The Sun.
London, England, 1848-12-23 00:00:00

TIILIC V. MOXHAY.

This was an appeal motion from the decision of the
Master of the Rolls, who granted an injunction to
restrain the defendant from erecting any building in
the inclosure in Leicester•square, or doing anything
to alter or convert it from the purpose of a pleasure-
ground. The object of the appeal was to dissolve the
injunction.

On the conclusion of the argument,
The LORD CHANCELLOR gave judgment, and said
that the defendant having made a purchase of tbe
property with a full knowledge of the circumstances,
he had no right to ask the Court to dissolve the in-
junction, and the judgment of the Court below must
therefore be affirmed.—Affirmed accordingly.

COURT OF COMMON PLEAS, Dec. 22.
Sittings at Nisi Prius in London, before Chief Jus-
tice WILDE and a Special Jury.)
DEAN V. SIR JOHN M'TAGGART, DART.

The plaintiff in this case is a member of the
Chancery bar, and he sued the defendant as director
and chairman of the Dendre Valley Railway and
Canal Company, to recover the sum of 2001., paid
by the plaintiff as a deposit, and in discharge of the
first call upon 50 shares i❑ the company. The plain-
tiff sought to recover the money, upon the grounds
that he was induced to pay it by statements which
were untrue, and that there had been a total failure of
consideration.

Mr. Cockburn, Q.C., and Mr. Atkinson appeared
for the plaintiff, and Sir ;Frederick Thesiger, Mr.
Sergeant Channell, and Mr. Unthank, were counsel
for the defendant.

The plaintiff's case was, that in 1845 this scheme
was originated, and by a prospectus dated the 3d of
June, in that year, it was stated that the capital
was to be 45,000,000 francs, or 1,800,0001, to
consist of 90,000 shares, of 201., each, one-half of
which would be raised in Belgium, and the deposit
was to be 50 francs, or 2/. per share. On the
10th of June the plaintiff applied for 100 shares, and
on the 24th of June he got a letter of allotment for
50 shares. On the 24th of June the directors pub-
lished an advertisement, in which they begged leave
to inform the various parties who had applied for
shares in that undertaking, that having completed the
allotment, the letters would be immediately issued,
and they expressed their regret, that from the great
number of applications, they had been prevented from
alloting shares to many applicants of highly respect-
able character, with whose requests it would have
given them pleasure to comply. Upon the Ist of
July the plaintiff paid his deposit of 1001., and got
the banker's receipt. Contrary to the statement in
the advertisement, that the allotment had been com-
pleted, the directors had kept back 6,000 shares, and
although it was said in the prospectus that one-half
of the shares would be raised in Belgium, the whole
amount of deposits which they raised from that
country, instead of 90,1001. was only 9,8001. On
the 16th October the directors published a report,
speaking favourably of the scheme, and on the 15th
November they made their first call of 21. per share,
which was paid by the plaintiff on the 11th Decem-
ber following. After some other transactions the
directors issued another report and a balance- sheet,
from which it appeared that deposits bad been paid
in London upon 30,770 shares to the amount of
61,5401., and in Belgium 90,0001. had been paid in
respect of deposits. In respect of the first call there
had been paid in London 17,590/. and in Belgium
6001., making the total amount received 91,8001.
Upen the company obtaining a "concession" from
the Belgian Government, to enable them to form the
railway and canal, it became necessary to deposit in
the hands of the Government (who still held it) two
millions of francs as "caution money," and this sum
they borrowed upon their own responsibility and
paid. In addition to these facts, evidence was given
to show that other circumstances existed which were

likely to mislead the plaintiff.
The defendant called Mr. Ambrose More, one of
the directors of the company, whose evidence went to
show that the directors had acted in the way they
thought best for the interests of the shareholders,
and without any intention of deceiving anybody.
Applications for upwards of 130,000 shares were
made in England, and about 31,000 shares were
allotted. The reason why no more were allotted
was, that they were fearful of allotting more, for
they knew that the Belgian Government would not
allow them to raise more capital than was necessary
to complete the work, and these for which they had
obtained a concession it was estimated could be ex-
ecuted for about 1,200,0001. In Belgium 44,500
shares had been allotted, including those appropriated
to persons who had given up interests or rendered
services to the company. This was the only reason
for not issuing more shares, and none were reserved
for the directors. The shares were at a premium at
the time of issue, and for a short time afterwards.

Mr. CoeKistaN, in reply, repudiated any intention
to impute fraud to the defendant, for he believed that
he and his brother directors were gentlemen of the
highest respectability, but he asserted that this case
came within the principle laid down by the Court in
Wontner v. Shairp, and therefore that the plaintiff
was entitled to recover. He had paid his money, be-
lieving that the whole 90,000 shares had been allotted,
and that not being so, the law said that the defen-
dant was liable to repay him the sum be had paid
upon the faith of this misstatement.
Ilis Loßnseur directed the jury that they must
consider whether the concern to which the plaintiff
became a subscriber ever was established, and whether
its establishment was at the present moment aban-
doned. They would judge whether the statements
made by the directors were fair, candid, and honest,
or were calculated to deceive. If they were of
opinion that the plaintiff was induced to pay his de-
posits and the call by misrepresentation, he would be
entitled to recover back his money.
The jury, without hesitation, returned a verdict for
the plaintiff, and the foreman said they wished dis-
tinctly to say that in their opinion the directors had
done nothing which could be called fraudulent.
The case lasted the whole day, and was not con-
cluded until half-past eight o'clock at night.