THE THAMES SUBWAY (HOUse of Lords) BILL. IN PARLIAMENT.] subway from Deptford under the river Thames to the Isle of Dogs, and for other purposes. Against this Bill a petition was presented by Zachariah Blacketer and others stating, That it is proposed by the said Bill to take powers to construct a subway at some point not more than three hundred and forty yards, nor less than three hundred and twenty yards from Potter's Ferry, in the Isle of Dogs, under the said river, to a point not more than nine hundred and twenty yards, nor less than eight hundred and ninety-one yards, from Greenwich Pier, on the south side of the said river. That your petitioners are the owners in fee and trustees of the ferry called Potter's Ferry, from the Isle of Dogs to Greenwich, and of certain lands appertaining thereto. That the said ferry is a very ancient ferry by prescription, which your petitioners hold by a title tracing back through their predecessors to the Right Honourable Sir Thomas Went worth, Knight, Lord Wentworth and Earl of Cleveland, who owned the same as lord of the manor of Stebonheath, in the county of Middlesex. That the said ferry has, since the same was first dealt with by the said Lord Wentworth, now upwards of two hundred and thirty years ago, been continually worked by your petitioners and their predecessors. That up to the year 1815 your petitioners or predecessors had the exclusive right of ferrying foot passengers, horses, cattle, and carriages from the Isle of Dogs to Greenwich, but in that year the right (except as to foot passengers) was leased for 100 years to the Poplar and Greenwich Ferry Company, and your petitioners are still the owners of the reversion in such right That your petitioners have, at great expense, established and defined their rights from time to time, both at law and in equity, and have prevented persons from ferrying at points more distant from their ferry than the proposed subway. That your petitioners have lately, at a very great expense, provided a steam ferry-boat and a sufficient landing-place therefor, for the accommodation of the public, the traffic over their ferry having enormously increased. That your petitioners, as owners of such ferry, are compellable at law to maintain such ferry, whether profitable or not. That the construction of the said subway will cause a loss to your petitioners by abstracting traffic which they fully accommodate and are entitled to retain. That your petitioners respectfully submit that the threatened competition would be unfair to them, and ought not to be sanctioned by your honourable House without the introduction of clauses into the Bill for the protection of your petitioners' interests, and for the purpose of compensating them for any loss they may sustain. That your petitioners' land and property will be injuriously affected by the works proposed, but they are advised that, as the law at present stands, they cannot be compensated for such injury unless clauses be inserted in the Bill to that effect. That if such clauses be inserted, the deposited estimate, after allowing for the cost of the proposed works, will be insufficient to cover the compensation to which your petitioners will be entitled. That the engineering details of the undertaking are defective. That the works are insufficient for their proposed object. That the deposited estimate for executing the said works is insufficient. That the preamble of the said Bill is untrue and incapable of proof. That the said Bill contains clauses to which your petitioners object, and ought, if passed into a law, to contain other clauses which are not now inserted therein for the protection of their property, rights, and interests. The petition prayed for a locus standi against the preamble and clauses of the Bill. Littler for the petitioners.-The petitioners are entitled to a locus standi on the ground of competition. There has been much litigation concerning the right of the petitioners to their ferry, the details of which will be found in the cases of Blacketer v. Gillett,9 C. B. 26; 19 L. J. 307, C. P.; Giles v. Groves (not reported; and Doust v. Matthews (not reported). The petitioners are bound by the common law to keep boats for the benefit of the public, and it would not be lawful for them to put up a bridge. By clause 43 of the Bill, as amended in the H. of L., works connected with or in any way interfering with the roads, property, or rights of the Poplar and Greenwich Ferry Company, are to be made and maintained at the expense of the promoters to the reasonable satisfaction of the surveyor for the time being of the Poplar and Greenwich Ferry Company. In clause 44 there is a saving of [IN PARLIAMENT. the rights of the same company. And in clause 45 it is provided that the master, wardens, and commonalty of the watermen and lightermen of the river Thames (in the Act called the Watermen's Company) shall in the five successive years next after that in which the subway is opened let on lease by fair competition, tender or auction, in the manner hitherto accustomed, the rights of working the Sunday ferries across the river Thames, respectively known as the Deptford and Poplar-ferry, and the Greenwich-ferry. The effect of these clauses is to protect the interests of those who are merely sub-lessees of the petitioners, and those who have only a Sunday ferry, which is really no ferry at all. The petitioners did not oppose the Bill in the Lords, but they ought not to be prejudiced on that account, as they are poor men who are quite ignorant of Parliamentary practice, and did not understand the notices which were served upon them. In the North Kent Railway Bill, Stone & Gra. Rep. 31, a line two miles and a-half distant from the projected one was admitted to a locus standi on the ground of competition. Rodrell for the promoters.-No competition has been proved. The proposed subway is intended to be used for the conveyance of omnibusses, carriages, and other heavy goods, while the ferry only employs steamboats. The distance between the proposed ferry and the way is too great to justify the Referees in granting a locus standi. The litigation in which the petitioners have been engaged shows that they know how to look after their interests. By the REFEREES (after consultation).—The locus standi of the petitioners is allowed. Locus standi allowed. Objection to the locus standi of LICENSED RIVER PILOTS of the TRINITY-HOUSE. Locus standi-Bill for making a subway under a river -Increase in risks of navigation-Trinity-house pilots. A Bill was promoted for making and maintaining a subway under the river Thames, and for the performance of the works thereby authorised, to dig, pile, and make foundations in the river and on the lands on each side of it, and to make dams in the river during the making and repairing of the subway. Against this Bill a petition was presented by the Trinity-house pilots, complaining that the proposed works would seriously obstruct the navigation and lessen the fairway of the channel of the river, and increase the liability of the petitioners as compulsory pilots for damages sustained during their pilotage: Held, that the petitioners were not entitled to a locas standi. This was a petition against the Thames Subway Bill by the licensed river pilots of the TrinityHouse, Deptford Strond, in which they stated, That a Bill has been introduced into your honourable House entitled "An Act for making and maintaining a Subway from Deptford under the river Thames to the Isle of Dogs, and for other purposes. That your petitioners are pilots, licensed by the corporation of the Trinity House, Deptford Strond, for the purpose of navigating vessels up and down the river from Londonfor all damage that may accrue to any vessel liable to combridge to Gravesend, and that your petitioners are liable pulsory pilotage whilst such vessels are under your petitioners' charge. That it is proposed by the Bill now pending in your honour. able House to enable the company to be thereby incorporated to make and maintain, according to the levels shown on the deposited plans and sections therein referred to, a subway from Deptford, in the county of Kent, under the river Thames, county of Middlesex, and for the performance of the works to to the Isle of Dogs, in the parish of All Saints, Poplar, in the be thereby authorised from time to time, to dig, pile, and IN PARLIAMENT.] THE BOROUGH OF CAMBRIDGE. [ELECTION PET. make proper foundations in the river Thames, and on the | contain most stringent regulations for the safety of lauds on each side thereof, and to make dams in such river during the making or repairing of the subway. That your petitioners believe that for the purpose of carrying out the works proposed to be authorised by the said Bill, the company to be thereby incorporated will be authorised to put cofferdams and erect stages and other works in the bed of the river Thames, which will occasion a most serious obstruction to the navigation of vessels up and down the river, and will likewise materially lessen the fairway of the channel of the said river, and that both by the erection of the proposed works, and by the repairs thereof from time to time if the same shall be authorised by your honourable House, the traffic upon the said river must be impeded and endangered, and the liability of your petitioners be greatly enhanced. That the great majority of the docks, wharves, and quays to which the vessels piloted by your petitioners are situate, on either side of the river Thames, above the proposed subway, amongst the principal of which are the places following, namely, the Commercial Docks, Canal, West India Docks (Limehouse entrance), Regent's Canal, London Dock, Surrey Dock, St. Katherine Dock, and Humphrey's Docks. That the reach under which it is proposed, if authorised by your honourable House, to make the subway is the narrowest and most difficult and dangerous to navigate, between Gravesend and London, being at low water only 700 feet wide, out of which space about 200 feet must be deducted as being used for the Government moorings, and at half flood the navigable channel for ships drawing eighteen feet of water is not more than 300 feet wide. That when the wind is from W.N.W. to N., the river in the reach where the proposed subway is to be made is at present most difficult and dangerous to navigate, because vessels at that point under such circumstances have to drive athwart the tide, which causes them to take, in certain cases, from four to five times the space than when taking a direct course, and should your honourable House authorise the proposed works to be carried out, your petitioners humbly submit that nothing they could do when navigating a vessel so situate would prevent such vessel from coming in contact with the stages and dams used in carrying out the said works, and thereby cause damage either to the works or vessels. That the set of the tide at the place where it is proposed the subways should be made, is such, that in navigating heavy ships with the river in its present state, it is attended with difficulty and danger to keep clear of the Government moorings, or the vessels made fast to the same; and to enable your petitioners to do so it is necessary to angle the ship so navigating from two to three points to the north of the true course of the river to avoid the direct set of the tide on such moorings, and a vessel not so angled would be sure to come in contact with such moorings, and should the proposed works be authorised by your honourable House, the danger will be greatly increased from the want of the space that will be occupied by the stages and danis erected in the river in order to carry out such works, and there will be great risk of such vessels so navigating as aforesaid coming in contact That should the proposed works be authorised by your honourable House, your petitioners humbly submit that it will be attended with great danger and difficulty to navigate ships of heavy draught to any of the docks, warehouses, or quays situate on either side of the river above the proposed subway, and that during such period as the dams and stages necessary for such works are erected in the mid-channel, the river will not be navigable at all for such ships. therewith. That the barges, lighters, and small craft of all description which now crowd the river in the reach, where it is proposed that the subway shall be made, render the navigation difficult and dangerous, and this will be materially enhanced by the erection in the river of the dams and stages necessary to carry out the proposed works. That the preamble is untrue and incapable of truth. the river during the construction of the works. The conservators represent the interests of the petitioners. By the REFEREES (after consultation).--The locus standi of the petitioners is disallowed. Locus standi disallowed. Election Petitions. Reported by F. O. CRUMP, Esq., of the Middle Temple. THE BOROUGH OF CAMBRIDGE. (Before Mr. Lowe, Chairman; Sir J. FERGUSON, Mr. GOLDNEY, Lord HENLEY, and Mr. COLERIDGE.) Disqualification-New office under the Crown. The office of Standing Counsel to the Secretary of India is a new office within the meaning of the statute of Anne, notwithstanding the East India Company, before the passing of the Act of 1858, which transferred the government of India to the Crown, and before the 25th Oct. 1705, had a standing counsel. This petition was presented by Colonel Robert Richard Torrens, the unsuccessful candidate at the last election, and its averments were as follows: That the election for the borough of Cambridge took place on the 11th July 1865, there being four candidates-Mr. Forsyth, Mr. F. S. Powell, Mr. W. D. Christie, and the petitioner, and that at the close of the poll the returning officer declared Mr. Forsyth and Mr. Powell duly elected, the numbers voting for each being-for Mr. Forsyth, 762; for Mr. Powell, 760; for Colonel Torrens, 726; and for Mr. Christie, 725; that Mr. Forsyth, before and at the time of the election, held and still holds the office of Standing Counsel to the Secretary of State in Council for India, which is a new office of place or profit under the Crown, within the limit and meaning of the 6 Anne, and that by reason of such Act he was incapable of being elected and of sitting as a member of the House of Commons; that before and at the election a notice, signed by John Eaden, an elector for the borough, was extensively placarded and circulated among the electors, to the effect that Mr. Forsyth was disqualified and ineligible to sit in Parliament, and the petitioner submitted that the votes given to Mr. Forsyth were null and void. The petition prayed that the petitioner should be declared returned instead of Mr. Forsyth. Counsel for the petitioner, Vernon Harcourt, Q. C., The petition prayed for a locus standi against the Fitzjames Stephen, and E. Chandos Leigh; counsel preamble and clauses of the Bill. for the sitting member, Hope Scott, Q. C., Mellish, Q. C., and Cooke, Q. C. Smethurst for the petitioners.-The liability of the petitioners as Trinity-house pilots under 6 Geo. 4, c. 125, s. 2, and the Merchant Shipping Acts, is of a very serious character; every vessel coming up or down the river between London and Gravesend must be in charge of a pilot, and the pilot is always responsible for any actionable injury caused to property by the vessel. The difficulty of the navigation will be greatly increased by the proposed works, and the petitioners ought to be heard against anything that may increase their liability. Rodwell for the promoters.-The liability of the Trinity-house pilots is not increased by this Bill in the slightest degree. They are only liable if negligence on their part is proved, and the Bill will place them in no worse position. The clauses inserted during the passage of the Bill through the Lords Vernon Harcourt opened the case for the petitioner.-The question the committee had to decide was simply the construction of the statute of 6 Anne, c. 7, s. 25, which enacted "that no person who shall have in his own name, or in the name of any person or persons in trust for him, any new office, or place of profit whatsoever under the Crown, which at any time since the 25th Oct. 1705 has been created or erected, or hereafter may be created or erected, or any person who shall be a commissioner or sub-commissioner of prizes, or any person having any pension from the Crown during pleasure, shall be capable of sitting or voting in the House of Commons in any Parliament which shall hereafter be summoned or holden." That being the state of the law, he had to show that Mr. Forsyth held a place of profit under the Crown, which had been created or erected since ELECTION PET.] THE BOROUGH OF CAMBRIDGE. [ELECTION PET. port of it which were reported in Hatsell's Precedents. There was the case of Mr. Farrer (2 Hat. Prec. 45), who accepted the office of master, keeper, and governor of Queen Catherine's Hospital; the office was in the gift of the Queen Consort, but there being no Queen Consort, the patronage became vested in the Crown, and the office being thus held from the Crown the acceptance of it was held to vacate the seat. Then there was the Galway case, F. & F. 591. In that case Mr. Lynch was appointed Master of Chancery in Ireland. On being appointed, he vacated his seat, and it was held that he was re-eligible, it being an old office which had become an office held under the Crown. Then there was the North Berwick case, reported in Douglas, 423, and in Hatsell. In that case the Hon. J. Maitland (2 Hat. 56, in notis) was appointed to the office of Clerk to the Pipe (which was an office in the Scotch Exchequer), and then was elected, and the question was whether he was incapacitated under the 25th section, and it was held that he was not disqualified because, though previously held under the Crown and it had come to be held from the Crown, it was an old office. Then there was Rigby's case: he was Secretary to the Lord Lieutenant of Ireland, and by an address of the House of Commons in 1758 his military fees were turned into a salary to be paid by the Crown, and it was held that this did not make it a new office, but that it was an old office. He now came to the fourth proposition. This raised the question of what was the meaning of the term the 25th Oct. 1705. The place which Mr. Forsyth | third proposition, there were several cases in supheld was that of Standing Counsel for the Secretary of State in Council for India, the salary attached to that office being 500l. per annum. The Government of India was formerly vested in the East India Company, but, by an Act passed in 1858, was transferred to the Crown. The contention on the other side would be that this was not a new office or place of profit under the Crown, created since 1705; but that inasmuch as the East India Company had had a standing counsel from 1702 down to the Act of 1858, this was only a continuance of that old office; but his contention was that it was a new office, established under the authority of the Act of 1858. Under the Act of Settlement, the original intention was to deprive persons holding office under the Crown altogether from the right of sitting in Parliament. That never came into operation, but was repealed by the 6 Anne. There were conferences between the House of Lords and the House of Commons on the subject, and their Lordships assigned reasons against the disabilities, showing why they were unconstitutional and ought to be repealed. The gentleman who invented the expedient to meet the difficulty between the two Houses of Parliament was a gentleman who had come down to posterity by the name of Mr. Expedient Eyre. Mr. Expedient Eyre suggested that the difficulty should be met by vacating the seat, and permitting the re-election of the person who had accepted the office; and the compromise come to was this: that all persons holding any place then existing under the Crown, with the exception of those specially disqualified, were to be allowed to sit in the House of Commons, but that | on accepting the office they should vacate the seat and be re-eligible. That was the concession of the House of Commons to the House of Lords. On the other hand, the concession of the Lords to the Commons was that the holder of no new office, or place of profit created after that period, should be allowed to sit in the House of Commons. Thus it was that the 26th section, which enabled persons to be reelected after accepting office, applied only to old offices. There were four propositions, for which he contended: first, that by the acceptance of any old office, held immediately from the Crown, the seat was vacant, with power of re-election; secondly, that the acceptance of an old office held under the Crown-that is, in the public service, and not immediately from the Crown-did not vacate under the 26th section, and not being a new office did not vacate under the 25th section; thirdly, that an old office under the Crown, held indirectly from the Crown, and not immediately from the Crown, which came subsequently to the statute of Anne to be held immediately from the Crown, did not incapacitate the holder of it under the 25th section as a new office, but it vacated the seat under the 26th section, with re-eligibility; and his fourth proposition was that the acceptance of a new office, whether under the Crown or from the Crown, always vacated the seat, and always incapacitated under the 25th section, and that Mr. Forsyth's was such an office. The first proposition was familiar, and would not be disputed. With regard to the second proposition, that the acceptance of an office held under the Crown, and not immediately from the Crown, did not vacate, there were many instances of it. First of all, there was the familiar instance of the Under-Secretaries of State: they were appointed by the Secretary of State, and it was held that they did not vacate because, though they held office under the Crown, they did not hold office from the Crown. Then there was the case of Mr. Edward Walpole, who held the office of Clerk of the Rolls, but he continued to sit because he was appointed not by the Crown but by the ministers, and the office was an old office. With regard to the under the Crown." There was the case of Mr. Daniel Whittle Harvey (Rogers, 207). On 15th Nov. 1839, a new writ was moved for Southwark, in the room of Mr. D. W. Harvey, on the ground that he had vacated his seat by the acceptance of the office of Registrar of Hackney Carriages. It appeared that Mr. Harvey, after accepting the office, gave it up and refused the salary. Nevertheless, the Attorney-General was of opinion that the office was a disqualifying one, and that the refusal of the salary made no difference, and he moved the appointment of a select committee to search for precedents. The committee was appointed, and the committee resolved that the office was a new office, and that Mr. Harvey by accepting it had vacated his seat. These resolutions were reported to the House, and a new writ was issued. The learned counsel then referred to the history of the East India Company. There were two East India companies; the first was established in 1669. Then there was a second company, the charter of which was dated 5th Sept. 1698. Then the two companies were united on the 22nd July 1702, and the award of Lord Godolphin was dated the 29th Sept. 1708. The East India Company had a standing counsel in 1702, but the company was only an association of private individuals, and their counsel held no office either from the Crown or under the Crown. In 1829, on the appointment of Mr. Lushington as governor of Madras, a question was raised whether he had vacated his seat, and a select committee was ap pointed to consider the subject, and they reported that such appointments came within the spirit of the Act of Anne, but that hitherto they had not been so regarded, and they recommended that a Bill should be introduced, providing that the place of governor of any of the settlements of the East India Company should thenceforth be considered as coming within the statute of Anne, and that they should be incapable of sitting in Parliament. But this office of Mr. Forsyth's did not stand on that footing. He was appointed directly under the authority of the 16th section of the Act of 1858, which transferred the government of India from the East India Company to the Crown. That section provided that the Secretary of State in scheme to Her Council for India should submit a Majesty for an establishment at home for the carrying on of that government. That scheme, which had been sanctioned as the Act directed, included the office of standing counsel. Mr. Forsyth was appointed to the office in 1859, and it might be said that his predecessor, Mr. Loftus Wigram, sat in Parliament. But a blot was not a blot till it was hit, and on that point he might observe that there was a case in the books in which the secretary of the most illustrious order of St. Patrick was declared incapable of sitting, though three previous holders of the office had sat in Parliament. This he submitted was a new office under the Crown, created since the 25th Oct. 1705, and by his acceptance of that office he contended that Mr. Forsyth was incapable of sitting in Parliament. Fitzjames Stephen followed on the same side. Hope Scott, on behalf of the sitting member, contended that the statute of Anne must be construed strictly, inasmuch as it imposed penalties and disabled the electors. The statute of Anne was passed at a time when there was a much greater apprehension of the power of the Crown than there was now, and, more than that, it was passed at a time when the institutions of the country were not so complicated as they were now, and when that which was called an office under the Crown was much more ascertainable than it was at present. Mr. Forsyth was appointed to his office by the Secretary of State in Council for India. The council for India consisted of fifteen members, eight of whom were appointed by the Crown, and seven by the East India Company, the vacancies being filled up by the remaining members of the council. They were independent of the Crown, holding their office during good behaviour. They appointed Mr. Forsyth, though he admitted that the appointment had to be sanctioned by the Secretary of State. It was not the appointment of the Secretary of State. This was the first disputed case which had occurred since the passing of the Act transferring the government of India to the Crown. He contended that the East India Company was a governing body, its government of India being for many years little or not at all interfered with by the Crown, but the Crown gradually assuming more and more of the government by the Acts of 1793, 1813, 1833, and lastly by the Act of 1858, which transferred the government altogether from the company to the Crown; but the Act of 1858 was more a consolidation Act than anything else, consequently this was an old office, and not such a new office as was contemplated by the statute of Anne. Moreover, this office, though it was an office in the public service, was not an office under the Crown or held immediately from the Crown. In support of this view, he cited the case of Corbett, 2 Hats. Precedents. There was a court of assistants who appointed Corbett as secretary, at a salary of 2001 a-year, and a new writ was moved for in his place, but it was determined that that was not an office under the Crown, nor was it within the meaning of the statute of Anne. Then there was the case of Mr. Loftus Wigram, which was immediately in point. He was standing counsel to the company and to the Council for India, and continued to sit after the Act was passed. It had been said that this was a blot not hit, but if it was not hit it was not for want of attention being called to it, for one of the sections of the Act declared that members of the council should not sit in Parliament; and why exclude them unless it was intended that the others should sit? On these grounds he submitted that Mr. Forsyth was not disqualified. Mellish on the same side. Vernon Harcourt in reply. [ELECTION PET. The COMMITTEE decided that Mr. Forsyth was not duly elected. Member unseated. Disqualification-Scrutiny-Practice. Stephen said he understood the course of proceeding to be that the committee having declared Mr. Forsyth not duly elected, should enter into a scrutiny. Mr. Torrens' agent gave notice to a sufficient number of electors who voted for Mr. Forsyth, which, if struck off, would give Mr. Torrens the majority. Then there was the further question, which his learned friend would be entitled to raise, whether Mr. Torrens was himself disqualified by reason of he himself holding an office under the Crown. Cooke said the practice was that everything which tended to disqualify the member went first, because, if that were not established, there was an end of the matter. But here the objection was, that if they went to the scrutiny and seated Mr. Torrens, the committee would be defunct, and would have no power to unseat him on the ground of his being disqualified. Stephen said the real reason why he wanted to go his learned friend showed that Mr. Torrens was disinto the scrutiny was that he apprehended that if qualified, he would then turn round and say that Forsyth. But, as he understood that that objection Mr. Torrens had no right to petition against Mr. would not be taken, he withdrew his application. Application withdrawn. The CHAIRMAN said the committee considered the most convenient course would be to go on with the scrutiny. THE CASE OF OWEN JONES, Where a voter may be presumed to have had a doubt concerning the eligibility of a candidate, his vote will not be declared of no effect. Stephen then objected to the vote of Owen John Jones, and applied that his name should be struck off the poll on the ground that he had received a notice, signed by John Eaden, a voter of the borough, to the effect that Mr. Forsyth was disqualified under the statute of Anne, by reason of his holding an office under the Crown created since 1705. Cooke objected.-It was a matter of doubt to the elector whether Mr. Forsyth was disqualified, and if the committee seated Mr. Torrens they would be seating a person who was the choice of only a minority of the electors. He cited the Cheltenham case, P. R. & D., in which the Attorney-General, who was on the committee, voted for a resolution that the electors were not bound by the notice. He also cited the Clitheroe case, in which the committee held that where the electors did not know the state of the law, their votes ought to be received. Vernon Harcourt replied.-There were no exceptions to the rule that the votes were thrown away, except in some few bribery cases. The committee could not decline to proceed to seat Col. Torrens without overruling all the decisions cited in the Tavistock case, P. R. & D. 2). The CHAIRMAN:--The committee have decided that the vote of Owen John Jones should be retained. The objections to the remaining votes, which composed the majority of Mr. Forsyth, being of a similar kind, the scrutiny was abandoned. Election declared null and void. Equity Courts. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and E. STEWART ROCHE, Esqrs,, Barristers-at-Law. Dec. 19, 21, 22, and Jan. 13. (Before the LORD CHANCELLOR (Cranworth.) Re THE AGRICULTURAL CATTLE INSURANCE COMPANY. STANHOPE'S CASE. The company was wound-up on the 20th April 1861. Mr. Stanhope died in 1864, and this application was now made. The M. R. considered it was not to be distinguished from Spackman's case, 12 L. T. Rep. N. S. 130, nor from Lord Belhaven's case, Ib. 595; but, as he preferred following the latter decision, in which the Lords Justices came to an opposite conclusion to that at which Lord Westbury had arrived in the former case, he refused the application. From this decision the official manager appealed. Sir H. Cairns, Q. C. and Bush, in support of the appeal, contended that Mr. Stanhope had never been Public company-Arrangement for forfeiture of shares delivered from the obligations imposed upon original by nonpayment of calls-Fraud-Lapse of time-shareholders in the company, and that, therefore, Contributory. his executrix must be placed on the list of contribuof the directors to make the arrangements with Mr. tories. They submitted it was not within the power Stanhope, under which it was said that gentleman had retired from the company. They referred to Lord Belhaven's case (ubi supra); An arrangement was come to between the directors of a company and the shareholders, that a shareholder who wished to retire should be allowed to do so on payment of a small sum of money; and that, in order to effect his retirement, certain shares on which he had not paid the full amount of calls should be declared forfeited. The money was paid, the forfeiture declared, and the shares transferred to the company. Twelve years afterwards a winding-up order was made, and two years subsequently an application was made to place the shareholder's name on the list of contributories: Held (reversing the decree of the M. R.), that the name of the shareholder ought to be placed on the list of contributories, as the arrangement was ultrà vires, and therefore fraudulent as against the other shareholders. This was an appeal from the M. R., who, on the 4th Nov. last, refused an application on behalf of the official manager to place the Hon. Mrs. Stanhope, as executrix of the late Hon. F. H. R. Stanhope, on the list of contributories to the above-named company for 100 shares of 201. each. The company was formed in 1845; Mr. Stanhope then became a shareholder, and signed the deed of settlement for 100 shares, on which he paid 17. each. In 1847 he received a dividend, and in 1848 he paid further calls of 17. and 10s. on each share. Brotherhood's case, 31 Beav. 365; and on appeal before the Lords Justices, 7 L. T. Rep. N. S. 146; Spackman's case (ubi sup.); Lane's case, 1 De G. M. & G. 421; Ex parte Morgan, 1 Mac. & G. 225; 7 L. T. Rep. Lord Stanhope's case, 3 De G. & Sm. 198; Ex parte Brown, 19 Beav. 104; Longworth's case, 1 De G. F. & J. 32; 1 L. T. Rep. Barton's case, 4 De G. & J. 46; 6 L. T. Rep. N.S. 142. Hobhouse, Q. C., and J. Pearson contended that there Stanhope and the directors, the true nature of which was a perfectly bonâ fide arrangement between Mr. appeared from the records of the company itself. The return made year by year to the registration office showed the cancellation of the shares by Mr. Stanhope, and this was fair evidence that every person had notice of the arrangement in question, and was willing to abide by it. Mr. Stanhope's name did not appear in the share-book after Nov. 1849, and therefore it must be taken that he had divested himself of his legal liability at that period. Several shareholders in this year wished to leave It was on account of the hardship attending such the company, and accordingly in November an cases as the present, that rules had been established arrangement was come to which became well known, in courts of law and equity for the purpose of imin consequence of the litigation to which it gave posing a limitation of time within which claims of rise, as the "Chippenham" arrangement or compromise. The scheme of this compromise was, that, the court would consider an unreasonable lapse of this sort could be made. They submitted that what by resolutions passed at a meeting of the share-time had taken place here, for the company was holders, a call of 41. should be made; that the wound-up in 1861, and although Stanhope died in shareholders who wished to retire should pay sums 1864, the widow was not applied to until 1865. They varying, according to the number of their shares, cited from 17. to 27. 10s. in respect of the call, and that thereupon their shares should become forfeited; and that those shareholders who wished to remain in the company should pay 10s. a share. In the last-mentioned class was Mr. Stanhope. He, however, afterwards wished to retire, and on the 15th Aug. 1859 a resolution was passed whereby it was ordered that, on certain arrangements being completed, the shares of Mr. Stanhope should be cancelled, "the calls in arrear not being paid." On the 21st Aug. 1847 Mr. Stanhope wrote to the directors, undertaking that he would not at any future time take any step towards having his name replaced on the register of the company, and on the 3rd Sept. 1849 he paid 1007. to the company, the receipt of which was acknowledged in the journal of the company. In the share transfer book was registered a transfer of 100 shares from Mr. Stanhope to the company, and his name never afterwards appeared in the list of shareholders. Taylor v. Hughes, 2 J. & L. 24; Whitmore v. Turquand, 1 J. & H. 444; and on appeal, 3 De G. F. & J. 107; 4 L. T. Rep. N. S. 38, 702. Bush in reply, submitted it was begging the question to suppose that Mr. Stanhope had legally retired. He could only retire in that sense under the deed of settlement. The terms of the resolution under which Mr. Stanhope retired showed that it was an arrangement made between him and the directors out of the deed, and not under its terms, and therefore he still remained a contributory. The LORD CHANCELLOR (after stating the cir cumstances attending the Chippenham compromise, continued):-This transaction having taken place at the end of 1848, in 1862, after the winding-up order, a motion was made to place the name of Mr. Brotherhood, and the names of the others who were with him, on the list. The M. R., after such a |