L. JJ. 1869 Jan. 30. HOPE v. CARNEGIE. Motion to commit-Appeal for Costs. A motion to commit a Defendant for breach of an injunction having been refused without costs, the Defendant appealed : Held, that there is no rule that a motion to commit, if refused, must be refused with costs, and that an appeal as to costs in such a case will not be entertained. THIS On the 25th of June, 1868, an order was made restraining the Appellant and his wife, and their agents, until further order, from commencing or continuing any proceedings in the Netherlands as to the personal estate of the testator in the cause, and from intermeddling with such estate, and from allowing a certain notice served upon a person having the custody of part of the estate to remain unrevoked. By an ex parte order, dated the 25th of July, 1868, it was ordered that substituted service on Admiral Carnegie and two other persons of a notice of motion for the 28th of July to commit Admiral and Mrs. Carnegie for an alleged breach of the injunction should be good service on Mrs. Carnegie. This service had not been effected on the 28th of July, and on that day the motion for committal was ordered to stand over till the first day of Michaelmas Term, and another order for substituted service of a notice of motion for committal for the 2nd of November, 1868, on the same persons as before was obtained. The motion to commit was adjourned from the 2nd of November, and was not disposed of till the 3rd of December, when the ViceChancellor made the order now under appeal, discharging the orders for substituted service, and ordering that the Plaintiffs and the Defendants, Carnegie and wife, or any or either of them, should be at liberty to make such application as they, or he, or she, might be advised, to obtain the appearance of Mrs. Carnegie separately from her husband. And it was ordered that each of the parties should bear their own costs of that application (1). The Defendant, Admiral Carnegie, having given notice of appeal motion to the effect mentioned above, the preliminary objection was taken that this was an appeal for costs only. Mr. Karslake, Q.C., and Mr. Waller, for the appeal motion:— An application to commit which utterly fails, owing to the irregularity of the proceedings, must be refused with costs. There are dicta tending to shew that there is now no such rule as that there cannot be an appeal for costs; but if there be such a rule this case comes within the acknowledged exceptions: Angell v. Davis (2); Chappell v. Purday (3); Taylor v. Southgate (4); Corporation of Rochester v. Lee (5); Horn v. Coleman (6); Lord Advocate v. Lord Dunglas (7); Norton v. Cooper (8); Owen v. Griffith (9). Sir Roundell Palmer, Q.C., Mr. Dickinson, Q.C., and Mr. Hemming, for the Plaintiffs, were not called upon. SIR C. J. SELWYN, L.J.: It is admitted that this is an appeal only on a matter of costs, and in my opinion the general rule prohibiting such appeals is not only well established but useful and desirable. That rule, it is true, is subject to exceptions, but does the present case come within any of them? It is urged in the first place that a question of principle is involved-that it is a settled rule that, where a motion to commit fails, it is refused with costs, and that there is no instance to the contrary. My own experience, as well as that of my learned brother, furnishes instances to the contrary, and it is impossible to say that it can be a question of principle whether costs should be given or not in cases where the conduct of the parties has so much bearing on the point. The Judge below is (1) Law Rep. 7 Eq. 254. (2) 4 My. & Cr. 360. (3) 2 Ph. 227. (4) 4 My. & Cr. 203. (9) 1 Ves. Sen. 250. (5) 2 D. M. & G. 427. L. JJ. 1869 HOPE v. CARNEGIE L. JJ. 1869 HOPE V. CARNEGIE. much better able to decide such a question than the Court of Appeal; and in my judgment applications to commit are eminently cases where appeals for costs should not be allowed. Then it is said that this order discharges certain orders as having been improperly obtained, and that this brings the case within the rule that an appeal for costs will be allowed where the order is wrong on the face of it. But that order had been obtained by the Plaintiffs, and the Appellants do not contend that there was anything wrong in discharging it by this order. Then it was said that the order in this case affects the funds which are to be administered in the suit. The suit, it is true, is an administration suit, but this order does not affect the estate, and it is difficult to see how the costs of such a proceeding could be ordered out of the fund. SIR G. M. GIFFARD, L.J.:— It is quite unnecessary to go through the cases referred to, all of them being clearly distinguishable from the one before us. If there be any case in which an appeal for costs ought not to be entertained it is a case of contempt, where everything depends on the acts and conduct of the parties. Solicitors: Messrs. Young & Jackson; Mr. W. H. Rennolls. L. JJ. 1869 Jan. 11. In re ACCIDENTAL AND MARINE INSURANCE CORPORATION. BRIDGER'S CASE AND NEILL'S CASE. Company-Contributory-Past Member-Forfeiture of Shares- Shareholders in a company limited by shares transferred their shares within a year before the commencement of the winding up of the company. Calls were made on the transferees, which they failed to pay, and the shares were duly forfeited by the directors for the benefit of the company : Held (affirming the decision of Stuart, V.C.), that the transferors were liable to be placed on the list of contributories as past members of the company. THESE were appeals from a decision of Vice-Chancellor Stuart. Mr. Bridger was the holder of five shares in the Accidental and L. JJ. 1869 BRIDGER'S Marine Insurance Corporation, Limited, and he, on the 27th of January, 1866, transferred them to a Mr. Ball, the transfer being registered in the company's books on the 5th of February, 1866. On the 21st of March and the 19th of July, 1866, respectively, NEILL'S CASE. calls of £5 per share were made by the directors upon all the shares in the company. Both of these calls Ball failed to pay; and the directors, in exercise of a power contained in the articles of association, on the 3rd of October, 1866, passed a resolution declaring the shares forfeited for the benefit of the company. Mr. Neill was the holder of fifty shares, which he transferred partly to Ball and partly to a Mr. Banks. Ball and Banks failed to pay the above-mentioned calls, and these shares were in like manner forfeited by the directors for the benefit of the company on the 3rd of October, 1866. On the 24th of October, 1866, the company resolved to wind up voluntarily, and on the 3rd of November, 1866, an order was made to continue the voluntary winding-up subject to the supervision of the Court. When the winding-up commenced there remained the sum of £10 per share uncalled on all the shares of the company, and the whole of this was afterwards called up by the liquidators. In consequence of the inability of the contributories in Class A. of present members to answer this call, the liquidators made out a list B. of contributories who were past members, and included both Bridger and Neill therein. They both applied by summons to have their names removed, and the Vice-Chancellor dismissed their applications. From these decisions they both appealed. The material clauses of the company's articles of association relating to the forfeiture of shares were as follows: By clause 30 the directors were empowered to purchase shares for the benefit of the company, and it was provided that the company's money might be invested in the purchase of forfeited shares. By clause 154 the directors were empowered to forfeit, for the benefit of the company, any share on which a call remained unpaid for a period of forty-two days after the time appointed for its payment. Clause 157: "The forfeiture of a share shall involve the extinction at the time of the forfeiture of all interest in and all claims L. JJ. 1869 BRIDGER'S CASE AND NEILL'S CASE. and demands against the company in respect to the share, except only such of those rights as by these presents are expressly saved." Clause 158: "The forfeiture of a share shall be subject and without prejudice to all claims and demands of the company for calls in arrear thereon (if any), and interest on the arrears, and all other claims and demands of the company against the holder of the share when it was forfeited, and to the rights of the company to sue in respect thereof." Clause 164: "Shares forfeited or purchased for the benefit of the company may, at the discretion of the directors, be sold or disposed of by them, or be absolutely extinguished, as they deem most advantageous for the company." Clause 165: "Shares so forfeited or purchased shall, until sold, or disposed of, or extinguished, form part of the reserved fund, and the dividends declared thereon shall be carried to the reserved fund." By the evidence of one of the liquidators it appeared that there was no probability of the assets of the company, including all calls which could be made on past as well as present members of the company, being sufficient to pay the creditors in full; and, moreover, that without resorting to the past members there was not, in the liquidator's judgment, any probability of paying more than 4s. in the pound upon the debts contracted by the company before the Appellants transferred their shares. There was also evidence to shew that Ball and Banks were not likely to be able to pay the calls upon the shares which had been transferred to them. Sir Roundell Palmer, Q.C., Mr. Dickinson, Q.C., and Mr. Everitt, for Mr. Bridger : The transferor of shares, which are afterwards forfeited in the hands of the transferee, cannot be made a contributory at all. A past member can only be made liable as a surety for the present member, who is primarily liable in respect of the shares on which the claim is made; and therefore, unless there be some one who can be made liable as a present member, no past member can be made liable in respect of the shares. The 4th clause of sect. 38 of the Companies Act, 1862, shews that the shares on which a claim can be made against a past member must be shares upon which |