410

Superior Courts: Lord Chancellor's Court.

directors of the company, all who were | suit against Attwood, were not proper parties, plaintiffs in the suit against him to set aside the contract, and the representatives of some of them that died, charged them as being personally liable, on the ground of conduct and bad faith; and the whole company and the several members thereof as | liable to the extent of the company's property for the residue of the purchase money and of the stipulated interest, and for the costs and losses caused by their conduct, with interest. Held, upon demurrers to the bill for want of equity and want of parties, that the plaintiff had a clear equity for specific performance, not only against the parties to the contract, but also against the whole company; that it was not necessary to make all the shareholders defendants, but that the directors and representatives of the company, at the time of filing the bill, should all be made parties. The demurrer for want of equity, therefore, was overruled, but that for want of parties was allowed, with leave to amend the bill, and without costs.

This was an appeal from orders of the Vice Chancellor upon certain demurrers to the plaintiff's bill. The case before his Honour, together with his judgment, is reported in Vol. 18, Leg. Obs. p. 8, where also reports contained in former volumes of all the important decisions in the suit in the Court of Exchequer by the present defendants against the present plaintiff, are referred to. From these reports, and from the following judgment of the Lord Chancellor, may be collected the history of this protracted litigation, too long to be recapitulated here.

and it follows as a matter of course, being of that opinion, that the representatives of some of those parties are also improperly brought before the Court. That being the Vice Chan cellor's opinion, it was not at all necessary for him to consider whether certain other persons ought to have been parties, which could only arise in the event of his thinking that those persons who were the subject of the general demurrer, were the proper parties. He was of opinion that the bill was good, but good only as an ordinary bill for specific performance, and therefore to be enforced only against those persons who were parties to the contract, Sinall, Shears, and Taylor. Now, looking very carefully through the bill, of course I must take the case as it is stated upon the bill, the result of that decision appears to me to be that the plaintiff would have no remedy at all, because it is part of the arrangement which the Fice Chancellor observed upon, part of the contract, that those persons shall not be personally liable. In the way in which the Vice Chancellor has left the records, there are no persons before the Court, but those three persons, and they are there only as being parties to the contract. But if the contract is to be performed in the way in which it was arranged between the parties, and if no equity has arisen from the subsequent transactions, to give a better remedy to the plaintiff, why then (being the owner of the whole, and the estate being in the possession of the purchasers, and they not having paid the purchase money) the Vice Chancellor's judgment appears to me to have left the plaintiff in this situation-that he is only to prosecute his suit for the purchase-money against the three persons, who are not personally liable for it. It is obvious, in that view of the case, that the plaintiff would have no remedy at all, provided the contract is to be performed on the terms in which it appears on the face of the bill to be stated, and that nothing has happened Among the cases cited in the argument since to give the plaintiff any new equity. were Adair v. The New River Company,a Therefore his only remedy is upon the written Meus v. Malthy,b Hiching v. Congreve,c Long | contract. Now when we look upon the case v. Yonge,d and cases there referred to; and as stated upon the bill, that the plaintiff was Vernon v. Blakersley,e in the question as to owner of property of very great magnitude, parties; and Pulteney v. Warren, Hanson v. | consisting principally of mines, (this is the case Gardiner, Bond v. Hopkins,h and Garth v. | stated); that he entered into a contract with certain persons on behalf of the company; that the contract was in their own names; that the effect of that contract was to give those persons, namely, the defendants in the suit, the property of which the plaintiff was so possessed; that he was to be paid by certain instalments, (I am taking now the whole contract together, as it ultimately appeared between the parties); that they were not to be personally liable; that the instalments were to be paid at certain stipulated periods; and the plaintiff was to look to the security of the estate as a means of obtaining payment. The bill then states that in fraud of that contract, and for the purpose of defeating the plaintiffs' hi Scho. & L. 413. right, and of appropriating the property to themselves, without paying the consideration

The appeal was argued for several days in July and August last, by Mr. Serjeant Wilde, Mr. Wakefield, and Mr. Lovat, for Mr. Attwood, the plaintiff and appellant; and by Mr. Knight Bruce, Mr. Jacob, Mr. Wigram, and Mr. Sharpe, for the denurring defendants.

Cotton.i

The Lord Chancellor, after taking time to consider the case, now delivered the following judgment. This was an appeal from orders of the Vice Chancellor, upon demurrers for want of equity and for want of parties. The Vice Chancellor was of opinion that as to certain parties who were defendants to the bill, the demurrer was good for want of equity; he was of opinion that the former directors of the company, who were the plaintiffs in the

a 11 Ves. 429. c 4 Russ. 562.

e 2 Atk. 144.

§ 7 Ves. 308.

i) Dick. 183.

b 2 Swanst. 227.
d 2 Sim. 369.

17 Ves. 93.

Superior Courts: Lord Chancellor's Court.

money, they instituted a suit, containing a variety of false charges, which at one time were supposed to be well-founded, but which, by the ultimate decision of the House of Lords, have been declared to be ill-founded, and that by those means, and by undertakings in the cause when it was pending in the Court of Exchequer, they have protracted the day of payment, (I think that the last payment was to be in 1827, many years ago) and that the result has been that, during the whole of this period, while they were preventing the plaintiff from receiving that which was his due, namely, the consideration for the property of which the defendants were in possession, they were continuing to work the mines and exhaust the property to which the plaintiff, according to his statement, was to look for the purpose of working out his security; and that the result of that has been that 300,000l., or some such suin remains due, the property itself, according to the statement in the bill, having, by the working of the company in the meantime, become an inadequate security for that sumfor that is the statement.

Now, for this Court to say upon such facts that there is no remedy for the plaintiff; that he cannot go against the property, because he is only to sue upon the contract, and there being, according to the Vice Chancellor's decision, only three persons representing the contract, and who are there only as being parties to the contract, would be a state of things very much to be lamented, if it were so; but my opinion is, certainly, that upon this statement in the bill, there is a remedy for the plaintiff. Whether the facts are made out or not, of course is not now to be considered; but if he makes out his case as stated on the face of his bill, this Court will find the means, so far at least as the circumstances enable the Court to do so, to restore the plaintiff, as far as possible, to the situation in which he ought to have stood, looking at the contract now established between the parties, as a valid contract, as that which is to regulate the rights of the parties. In the first place, I take it to be quite clear that, according to the contract itself, he has a right to look at his remedy against the property as it remains. There is another part of the case which I do'nt allude to, because, if the other parties ought to have been parties to the suit-I mean in respect of the other property which the company are said to have possessed, and which is not part of the property comprised in the contract it is quite sufficient for the present purpose if the case shows a right in the plaintiff to pursue his remedy against the property itself. Now, with regard to those persons who were directors at the time the contract was entered into, and who were persons filing the bill against him in the Court of Exchequer, and who therefore have been the actors in these transactions, which, according to the statement in the bill originated for the purpose of depriving the plaintiff of his remedy for the payment of the consideration money, which he had contracted for; if the case be as is stated,

411

there is abundance of authority to shew that persons who have interposed between the party and his rights shall in some way or other (to what extent it is not necessary for me to consider), be liable to make compensation for the injury of which they have been the authors. I think there is quite enough stated in the bill to shew that those, who took upon themselves in the other suit to interfere with the plaintiff's right under his contract, cannot be permitted now to state that they are not parties to the transaction, and that they ought not now to be made parties to a bill in which the plaintiff asks compensation for the unquestionable injury which he has sustained. Being of that opinion, of course it follows that the general demurrer cannot be maintained, the demurrer for want of equity. It applies as well to those who were directors and plaintiffs to the original suit, as to those who are now demurring parties, being representatives of persons who were in that situation, but who are now dead. It therefore becomes necessary that I should consider how far the objections are good respecting the want of parties.

Now it is said that assuming the suit to be properly constituted in other respects, there are three descriptions of persons who are not brought before the Court. The one set of persons are all the shareholders of the company; the second are those who were directors of the company at the time the bill was filed; and thirdly, it is stated that one of the old directors, Mr. Morrice, being dead, that his representatives are not brought before the Court, and that there is not sufficient stated upon the bill to explain the reason why they are not brought before the Court. Now with regard to the first, what is stated in the bill, looking at the authorities upon this question, there is no ground upon which the objection can be maintained. The bill alleges that there are 600 shareholders, and that they are constantly varying, the shares being transferrable, and states a case, therefore, that makes it utterly impossible that the plaintiff could pursue his remedy, if he must pursue it by bringing before the Court, and keeping before the Court, all persons who are shareholders. The cases of Adair v. The New River Company,a and Meux v. Maltby,b in which that was considered, have saved me the necessity of doing that which I certainly should have done, if I had not found authorities already standing in the books, of adopting the rule which it was necessary to adopt in order to prevent the grossest injustice being practised by companies of this description. To say that they are to be permitted to sue on behalf of themselves and others, because they are so numerous that they cannot be brought before the Court; and then to say that persons by whom they are sued are not to be at liberty to bring those who are plaintiffs against them before the Court without bringing all the shareholders, would enable them to commit any injustice which they pleased, without the possibility of being

a 11 Ves. 429.

b 2 Swanst. 277.

412

Superior Courts: Lord Chancellor's Court; Queen's Bench.

made responsible for it. The authorities to which I have referred, and several others, are quite sufficient to shew that this Court has adopted a course which prevents that injustice from taking place. Upon the authority, therefore, of those cases, I am of opinion that it is not necessary to bring the shareholders before the Court as such.

the trustees: they are here, but then there are no cestuis que trusts here-except so far as they are trustees for themselves. I don't find, therefore, on this record, any persons defendants who represent the interests of the company, or as against whom any remedy the plaintiff may have against the company can be enforced. My opinion is, therefore, that the suit cannot upon this bill proceed, and the plaintiff cannot

to, and which he asks, and which, according to the case he makes, no doubt he is entitled to, if he makes out the case), to a remedy for the consideration money unpaid against so much of the property which remains now available for that purpose. I find no person representing the interest, and no person against whom such a right can be enforced. I think, therefore, that the actual proprietors of the company are necessary parties to the suit, and that of course makes it unnecessary, as there must be an amendment,―to cousider whether there may not be more allegations introduced as regards Mr. Morrice than appear upon the bill at present. The result is, that I overrule the demurrer for want of equity, and allow the demurrer for want of parties, with liberty to the plaintiff to amend his bill.

Attwood v. Small and others, Sittings at Lincoln's Inn, July 17, 19, 20, and 31, and August 3, 1839; and February 1, 1840.

Queen's Bench.

[Before the Four Judges.]

OUTLAWRY.

But then there is another part of the case to which I cannot see how this record is to pro-get what he represents himself to be entitled ceed in the absence of certain persons, looking at the relief which the plaintif asks. The plaintiff asks relief against the company, and against that which is the property of the company. The plaintiff now avers that, the contracts being contracts to be carried into execution, he wants that remedy which the contracts and the subsequent transactions which have taken place, give him in order to obtain the consideration money-the obvious mode of doing that, independent of the personal liability which the parties may have incurred by the course they have pursued, is against the property itself and also against what may have been received during that interval when the rights of the present plaintiff were suspended by the proceedings in the Court of Exchequer. Now if the Court should be of opinion that that exists, then the question is, in what way is that right to be enforced, and what is the remedy to be given to a plaintiff entitled to such right? It must be against the company and those who properly represent that company. But I have nobody here representing the company. I have only those who may be said to have represented the company at a period long past, namely, when the original bill was filed in the Court of Exchequer, but who, upon the face of the bill, are stated to have ceased to hold that situation, and to have handed over the possession of the property which as directors they then held, to other persons who have subsequently become directors of the company. The partnership deed, as stated in the bill, puts the directors in the place of the company, and makes the defendants for the purpose of any litigation between themselves and others, in my opinion, proprietors of the company. I have impliedly said, that when I said the six hundred share holders are not necessary parties to the su't, but if they are not necessary parties to the suit as shareholders, there must be some persons whom those in contest with the company are at liberty to sue. The only other persons held out by the deed as owners of the property of the company, and competent to deal with individuals who may have transactions with them, are the directors. Now if the directors, who held the property at the time this litigation commenced, were to be made parties to the suit, they must be considered for the purpose of the contest with any other individuals, as the owners of the property, and the persons with whom this contract was made; but they are not made parties to the suit, and then no persons are made parties to the suit, who can be considered in any sense as representing the company, or as against whom a remedy can be enforced, except

A plaintiff brought an action while he was an outlaw; he recovered damages in the action. A motion was made and a rule granted to stay the levying of the damages, on the ground of the outlawry. The outlawry was afterwards shewn to have been set aside before the trial. The rule was discharged, but without costs.

Mr. Crowder moved for a rule to shew cause why the proceedings in this case should not be stayed, and the levy of the damages for the plaintiff be prevented, upon the ground that the plaintiff was an outlaw at the time of the action brought.

The Court at first declined to grant the application, and directed the matter to be mentioned again, and asked for authorities: Mr. Justice Littledale intimating that according to Comyn's Digest, the damages, under the circumstances stated, would go to the Crown, so that the Court could have no authority to interfere.

Mr. Crowder afterwards renewed the application.-There are many authorities to shew that this Court will interfere in a case where its process has been abused. Its process is abused when it is put in motion by an outlawed person, for such a person has no civil rights which he can enforce while the outlawry continues unreversed. The passage in Comyn's Digest, which at first appears opposed to the right of the Court to interfere, does not upon fuller examination bear such a construction. The

Superior Courts: Queen's Bench.

The Attorney General and Mr. Platt, on a subsequent day shewed cause, and produced affidavits shewing that the outlawry had been set aside some time since, and alleging that the defendant knew of that fact before trial, though not before pleading; and they prayed that the plaintiff might now be allowed to proceed in recovering his damages, and that this rule might be discharged with costs, on account of the delay in bringing the matter before the Court in the first instance.

Mr. Crowder, in support of the rule, denied the knowledge of the reversal of the outlawry. The time at which the motion was made does not affect the case. From the moment that the outlawry was proclaimed till the moment that it was reversed the process of the Court was in law unavailable to the party outlawed. His conduct in bringing the action therefore was an abuse of the process of the Court.

Per Curiam.-The rule must be discharged, but as the motion was justified, it must be discharged without costs. Somers, M. P. v. Holt, H. T. 1840. Q. B. F. J.

Superior Courts: Queen's Bench.

because it appeared on the face of it to be legal. | the other side. There the rate was regular