ISSUES WHERE DIRECTORS OR OTHER OFFICIALS ARE SUED FOR MALVERSATION.

Action by Company against a Director of a Banking Company for Malversation in Office.

1. Whether, at various dates between 1st October 1845 and 3d September 1846, there were, by the authority and for the purposes of the defender, taken or obtained from the funds of the pursuers' company the various sums specified in the schedule No. 1 hereunto annexed, and entered to the defender's debit in an account marked No. 2 in the books of the said bank? And whether the defender hereby became indebted to the said company in the sum of £1000 or thereby?

2. Whether the defender, on or about the 31st of August 1846, fraudulently, and without due warrant or authority, transferred, or caused to be transferred, from his debit in said account No. 2 the sum of £12,456, 8s. 7d., or any part thereof, being a portion of the foresaid sum of £18,684, 12s. 11d.; and whether the defender is indebted and resting owing to the pursuers the said £12,456, 8s. 7d., or any and what part thereof, with interest from the said 31st of August 1846 till payment, under deduction of the sum of £7464 recovered by the pursuers on the 5th of October 1848; of another sum of £676, 7s. 8d. recovered by the pursuers on the 12th of January 1850; and of another sum of £425, 15s. 6d., also recovered by the pursuers on the 4th of January 1853?

3. Whether, at various dates between the 1st of October 1845 and the 3d of September 1846, there were, by the authority, and for the purposes of the defender, taken or obtained from the funds of the pursuers' company the sums specified in the schedule No. 2 hereunto annexed, and entered to the defender's debit in the foresaid account marked No. 2 in the books of the said bank, amounting in whole to £2341, 5s. 6d.; and whether the defender thereby became indebted to the said bank in a balance, as at the 31st of August 1846, of £1403, 8s., or thereby?

'4. Whether the defender, on or about the said 31st of August 1846, fraudulently, and without due warrant or authority, transferred, or caused to be transferred, from his debit in said account No. 2, £701, 14s. of the said balance of £1403, 8s., or any part thereof? And whether the defender is resting owing to the pursuers the £701, 14s., or any part thereof, with interest from the said 31st of August 1846 till payment, under deduction of the sum of £85, 16s. recovered by the pursuers on the 12th of January 1850, and of another sum of £54, 1s. recovered by the pursuers on the 4th of January 1853 ?'

5. Whether the defender, by the writing No. 6 of process, undertook

and obliged himself, conjunctly and severally, along with others, to pay to the pursuers' bank the sum of £40,000, or such part thereof as might be drawn from the said bank by orders or cheques, as therein mentioned? And whether there were advanced by the pursuers, on the faith of the said writing having the signature of the defender thereto, various sums, and at various dates, amounting to £39,470, or thereby? And whether the defender did, on or about the 5th January 1847, wrongously, and without due warrant or authority, delete, or procure to be deleted, his name from the said writing? And whether the defender is still liable to the pursuers under the said writing?' Or,

Whether the pursuers acquiesced in and adopted the deletion of the defender's name from the said writing, and relinquished any claim competent to them against the defender under the said writing?' (a).

Action by Shareholder against a Director.

Banking

'Whether the defender, while a director of the Company, and others acting along with him as directors thereof, did fraudulently, and in violation of their duties as directors, make large advances out of the funds of the said company to A. B., C. D., and E. F., or to any of these parties, knowing, or having reason to believe, that the same would not be repaid, whereby the value of the shares of the stock of the said company held by the pursuer was destroyed or greatly depreciated, to his loss, injury, and damage?

'Damages claimed, £3000' (b).

'Whether the defender, while a director of the

Company, and

others acting along with him as directors thereof, did fraudulently, and in violation of their duties as directors, misrepresent and conceal from the shareholders the true state of the company's affairs subsequent to 3d October 1850, whereby the pursuer was deprived of the means of bringing about a dissolution of the said company, and of otherwise preventing or alleviating the depreciation of the value of the stock of the said company, to his loss, injury, and damage, as holder of certain shares thereof?

'Damages claimed, £1000' (c).

Action by Shareholder against the Company.

'It being admitted that under an Act of Parliament, 5 Geo. IV. c. 76, a company was established in Edinburgh, under the name of the Edin

(a) See North of Scotland Banking

Co. v. Thomson, 1854, 16 D. 1011.

(b) Tulloch v. Davidson's Exrs., 1858, 20 D. 1319.

(c) See Tulloch v. Davidson, supra.

burgh Oil Gas Light Company; and it being also admitted that the pursuer was an original shareholder of the said company, and as such held twelve shares of the stock of the said company, on which he paid certain instalments; and that between the 17th day of January and the 21st day of April 1824 the pursuer purchased forty additional shares of the said stock, on which he paid certain instalments and premiums: 'Whether, between the 19th day of January 1826 and the 15th day of May 1828, the defenders wrongfully violated the provisions of the aforesaid statute (a), and thereby became indebted to and are resting owing to the pursuer in the sum of £1183, 10s. 51d., or any part thereof, with interest thereon, as the value of the shares of stock held by the pursuer as aforesaid?'

Or,

'Whether the pursuer homologated or acquiesced in all or any of the said actings of the defenders?' (b).

Issues in an Action for a Company Debt, when the defence is that it was contracted on the individual credit of a Partner.

'Whether, in the months of January, February, and March 1854, the pursuer, upon the order and on account of the defenders, delivered to A. B. the goods specified in the invoices hereto annexed, or any part thereof? And whether the defenders are indebted and resting owing to the pursuer the sum of £1000, being the price of said goods, or any part thereof, with interest thereon?' (c).

When the defence is that the transaction exceeded the express or

implied agency.

Even in this case it does not appear that anything further is necessary than a simple issue of 'resting-owing;' and the company will, without taking a counter issue, get into all relevant evidence as to want of authority. The issues may run somewhat as follows:

1. Whether the Australian Company, defenders, through A. B. as their manager at Sydney, received from the pursuer in money and bills the sums of £150 and £250, mentioned in the acknowledgment No. 4 of process, and undertook to invest the same for behoof of the pursuer in stock of the Bank of New South Wales? 2. Whether, on or about 8th November 1828, or thereafter, the Australian Company received from the pursuer the sums of money and bills mentioned in the said acknowledgment, and are resting owing to the pursuer the sum of £400, or any part thereof, with interest thereon?' (d).

(a) In modern practice, some specification of alleged violation would probably be required.

(b) See Clyne v. Edin. Oil Gas Light Co., 1832, 10 S. 723, and Macf. and Clegh. 507.

(c) A counter issue is not here in

general necessary. See Tupper and Carr v. Rowell and Co., 1858, 20 D. 758; and cases in following note.

(d) See Hamilton v. Lundale, 1860, 22 D. 1059; Wemyss v. Australian Co., 1856, 19 D. 122.

Issues in an Action against a Sharebroker for failure to procure a Transfer of Shares completed in due time.

'It being admitted that, on or about the 26th of August 1847, the defender, as a sharebroker, by order of the pursuer, purchased on his account fifty shares of the Great Northern Railway, at the rate of £2, 12s. 6d. per share; it being also admitted that the pursuer, on or about the 22d September 1847, accepted and subscribed the transfer of the said shares:

'Whether the defender wrongfully, and in violation of his duty as a

broker, failed to procure the said transfer regularly completed in due time, and is resting owing to the pursuer the sums of £131, 5s., £4, and £100, or any part thereof, with interest ?' (a).

Liability of Representatives of a Deceased Partner.

'It being admitted that the pursuers are the whole surviving solvent partners and representatives of the whole deceased solvent partners, except of the now deceased A. B., of the Union Whale Fishing Company of Aberdeen; and it being also admitted that the said A. B. was at the time of his death, which took place in July 1834, a partner of the said company, and that the defenders are his trustees, executors, and personal representatives:

'1. Whether the defenders, as trustees and executors of the said A. B., became partners of the said company, and are, as partners, resting owing to the pursuers the sum of £1000, or any part thereof, with interest from the 31st of January 1843?

'2. Whether the defenders, as representing the said A. B., as formerly a partner of the said company, are resting owing to the pursuers in the sum of £1000, or any part thereof, with interest from 31st January 1843?' (b).

Action for Failure to reconstruct Accommodation Works.

'It being admitted that the defenders, in the course of constructing the North British Railway through the pursuer's lands, erected a certain accommodation work, being a carriage archway under the said railway for the accommodation of the pursuer and his property; and it being further admitted that the said archway was destroyed and carried away on or about the 29th of September 1846:

'Whether the defenders have wrongfully refused or failed to reconstruct and restore the said archway?' (c).

Action by Railway Company for Tolls.

'Whether the pursuers carried coals and lime for, or on behalf of, the defender to their station (a) Mortimer v. Miller, 1849, 11 D.

1218.

(b) See Hogarth and Co. v. Gor

at Forfar, and made disbursements don's Trs., 1844, Macf. and Clegh. .508.

(c) See Hay v. North British Ra. Co., 1850, 12 D. 1230.

for the prior carriage thereof to another railway company, or to other railway companies, between the 1st and 31st days of March 1862, or about these dates; and whether, in respect thereof, the defender is resting owing and indebted to the pursuers the sum of £75, 1s. 1d., under deduction of £20, paid on or about 8th May 1862, or any and what part thereof, with interest from 8th May 1862?' (a).

FORM OF DECLARATION TO AUTHENTICATE STATEMENTS UNDER SEC. 186 OF THE 25 AND 26 VICT. c. 89 (1862).

I, A. B., do solemnly and sincerely declare that, etc. etc.: And I ́ make this solemn declaration, conscientiously believing the same to be true; and by virtue of the provisions of the Companies Act 1862, and of an Act made and passed in the session of Parliament held in the fifth and sixth years of the reign of King William the Fourth, intituled, ‘An Act to repeal an Act of the present session of Parliament, intituled, “An Act for the more effectual Abolition of Oaths and Affirmations taken and made in various Departments of the State, and to substitute Declarations in lieu thereof; and for the more entire Suppression of voluntary and extrajudicial Oaths and Affidavits," and to make other Provisions for the Abolition of unnecessary Oaths.'

(a) Scottish North-East. Ra. Co. v. Anderson, 1863, 1 Macph. 1056.

day of