The Sun.
London, England, 1855-01-26 00:00:00

CHANCERY COURTS,

HORN AND OTHERS Y. TIT KILMCNNI AND GIEAT
SOUTHERN AND WESTERN RAILWAY COMPANY.

Mr. Rolt and Mr. .A.mphlett moved for au injunction
to restrain the defendants, Edwards, Ratcliffe, and
Davies, from proceeding by writ of scire facias against
the plaintiffs, or either of them, upon a judgment re-
covered against the above company for 4,4171., the
amount of a bill of costs alleged to be due to them by the
company. The bill was originally filed by the plain-
tiffs on behalf of themselves and all other shareholders
in the company, except the defendants, to restrain the
directors from proceeding with certain actions,
brought by them for the amount of calls claimed
to be due upon the plaintiffs' shares ; the case made
on that occasion by the plaintiffs against the de-
fendants, the directors, being that the directors
had originally signed the parliamentary contract
for a very large number of shares ; that in the passage
of the bill through Parliament the line was cut down to
much less than its originally proposed length, and there-
upon much less capital was required. The directors
thereupon, behind the back of the plaintiff and the
other shareholders, struck off the whole of the unneces-
sary shares from those which stood in their own names,
without giving the other shareholders any option in the
matter. The directors alleged as their reason for so do-
ing that they had only signed the parliamentary con-
tract for so large a number of shares for the convenience
of the company and to satisfy the requirements of the
standing orders of the house, and without any intention
of keeping them. The plaintiffs however claimed to have
the calls on those shares paid up by the directors. The
Vic'e-Chancellor thought there was a serious case to be
tried, and had granted the injunction on the terms of the
plaintiffs paying into court the amount of calls claimed,
to await the further order of the court; and these
terms having been perlormed, the injunction had been
drawn up. Subsequently to that the defendants, who
were shareholders in thecompsny, and had been through-
out the advisers and solicitors of the directors, had
brought an action against the company for the amount
of their bills of costs. The directors allowed judgment
to go by default, and the solicitors then selected two out
of the three plaintiffs against whom to proceed by scire
facias. The main ground on which the plaintiffs claimed
in equity to stay the proceedings was that the whole
proceeding was collusive between the directors and the
solicitors, and done with a view of harassing and in-
timidating the plaintiffs from proseouting their suit
against the directors, The plaintiffs further alleged
in their affidavit in support of the motion, that the
bills had never been delivered or taxed, and that the
greater part of such bills was for costs incurred by the
directors in prosecuting two unsuccessful applications to
Parliament for extended powers, and further, part of
the costs was for other proceedings which they clearly
could not charge the company with. The defendants
were still actin,' as the solicitors of the directors, and
were defending the present suit. One of the defendants
had made an affidavit in which he denied that the pro-
ceedings were being carried on in collusion with the
directors, but did not expressly eeny that they were
taken with a view to intimidate the plaintiffs from pro-
ceeding with their suit against the directors. The ac-
count given by the defendants in this affidavit was that
they had informed the directors that there was a large
amount due to them for costs, and that the chairman
of the board cf directors said that -the directors thought
the bills ought to be looked over by some person, and
that Mr. Dax, of the Temple, had been mentioned to
bins as a gentleman who was in the habit of settling
bills of costs for the Great Northern and other rail-
way companies ; that the solicitors thereupon stated
their willingness to comply with that suggestion, and
that the bills were accordingly submitted to Mr. Dax,
who had certified as to the amount due. That that
was communicated to the board by ?ester, and no answer
made, whereupon they commenced an action and re-
covered judgment, and issued the s:re facias without
any collusion with the directors, and for no other pur-
pose than that of being paid, and that they w, a willing
to submit the bills to taxation if the court should so di-
rect. It was contended for the plaintiffs that no reason-
able person could avoid coming to the conclusion that
the real object was to stop the plaintiffs in their suit,
and nut the legitimate one of getting paid. •It was
an abuse of the right given them by the act of Par-
' liament, and came within the case decided by Lord St.
Leonards (Taylor v. Hughes, 2 Jenes and Latouche,
49), in which that learned judge had restrained a pro-
ceeding of a similar nature. Other objections made
were, that the solicitors being themselves shareholders,
it was by no means clear that they could sue the com-
pany. But supposing they could, it was contended that
they could not enforce the judgment against another
shareholder ; for if one shareholder could thus enforce a
claim against another shareholder, as soon as that share-
holder paid the claim he immediately became a creditor
of the company in the amount, and could recover against
the company, and then proceed by sciro facias against
the shareholder who had first sued him. That would be
a sort of see-saw proceeding which the court would never
allow. And if it was objected that if that were not to be
allowed the creditor would have to wait till the contribu-
tions due from each shareholder was ascertained, which
would in effect amount to winding up the company, the
answer was, that if the bompany was insolvent, and
there were no funds out of which the directors could
pay the claim, the sooner it was wound up the better.
Another objection was, that the application to Parlia-
ment having been unsuccessful, any appropriation of
the funds of the company to pay the costs of such ap•
plications would be a breach of trust ; and these solici
tors, who were shareholders, were therefore parties to
the breach of trust, and could not recover against the
company.
The case was adjourned at the rising of the coati.