Form 335. them respively, to be computed from 30 June, 1856. Henry v. Great Northern Ry. Co., Wood, V.-C., 24 Aug., 1857, A. 1602. Affirmed on appeal.

Form 336.

Payment of dividend out

of capital restrained.

Form 337.

Payment of

As to preference shares, see supra, pp. 181, 195.

Upon motion, &c., for the plts, &c., let an injunction be awarded to restrain the defts, the directors of deft co, from paying interest upon any amounts pd up upon any of the shares in the sd co, or any money by way of interest or dividend upon or in respect of any such shares until the sd co has received profits legally applicable to the paymt of such interest or dividends until the hearing or further order. Macdougall v. Jersey, &c., Co., Wood, V.-C., 25 July, 1864, B. 2045. See supra, p. 169.

Upon motion, &c., by counsel for the plt, and upon hearing counsel for the defts, and upon reading the writ, &c., and [usual undertaking]: dividends out Let an injunction be awarded to restrain the defts G., &c., [the directors] of capital. and the deft co, until judgmt in this action, or until further order, from making any paymt by way of dividends on the ordinary shares of the deft co. And defts to be at libty to apply to dissolve the sd injunction as they may be advised. Davison v. Gillies, M. R., 14 Mar.. 1879, A. 1118.

Form 338.

ing company from purchasing its own shares.

See supra, p. 168, and Form 365, infra.

In the above case, the plaintiff sued on behalf of himself and all other the shareholders of the London Tramways Co., Limited. See a note of the case in 16 C. D. 347.

Upon motion, &c. Let an injunction be awarded to restrain the Order restrain- deft society, H., &c. [the directors], from carrying into effect the resolution mentd in the statemt of claim for purchasing with money belonging to the deft society any shares of the deft society, or from purchasing or taking any steps for purchasing any such shares with money belonging to the deft society, until the hearing of this cause or until further order. Hope v. International Financial Society, Bacon, V.-C., 9 Nov., 1876, A. 1820. See report of this case in 4 C. Div. 327.

Form 339. Directors ordered to make good breach of trust.

Declare that the applicon of the sums in the bills mentd, namely, 2,000l., 1,7337. 11s. 3d., and 5l. 8s. 9d., amounting to 3,7397., in the pchase of shares of the sd co constituted a breach of trust and misapplication of the monies of the sd co, and that the defts, Lord F. [and others], are jointly and severally liable to make good and repay to the sd co such sums of 2,000l. and 1,733l. 11s. 3d., and that the deft Finch is separately and also jointly with the other defts liable to make good and repay to the sd co the sd sum of 2,0007., and that deft Finch is also separately liable to make good and repay sd sum of 51. 8s. 9d. to sd co. And order that sd Lord F., &c., do on or before 30 June

next pay sd several sums for which they are respively jointly and Form 339. severally liable as afsd, and interest thereon at the rate of 4 p. c. p. a. from the date of this decree up to the time of paymt to the s co accordingly. Defts to pay plt's costs of suit. Land Credit Co. v. Lord Fermoy, Romilly, M. R., 24 Mar., 1869, B. 1232. See the report 8 Eq. 7; 5 Ch. 763. The decree was varied as to one of the directors on appeal.

Directors are responsible for loss resulting from an improper application of the assets of the company. See Forms 631, et seq. But they are not liable if acting within the limits of their authority, and in good faith, for loss resulting from an error of judgment, Turquand v. Marshall, 4 Ch. 376; Overend, Gurney & Co. v. Gibb, L. R. 5 H. L. 480. See further Lindley, 594; Buckley, 404. As to the liability of directors inter se in respect of breach of trust, and their rights in regard to contribution, see Ashurst v. Mason, 20 Eq. 225. Seton, 1184.

As to how far directors trustees, see Wilson v. Lord Bury, 5 Q. B. Div. 519; In re British Seamless Co., 17 C. Div. 471; Russell v. Wakefield Waterworks Co., 20 Eq. 473, and cases, supra, p. 168.

Dismiss the bill as against the deft G., without costs. Declare that Form 340. the directors of the plt co had no power or authority to take or accept Another. the 3,000 and the 500 shares in Barned's Banking Co. in the pleadings mentd on behalf of the plt co, or to give to the defts W., H., M., H., H., and W., and the late deft W., or any of them, such or any of such letters of guarantee or indemnity in respect of the afsd shares, or any of them, as are in the pleadings mentd.

Declare that the plt co is not under any liability upon the afsd letters of guarantee or indemnity, or by reason of the undertakings contd therein respively. Declare that the appropriation and paymt out of the funds of the plt co of the three several sums of 10,0007., 5,000l., and 15,0007. (specifying the dates), in respect of the afsd shares, was a breach of trust; and that the defts B., H., &c., and the late defts D. the younger, and White, and R., now a bankrupt, became jointly and severally liable to make good such breach of trust by refunding to the plt co the total amount of the afsd principal monies respively, with interest thereon respively at the rate of 4 p. c. p. a. Declare that the defts B., &c., and the several estates of the deceased defts, D. the younger and White, and the estate in bankruptcy of R., are jointly and severally liable to refund to the plt co the sd amount of principal and interest, and the costs of the suit; but as to the estates of the deceased defts, Dent the younger, and White, only in a just course of administration; and as to the estate of the bankrupt R., only by way of proof under his bankruptcy. Order on defts B., &c., for paymt of (being the computed amount of principal and interest, less the sum of 875., being the amount which, by the pleadings, appears to have been carried in the books of the co on the 27th Feb. and 1st Mar., 1866, to the credit of interest on the creditor investmt account, as having arisen from dividends on the afsd shares) to the off. liq. within fourteen days

-7.

Form 340. after service of the decree, and of the sd sum of 8751. into Ct to the credit of the cause, "The Share Account." Libty to apply as to such fund. Defts B., &c., to pay plts' costs. Leave to plts to apply in the administrations and bankruptcy. Libty to apply. Joint Stock Discount Co. v. Brown, James, V.-C., 5 July, 1869, 8 Eq. 376.

Form 341.

Usual order to rectify.

RECTIFICATION OF REGISTER OF MEMBERS.

The jurisdiction is conferred by s. 35 of the Act of 1862, and is exerciseable in two cases :

1. When the name of a person is without sufficient cause entered in or omitted from the register.

2. Where default is made, or unnecessary delay takes place, in entering in the register the fact of any person having ceased to be a member of the

company.

The following are some of the cases in which orders have been made :

1. Where the applicant was induced to take the shares by misrepresentation in the prospectus. Stewart's case, 1 Ch. 574; Smith's case, 2 Ch. 604. See also Ex parte Kintrea, 5 Ch. 95; Re London and Staffordshire Co., 24 C. D. 149; Anderson's case, 17 C. D. 373.

2. Where the company improperly neglected, or refused to register, a transfer. Stranton Iron Works, 16 Eq. 559.

3. Where shares had been issued under a contract to issue fully paid-up shares, and the contract had not been filed. See supra, p. 14, and Forms 343 and 344, infra.

Where shares have been improperly forfeited. See Form 342.

5. Where a transfer in favour of a mortgagee had been registered by mistake. See Pulbrook v. Richmond Co., 9 C. D. 610.

6. Where the company, acting on a forged transfer, removed a name. Bahia and San Francisco Railway Co., L. R. 3 Q. B. 584.

7. Where there was a dispute between a vendor and purchaser of shares. Ex parte Shaw, 2 Q. B. Div. 463.

There is a difference of opinion as to the extent of the jurisdiction conferred by s. 35. See Ex parte Sargent, 17 Eq. 273; and Ex parte Shaw, ubi supra. But there is no doubt that the exercise of the jurisdiction is discretionary, at any rate to some extent. Ward and Henry's case, 2 Ch. 431; Askew's case 9 Ch. 664; Stewart's case, 1 Ch. 575.

However, as between a member and the company, the Court will not readily decline to act under the section. Ex parte Parker, 2 Ch. 685; Ex parte Denny, 8 Ch. 446; Stranton Iron Co., 16 Eq. 559.

Whether in any particular case it is desirable to apply under this section, or to bring an action, must depend on the circumstances. In a simple case, where an immediate rectification is essential, it may be desirable to apply under the section; but if the case is at all complicated, and a little delay will not much matter, an action is preferable.

Under the present practice, a question can be tried in a much more satisfactory manner in an action than upon a motion or summons.

An application under s. 35 should be intituled in the matter of the Act of 1862, and of the company.

The register should be rectified in the case of a removal, by striking through the name with pen and ink, and adding, "By order of the High Court of Justice, dated, &c., this name has been erased." Iron Shipbuilding Co., 31 Beav. 597.

Upon motion, &c., for L., &c., let the register of shareholders of the co be rectified by striking out the name of the sd L. as a shareholder

of the co, and let the co pay to the sd L. his costs of this applicon, Form 341. to be taxed by the taxing master: And let notice of this order be given to the registrar of Joint Stock Cos by serving a copy of this order upon the sd registrar or leaving the same with a clerk at the office of the sd registrar, and at the same time producing this order, duly passed and entered. Bryn Alyn, &c., Co., M. R., 25 Jan., 1878, A. 186.

forfeiture.

Upon the applicon of R. H. E. and S., shareholders of co, which, &c. Form 342. [adjournmt into Ct], and upon hearing, &c., and reading, &c., let the Rectification register of members of sd co be rectified by inserting the names of the where invalid applicants as shareholders in the sd co for the number of shares and with the several amounts pd up thereon specified in the schedule hto, such shares having been wrongfully dealt with by the sd co as having been forfeited; and let co pay to the applicants the costs of the applicon, and consequent thereon, to be taxed, &c., and let notice of this order be given to the registrar of Joint Stock Cos.

THE SCHEDULE ABOVE REFERRED TO.

1. R., as the holder of twenty shares, eight of which are fully pd up and the remaining twelve of which, numbered

are pd up to the extent of 17s. 6d. per share.

to

inclusive,

2. H. as the holder of five shares, numbered, &c., pd up to the extent

of 1s. 6d. per share.

3. E. as, &c. 4. S. as, &c.

Hexham Mining Co., Hall, V.-C., 4 March, 1876, A. 624.

name of mort

gagee.

Upon the applicon of W., &c., and the co by their secretary consent- Striking out ing Let the sd register of members be rectified by striking out or otherwise cancelling the entry therein of the name of the sd W. as the holder of the sd 600 shares numbered as mortgagee of such shares or otherwise. And notice to registrar. London Pianoforte Co., Malins, V.-C., 27 June, 1877, B. 1249.

Upon motion for T. B. [and others], let the register of members of Form 343. co be rectified by striking out the names of the sd T. B., &c., as holders Where contract of the following shares of class B in the sd co, that is to say, the sd T. B. not filed. in respect of 88 B shares, numbered, &c., &c. And order that the agreemt of 14 Ap., 1871, under which the sd B shares were issued, be filed with the registrar of Joint Stock Cos, and that upon or after such agreemt shall have been filed the sd co do allot or issue to the sd T. B., &c., shares of the class B fully pd up of the same number and value as they now respively hold as afsd in exchange for the certificates of the like shares now held by him. And co to pay to applicants their costs of this applicon, to be taxed, &c., in case the parties differ. And notice of order to be given to registrar of Joint Stock Cos. Aberdare, Rhondda, &c., Co., Malins, V.-C., 27 May, 1875, A. 849. See supra, p. 14.

D D

Form 344. Another.

ing presenta

tion of winding

Upon motion, &c., for M., of, and W., the trustee in liquidation of M., &c. [Rectifying register by cancelling M.'s name]. And let an agreemt be forthwith drawn up and executed, embodying the agreemt in relation to the pchase of the business of sd M. contd in the original resolutions, dated 31 Oct., 1872, in accordance with which the sd co was formed; and let the agreemt when so executed be forthwith filed with the registrar of Joint Stock Cos, and let new [sic] shares of the sd co be then forthwith issued in the name of the sd M. by the sd co in psuance of the sd agreemt, and delivered [sic] to the sd W. Give notice to registrar, No order as to costs. Union Manufacturing Co., M. R., 19 June, 1878, B. 1289. See supra, p. 15.

For order to rectify register, notice to be given to registrar, company to pay costs of application, inquiry to be made what damages the applicant has incurred by reason of his name having been put upon such register beyond the costs before directed to be taxed; company to pay to applicant what shall be certified to be due in respect of such damages, see New Quebrada Co., Pontifer's case, 15 W. R. 955; Pemberton, 659.

Form 345. Upon motion by counsel for the plts, &c., let an injunction be awarded Order restrain to restrain the deft K. and his agents from presenting any petition under the Cos Acts, 1862 and 1867, to wind up the plt co or taking any other proceedings to obtain a winding-up order thereof until the trial of this action or until further order. John Brown & Co., Limtd. v. Keeble, Malins, V.-C., 13 Nov., 1879, A. 2119: Circle Restaurant v. Laveny, 18 C. D. 557.

up petitions.

If a creditor of a company, whose debt is bonâ fide disputed, attempts to enforce payment by threatening to present a winding-up petition, he will be restrained at the suit of the company, as in the above case. See also Cadiz Waterworks Co. v. Barnett, 19 Eq. 182; Niger Merchants v. Copper (M. R.), 25 W. R. 365. In the case last mentioned, the writ was indorsed with a claim "For an account of the defendant's transactions as agent of the plaintiff company under an agreement dated, &c., and for an injunction to restrain the defendant from presenting a winding-up petition."

Where a petition has already been presented to the High Court by the creditor, there is no jurisdiction now to restrain. S. 24 (5) of the Judi. Act, 1873. But application can under that section be made in the winding up by motion to dismiss the petition. Re Gold Hill, 23 C. Div. 210. Compare In re Sewell, 28 W. R. 286. Not only can proceedings here be restrained, but proceedings abroad, as in the following order:

:

Form 346. Upon motion, &c. Let the defts Lord Monson [and others] be reOrder restrain- strained from taking, prosecuting, or proceeding with any proceedings ing bankruptcy now pending in France for the ppose of making or declaring the plt co proceedings

against company in

France.

bankrupt, or any other action, suit, or proceeding in France or elsewhere, to make the co bankrupt or to have it declared judicially insolvent, and from taking proceedings to recover any judgmt against the plt co or from taking any other proceedings whatever against the plt co in respect of the debts claimed against the sd co in respect of which the sum of 7,7207., has been pd into Ct as mentd in the afft filed in support of the applicon on which the sd order of 19 June, 1877, was made, until