after mentioned, of 25,000 shares in the Isaid Bank of the nominal value of 201. each, which are hereinafter mentioned, and on each of which the sum of 6l. (credited as 5.) is to be made up as paid in the manner and by the means hereinafter more particularly mentioned. And the said liquidators under the winding-up of the said corporation shall, subject to the other provisions of these presents, enter into and execute all contracts and transfers, and do all other things whatsoever which shall be requisite for giving effect to the said purchase." The provision here referred to for the members of the corporation making good the assets was, in substance, a provision that if the surplus assets, after paying debts, should not amount to 100,000l. the deficiency should be made good by a call on members of the corporation.

The plaintiff Clinch, a shareholder in the corporation, objected to and dissented from this arrangement, and he complains that it is ultra vires of the corporation, and he has filed this bill on behalf of himself and all other members of the corporation to restrain the arrangement being carried into effect.

It was admitted in the argument, and, indeed, it could not be denied, that there was no power in the special constitution of the corporation which would warrant an arrangement of this nature; and that, if it could be supported at all, it must be supported under the provisions of section 161. of the act of 1862. It was also admitted, and, indeed, it could not be denied, that if the meaning and construction of the documents in which the arrangement rested was, that all the shareholders in the corporation were to be made to guarantee that the assets, after paying all debts, were equal to 100,000l., and that this guarantie was to be enforced by a call on all the shareholders, the arrangement could not be supported. This, I say, could not, in my opinion, be denied, because I think that section 161. clearly contemplates a sale of the assets of the liquidating company for such an equivalent in value as is pointed out in that section, and does not contemplate the subjecting of the shareholders in the liquidating company, without their unanimous consent, to a fresh and original liability in the shape of a guarantie.

But it was argued that the meaning and

intention was that the call to make good this guarantie should be made on those only who accepted shares in the bank, and thus assented to the arrangement. This is a question of construction, and is to be answered by a reference to a few passages in the documents. Before, however, referring to those passages, I wish to say that, although it is not necessary to decide, still I entertain a strong opinion that, even if the construction were such as is contended for by the appellants, namely, that those persons only who accepted shares in the bank should be subjected to this call, still the arrangement is one which would not be within the provisions of sections 161. It is sufficient to say that, in my opinion, the liquidators of a company would have no right to place a shareholder of a company in this position; that he must either dissent altogether from the arrangement and be subject to have his shares taken from him at a valuation, or else come in under the arrangement and thus be forced to subject himself to the liability to which I have referred, namely, the liability of guaranteeing the sufficiency of the assets. However, as regards the construction, the outline of the basis for combination was to this effect: it begins by stating, "The Financial Corporation (Limited) has a nominal capital of 3,000,000l., of which one-half has been subscribed, in 75,000 shares of 201, each, 21. per share paid or in course of being paid." Further on it continues, "The paid and called-up capital of the Financial Corporation (Limited) is 1,500,000l., besides a reserve fund and profits carried forward amounting to about 15,000, subject to certain provisions for the realization of assets of the said corporation, or for the collection of an equivalent amount of further capital by way of call upon the shareholders of the same; so that in any case, besides the contribution and payment over to the said Oriental Commercial Bank (Limited) of a sum or sums equal to 27. upon each of the present 75,000 shares of the said Financial Corporation (Limited) as above recited, the said Financial Corporation (Limited), as at present constituted, shall be bound to pay and discharge (or to indemnify the combined company, if the latter shall have to advance, for payment of) the whole of the debts and liabilities of

the said Financial Corporation (Limited). It is now agreed to grant one share in the said Oriental Commercial Bank (Limited) for every three shares in the said Financial Corporation (Limited), so that the present 75,000 shares of the latter shall be replaced, as to all reciprocal rights and obligations, by 25,000 shares in the said Oriental Commercial Bank (Limited); but inasmuch as a large proportion of the assets of the said Financial Corporation (Limited) are not yet realized, and further, inasmuch as the proposed combination is considered beneficial in protecting such realization, whilst it is not in any wise intended that the said Oriental Commercial Bank should adopt any responsibility, either as to the liquidation of the said Financial Corporation (Limited) or as to the validity of the proposed combination, in so far as the members of the said Financial Corporation (Limited) are or might be concerned, the following arrangement is now adopted and mutually agreed to between the said combining companies: that is to say, 1, that it shall be incumbent on the said Financial Corporation (Limited), and on the directors of the same, to render the combination as proposed and the transposition of capital, transfer of business, exchange of shares, and all other matters incidental thereto, obligatory and binding upon all and every the members of the said Financial Corporation (Limited), being also bona fide holders of 75,000 shares as aforesaid." Then, further on, under the fourth head, "That a suspense account shall be opened for the purpose of such said liquidation, and under the proper control of such said liquidator or liquidators, and that all assets of the said Financial Corporation (Limited) which may remain outstanding and not taken over in account by the said Oriental Commercial Bank (Limited) at the date of the said proposed combination shall be passed to such suspense account, for the purposes of such liquidation, and to be dealt with to meet the bills and obligations of the said Financial Corporation (Limited) accruing to maturity as aforesaid, and the other engagements hereby contracted towards the said Oriental Commercial Bank (Limited), and otherwise as hereinafter set forth. 5. That the 25,000 shares of the said Oriental Commercial Bank (Limited),

granted to the present members of the said Financial Corporation (Limited) in exchange for and in extinction of their actual 75,000 shares as aforesaid, shall at the date of the said proposed combination be credited with 47. each, subject to the provisions of clause 7. in case of deficiency in the realization of assets." Then clause 7. was to this effect: "That if, within a reasonable time, to be mutually agreed upon, the assets of the said Financial Corporation (Limited) realized and paid over as aforesaid shall not have been sufficient to cover the requirements hereinbefore mentioned, it shall be incumbent upon the said liquidator or liquidators to make a special call or calls, to such amount as may be requisite, upon the members of the said Financial Corporation (Limited) as at present and heretofore separately constituted, in respect of the uncalled balance on their respective shares therein, and to appropriate the proceeds of such call or calls in completing the payments to and through the said Oriental Commercial Bank (Limited) as herein before mentioned."

The deed finally executed was to the same effect. Now, in my opinion, there are clear provisions that if the net assets of the corporation should not amount to 100,000l., that is, 47. each on 25,000 shares, a call should be made, and should be made upon all the members of the corporation, to raise the deficiency. The call must not be made upon those merely who took shares in the bank. It is a call to be made by the liquidators in the ordinary course of business, and according to the powers to make calls upon the members of the corporation in respect of the unpaid capital; and it is beyond doubt that a partial call upon a certain number of members of the corporation would not have been a call of that description. It is impossible, therefore, in my opinion, to put any construction upon these provisions except this,-that there was to be a call for the purpose of giving effect to the guarantie, and that that call was to be made upon all members of the corporation, whether they assented to or dissented from this arrangement. If that be so, the arrangement is one which, in my opinion, is clearly not authorized by section 161. of the act of parliament, and Mr. Clinch was entitled to object to it,

It was argued, however, that a number, and indeed a majority, of shareholders in the corporation had assented to the arrangement, and had actually taken shares in the bank under it, and that the plaintiff could not sustain this bill as a bill on behalf of himself and all other members of the corporation, at all events without making all or some of those parties who had assented to the arrangement parties to the suit; but the contract was one between the two corporations, and if the contract was ultra vires of the Financial Corporation, it is a contract which in the eye of this Court it is for the benefit of all the shareholders in the corporation to arrest; and in my opinion a proper form of suit in which to accomplish this end is a suit by one member of the corporation on behalf of himself and all other members, making the executive of the corporation and the other contracting company parties as defendants.

The appellants further argued that the plaintiff was open to a personal exception on the score of delay in instituting the suit. The deed to which I have referred was executed on the 17th of May, 1865. The plaintiff objected to the arrangement to his own company early in June, 1865. Some correspondence took place between this date and the month of November as to the terms on which he might be relieved from liability, and on the 10th of November, 1865, he filed his bill. So far therefore as his own company was concerned, they were aware from a very early period, that he not only dissented from the arrangement, but challenged its validity. In addition, however, to this, it is to be observed that this is not a case of delay in asserting an equity, or in taking steps to avoid a contract into which the plaintiff has de facto entered. The plaintiff was and continued throughout to be the owner of his shares in the corporation, and of all rights incident to those shares, unless those rights were taken away or effectively bound by the arrangement of amalgamation, and he was simply asserting and maintaining those rights. Those rights, in my opinion, have not been taken away, and I think he is not disentitled to relief for the purpose of protecting them upon the score of any delay.

There was a declaration in the decree to

which particular and subsidiary objection was made by the appellants. It was in these words; after declaring the invalidity of the compromise in a manner which appears to me to be perfectly accurate, the decree proceeded thus: "It is further declared that, without prejudice to any question as between the shareholders of the said Financial Corporation (Limited), who have been registered as shareholders by the said Oriental Commercial Bank (Limited), and the creditors of the said bank, the said shareholders are, between themselves and the said bank on the one hand, and between themselves and the said corporation on the other, entitled to have their shares in the said corporation restored to them on the delivery up of the certificates of their shares, as registered in the books of the Oriental Commercial Bank (Limited), and that the defendant Lewis Henry Evans, as the official liquidator of the Financial Corporation (Limited), is bound to re-deliver the said certificates to Arthur Cooper, the official liquidator of the said Oriental Commercial Bank (Limited). And it is ordered accordingly. And any of the parties are to be at liberty to apply under the two orders specified, made for the winding-up of the corporation and the bank in respect of the last-mentioned declaration as they shall be advised."

Now, this clause was objected to, as if it had been a clause ordering the delivery up and restoration of shares allotted in the bank, but that is not what the decree provides for. It simply declares that the shareholders in the corporation are entitled, if they deliver up the shares in the bank, to a re-delivery to them of their own original shares in the corporation, a provision which simply flows from the previous part of the decree, and is, in my opinion, nothing more than what those persons are entitled to. At the same time it appears to me, subject to any observation that Mr. James, on the part of the respondents, may desire to make on the subject, and subject to the opinion of the Lords Justices, that every thing that the plaintiff can desire is given by the other parts of this decree, and that it might safely be left to the proceedings in the winding-up to accomplish what was intended to be effected by the part of the decree which I have read. But whether

this portion of the decree is omitted or retained, it appears to me that it ought not to make any difference with regard to the costs of this appeal, and that this appeal ought to be dismissed with costs.

Mr. James.-We did not ask for the declaration and order referred to by your Lordship, but it was thought to be a right belonging to some of the other parties.

LORD JUSTICE WOOD.-I have very little to add after the clear exposition which the Lord Chancellor has given of the grounds upon which the decree may be supported as the correct decree of the Court. I can only now say that I have not seen any reason to change the view which I entertained at the time of the original hearing. As regards the reasons which have been assigned, the case has now had the advantage of having the foundation of that decision rested upon grounds more clearly expounded than in that judgment which I then gave, or any which I could now give. I acquiesce entirely in the proposed alteration as to that which the Lord Chancellor has termed the subsidiary portion of the decree. It is unnecessary for me, under those circumstances, to add more on the present occasion.

LORD JUSTICE SELWYN.-It has not been contended that the arrangement in question in this suit can be supported under the articles of association of the Financial Corporation, but it was distinctly stated by Sir Roundell Palmer that if good, it is good under the 161st section of the act of 1862. The words of that section are doubtless very wide and comprehensive, but it contains no power to impose any new or additional liabilities upon the shareholders of the selling company, but provides for the payment of the purchase-money of the shares of the dissentient shareholders which is directed 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. It was also admitted that if the construction of the documents in question which was adopted by the Court below was correct, the arrangement which was carried into effect by those documents was not one falling within the scope of the 161st section, and in particular, that

if the Vice Chancellor was right in supposing that the calls were to be made upon all the shareholders, no one would argue that the arrangement was intra vires. The substantial question therefore is one, as the Lord Chancellor has already said, upon the construction of those documents; and in addition to the passages already referred to by his Lordship, I would mention that in the preamble of the document of the 24th of March, 1865, which is called the outlines of basis for combination, a sum or sums equal to 21. upon each of the 75,000 shares of the Financial Corporation is to be paid over to the bank, and the present 75,000 shares in the corporation are to be replaced as to all reciprocal rights and obligations by 25,000 shares in the said Oriental Bank (Limited). Throughout the whole of this preamble the sums and number of shares are spoken of as one entire and definite amount or amounts, without any suggestion of probable or possible diminution. In like manner, in clause 6, we find again the provision that they are to make up 67., to be credited as 57., as paid into the capital and premium account of the said Oriental Commercial Bank (Limited) for every one of the said 25,000 shares, the amount credited as set forth in the foregoing clause, No. 5, being reckoned as the first instalment of such 61. credited as 51., and the said shares thus participating in the entire combined reserve fund rateably, and that the said 25,000 shares shall accordingly from time to time and respectively receive credit for such further payments upon them out of capital suspense account as may be effected by the liquidator or liquidators. The provisions of the deed of the 17th of May, 1865, are upon this point exactly in accordance with those of the outlines of basis for combination. The first clause of the deed transfers the whole and entire business and goodwill of the Financial Corporation (Limited). This transfer is absolute and unconditional, not dependent upon the assent of any particular number or proportion of the shareholders, but absolute, immediate and unconditional, and the consideration which is stated in the same clause is said to be the allotment of 25,000 shares, not of any aliquot or proportionate part of them. In like manner clause (4. B.) provides that the assets specified in section

A. are to be credited by the bank in or towards paying 47. a share on each of the 25,000 shares of 201. each in the bank, the allotment of which is to form the consideration for the aforesaid purchase; and, again, as the Lord Chancellor has already observed, the call is to be made on all, and no power is attempted to be given, if any such power could have been given, to make any partial call. The next clause (4. D.) was much relied upon by counsel for the appellants, as shewing that in one event the whole of the shareholders might not have been entitled to the benefit of the arrangement. But the payment of the 21. per share which is referred to in that clause was a liability or obligation existing before. the date of the arrangement, and not in any way consequent upon it, and this clause (4. D.) merely provides that this previously existing liability shall be discharged by every shareholder before he becomes entitled to participate in the allotment of the 25,000 shares. Clause 12. of the same deed imposes upon the bank immediately and unconditionally the discharge of certain onerous duties and obligations, and it was urged upon us in argument by the appellants' counsel, that as the bank had in fact discharged these onerous duties and obligations, it would now be unjust to set aside that arrangement. But upon the question of construction, it is material to observe that on this most important clause no provision whatever is made for the release of the bank from their obligation in the event of a large proportion of the shareholders refusing to accede to the arrangement; and this leads me to the further observation that throughout all the documents and resolutions no trace is to be found of any such provisions as would have been necessary for the protection of the parties, if the arrangement contemplated had been of such a partial and conditional character as is contended for by the appellants. There is no resolution or provision for the payment of the purchase-money of the interest of any dissentient shareholder. The consideration therefore of that which is contained in these documents, as well as the absence of any such provisions as those to which I have alluded, is such as, in my judgment, to lead irresistibly to the same conclusion as the Court below has arrived

There being two adverse claimants to money assessed for compensation in respect of land "injuriously affected" within the meaning of the Lands Clauses Consolidation Act, the parties by whom the compensationmoney was payable filed a bill for an inquiry as to which of the two claimants was entitled to such money. But the Court, holding the real question at issue to be the title to the land, refused to order a reference to chambers to inquire into that title, and directed the question to be tried by an action of ejectment.

This suit was instituted to ascertain the right to a sum of 9,2377., representing compensation money for damage to certain warehouses and land "injuriously affected" by the construction of the Thames Embankment. The defendants, Messrs. J. & W. Sant and W. A. P. Cockburn, who were in possession of the premises in question, had claimed compensation from the plaintiffs, the Metropolitan Board of Works, under the 68th section of the Lands Clauses Consolidation Act, as owners in fee simple; and upon the matter being carried before a jury in the usual way, the damage was assessed at 9,2371.

Shortly afterwards, the other defendant, G. J. Drummond, made a claim upon the