were allowed to proceed as on their behalf at the instance of the Plaintiff, or if full justice cannot be done to the Defendants without having all such persons personally upon the record, the Court will not allow the suit to proceed.

Bill by a single shareholder in an abortive company against the provisional directors, praying the common account. Such directors, being entitled under the deed of settlement to full indemnity out of the deposits in respect of all costs, charges and expenses incident to the undertaking, had returned to all the shareholders pro rata a part of such deposits. Held, that, since the result of reopening the whole of the accounts as prayed might be to shew that the persons on whose behalf the bill was filed had received more than the amount to which they were entitled, none of such persons could take the account without incurring the liability of refunding to recoup the Defendants; for which purpose the Defendants were entitled to insist on having all such persons substantially upon the record; and on this ground, as well as on the merits, the bill was dismissed.

The bill was filed by John Williams on behalf of himself and all other the holders of scrip and shares in an abortive company called the Boston, Newark and Sheffield Railway Company, except such of the Defendants as were holders of [464] scrip and shares therein, against the persons who, by the subscribers' agreement, were appointed provisional directors to conduct the company's affairs.

The subscribers' agreement provided, inter alia, that a deposit of £2, 12s. 6d. per share should be paid by each subscriber on the number of shares subscribed for by him at the time of or previously to signing the agreement. And further, that, whether any Act should be obtained or not, each of the subscribers should, out of the moneys which should be paid up by him by way of deposit, bear, pay, allow and discharge and indemnify the said directors from the expenses then already incurred or thereafter to be incurred, relative to the surveys and estimates for the said railway and other works, solicitors' and counsel's fees, travelling expenses, and all witnesses and other costs and charges of every description incident to the proposed undertaking, and to the applications to Parliament; such expenses, costs and charges to be computed and assessed rateably upon the amount of the shares or sums taken and subscribed by each of the subscribers respectively.

The shares were allotted and the deposits paid. The Plaintiff was a holder of 100 shares.

The company having failed, the provisional directors returned, out of the moneys in their hands, to all the shareholders, first, an instalment at the rate of £1 per share, and, next, an instalment of 12s. 6d. per share. Subsequently they proposed to return to all the shareholders, out of the same moneys, a final instalment of 1s. 6d. per share. The majority of the shareholders accepted this final instalment, and released the Defendants. The Plaintiff and other shareholders refused to accept the final instalment.

[465] The bill was for the common account of receipts and disbursements, and the usual relief consequent thereon.

Mr. Daniel, Q.C., Mr. Renshaw and Mr. Cairns, for the Plaintiff.

The position of the Plaintiff and Defendants is that of cestui que trust and trustee ; a decree therefore for the account as prayed is of course; and the Defendants, who, being mere trustees, have without reason disputed the right of their cestui que trust to an account, must pay the costs of the suit up to the hearing.

Any technical objection which may be raised on the ground of misjoinder is removed by the late Act 15 & 16 Vict. c. 86, s. 49, by which "the law of this Court as to misjoinder is now entirely altered:" Clements v. Bowes (1 Drew. 684, 694). That case shews, that the new doctrine is not left to the discretion of the Court; that it is imperative on the Court to follow it; and that if the Act applies to cases where the parties are named on the record it will apply equally to cases where a Plaintiff sues, as here, on behalf of himself and all other shareholders. There, as here, some of the absent shareholders, on whose behalf the bill was filed, had an interest adverse to the Plaintiff, to maintain the propriety of a repayment, which, in the event of the account being taken, they would have, in whole or in part, to refund; but the objection of misjoinder was overruled.

V.-C. XIV.-28

[They cited also Sturge v. The Eastern Union Railway Company (1 Jur. (N. S.) 713) and In re Stephen (2 Ph. 562, 574).]

[466] Mr. Rolt, Q.C., and Mr. Selwyn, for the principal Defendants.

Independently of the merits, upon which alone the bill would be dismissed, the Plaintiff ought not to be allowed to proceed with a suit thus instituted on behalf of himself and all other shareholders of this company. Permission so to institute a suit is a relaxation of the rule, and a relaxation which it is in the discretion of the Court to permit or to prohibit; and where, as here, it is not for the benefit of the absent shareholders that the suit should proceed, the Court, in the exercise of that discretion, will refuse to relax the rule: Evans v. Stokes (1 Keen, 24). Here, all such of the absent shareholders as accepted the final dividend have a direct interest adverse to that of the Plaintiff, since, if the account is taken as prayed, they may be called upon to refund. As in the case of the official manager of The Grand Trunk Railway Company v. Brodie (9 Hare, 823, 829) each of such shareholders must have a right to elect whether he will abide by the transaction, and retain the moneys which he has received, or impeach it, and refund those moneys; and what right has the Plaintiff to make this election for others? This argument indeed applies to all the absent parties, on whose behalf the bill was filed. And even if all such parties considered it for their interest that the suit should proceed, still, to do justice between them and the Defendants, the Court must have some means of binding the absent parties to refund, if, in taking the account, it should appear that they have received more than the amount to which they are entitled. This, and not misjoinder, is our objection to the present suit. Viewed in this light, the case is entirely distinguishable from that of Sturge v. The Eastern Union Railway Company.

[They also disputed the Plaintiff's title upon the merits.]

[467] Mr. Baggallay, Mr. Cotton and Mr. C. Roupell appeared for others of the

directors.

Mr. Daniel, Q.C., in reply.

As regards the shareholders who accepted the final instalment, the directors have become the purchasers of their interest, and in fact stand precisely in their place. All such shareholders are, therefore, disposed of, and have no interest either way in the suit. And as regards those who, like the Plaintiff, refused to accept that instalment (and as many as 7000 shares are outstanding in shareholders of this class), their position is precisely that of the absent shareholders in Clements v. Bowes (1 Drew. 684).

[He also replied upon the case made by the Defendants on the merits.] Judgment reserved.

Nov. 14. VICE-CHANCELLOR Sir W. PAGE WOOD. Considering the small amount of the Plaintiff's interest in this suit, it is certainly matter for great regret that he should have thought it necessary to institute it. The utmost which, under any possible circumstances, could be coming to the Plaintiff over and above the amount of the third instalment of 1s. 6d. a share, which the Defendants offered to return to him in common with all the other shareholders, would not exceed a sum of about £54, 10s., an amount so small as certainly to try to the utmost the question whether he is entitled to a decree. Nevertheless, the question must be considered in the same manner as it would be if the Plaintiff's interest in the suit were to a much greater amount.

[468] The Plaintiff's right to an account was disputed upon one ground which cannot, in my judgment, be sustained.

It was argued that permitting an individual to sue on behalf of himself and a large number of others is of itself a matter in the discretion of the Court; that the Court may grant, or may withhold, such permission; that, in a suit of this nature, if the ends of justice required it, the Court would allow the suit to be thus framed, since, otherwise, by reason of the number of persons who must be made parties, no relief could be afforded; but if the ends of justice did not require it, then, being an indulgence and contrary to the usual practice, the Court, in the exercise of its discretion, would refuse its permission; and consequently, that, in a case circumstanced like the present, the Court would not allow a suit so framed to proceed.

Now, as far as this argument asserts that the question is a mere matter of discretion

with the Court, I think the reply was satisfactory, viz., that if a person, having in common with others a right to an account or any other relief, chooses to assert that right, and can shew that the only difficulty in his way in asserting it is that the persons having an identical interest with himself are too numerous to admit of their being brought on the record, then, notwithstanding such persons may not choose to assert that right which they have in common with him, provided their interest is in no way liable to be affected by the assertion of such right on his part, he ought not to be deprived of his right to sue upon any assumed discretion on the part of the Court as to the suit being frivolous or vexatious. However frivolous and vexatious the suit may appear to the Court, if the Plaintiff would have had a right to the relief prayed in case he had been the only person entitled to claim it, and if the interest of other persons entitled in common with him to claim such relief, and who are too numerous to be brought [469] upon the record, is in no way liable to be affected by him in the suit he has instituted in their names, the Court will not deprive him of that right merely because such other persons do not choose to concur with him in the suit. In fact, the case is analogous to that of directors of a railway company introducing some new element which the majority of the shareholders consider to be for their benefit, as, for instance, the introduction of steamboats and the like, to bring passengers to the railway-a proceeding which, being dehors the powers of the directors, may be stopped by any shareholder filing a bill on behalf of himself and other shareholders, although every shareholder except himself should consider it more beneficial and profitable for the new scheme to be carried into effect. The law presumes that every shareholder has an interest in seeing that what is done is right and proper in point of law, whatever may be his own view as to the benefit to be derived from a departure from the strict letter of the law.

But then (and this is the serious question in the present case) I apprehend it is no less clear that, if the Court can see that the interest of the absent shareholders may be not simply an interest leading them to say they dislike the course the Plaintiff is taking in their names, and should prefer matters remaining as they are, but an interest which would be actually affected in the event of the suit being allowed to proceed as on their behalf at the instance of the Plaintiff or (which is another form of the objection, but in substance the same) if the Court sees that full justice cannot be done to the Defendants without having all such absent shareholders substantially before it, personally upon the record, so as to enable the Court to do justice as between them and the Defendants-then it will not allow a suit to proceed at the instance of one or more individual shareholders, as representing the whole body.

[470] Now, in this case, the Defendants, having a title to indemnity to the full amount of the deposits paid by the shareholders, return, out of that amount, to all the shareholders, first an instalment of £1 per share, next an instalment of 12s. 6d. per share, and then out of the same amount they propose to return a final instalment of 1s. 6d. per share.

As to the shareholders who accepted the final instalment, I concur with what was said in the reply, that they are disposed of; and that, if the directors choose to take upon themselves, before the accounts are wound up, the responsibility of returning that instalment, and releasing the entire fund so far as regards such shareholders, the directors must be taken to have placed themselves for better for worse in their position and to represent them on the record.

But as to the shareholders who did not accept the final instalment, and it was said in the reply that as many as 7000 shares are outstanding in such shareholders, what is their position with regard to the accounts? Take the Plaintiff as one of this class, and what is his position with regard to the accounts?, I apprehend his position is this: by the deed of settlement the Plaintiff, in common with all other shareholders, became in effect liable to indemnify the Defendants to the full amount of the deposits upon his shares, at the rate of £2, 12s. 6d. per share, against all costs, charges and expenses which they might incur. Of the amount to which he so made himself liable to indemnify the Defendants, the Plaintiff has received back from them, pending proceedings and pending the accounts, instalments to the extent of £1, 12s. 6d. per share. He now seeks to reopen the whole account. But considering the expenses to which the Defendants have been already put, and which they would be entitled, as

against the shareholders, to deduct out of the deposits in their hands, and considering all the costs, which may not be inconsiderable, of the account which would have [471] to be directed in this suit, and which also they might fairly be entitled in like manner to deduct out of such deposits, it is by no means impossible that the result of reopening the whole account as prayed would be to shew that the amount the Plaintiff has received back from the Defendants is more than the amount to which, having regard to his liability under the deed of settlement, he may prove to be entitled. And if this should be the result of reopening the whole account, then he would be bound to refund the surplus. By reopening the whole account he makes himself answerable to the extent of the whole amount of the deposits upon his shares at £2, 12s. 6d. per share, for all costs, charges and expenses, which, under the deed of settlement, the Defendants may be entitled to deduct from the amount of the deposits on his shares. He cannot take the account prayed without subjecting himself to this liability. It is the common case of a partnership, or any other similar concern, where an indemnity has become the right of the parties administering the fund, and in settling the whole account some unforeseen expense is incurred; in which case a party seeking to have the account settled can only have it settled upon the terms of providing for the whole of that expenditure, and accordingly refunding, if necessary, what he has received out of the common stock, in order to put all parties right and equal with reference to their engagements. And here, not only is this the case with respect to the Plaintiff, but it is the case also with respect to all the holders of the other 7000 shares which are still outstanding; no one of those shareholders could take the account prayed in this suit without subjecting himself to the same liability of refunding what he has received back, to an extent sufficient to recoup the Defendants.

Such then being the position not only of the Plaintiff but of all the other shareholders, on whose behalf this bill is filed, the Defendants have a right to insist upon having all such [472] shareholders substantially upon the record; and the only way of getting over the difficulty would be to bring into Court the whole amount of the sums returned to them by the Defendants by the instalments of £1, 12s. 6d. per share: because the Defendants have a right to look to the solvency and responsibility not only of the Plaintiff, but of all the other shareholders who, upon taking the account as prayed, might, in the event, be liable to refund.

But, independently of this objection upon the point of form-which alone would in my judgment be a fatal objection to the suit-I am satisfied, upon the merits of the case, that the Plaintiff is not entitled to the relief prayed.

[His Honor then went into the merits, to shew that they justified this conclusion.] Bill dismissed-Plaintiff to pay costs subsequent to order for production of documents.

Feb. 21, 1856. LORDS JUSTICES. The Plaintiff appealed from this decision.

On the hearing of the appeal it appeared that, before the filing of the answers in the cause, an offer was made to the Plaintiff by the Defendants to return him all the money which he had contributed to the company less the amount which he had then already received.

The Plaintiff now consented, without prejudice to any question of title to the costs of the suit, or any of them, to accept, and the Defendants, also without prejudice to any such question, consented to pay, a sum of £50 in full satis-[473]-faction of all the demands of the Plaintiff on his own account in the cause. And the only question left for decision was as to costs.

Their Lordships now, without expressing any opinion upon the question whether the Plaintiff was or was not entitled to a decree for an account, were pleased to order the Defendants to pay to the Plaintiff the £50 pursuant to their agreement; the Plaintiff to pay to the Defendants £300 on account of costs; and all further proceedings in the cause to be stayed.

[473] HARRIS v. WATKINS. April 30, 1856.

Will. Presumption. Disclaimer. Election.

Devise of residuary real estate in lieu and discharge of all debts due from testator to devisee. Devisee dies intestate three days after testator. Held, as between the heir and personal representative of the devisee, that, it not being manifestly for the disadvantage of the devisee to retain the devised estate, the Court could not presume a disclaimer by her-consequently her heir was entitled to the estate, and debts claimed by her administrator as due to her from the testator were discharged. But, semble, had it been manifestly for the disadvantage of the devisee to retain the estate upon the terms proposed by the testator, the Court might have presumed a disclaimer.

William Powell, by his will in 1844, after making certain specific devises and bequests, gave, devised and bequeathed to his wife Catherine all the rest and residue of his real and personal estate and effects, absolutely, and appointed her executrix of his will. And the testator declared that the devises and bequests thereby made to his wife should be taken and considered in lieu and discharge of all money which he had borrowed out of and forming part of the trust moneys mentioned in the settlement made on his marriage with her.

The testator died on the 1st of January 1848.

Catherine Powell died on the 4th of January 1848, intestate, without having proved the will of the testator, and without having ever possessed herself of any of the real and personal estates or effects of the testator.

[474] It was admitted that a sum of £900, forming part of the trust moneys mentioned in the settlement, had been borrowed by the testator, and was due from his estate. And evidence was adduced for the purpose of shewing that a further sum of £700, further part of such trust moneys, came within the like description in the testator's will. Upon the testator's death, his widow became absolutely entitled under this settlement to the trust moneys therein comprised.

The testator's personal estate was not sufficient for payment of his debts. The clear residue of his real estate was not less than £900.

The bill was filed by a creditor of William Powell, on behalf of himself and all other creditors, for the usual administration decree.

The cause now came on for further consideration, and upon a question reserved from Chambers.

Mr. Rolt, Q.C., and Mr. Cottrell, for the Plaintiff.

Mr. Chandless, Q.C., and Mr. Hardy, for the administrator of Catherine Powell. Catherine Powell died before she had elected to take the benefits given her by the will upon the conditions imposed by the testator. The Court cannot make that election for her. Her administrator, therefore, is entitled to all money borrowed by the testator out of and forming part of the trust moneys mentioned in the settlement, including the £900 and £700: and the claim of the heir is excluded. It is like the case of an estate given upon a condition to be performed before the estate vests in the donee, where, if the donee unfortunately dies before performing the condition, the gift fails.

[475] [THE VICE-CHANCELLOR. Prima facie, property devised vests in the devisee until he does something to get rid of it.]

The Court has never presumed election by a deceased person in such a case as the present.

THE VICE-CHANCELLOR. It is not so much whether the Court will presume election, as whether it will presume a rejection of the devise.]

But this is in effect a gift upon condition that Catherine complied with the terms mentioned in the will. There is an act to be done by her. [THE VICE-CHANCELLOR. She is not to give a release.] Whatever may be the form of the words, an act is required upon her part, which she died without performing. Suppose it had been a devise of Black Acre on condition of releasing White Acre, would the Court presume