Form 211. was carried, or that the second resolution in the said indorsement mentioned was not carried, and from acting contrary to or in any manner inconsistent with the instructions contained in this said second resolution, until some other resolution to the contrary shall be duly passed by a general meeting of the plt. co. : and order that the defendants, or any of them who shall, at the further or any other adjournment of the meeting in the said indorsement mentioned, or at any other meeting of the plaintiff co. preside as chairman, be restrained in like manner from disregarding or neglecting the votes of any duly registered member of the said co. otherwise duly qualified to vote on the ground that such registered member is a trustee for or nominee of another member, and generally, from rejecting the votes or any of the votes which any registered member is entitled to give under the articles of association of the plt. co. : and let the said application so adjourned from Chambers as aforesaid, stand over until the trial of the action or until further order. Pender v. Lushington, M. R., 2 March, 1877, B. 357.

form 212.

Amalgamation declared ultra

vires and restrained.

In the above action, the plaintiff sued "on behalf of himself and all other the shareholders of the Direct, &c. Co. who voted against the amendment to the 1st resolution in favour of the 2nd resolution in the indorsement on the writ of summons in this action respectively mentioned." The case is reported in 6 C. D. 70.

Declare that the arrangement in the bill mentioned come to between the directors of co, and the directors of Bank, for an amalgamation of the two companies on the terms in bill mentioned was beyond the power of the directors of the co. and was not authorised by the articles of assoc. thereof, and that such arrangement is not binding on the plt. nor on any of the members of the co. Declare that the resolutions of 12 Ap., 1865, in the bill mentioned, were not within the powers of a general or any other meeting of co., and were not authorised by the mem. or articles of assoc. of co., nor by the Companies Act, 1862, and that the same are not binding on the plt. or on any other dissentient members of the said co., and decree the same accordingly. Let an injunction be awarded to restrain the deft. co. and the defts. G. &c., the directors and the deft. E., the off. liq. of co., and the deft. Bank and B. &c., the directors thereof from carrying the said proposed arrangement into effect. An injunction to restrain off. liq. from handing over to Bank the assets of co. or any part thereof in pursuance of said arrangement or of any other arrangement to the same or similar effect. Declare that deft. Bank are to stand as creditors against the estate of the co. in respect of any advances or payments which they have made in liquidation of any debts or liabilities of the co., and to a lien upon all the assets of co. comprised in schedules A., B. and C. of the deed of covenant, dated, &c. in bill mentioned for the amount of such advances with interest on such of them as bear interest. Liberty to Bank to go in under the winding-up order of co., and prove for any claim they can establish against the assets of co. under said last mentioned declaration :

and [declaration omitted on appeal] taxation and payment of costs. Form 212. Lib. to apply. Clinch v. Financial Corporation, Wood, V.-C., 28 Feb.,

1868, A. 649, 5 Eq. 450; 4 Ch. 117.

For some particulars of this case, see infra, “Amalgamation."

strained.

Declare that the said agreement, dated, &c., is invalid, and the Form 213. resolution for carrying the same into effect in the [bill] mentioned are Sale of assets ultra vires and illegal. Let the defts. T. S., &c. (the directors), repay declared ultra to the deft. A. the sum of —7. paid to them as in the [bill] mentioned vires and reunder the said agreement, but without interest. And let an injunction be awarded to restrain the deft. co., T. S., &c., from carrying the said agreement, dated, &c., into effect, and to restrain the defts. from assigning the patent, property, and assets of the co. (as in the bill mentioned), or any of them, to the deft. A., or to any other person on his behalf. Defts. T. S., &c., to pay plt. his costs of suit, to be taxed, &c. Bird v. Bird's Patent Deodorising, &c., Co., Bacon, V.-C., 28 Jan., 1874, A. 222; affirmed, 7 Mar., 1874, A. 621. See 9 Ch. 358; Seton, 266.

restrained.

Declare that it is ultra vires of the defendants, the Argentine Form 214. Tramways Co., Limited, to issue new preferred shares to rank in priority Order to or equally with the original preferred shares of the company either issue of preferin exchange for deferred shares or otherwise. Let an injunction be ence shares awarded against the defendants, Lord A. P., &c., the directors of the said company, to restrain the defendants from issuing any such new preferred shares in the company, either in exchange for deferred shares or otherwise. And let the defendants pay to the plaintiff his costs of this action, including therein his costs of the said motion, such costs to be taxed by the taxing-master. Harper v. Paget, M. R., 16 Mar., 1876, A. 599.

See as to this case, supra, p. 191, and for further proceedings of the company, sce Griffith v. Paget, 5 C. D. 894; 6 C. D. 511.

clared and

Declare that the plts. respectively and the other holders of preference Form 215. stock in the co. on whose behalf they respectively sue, are entitled to be Rights of prepaid dividends out of the profits realised by the co. on the preference ference stock stock held by them respectively, from 30 June, 1856, according to the holders deamount of the dividends which the several classes of preference stock infringements respectively carry, before any payment in respect of dividends or other- restrained. wise is made to any of the holders of original ordinary stock, A stock, and B stock, in the said co., or any of such stocks out of such profits. And let a perpetual injunction be awarded to restrain the deft. co. from declaring any dividend on the original ordinary stock, A stock, and B

Form 215. stock, in the said co., or any of such stocks or any part thereof respectively, without regard to the rights of the plts. respectively, and the other holders of preference stock on whose behalf they respectively sue, to be paid in priority the full amount of the dividends payable upon or in respect of the preference stock held by them respectively, to be computed from 30 June, 1856, and from making or causing to be made, any payment for dividend or otherwise to any of the holders of the original ordinary stock, A stock, and B stock, in the said co., or any of such stocks without first paying or providing for the payment to the plts. respectively, and those on whose behalf they sue, of the full amount of the dividends payable upon or in respect of the preference stock held by them respectively, to be computed from 30 June, 1856. Henry v. Great Northern Ry. Co., Wood, V.-C., 24 Aug., 1857, A. 1602. Affirmed on appeal.

As to preference shares, see supra, pp. 153, 189.

Form 216.

Payment of

dividend out of capital restrained.

Form 217.

Payment of

dividends out of capital.

Upon motion, &c., for the plaintiffs, &c., let an injunction be awarded to restrain the defts., the directors of deft. co., from paying interest upon any amounts paid up upon any of the shares in the said co., or any money by way of interest or dividend upon or in respect of any such shares until the said co. has received profits legally applicable to the payment of such interest or dividends until the hearing or further order. Macdougall v. Jersey, &c., Co., Wood, V.-C., 25 July, 1864, B. 2045. See supra, p. 134.

Upon motion, &c., by counsel for the plt., and upon hearing counsel for the defts., and upon reading the writ, &c., and [usual undertaking]: Let an injunction be awarded to restrain the defts. G., &c., [the directors] and the deft. co., until judgment in this action, or until further order, from making any payment by way of dividends on the ordinary shares of the deft. co. And defts. to be at liberty to apply to dissolve the said injunction as they may be advised. Davison v. Gillies, M. R., 14 Mar., 1879, A. 1118.

See supra, p. 134, and Form 547, infra.

In the above case, the plaintiff sued on behalf of himself and all other the shareholders of the London Tramways Co., Limited. See a note of the case in 23 Sol. J. 405.

Form 218.

Order restraining company

Upon motion, &c. Let an injunction be awarded to restrain the deft. society, H., &c. [the directors], from carrying into effect the resolution mentioned in the statement of claim for purchasing with money from purchas- belonging to the deft. soc. any shares of the deft. soc., or from purchasing or taking any steps for purchasing any such shares with money belong

ing its own shares.

ing to the deft. soc., until the hearing of this cause or until further Form 218. order. Hope v. International Financial Society, Bacon, V.-C., 9 Nov., 1876, A. 1820. See report of this case in 4 C. Div. 327.

IN ACTIONS AGAINST DIRECTORS FOR BREACH OF TRUST. Declare that the application of the sums in the bill mentioned, namely, Form 219. 2,000l., 1,733. 118. 3d., and 57. 88. 9d., amounting to 3,7397., in the pur- Directors chase of shares of the said co. constituted a breach of trust and misapplica- ordered to make good tion of the monies of the said co., and that the defts., Lord F. [and others], breach of are jointly and severally liable to make good and repay to the said co. trust. such sums of 2,000l. and 1,7337. 11s. 3d., and that the deft. Finch is separately and also jointly with the other defts. liable to make good and repay to the said co. the said sum of 2,0007., and that deft. Finch is also separately liable to make good and repay said sum of 57. 8s. 9d. to said co. And order that said Lord F., &c., do on or before 30 June next pay said several sums for which they are respectively, jointly, and severally liable as aforesaid, and interest thereon at the rate of 4 p. c. p. a. from the date of this decree up to the time of payment to the said co. accordingly. Defts. to pay plt.'s costs of suit. Land Credit Co. v. Lord Fermoy, Romilly, M. R., 24 Mar., 1869, B. 1232. See the report 8 Eq. 7; 5 Ch. 763. The decree was varied as to one of the directors on appeal.

Directors are responsible for loss resulting from an improper application of the assets of the company. See Forms 219, 220, 543 et seq. But they are not liable if acting within the limits of their authority, and in good faith, for loss resulting from an error of judgment, Turquand v. Marshall, 4 Ch. 376; Overend, Gurney, & Co. v. Gibb, L. R. 5 H. L. 480. See further Lindley, 594; Buckley, 404. As to the liability of directors inter se in respect of breach of trust, and their rights in regard to contribution, see Ashurst v. Mason, 20 Eq. 225. Seton, 1184.

Dismiss the bill as against the deft. G., without costs. Declare that Form 220. the directors of the plt. co. had no power or authority to take or accept Another. the 3,000 and the 500 shares in Barned's Banking Co. in the pleadings mentioned on behalf of the plt. co., or to give to the deft.'s W., H., M., H., H., and W., and the late deft, W., or any of them, such or any of such letters of guarantee or indemnity in respect of the aforesaid shares, or any of them, as are in the pleadings mentioned.

Declare that the plt. co. is not under any liability upon the aforesaid letters of guarantee or indemnity, or by reason of the undertakings contained therein respectively. Declare that the appropriation and payment out of the funds of the plt. co. of the three several sums of 10,000l., 5,000, and 15,000l. (specifying the dates), in respect of the aforesaid shares was a breach of trust; and that the defts. B., H., &c., and the late defts., D. the younger, and White, and R., now a bankrupt,

Form 220. became jointly and severally liable to make good such breach of trust by refunding to the plt. co. the total amount of the aforesaid principal monies respectively, with interest thereon respectively at the rate of 4 p. c. p. a. Declare that the defts. B., &c., and the several estates of the deceased defts., D. the younger and White, and the estate in bankruptcy of R., are jointly and severally liable to refund to the plt. co. the said amount of principal and interest, and the costs of the suit; but as to the estates of the deceased defts., Dent the younger, and White, only in a just course of administration; and as to the estate of the bankrupt R., only by way of proof under his bankruptcy. Order on defts. B., &c., for payment of 7. (being the computed amount of principal and interest, less the sum of 8757., being the amount which, by the pleadings, appears to have been carried in the books of the company on the 27th Feb. and 1st Mar., 1866, to the credit of interest on the creditor investment account, as having arisen from dividends on the aforesaid shares) to the off. liq. within 14 days after service of the decree, and of the said sum of 8757. into Court to the credit of the cause, "The Share Account." Liberty to apply as to such fund. Defts. B., &c., to pay plt.'s costs. Leave to plts. to apply in the administrations and bankruptcy. Liberty to apply. Joint Stock Discount Co. v. Brown, James, V.-C., 5 July, 1869, 8 Eq. 376.

RECTIFICATION OF REGISTER OF MEMBERS.

The jurisdiction is conferred by s. 35 of the Act of 1862, and is exercisable in two cases

1. When the name of a person is without sufficient cause entered in or omitted from the register.

2. Where default is made, or unnecessary delay takes place, in entering in the register the fact of any person having ceased to be a member of the company. The following are some of the cases in which orders have been made :

1. Where the applicant was induced to take the shares by misrepresentation in the prospectus. Stewart's Case, 1 Ch. 574; Smith's Case, 2 Ch. 604. See also Ex parte Kintrea, 5 Ch. 95.

2. Where the company improperly neglected, or refused to register, a transfer. Stranton Iron Works, 16 Eq. 559.

3. Where shares had been issued under a contract to issue fully paid-up shares, and the contract had not been filed. See supra, p. 15, and Forms 223 and 224 infra.

4. Where shares have been improperly forfeited. See Form 221.

5. Where a transfer in favour of a mortgagee had been registered by mistake. See Pulbrook v. Richmond Co., 9 C. D. 610.

6. Where the company, acting on a forged transfer, removed a name. San Francisco Ry. Co., L. R. 3 Q. B. 584.

Bahia &

7. Where there was a dispute between a vendor and purchaser of shares. Ex parte Shaw, 2 Q. B. Div. 463.

There is a difference of opinion as to the extent of the jurisdiction conferred by s. 35. See Ex parte Sargent, 17 Eq. 273, and Erx parte Shaw, ubi supra. But there is no doubt that the exercise of the jurisdiction is discretionary, at any rate to some extent. Ward and Henry's Case, 2 Ch. 431; Askew's Case, 9 Ch. 664; Stewart's Case, 1 Ch. 575.

However, as between a member and the company, the Court will not readily