corporation ; and the demurrers were consequently
allowed. After this case it was clear that the four
plaintiffs mold not sue by themselves alone a general
limiting of the company might at any time annul
what was done by them if they considered it contrary to the
interest. of the company. The prayer asked that the funds,
documents, and property might be delivered over to the
lawful directors ; the bill, in this respect, was suicioial, for if
these directors were not lawfully appointed there were no
directors lawfully appointed. Ihe next point arose upon
the eerstruction of the special act of parliament, by which
this railway company was formed, and the general act fer
consolidating railway clauses ; the question turned upon four
acetinea. By the I Ith section of the former of these acts it
was wasted :

not at the first ordinary meeting, to be hell in the year neat alter
the pow in ninth such last mentioned directors Lure been ap.
gland ar elected, the shareholders preaent personally, or by proxy,
Wink diet persons to supply Ws *seed directors then retiring hoot
ern agweably tot his preWeisms ths add Computlw Moons Con-
geddrAdmi mWedwail • awl tho woeful plasm elected tit any such
mane Wing natant re;weed nor illspolldod hoe having resigned,
WWI amtinns to be dlesslon saws two skald in their stead, in
1111111111 lesslitisoZtabs sad 0111111Mial (...31111Inalkeralldation Act.
Bya. of VW etimay a sat,ottLas enacted
the ordrsesywkesna=tfolgaid idler the pestinglfts set,u'artil
at soh rafts sabssrlbses prasat, personally or by amity, risay
, *kb", anatbase la site the dleabus wipointed by this set, or any
smaller of thsts.es wag abet a sirs body of directors, to supply the
plass al WM Salingiisusd la allso—the directors appointed by this
ad Wag ardtbt sitiabsra dawn sew body.
By the Ord
_elates ti the Bellew Clauses Cootolidation
Act, 8 and 9 Viet., 1.11, it was muted
That the direeton by the spoil net shali, unless thereby
otherwise provided, ssellts.:,s Wise ustil the first ordinary
to he Mil la Ow Wet saw that in which the special
allerimA base nth at awl mingsg the shareholders
preoek, pwsousft ag by prism stay er continua in
albs Was diseobss id
Wy ths special ct, or any
Raffia, of theneelyar mg skit a new body of electors
or abstains to so the plows ether net soodbund in Waft, the
illrestors sppoint the woad out bit( eligible a• members of
sue new body ; and at des drat craws, mostieg, Is be held every
poor thwesfter, ths iselieldsts pun% pitemsany ar by proxy,
she elect groom Wow* Ws phew al the dkaolors then retiring
Wan sane, eeteetely lethe peso k.. b.. contained, and
orreraljesidtelsd st any Mk Nicatlng, being neither re-
moved nor sae bong nalpsta, shin eantaine to be di-
rectors
to with dueled Sek shied, as hereinafter wen-
_ _ _

The 88th nation of the seise set provided as follows
The alevelces apoointed by the medal act, mod motioned In
allot se allieseald, err director. ousted teerkyahe glom el Mote
poOlog as miles to the Meolobehwe con-
Moot ter himeseleg sr rededag the as of ensimm willeetesen
vase at al limo mai la tho propeller hinardsm tha Indlehlaah to
mitre biztemh tisatmas lallet swig the el sheil ationiee : tem al ghs end
efle=diztelor the Ike at dleadme Ilegoamelhed
awake, Mae nomber amoebae! Mamters
be hp lalMtiemag mime lig Moil Mier
Ireem, AA poet MAIM ; the of Me semi Or
maw, m 4 V ma mookst_rtepremibek et Or
minds. at oath dbeatem, at be ft .tom~ mea ommarolii
I oat of eMat • at Mond ettbe pat Ins seesseilsa maw,
4 if so iismAer be proemlbak r emalmler of
mom, :a: ef Mks ; In mit Imlema tho
ease of the diraMin almll be Jampliall by an meal tank"
(pima ; at Se Mat ordlnom mi~tevery
=6.lmar Or miamthail mmlier, and Y as ormice be pre-
.o,mageg fs glemmak beteg Ore tato have lo
the civil& go mit thin* mod Moir Mow done la
re memo. liavaississa, Igllo ntleisighen may
mamma memeememy, or at my &We time., Mir awl is.
mesa. sba, what eeet to the mks me vsesisae 8, lea.
JIMA SI $ maw direolor. howided that If Oa pamealhol
Woe ef emit= be se iambs net Moab mg the
mime/ illieMeattb ratite bead Mime* Momme diell in
aMO ileterola mist ormator Marne a- re* srathhei es
sy be, image aot d (Ace, ea that Me maim than go out
ones la Ihnee mem
Under them daises, it was sowandbed that It was not cotn-
I-ory upon the company to sleet fon, now members in
place of others feu nog, until Mo month of February,
IS. when the neat meeting Air Met sod of one year from
&at appointment of the diodes goal take place ; the
.se ebe act Wing, that els avatars who were