The Express.
London, England, 1850-12-02 00:00:00

taw inttittaence.
EQUITY COURTS.--BATURDAT.
Doom rhe Loge Catwalk&
BMWS e• TDB BLOT ADOLIAX RAILWAY COMPAST.-
11x Dolmas ADD CO —BIIIVINITIATION.
Mr. Belt asked that the order wade is a former day, so
far as it diners the receiver appointed by the ewe to keep
the goods sad shade of the resupsay witkia the bailiwick et
Norielk, say be exteaded to Monday, the 9tk el Derawber.
Ordered accordingly.

Berme VamCnaccrillaa Kamm Berm
Da RITNIONT v. MAY.—Gassau. DI RUPLIGIFT'II
BANKRUPTCY.
Mr. Lewis moved to dinette the bill in this cue for went
of prosecution, ankthat Messrs. Leach, Broadbent, and Co.
weight be at liberty, notwithstanding an order which had
been made la the cause, to pay over to the defendant the
proceeds of amain balm of drill which they had sold seder
the order. Two of the plaintiffs, General de Romigny and
Mr. Laken's*, had become bankrupts, and the only remain-
ing plaintiff was oat of the jurisdiction of the court.
The Vies Chancellor raid that the order could not be made
without the assignees tiding served and directed the motion
to stand over for notice to be served upon them.
En ROYAL BANK FAUSTL4ITLARD'S CAUL—
WINDING UP ACM
Mr. Ewell and Mr. Bade moved, by way of appeal, to
discharge an order of the Master directing the appellant to
ply over the proceeds of certain bales of wool to the official
manager, so monies to which the company wee (in the words
of the Winding up Act. 1848) prima tacks entitled.
Mr. Malins and Mr. Diniel, for
teat it
manses? sup-
paled the order, and contended that it was fully sue Mined
by the state et the accounts and the agreement between the

-, -
panics
Th. e Vice Chancellor said he felt compelled to differ from a
Muter for whose opinion he had very great respect. He
could not regud the proceeds in question ss monies to whleh
the company was prima facie entitled. If he were compelled
to decide in the present state of the evidence, he should
rather be of a contrary opinion. Bat this was not the time
to decide the question. It might turn cut that the
monry belonged to the company, and nothing now done
would prejadics the right of the official manager.
The beet course would be to suspend till further order all
proceedings under the order appealed from, and to refer it to
the muter to take an account of the dealings and truism•
tions between the appellants and the company. His HMOs! I
said he had heard that the Winding. up Acts wore considered
so excellent in their provisions, as to be intended to
furnish a model for • new form of proceeding to
wind up the estates of dead men. If this were true there
would be an additional reason for not wishing to be reckoned
in that number, for his Honour had by degrees come to the
conviction that these acts had done mon harm than good.

ileum Vice.Coucentoa Bonne
hiOWATT V. TIM WU/ COILNWILLI. RAILWAT C
The cue rune ea upon • motion to make abeolute an
order nisi to dissolve an iejtmetion which had been obtained
by the plaintiff (Francis Mowatt, Esq., M.P.), restraining
the mienpany from proceeding to execution le action apinst
hiss for rails ea the registered owner of 4.933 shares to the
company. The case made by the plaintiff's bill appeared to
be as follows: The defendsnts were an incorporated com-
pany, established by an set of parliament made in the ninth
end tenth years of her present Majesty, intituled, " An Act
for making a Railway from the palish of Kenwyn, in Corn-
wall, to Pumice in the same county, to be ailed ' the
West Cornwall " This act amongst other things
muted that the capital cf the company should be 500,0001,
to be divided into 25,000 shares of 201. each. n the early
part of 1847 the company fell into difficulties I the shares,
upon which 41. had been paid, being at a discount
of 21. in the market. There were aleo 4,935 theme
then in the hands of the company unappropriated and seal-
lotted. The plaintiff, being the holder of 60 shares In the
company, and being eatensively connected with the county
of Cornwall, was desirous, if possible, of extricating the
company from its ditficultier, and with that view he, is
April, 1847, proposed to the directors of the company to take
up the unappropriated shares on certain terms. Alter some
negotiation between the plaintiff and a Mr. Vigor., • director
acting on behalf of the company, an agreement in writing,
dated the 21st July, 1847. was drawn up and signed by
Mowatt, and by Vigun on behalf of the company. By this
agreement it was stipulated that for the considerations
therein mentioned, Mowatt should take up the whole of the
unappropriated shares in the company, being 4,935 in
somber, and pay the rem of 41 per share, in
repeat of such shares, on or before the 15th August then
PP4 nod meanwhile to deposit with the bankers of
the itempany securities which would sandy them to the
utast of 20,0001. That m soon as the sum of 151. should
have been paid on the said 4,935 shares, and the company
was in • position legally to do so, they should deliver to
Mowatt or his order mortgage debeeturcs of the West
Cornwall Railway Company, payable three years after date,
and bearing interest at the rate of 61. per cent. per annum
is, the sum of 24,6751 , lasing at the rate of 51. per share.
The agreement wee signed by Vivo', wider the authority
el • resolution of a board of directors, subject to the confir-
mation of the shareholders at the half-party general meeting.
Os the 23rd of July the plaintiff, in Part performance of
the agreement, deposited with Mum Denison and Co., the
bankers of the company, the certificates of certain shares
PM by him in the Lancashire and Yorkshire Railway Cons-
pay, and upon which he had paid 19,0001. This deposit
was accompanied by a letter from Mowatt to the bankers,
stating that the deposit was made as a security for the due
hilli:ment of the agreement of the 21st of July, by :the
plaintiff, and the due payment by him of the corrideretion
detailed therein, in MN such agreement should be confirmed
by the shareholiers et the West Cornwall Railway Com-
pels, ; bat if not thee that the securities were to be returned
to Mowatt. The hall yeuly meeting of the thareholden of
the company was held on the 10th August, 1847, and the
directors then reed to the meeting • report purporting,
amongst other things, to contain the particulars of the agree-
ment entered into with Mowatt. The agreement, as stated
to the report, differed from the ems reduced into writing in
representing 5,000 instead of 4,915 as the number of 'hues to
which it related, and in stating that the discount to be allowed
to the plaintiff was to be paid either in sash, or in debentures
of the company having three years to serve, at the option of
the company. The report also omitted the stipulation is
the written agreement that interest at 6 per cent. was to be
paid to plaintiff upon the discouet to be secured by the
debenture.. The transaction with the plaintiff, as thus
stated and recommended by the directors was confirmed by
• resolution purred by a majority of the shareholders of the
meeting. Shortly afterwards the plaintiff's name was
entered cm the register of shareholders as the owner
of the 4,933 shares comprised in the agreement. Shortly
after this the plaintiff was advised that the company
were rot authorised either by their special act, or by the
general est, namely, the Companies Clauses Consolidative
Act, 8 Viet., e. 16, incorporated into the special act, to
deliver debentures fur the purpose of securing a discount to
a pus chaser of shares, and that they would be unable under
their present powers to deliver debentures according to
the siipulstions of the agreement. The plaintiff, there-
fore, repudiated the agreement altogether, on the
ground that as the company were unable to secure the
discount upon the shares in the manner proposed there had
been • total failure of consideration moving to the Paled/
Aeon of 21. per share made on the 22nd Deoember,lB47, and
on the Ist February, 1848, having been duly nett.
l'lrethe shareholders, the plaintiff refused to pay such call
open the 1,936 shares comprised in the agreement, where-
upon the company tiled their bill against Mowatt, stating
the speeneeet in question, and that the same had been re-
pudiated by Moven, and preying that be might be decreed
to ;Qin in realising the certificates deposited by him at the
company's bankers towards satisfaction of the 41. per_shema
on the 4,935 shares to secure which the deposit had bees
made. To this bill Mowatt demurred, and upon the hoodnget
the demurrer in April, 1848, the same war allowed. ThelloM-
pany then commenced enaction is the Court of Queen's Bench
to recover from !dowse, as the registered owner of the 4,936
than, the call of 21., which bad been made on these 'banal
Mneratt then filed the present bill in November, 148, to
restrain the proceedings in such action, and obtained Oho
common ihjunctioe. The defendants, utter patting in their
answer, obtained the ceder nisi to dissolve the iniuncties.
The plaintiff appeared to show cause egainat dissolving the
injunction upon the merits ; but, as it appeared that she
proceedings in this court would biconse unnecessary if the
court of law should decide in favour of Mowatt, an order wee
taken by consent permitting the trial of the action to goes,
with stay of elocution, and reserving the question in
(Ail the legal question had Map decided. In It1211:Cf12
judgmeut at law was delivered, declaring that the sempee/
were entitled to be paid the 'mount of calls they had
claimed. The nee now came on on • motion to asks dna
lute the order nisi which the defendant had obtained.
Mr. Jr. Parker, Mr. Rolt, and Mr. Toiler, foe the plan-
tiff, said that the subject matter of the contract el the 21st
Jely, 1847, was iisgal. The agreement said to have been
eanetioned was, that debentures should be given by way of
discount to the plaintiff, whereas the genera] act (8 Vic, e.
It;, which was incorporated with the company's act, said
that no debentures should be Leaned Imp for borrowed
money. The special set of the company provided that the
capital nt the company should consist of 6'1.1,0001, and the
sauna set (8 Vie., c. 16, sec. 21 and subsequent secUoiss) for
the due payment up by each shareholder of all the calls.
An agreement, therefore, to put one shareholder in a
different position, with respect to thee* calls, from the
other shareholders was bail, and could not be enforced.
The agreement was in contravention of the provisions both
Maio eral and the special act of parliament. It beteg
therefore, to give the plaintiff the debentures eel
geopeed by the agreement the whole transaction was ultra
Ares of the company. That being so, there had been a
Mal failure of consideration moving to the plaintiff, who
wee entitled therefore to relief in this court. They contended
des Oct the agreement approved by the meeting of sharer
Wan wu cut the agreement entered into with the
*A
Idt. Bothell and Mr. Willcock, for the defendants, con-
tended that if the giving of debenture, were contrary to the
dons of the acts this was known to both parties, and
chat the plaintiff could not now get out of the contract by
SAthat one of the stipulations was contrary to law.
M stipulated for debentures when the company
Is • position legally to grant them; but there weir
*meant the company from applying for • fresh
them to give such debentures. The}
low, after • cocudderadoe el the teem i
SVES.Shi. In the ft? 9irld:reel
w d not continue the injunction te the lee= letse
risk of defeating the whole undulate( by
from the direeton the use of one fourth of theirt r ikie
whir they night after all be deemed esti II ill
Pedal Male
44
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