8 THE SCHEDULE. Fees to be collected by means of Stamps. In the Judges' Chambers and in the respective Offices of the Registrars, the Examiners and the Taxing Masters, such of the Fees by the 2nd Rule of the 39th of the Consolidated Orders, and the Regulations subjoined thereto, directed to be collected and paid, as are applicable. And such other Fees by the 2nd Rule of the 39th of the Consolidated Orders, and the Regulations subjoined thereto directed to be paid and collected, as are applicable. THE Vice Chancellor SIR RICHARD MALINS directs, That in all causes to be heard before His Honour for further consideration two copies of the decree to be asked for and the other proper papers be left by the plaintiff's solicitor with the officer of the Court at least one day previously to the hearing. R. H. LEACH, Registrar. June, 1869. THE Vice Chancellor SIR JOHN STUART directs, That in all causes to be heard before His Honour for further consideration two copies of the minutes of the decree to be asked for and the other proper papers be left by the plaintiff's solicitor with the officer of the Court at least one day previously to the hearing. June, 1869. R. H. LEACH, Registrar. NEW SERIES, 38.-Chanc. Orders. B 10 ORDER OF COURT. Accountant General's Office. WHEREAS it is proper that the accounts kept by the Accountant General of this Court should be examined and compared, in order to settle the same, and whereas it will require considerable time to perfect such examination, and it is necessary that a time should be appointed for closing the books of accounts of the said Accountant General for the purposes aforesaid: I do order that the books of the said Accountant General be closed from and after Friday, August 20 next, to Thursday, October 28 next (inclusive), except upon the days and for the purposes hereinafter mentioned, in order to adjust the accounts of the suitors with the books at the Bank; and that during that time no draft for any money, except as hereinafter provided, or certificate for any effects under the care and direction of this Court, be signed or delivered out by the Accountant General, or any stocks or annuities accepted or transferred by him, relating to the suitors of this Court; and that no purchase, sale or transfer be made by the Accountant General, unless the order and request or Registrar's certificate be left at his office on or before Saturday, August 7 next, and that no order for payment of any money out of Court which may be then in Court be received in the Accountant General's office after Tuesday, August 10 next: Provided nevertheless that the office of the said Accountant General shall be open on Tuesday the 12th, Wednesday the 13th, and Thursday the 14th days of October next, for the delivery out of any regular interest drafts which may have become payable in respect of the October dividends, and of any other regular interest drafts which have become payable prior to or during the closing of the office as aforesaid. And to the end that the suitors may have notice hereof, and apply to the Court as there shall be occasion to have money paid to them out of the Bank, or stocks or annuities transferred to them before August 20 next-I do order that this Order be entered and set up in the several offices of the Court. HATHERLEY, C. June, 1869. CASES ARGUED AND DETERMINED IN THE Courts of Chancery, AND ON APPEAL TO THE HOUSE OF LORDS. COMMENCING WITH MICHAELMAS TERM, 32 VICTORIE. [FULL COURT OF APPEAL.] 1868. Nov. 3, 6. J PORATION (LIMITED). CLINCH V. THE FINANCIAL COR Company-Sale of Business of one Company to another-Ultra Vires-Suit by one Shareholder on behalf of himself and all others-Parties-Delay. A financial company made an arrangement with a banking company for a combination of the two. By this arrangement it was agreed that the financial company should be wound up voluntarily; that the banking company should advance money to discharge the liabilities, and should receive the proceeds of all the assets of the financial company as realized; that, after complete liquidation and payment to the bank by means of the assets (assisted, if necessary, by calls upon the shareholders in the financial company) of a certain sum over and above all advances, the shareholders of the financial company were to be at liberty to exchange every three shares (21. paid) in it for one (51. paid) in the banking company. The arrangement not being sanctioned by the articles of association of the financial company,-Held, affirming the decision of Wood, V.C., that it could not be supported as a sale of assets in consideration of shares within the 161st section of the Companies' Act, 1862. A suit by one member of a company on behalf of himself and all other shareholders, to set aside a contract which is ultra vires, is properly constituted, though a majority of shareholders may have assented to the arrangement, and they are not made parties to the suit. The deed of arrangement having been executed on the 17th of May, the plaintiff objected to it early in June, but did not file his bill till November :—Held, that the suit being one, not for avoiding a contract into which the plaintiff had de facto entered, but for asserting and maintaining rights of which he had never been deprived, he was not disentitled to relief on the score of delay. This was an appeal by the Oriental Commercial Bank (Limited) from a decree of Wood, V.C., declaring that an arrangement come to between the directors of the Financial Corporation (Limited) and the Oriental Commercial Bank (Limited), for an amalgamation of the two companies, was not authorized by the articles of association or by the Companies' Act, 1862, and giving consequential relief. The case is reported in 37 Law J. Rep. (N.S.) Chanc. 281, where the facts and arguments are fully set out. Sir R. Palmer, Mr. Druce and Mr. M'Naghten, for the appellants, relied upon the 161st section of the Companies' Act, B 1862 (1) as sanctioning the arrangement. They also contended that the plaintiff could not maintain the suit on behalf of himself and all other shareholders, many of whom were assenting parties to the arrangement, and whose interests, therefore, were not identical with his own Jones v. Garcia Del Rio, Turn. & R. Carlisle v. the South-Eastern Railway Richardson v. Larpent, 2 You. & C. They also relied upon the plaintiff's delay in filing his bill until it had become impossible that there should be a restitutio in integrum as disentitling him to relief, and cited The Era Assurance Society's case, 2 Jo. & H. 400 on appeal, 1 De Gex, J. & S. 29; 32 Law J. Rep. Chanc. 206. At the conclusion of the arguments for the appellants, their Lordships took time to consider whether they would call upon counsel for the respondents. Mr. W. M. James and Mr. A. E. Miller, for the plaintiff, were not called upon. Mr. John Pearson, Mr. Kay, Mr. Haddan, Mr. Eddis, Mr. C. T. Simpson and Mr. A. G. Marten, appeared for the other respondents. (1) This section enacts: "Where any company is proposed to be or is in the course of being wound up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidators of the first-mentioned company may, with the sanction of a special resolution of the company by whom they were appointed, conferring either a general authority on the liquidators, or an authority in respect of any particular arrangement, receive in compensation or part compensation for such transfer or sale shares, policies, or other like interests in such other company, for the purpose of distribution amongst the members of the company being wound up, or may enter into any other arrangement whereby the members of the company being wound up may, in lieu of receiving cash, shares, policies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing company; and any sale made or arrangement entered into by the liquidators in pursuance of this section shall be The LORD CHANCELLOR (Nov. 6).—The arrangement between the Oriental Commercial Bank and the Financial Corporation, which, in the papers in this case, and in the argument, has been called an amalgamation or combination, was, in substance, a transfer by the corporation to the bank of the business, goodwill, connexion and property of the former in consideration of 25,000 shares in the latter. The transaction is thus described in article 1. of the deed executed between the two companies on the 17th of May, 1865: "The whole and entire business, goodwill and connexion of the Financial Corporation (Limited), and also the net property and assets thereof, after payment and provision thereout in the due course of the said voluntary winding-up of and for all the debts and liabilities of the said corporation (but subject to the provision hereinafter contained for the members of the said corporation making good the said assets, in the event and to the extent of such deficiency as hereinafter mentioned; and subject to other the provisions hereinafter contained), shall be and the same are hereby purchased by the said Oriental Commercial Bank (Limited), as from the 4th day of April now last, from and since which day the same net property and assets (subject as aforesaid) shall be deemed to have become and to be the property of the said Oriental Commercial Bank (Limited), in consideration of the allotment to and among the shareholders or members of the said Financial Corporation, in manner hereinbinding on the members of the company being wound up; subject to this proviso that if any member of the company being wound up, who has not voted in favour of the special resolution passed by the company of which he is a member, at either of the meetings held for passing the same, expresses his dissent from any such special resolution in writing addressed to the liquidators or one of them, and left at the registered office of the company not later than seven days after the date of the meeting at which such special resolution was passed, such dissentient member may require the liquidators to do one of the following things as the liquidators may prefer; that is to say, either to abstain from carrying such resolution into effect, or to purchase the interest held by such dissentient member at a price to be determined in manner hereinafter mentioned, such purchase-money to be paid before the company is dissolved, and to be raised by the liquidators in such manner as may be determined by special resolution." |