said Robert Hume shall be called upon to produce only the title from Admiral Berkeley to himself; that such sum of 3,0501. and interest shall be a charge upon the said land to be inclosed; that in the event of the bill not passing into an act of parliament this agreement shall be void." Now, nothing can be more clear upon the face of the agreement than that it was an agreement entered into with reference to the passing of the act of parliament, and with reference to the claim of Sir Maurice Berkeley (afterwards Lord Fitzhardinge) to prevent any objection to the passing of the act of parliament. It was obviously quite as important to Messrs. Pocock and Kingdon to remove that objection as it was to acquire the land; or, if not quite as important, it was obviously, at the date of the agreement, extremely important to them to remove any objection which might arise from the influence of Lord Fitzhardinge being exercised in obstructing the passing of the act of parliament. Nobody can doubt, I think, looking at the terms of this agreement, by which Mr. Hume was the purchaser from Lord Fitzhardinge, viz., the stipulation that he will use his utmost endeavours to procure the bill to pass into an act, and the clause in the agreement, that in the event of the bill not passing into an act, the agreement shall be void, that the agreement was entered into with a view to remove the obstruction which Lord Fitzhardinge's influence might create to the passing of the act of parliament. Now what was intended by the contract which was entered into between these parties? Why, it was entered into with reference to the purpose of removing any objection which might arise from the influence of Lord Fitzhardinge. It amounts to this, that Hume has agreed with Sir Maurice Berkeley for the purchase of all his estate, right, title and interest in the mud lands, and Hume agrees that he will, in the event of the act of parliament being obtained, sell to Kingdon and Pocock all his estate, right, title and interest in such parts of those lands as are included in the lands proposed to be reclaimed. Now all his (i. e. Mr. Hume's) estate, right, title and interest must be referred, so far as I can see, to the estate, right and interest which he was to acquire under the contract with Lord Fitzhardinge. Then, what is the contract with Lord Fitzhardinge? It is for the purchase of all his estate, right, title and interest. Now that may mean one of two things: either it assumes that Lord Fitzhardinge has an estate, right, title and interest, which is to be conveyed by him to Hume, and by Hume to Pocock; or it may mean that Kingdon and Pocock will purchase from Hume such estate, right, title and interest as has been conveyed to him by Lord Fitzhardinge; but, undoubtedly, the doubt seems to be removed by the clause in the agreement which says that the said Robert Hume shall be called upon to produce only the title from Admiral Berkeley to himself, that is to say, such title as Lord Fitzhardinge had conveyed, or could have conveyed to Hume, Mr. Hume is to produce to Mr. Pocock. If Lord Fitzhardinge's conveyance passed nothing, then nothing could pass by the conveyance from Hume to Pocock, but Pocock was still to take and to pay the 3,050. for the purchase, which he might well do, and which he had an interest in doing, for the effect of his doing so would be to remove any obstruction to the passing of the bill which might arise from Lord Fitzhardinge's opposition to it. It has been observed, in the course of the argument, that this, in truth, resolves itself into a case of a money demand. The defendant, it was said, had shewn there was in truth no title under Lord Fitzhardinge to be acquired under the agree ment, and therefore there would be nothing more to be done than to pay the 3,050.; that is, it was argued that this case ought to be dealt with by leaving the plaintiff to his remedy at law in damages, and that it was not a case in which a Court of equity would order a bill for the specific performance of the agreement. However, that objection is entirely put aside by this part of the terms of the agreement, that the 3,050. shall be a charge upon the lands to be inclosed, so that if Mr. Pocock does not pay the 3,050, the plaintiff can get in this court what he could not get in a court of law, viz., a charge upon the property for the 3,0507. Now, upon the construction of the agreement I really have not throughout the case felt any doubt, except this, that it seemed to me to be so exceedingly clear. I have always a misgiving upon a case in which my opinion is very clear; but I watched the arguments very carefully to see whether that opinion was well founded, and in the result I adhere to that opinion, viz., that there was simply a contract on the part of Messrs. Kingdon and Pocock to purchase such right, title and interest as Lord Fitzardinge had or might have in the mud lands. Then another answer which was attempted to be given to this bill was, that this contract was entered into upon representations made by Mr. Padwick, as the agent of Lord Fitzhardinge, that Lord Fitzhardinge was entitled to the mud lands in question, and that those representations were proved on the part of the defendant to be unfounded, and that in truth Lord Fitzhardinge never had any title, and has not any title whatever to these mud lands. Now that really amounts, in my view of the case, to nothing more than this, that the purchasers in entering into the contract chose to take the representations of the agent to the vendor that the vendor's title was perfectly good. I see nothing more in it than that. If, indeed, it had turned out that there was no foundation whatever for the representation that the vendor had a title, I can conceive a case where those representations might be considered fraudulent, and where a contract entered into on the faith of those representations might be held to be one. which this Court would not enforce. But the question really is, in all those cases, were or were not the representations fraudulent, and known to be fraudulent at the time when they were made? I cannot see a trace throughout this case of anything shewing that, at the time the contract was entered into, Mr. Padwick believed that Lord Fitzhardinge had no title whatever to this property. Then, if a party chooses to take the representations of an agent for the vendor, who, of course, he must know well, would represent that the vendor had a perfectly good title, I cannot say that the mere fact of his trusting to such representations can amount to such a case of fraud as will absolve a purchaser from the contract. But how does this case stand? It is in evidence by Padwick, the solicitor of Lord Fitzhardinge, that Lord Fitzhardinge had for years claimed the right to be entitled to the mud lands; and how then can it be said that the representations which were made by Padwick were fraudulent, or such as induced Mr. Pocock to enter into this contract? I believe he was induced to do so, not by these representations at all, but with the view of removing the difficulty which might have been thrown in the way of the passing of his bill. I think, therefore, that the decree of the Vice Chancellor is perfectly right, and that the appeal must be dismissed, with costs. LORD JUSTICE KNIGHT BRUCE. - My view of the matter is the same, in thinking that there is a total absence of proof of any fraud. It appears to me that the question decided by the Vice Chancellor, as to the inadmissibility of the evidence, may remain undecided. I think it is not necessary to give an opinion upon that point, and that it should remain an open question. How that had better be expressed will be matter for consideration (1). Mr. Marten, on behalf of the applicants, stated the case, and said, that Vice Chancellor Kindersley, in consequence of the state of the authorities on the subject, had desired that the opinion of the Court of Appeal should be taken. The application was made, ex parte, under 15 & 16 Vict. c. 86. s. 52. Orders had been made in the following cases Jackson v. Ward, 1 Giff. 30; s. c. 28 and had been refused in Dendy v. Dendy, 5 W. Rep. 221; Williams v. Williams, 30 Law J. Rep. (N.S.) Chanc. 407 ; Laurie v. Crush, 32 Beav. 117; Townend v. Toker, 14 W. Rep. 300. He referred to Morgan's Chancery Acts and Orders, 3rd edit. 210; and, as to the necessity of a bill in the nature of a supplemental bill, to Mitford, p. 86, 5th edit. The Court has, under the Companies' Act, 1862, s. 35, a discretionary jurisdiction to remove the names of members of companies from the register. Mere lapse of time will not amount to acquiescence, nor attempts to sell shares; but receiving dividends or otherwise acting as a partner would bind the allottee. This was a motion to remove a shareholder's name from the register of a company. A prospectus of the company was issued before the memorandum and articles of association had been made. It stated that "this company is formed for the purpose of acquiring and extending the well-known ironworks, which have been established and in successful operation for a long period at Vinska, in Russia." It then described the extent and nature of the land from which ore was obtained, and the manufacturing premises which were on that land. It then stated the price of the property, and the amount proposed to be called up. After estimating the probable profits, it proceeded, "And it is anticipated that by the introduction of further capital and the development of the works the returns will be more than doubled. It is intended to create a sinking fund for the purpose of returning to the shareholders, at the expiration of the thirty-seven years when the interests of the company will cease, the whole amount of the capital called up. On the determination of the lease the proprietors bind themselves to have a valuation made of all the property above ground, and after deducting the present value, to pay to the company one-half the difference in cash. Thus, in addition to receiving a highly remunerative dividend during the thirty-seven years, at the end of that time the whole of their capital will be returned to the shareholders, with a considerable bonus." The objects of the company described by the memorandum of association were "(a) The acquiring, leasing and working iron-mines and works in Russia, and raising all iron and other ore and minerals to be found therein, and selling or otherwise using, disposing and making a profit of the same. "(b) Working mines, iron-works, the building of ships, the forging, casting and rolling of iron, the construction of wrought and cast iron-work, and the manufacture of all kinds of engines and engineering work. "(e) The acquiring of lands in Russia, and the erecting of all buildings thereon necessary for any of the objects of the company, and the leasing, letting, subletting, exchanging or otherwise disposing of the same, or of any of the mines, pits or quarries of the said company. "(d) The borrowing of money, and the issue of transferable or other bonds or mortgage debentures, or any other securities founded or based upon all or any of the real or personal assets or credits of the company. "(e) And generally the carrying on the business, and transacting and doing of all such matters and things as the company may from time to time consider conducive or incidental to the above objects or any of them." Mr. Stewart applied for shares in the company, which were allotted to him on the 29th of April, 1865, the memorandum and articles of association not being then in existence. He had treated for the sale of his shares; but such sale was not completed, owing to the Committee of the Stock Exchange having refused a settlingday, on the ground that the articles of association gave the directors powers with respect to borrowing and increasing capital which were not warranted by the prospectus. A meeting of shareholders was held on the 13th of September, 1865, to alter the articles by transferring the power of borrowing and increasing capital from the directors to the general body of shareholders. At that meeting Mr. Stewart was present; but it was held on the evidence that he had not notice of the other differences between the prospectus and memorandum until just before notice of the present motion was given. He was informed that the memorandum and articles were in existence early in May, 1865. Mr. Giffard and Mr. Higgins, in support of the motion, relied on Ship's case, 2 De Gex, J. & S. 544, and distinguished Briggs's case, ante, 320. NEW SERIES, 35.-CHANC. Mr. Rolt, Mr. Druce and Mr. Waller, contra, said, if the articles went beyond the memorandum, they would to that extent be simply void Hutton v. the Scarborough Cliff Hotel and the memorandum did not go beyond the spirit of the prospectus; it was contemplated that the works should be developed. Mr. Steward had acquiesced; notice of the discrepancy as to borrowing power and capital was sufficient to give him notice of other discrepancies. Mr. Giffard, in reply. WOOD, V.C. said-There are certainly some points in this case which require a great deal of consideration; but, on the whole, I am not able to distinguish it from Ship's case. I think it is very important that the principle established in Ship's case, confirmed by the Lords Justices, should be firmly adhered to,--that, when a company is established, the subscribers must be taken to have reposed entire faith in those who have consented to become directors,—that the contract to which they are ultimately made parties, by means of the memorandum of association, will be the real contract which they engage to enter into by the prospectus; in other words, the directors cannot be allowed to obtain the consent of a man to one contract and then to substitute another contract in lieu of that which shall be binding on him, and that to be bound by the substituted contract he must either have had actual notice, or, as in the case before the Master of the Rolls (1), necessarily-implied notice of the new contract. In that case (the articles of association having been actually executed) the person who engaged to become a member had been invited by the prospectus to become a shareholder in a company existing pursuant to the objects of a memorandum of association already entered into, and which memorandum, moreover, he could see by going to the solicitor's office. I am not sure that the last ingredient would be necessary if the prospectus stated that he was invited to join in an existing contract. But in this case a course has been taken which I hope (1) Briggs's case, supra. 5 B will become antiquated, namely, that of sending out the prospectus before the memorandum of association is registered. I think it would be a wise course for all persons projecting these companies to take care that the memorandum is registered first, and to leave every person who becomes a subscriber to go and look at the document himself. If they do not do that, it is their duty, as was held in Ship's case, to take care that there should be no departure whatever in substance from the prospectus. I do not mean in minute details. Unfortunately I am obliged to hold, in this case, that there has been a distinct departure from the contract, whether it may have been intended or not. In that respect it differs most widely from Ship's case, where the contract most outrageously departed from everything he had given his consent to. Here, by inadvertence perhaps, it has been made wider, and consequently it is not that which the subscribers consented to abide by. The prospectus being for the working of a company, to be called The Russian Vyksounsky Iron-works, Limited, the intended subscribers are told that "the company is formed for the purpose of acquiring and extending the well-known ironworks which have been established and in successful operation for a long period at Vinska, in Russia." No doubt they are told two things: that they are to acquire and that they are to extend the works; and I think the Court would have given to the memorandum of association very large latitude in reference to the word "extending," in order that the company might have full power, if necessity arose, of acquiring either adjacent ironworks or other iron-works of that description immediately connected with the object in hand, provided it was all bona fide for the purpose of extending the operations of a given concern which they were about to buy. The concern is described as consisting of two things: the estate which produces the ore, and on which the manufacture of iron is conducted, and also the manufactory of iron for sale in its various forms, in machinery, engines, steamboats, and any other object to which the manufacture of iron can be properly applied; and probably if the case had rested there, if it had been an estate in fee simple, and nothing more than a partnership or company conducting their business in a given spot with a given capital and a given trade, it might be said that the company, finding it necessary to shift the spot of their trade, as long as they carried the goodwill, could change the spot for the purpose of the original business. But the prospectus is much more definite as to the estate, and as to the character of the company and the liability (that is, as to the duration of the shareholders' engagement and the time that their capital would be involved in the work in hand), inasmuch as it states that the estate is leasehold only for a term which has to run thirtyseven years, and that it produces such and such profits; and then, after describing how the profit is made out, it is said, "It is intended to create a sinking fund for the purpose of returning to the shareholders, at the expiration of the thirty-seven years, when the interest of the company will cease, the whole amount of the capital called up. On the determination of the lease the proprietors bind themselves to have a valuation made of all the property above ground, and, after deducting the present value, to pay to the company one-half of the difference in cash. Thus, in addition to receiving a highly remunerative dividend during the thirty-seven years, at the end of the time the whole of their capital will be returned to the shareholders, with a considerable bonus." Of course, a subscriber has no right to expect that will be a matter of fact; it is a matter of speculation whether he will have his capital back; but he has a right to look to this, that the concern, having been worked for thirtyseven years, is to be wound up and each shareholder is to have his capital returned. There is no speculation as to the duration of the concern. Then, it appears to me that the company could not on that prospectus bind Mr. Stewart to do anything more than to be a member of a company formed on this estate, held for the term of thirtyseven years,—it might be less, but it could not be more. It is not stated that the company was to take any power to renew the lease. Now the first of the registered objects of the association is "the acquiring, leasing and working iron-mines and works in Russia, and raising all iron and other ore and minerals to be found therein, and selling or other |