1848.

JACKSON

v.

THE NORTH

WALES RAILWAY Co.

Argument.

tender, as they chose, but telling the Defendant that they accepted it, and inducing him to incur expense.

The allegation of trusteeship may or may not be proved at the hearing of the cause, but it must be taken as true, for the purposes of the demurrer. The Plaintiff sets up a claim, and states that the Company have funds in their hands for the express purpose of paying it.

Judgment. The LORD CHANCELLOR (without hearing a reply):

I agree in the opinion of the Vice-Chancellor Knight Bruce, as to the want of equity in this case. The contract-if it was a contract at all-was to make a portion of the railway. That most nearly resembles a covenant to build, which this Court will not enforce or interfere with.

Then comes the question whether what is alleged to have taken place in this case is sufficient to make such a contract as this Court will carry into effect. The contract was made, not by the Defendants, but by their agents. It was comprised in a proposal made by the Plaintiff in the alternative; and the charge in the tender was so much for a single and so much for a double line of rails. That alternative was never decided on.

It is said that the party who made the contract was the authorised agent of the Company: that the directors had by law and by their act of Parliament, power to charge and bind the Company by a particular mode of proceeding, but that they had no other power or means of doing so. As to the facts that the Company recognised Sir John Rennie as their agent, and that he had their authority for doing what he had done, and that the Plaintiff has incurred certain ex

penses in preparing for the performance of his contract, I cannot see that these circumstances distinguish this case from Kirk v. The Bromley Union. In that case there was a binding contract between the Plaintiff and the Defendants for certain works; and it was provided, that, if any alterations were required, certain forms should be adopted in ordering them. Of course no alterations would be sanctioned so as to create a right on the part of the Plaintiff to demand payment unless those forms were followed out. But the parties did not comply with those forms; and, according to the opinion of the Vice-Chancellor, had waived them. And then, the forms not being followed out, but the Defendants having encouraged the builder in making those alterations, and having done everything which would bind an individual, the question was, whether such a state of things did not supersede the necessity for a contract as to any such work. What I said (a) was, "That this Court will not in general assume jurisdiction over such a contract, is clear. The recent decision of the Master of the Rolls, in Ambrose v. The Dunmow Union (b), is, I believe, the latest authority, and distinctly proceeds upon that principle. So the question is really reduced to this-Does the statement in the bill as to these extra works and deviations give the Court a jurisdiction, which, without such special facts, it would not have had? The Vice-Chancellor put his decision upon a well-known rule, that, notwithstanding an express stipulation in a contract, the parties may by their conduct waive it; and that, in this particular case, the provision, that the Defendants were not to be bound by any order for an alteration or deviation, unless in writing, did not prevent the Plaintiff from enforcing payment in this Court of the amount and value of such alteration and deviation, inasmuch as the Defendants had, by their conduct, induced him to believe that he would be paid

1848.

JACKSON

v.

THE NORTH WALES RAILWAY Co.

Judgment.

1848.

JACKSON

1.

THE NORTH

WALES RAILWAY Co.

Judgment.

for the same, and would therefore be guilty of a fraud in withholding payment. This result would follow from any case in which a party could not recover his debt at law for want of writing; but that cannot be contended for, for the mere inability to enforce a legal debt at law does not give the party a remedy in equity.

"The case was compared to bills for specific performance of parol contracts; but in those cases the Court has jurisdiction in the original subject-matter, that is, the contract; and the question is, whether the want of writing shall deprive the Court of it. Here the attempt is to make the want of writing the ground of jurisdiction; but if this principle be sound, why may not all parol contracts, which the Statute of Frauds requires should be in writing, be enforced in equity, where the Plaintiff has acted, upon the faith of the contract, with the knowledge of the Defendant? The question between the parties is, does the provision in the contract protect the Defendants against the performance of these parol contracts? The bill assumes that it does, by praying that the Defendants may not be permitted to set up the objection.”

Then comes the other point. The bill alleges that the Defendants are trustees for the Plaintiff as to certain monies which they retain in their hands for the special purpose of paying him. But he is bound to shew how that trust arose. Can a party come here and say that a Defendant is a trustee, and be under no necessity to give the Court any information how the trust was created? The allegation of trust is merely a deduction of law. If the acts constitute a trust, the Court will exercise its jurisdiction in respect of it; but no such consequence will follow merely because a party alleges that there is a trust, without shewing how it arose. But the party shews here that no trust could have arisen. How could the Company have become trus

tees for him? The bill alleges that they have monies in their hands to pay him; and that, as to those monies, they are trustees for him. But, according to his own bill, he has no other connection with the Company, except that he was induced to believe that he should have a contract with them; and, in consequence of that belief, incurred certain expenses. The trusteeship is a conclusion of law; but, although the Plaintiff is pleased to call it a trust, that will not affect the jurisdiction of this Court, where, according to the facts which are alleged, there is no trust.

The Vice-Chancellor seems to have been of opinion, that the allegation of trusteeship created a sufficient equity to sustain the bill, although it was an infinitessimally small degree of equity. My opinion is, that this equity is quite evanescent, and that, therefore, the demurrer ought to be allowed.

1848.

JACKSON

v.
THE NORTH
WALES
RAILWAY Co.

Judgment.

LORD v. THE COPPER MINERS' COMPANY.

Nov. 13th & 14th. Dec. 5th.

THIS bill was filed in March, 1848, by William Hind A shareholder

Lord, on behalf of himself and all other the shareholders or corporators in a certain co-partnership or corporation, called "The Governor and Company of Copper Miners in England," except such of the said shareholders or corporators

in a trading

Company, who possessed both

original and

preferential

shares, filed a

bill on behalf of

himself and all

the other share

holders, except the Defendants, complaining of acts done by the directors and the other Defendants injurious to the interests of the Company. The suit had not been authorised by any general meeting of the shareholders; but the Plaintiff alleged that it was not practicable for any parties but the directors to call such a meeting. The acts complained of consisted of improperly increasing the liabilities of the Company, by contracting debts and otherwise, and of giving to some of the holders of preferential shares an advantage over others, by changing their shares for debentures. These acts were held to be within the general powers of the Company, and were done in consequence of, and, as the directors insisted, in accordance with, a resolution passed at a general meeting. A demurrer, on the part of the Company, for want of equity, was allowed, upon the ground that an individual shareholder was not entitled to be Plaintiff in a suit of such a nature; and that the interests of the original and preferential shareholders were not so identical as to admit of such a bill being filed on behalf of both sets of shareholders.

as were Defendants, against the Governor and Company of Copper Miners, the Governor and Company of the Bank of England, and sixteen other Defendants, twelve of whom were the governor, deputy-governor, and assistants of the Mining Company (who constituted the directors, and were called the Court of Assistants); and the four last-named Defendants were holders of loan notes.

:

The statements in the bill were to the following effect :

The Copper Miners' Company were incorporated by letters patent in 1691. The corporation was under the management of the governor, deputy-governor, and ten assistants; and power was given to the Governor and Company, and their successors, to hold courts for the purpose of consulting concerning the affairs of the Company; and certain provisions were made for the election of a governor, deputygovernor, and court of assistants by the plurality of votes of all who should then have any share or shares in the jointstock of the Company, and certain courts were to be held annually for that purpose; and power was given to the Governor and Company, and their successors, to purchase and hold lands not exceeding the yearly value of 60007., and also goods and chattels to any amount; and to make and raise a joint-stock of any value whatsoever, and to augment and increase or reduce and diminish it as they should find convenient.

In 1841, a prospectus was issued by the then governors, in which it was proposed that the value of each existing share should be taken at 137., and that the capital of the Company should be increased, so as to consist of 1,000,0007., divided into 10,000 shares of 1007. each; and it was stated that an actual capital of 650,000l. would probably be required.

A great number of shares was disposed of, and the busi