3PLR – MACDOUGALL V. GARDINER

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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MACDOUGALL

V.

GARDINER

COURT OF APPEAL

1875 Nov. 5, 8, 12.13

3PLR/1875/2 (CA-E)

CITATIONS

[1874 M. 200.]

BEFORE THEIR LORDSHIPS

JAMES and MELLISH, L.JJ.

BAGGALLAY, J.A.

 

REPRESENTATION

Higgins, Q.C., and Wintle, for the Appellant

Glasse, Q.C., and Robinson, Q.C., for the Plaintiff

 

MAIN ISSUES

COMPANY LAW: Corporate Practice – Bill against Directors of Company – Shareholder’s Suit on behalf – Authority of Chairman of Meeting – Motion for Adjournment – Mode of taking Votes.

 

HISTORY AND SUMMARY

The articles of association of a company gave power to the chairman at any general meeting of the company, with the consent of the meeting, to adjourn the meeting, and also provided for taking a poll if demanded by five shareholders. At a general meeting of the company the adjournment of the meeting was moved, and, on being put, was declared by the chairman, who was one of the directors, to be carried. A poll was duly demanded, but the chairman ruled that there could not be a poll on the question of adjournment, and left the room. One of the shareholders filed a bill on behalf of himself and all other shareholders except the directors, against the directors and the company, stating these facts, and alleging that the course taken at the meeting was taken in collusion with the directors, with a view of stifling discussion, and that the directors were intending to carry out certain measures injurious to the company without submitting the terms to a general meeting; and praying for a declaration that the conduct of the chairman was illegal and improper, and for an injunction to restrain the directors from carrying out the proposed arrangements without submitting them to the shareholders for their approval:-

 

Held, on demurrer (reversing the decision of Malins, V.C.), that the bill could not be sustained, inasmuch as it violated the rule laid down in Mozley v. Alston (1) and Foss v. Harbottle (2),and asked the interference of the Court in the internal management of the company.

Whether, on a motion for the adjournment of a meeting of shareholders, the votes ought to be taken according to the number of shareholders or of the shares they represent, quaere.

THIS was an appeal from a decision of Vice-Chancellor Malins overruling a demurrer to the bill(3).

The bill was filed by Alexander William MacDougall, on behalf of himself and all other shareholders in the Emma Silver Mining Company, Limited, except the directors, against the directors and the company.

The bill, after stating that the company was incorporated in November, 1871, for the purpose of working a mine in the United States of America, called the Emma Silver Mine, set out several of the articles of association, amongst which were those numbered 40 and 42, which provided for summoning special general meetings, and 45, which enabled any member to propose and introduce at a general meeting any subject relating to the affairs of the company of which he had given a certain notice, and also the following articles:-

  1. The chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place; but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
  2. At any general meeting, unless a poll be demanded by at least five members, a declaration by the chairman that a resolution

(1) 1 Ph. 790.
(2) 2 Hare, 461.
(3) Law Rep. 20 Eq. 383.

has been carried, and an entry to that effect in the book of the proceedings of the company, shall be sufficient evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution.

  1. If a poll be demanded by five or more members, it shall be taken in such manner as the chairman shall direct, and the result of such poll shall be deemed to be the resolution of the company in general meeting. In the case of an equality of votes at any general meeting, the chairman of the meeting shall be entitled to a second or casting vote.
  2. Every member shall have one vote for every share held by him.
  3. Votes may be given personally or by proxy.

The bill also, after stating that the Plaintiff became a shareholder in 1874, and was, when the bill was filed, the registered holder of 1750 shares in the company, alleged various fraudulent transactions on the part of the promoters and the company, and that the Plaintiff and other members of the company believed that the present directors were interested in these matters adversely to the company, and therefore desired to have some person elected a director who would endeavour to obtain a full investigation of these matters.

The allegations contained in the bill on this subject are stated at greater length in the previous report.

According to the statements in the bill the Plaintiff and his friends being unsuccessful in their efforts, in September, 1874, signed a requisition calling on the directors to summon an extraordinary general meeting for the purpose of requesting the chairman, Colonel Gardiner, to resign his directorship, and to appoint another director in his place. This requisition was signed by shareholders holding more than one-fifth of the capital of the company. And accordingly, on the 6th of October, 1874, the directors issued a notice convening a special general meeting for the 14th of October.

The Plaintiff received proxies authorizing him to vote at the special meeting from shareholders holding15,000 shares, while the directors did not receive proxies to an extent reaching one-half of the number of shares represented by the Plaintiff.

Previously to the meeting, the directors sent stamped proxies round to each of the shareholders, empowering Mr. Hutton, one of the directors, to vote for them at the meeting and at any adjournment.

Although the Plaintiff and his party had such a majority if all the votes were properly polled, the Defendants filled the room with persons holding one or two shares each, who, on a shew of hands, would give the Defendants the majority of votes.

The Plaintiff prepared several resolutions for the purpose of proposing them at the meeting, the two first of which were as follows:-

  1. That in the opinion of this meeting it is not consistent with the best interests of the company that Mr. Robert May Gardiner should remain a director of the company, and that he accordingly be requested to resign his office.
  2. That the said Mr. Robert May Gardiner not being present to meet the shareholders of this company, after the requisition calling this meeting (first lodged on the 8th of September last), and signed by ….. shareholders, he is now removed from the office of director, and that Mr. ……. be appointed a director in his stead.

The meeting took place on the 14th of October, 1874. Colonel Gardiner was absent in America, and Mr. Hutton was in the chair. He addressed the members, and urged an adjournment of the meeting, partly on the ground that a petition to wind up the company had been presented by a shareholder, and that it was expedient to postpone the discussion of the matters before the meeting until after the petition had been disposed of. The Plaintiff proposed the first resolution, and it was discussed by the chairman.

Various trivial objections were taken to it, such as that it ought to have embraced the appointment of a new director as well as a request to Gardiner to resign. On that ground Mr. Hutton refused to put the first resolution to the meeting, although Mr. Burn and, the only other director present, openly dissented from that view. In the midst of the discussion which followed, and after the Plaintiff had pointed out that if the resolution were passed he would follow it up by others, copies of which the chairman held in his hand, a member proposed the adjournment of the meeting for a month. This proposal was seconded, and the chairman then put the resolution to the meeting, and declared it to be carried.

The 25th, 26th, and 27th paragraphs of the bill contained in substance the following allegations:-

  1. The friends of the directors voted in favour of the resolution, while the Plaintiff and the shareholders acting with him voted against it; and the chairman declared, on the shew of hands, that the resolution had been carried. Five members of the company then present, including the Plaintiff, demanded a poll; but the chairman refused to grant one, on the alleged ground that a poll could not be taken on the question whether the meeting should be adjourned or not, at once left the chair, declaring the meeting adjourned, and immediately left the room; but the demand for the poll was duly signed and handed in.
  2. There was no ground under the articles of the company, or otherwise, for holding that a poll could not be taken upon whether the meeting of the company should be adjourned or not, especially when by the motion for adjournment the question before the meeting was, whether certain important matters should then be discussed and voted, or whether they should be postponed for a long or indefinite time.

Mr. Hutton, however, had, in order to stifle the discussion, and to prevent the matters being voted upon to consider which the meeting was called, in collusion with the other directors, or some of them, determined to carry a vote of adjournment by shew of hands and then to refuse a poll on that question, so as to prevent the proxies given to the Plaintiff and his supporters from being used in support of the resolutions which he was about to bring forward, and which would undoubtedly have been passed but for the conduct of the Defendants.

  1. After the poll had been refused several of the members of the company, including the directors, left the room, but a large number still remained, who voted the Plaintiff into the chair, when the Plaintiff’s resolutions were passed, the name of Charles Henry Dunhill, M.D., of York, a duly qualified shareholder in the company, having been first added to the second resolution, he having been proposed and seconded and duly elected as a director of the said company in the place of Colonel Gardiner.

The 28th paragraph of the bill set out a letter by the Plaintiff giving notice to the directors of the passing of the resolutions after Mr. Hutton had left the chair, and the allegations concluded as follows:-

“29.   In this state of things the Plaintiff and the other shareholders in the company believe, and it is the fact, that the Defendants, the directors of the said company, are about to conclude some arrangements with the persons against whom the company has claims, such as the original vendors of the said mining property to the company, or the promoters of the said company, and others, for the purpose of settling those claims to the great injury of the company and the shareholders therein, and without first submitting those terms to the shareholders of the said company; and the Plaintiff apprehends, and the fact is, that the proposed compromises will at once be carried through unless the Defendants are restrained from so doing by the order of this Honourable Court. The danger is in fact so imminent, that it is impossible for the Plaintiff and those acting with him to call another meeting for the purpose of removing all the directors of the company from their office, or for any other purpose which might effectually stop the said compromises, in time to prevent their being carried out; and even if such another meeting could be convened in time, the Defendants, by the same proceeding as they adopted at the meeting of the 14th day of October, would be again able to break up and would succeed in breaking up the said meeting by improperly deciding that it was adjourned by a mere shew of hands held up by a few friends or nominees of the said directors who are interested in putting an end to all further investigation into the aforesaid matters.”

The bill prayed for a declaration that the refusal to grant a poll on the question whether the meeting should be adjourned at the meeting of the 14th of October was illegal and improper, and for an injunction to restrain the directors from concluding any arrangements with respect to legal proceedings commenced or to be commenced against the vendors of the property to the company, or with any other persons, until such arrangement, if proposed, should have been submitted to the shareholders in the company, and should have been approved of by them; and for a declaration that Gardiner had ceased to be a director, and might be restrained from acting as such director, or that a meeting of the shareholders should be summoned for the purpose of submitting the Plaintiff’s resolutions to them.

At the time the bill was filed a petition to wind up the company was pending, and until it was heard, which was not till April, all proceedings in the suit were stayed. The petition having been dismissed, Colonel Gardiner demurred.

The Vice-Chancellor overruled the demurrer, and from this decision the demurring Defendant appealed.

Higgins, Q.C., and Wintle, for the Appellant:-

The bill is demurrable on two grounds. In the first place, the bill ought to have been in the name of the company. This rule has been established by Mozley v. Alston

(1)     Foss v. Harbottle

(2),    and was followed in Gray v. Lewis

(3).    If such a bill is filed, and the majority of shareholders disapprove of it, they may bring the litigation to an end by passing a resolution to that effect, and the Court will then order the bill to be taken off the file: Exeter and Crediton Railway Company v. Buller

(4).    The only exceptions to this rule are stated by Mr. Justice Lindley in his work on the Law of Partnership

(5).    One exception is where some fraud has been committed by the directors in the name of the company, or where the company is
attempting to do something ultrà vires: Clinch v. Financial Corporation

(6).    The other exception is where the course attempted to be pursued by the company is injurious to one particular class only of the shareholders, as in Atwool v. Merryweather

(7).    And even in that case, if the matter complained of by the minority is within the legitimate power of the majority the Court will not interfere. For the Court will not interfere with the internal management of the company: Bailey v. Birkenhead, Lancashire, and Cheshire Junction Railway Company

(8).    The present bill comes within neither of these exceptions.

In the second place, there is nothing in the allegations in the bill to shew a title to relief. The only thing complained of is the

(1) 1 Ph. 790.
(2) 2 Hare, 461.
(3) Law Rep. 8 Ch. 1035.
(4) 5 Railw. Ca. 211.
(5) 3rd Ed. p. 935.
(6) Law Rep. 5 Eq. 450.
(7) Ibid. 464, n.
(8) 12 Beav. 433.

ruling of the chairman as to the adjournment of the meeting. If the Court will go into that question, we contend that the ruling was quite right. The adjournment is to be made “with the consent of the meeting,” and that must mean with the consent of those present at the meeting: Reg. v. Vestry of St. Pancras

(1)     Reg. v. Hedger

(2).    A poll means a reference of the question to the whole of the constituency, which would be absurd in such a case, for the meeting would have to be adjourned for the purpose of taking it:
Reg. v. Cooper

(3).    It is also clear that where the votes are taken at a meeting, the votes are to be counted by number of shareholders and not by number of shares; for the 51st clause of the articles says that in case of equality the chairman is to have a “second, or casting vote,” which would not apply to the case of the chairman having a number of votes according to his shares.

Again, according to the Plaintiff’s own shewing it was impossible for him to have carried his resolutions at that meeting, for he only gave notice of a resolution requesting Colonel Gardiner to resign, not of a resolution removing him from his office; and as Colonel Gardiner was not present, nothing could be done.

[MELLISH, L.J.:- In a late case in bankruptcy, Ex parte Till

(4),    a doubt was suggested as to the mode of voting for the adjournment of a meeting of creditors, but it was not necessary to decide the question.]

Higgins, Q.C., and Wintle, for the Appellant Glasse, Q.C., and Robinson, Q.C., for the Plaintiff:-

We admit the rule laid down by Mozley v. Alston.

(5).    but we contend that this bill falls within the exceptions to the rule. In the first place, the Plaintiff complains that he and those who act with him, although really in the majority, are overborne by the collusive conduct of the directors and their friends.

The Defendants are, in fact, acting ultrà vires. It is exactly similar to Atwool v. Merryweather.

(6).    If the Plaintiff is in a minority, the bill comes within the other exception illustrated by Menier v. Hooper’s
Telegraph Works

(7)     where it was held that where the

(1) 11 A. & E. 15.
(2) 12 A. & E. 139, 151.
(3) Law Rep. 5 Q. B. 457.
(4) Law Rep. 10 Ch. 631.
(5) 1 Ph. 790.
(6) Law Rep. 5 Eq. 464, n.
(7) Law Rep. 9 Ch. 350.

majority are acting oppressively to the minority, one shareholder who is injured may file a bill on behalf of himself and others. In this case some of the members have been denied their rights by the directors who control the company, for it is clearly a right of the members to have a poll if they demand it:

Campbell v. Maund

(1).    In fact the meeting was adjourned, but we say it was done illegally, and we have, therefore, a right to file a bill in the name of the shareholders, on the ground that it is to be taken for granted that the shareholders do not approve of an illegal act:

Williams v. Salmond

(2).    The chairman, as we contend, acted in distinct violation of the 51st
article. We do not say that the poll should have been taken of the whole body of shareholders, but a poll should have been taken in the room of those present by themselves and their proxies, reckoning by shares and not by heads.

Therefore, if the Court is against us on the frame of the suit, we ask for leave to amend by making the company a co-Plaintiff instead of a Defendant. Since the commencement of the argument on the appeal the Plaintiff has been elected a director, and the old directors have resigned; and so far he has obtained the object of the suit(3). But it is necessary to obtain the opinion of the Court as to the power of the chairman to adjourn the meeting without a poll.

 

MAIN JUDGMENT

JAMES, L.J.:-

I am of opinion that this demurrer ought to be allowed. I think it is of the utmost importance in all these companies that the rule which is well known in this Court as the rule in Mozley v. Alston

(4)     and Lord v. Copper Miners’ Company

(5)     and Foss v. Harbottle

(6)     should be always adhered to; that is to say, that nothing connected with internal disputes between the shareholders is to be made the subject of a bill by someone shareholder on behalf of himself and others, unless there
be something illegal, oppressive, or fraudulent – unless there is something ultrà vires on the part of

(1) 5 A. & E. 865.
(2) 2 K. & J. 463, 469.
(3) On the 10th of November, 1875, the ordinary

general meeting of the company was held, at which Colonel Gardiner and the rest of the directors resigned their office, and a new body of directors, including the Plaintiff, were appointed.
(4) 1 Ph. 790.
(5) 2 Ibid. 740.
(6) 2 Hare, 461.

the company quâ company, or on the part of the majority of the company,
so that they are not fit persons to determine it; but that every litigation must be in the name of the company, if the company really desire it. Because there may be a great many wrongs committed in a company – there may be claims against directors, there may be claims against officers, there may be claims against debtors; there may be a variety of things which a company may well be entitled to complain of, but which, as a matter of good sense, they do not think it right to make the subject of litigation; and it is the company, as a company, which has to determine whether it will make anything that is wrong to the company a subject-matter of litigation, or whether it will take steps itself to prevent the wrong from being done. If the majority of the company really are in favour of any particular shareholder who has been interfered with improperly, by misconduct of a director, by misconduct of a chairman, by miscarriage of a meeting or of certain shareholders at a particular date – if the company think that any shareholder has anything which ought to be made the subject of complaint, there is never any difficulty whatever arising from the apparent possession of the seal by the directors, or from any such cause, in filing a bill in the name of the company, if the majority of the company desire it to be filed. Any one of the shareholders might have filed his bill in the name of the company, and then if the directors had said, “You are not the company; the majority do not act with you, but with us” – the Court would, as it has done in other cases, have taken the means of ascertaining which party it is, the Plaintiff’s or Defendant’s, which really represents the majority of the company.

Everything in this bill, as far as I can see, if it is wrong is a wrong to the company, because every meeting that is called must be for some purpose or other – it must be for the purpose of doing or undoing something which is supposed to accrue for the benefit of the company. Whether it ought to have been done, or ought not to have been done, depends upon whether it is for the good of the company it should have been done, or for the good of the company it should not have been done; and, putting aside all illegality on the part of the majority, it is for the company to determine whether it is for the good of the company that the thing should be done, or should not be done, or left unnoticed. I cannot conceive that there is any equity on the part of a shareholder, on behalf of himself and the minority, to say, “True it is that the majority have a right to determine everything connected with the
management of the company, but then we have a right – and every individual has a right – to have a meeting held in strict form in accordance with the articles.” Has a particular individual the right to have it for the purpose of using his power of eloquence to induce the others to listen to him and to take his view? That is an equity which I have never yet heard of in this Court, and I have never known it insisted upon before; that is to say, that this Court is to entertain a bill for the purpose of enabling one particular member of the company to have an opportunity of expressing his opinions vivâ voce at a meeting of the shareholders. If so, I do not know why we should not go further, and say, not only must the meeting be held, but the shareholders must stay there to listen to him and to be convinced by him. The truth is, that is only part of the machinery and means by which the
internal management is carried on. The whole question comes back to a question of internal management; that is to say, whether the meeting ought or ought not to be held in a particular way, whether the directors ought or ought not to have sanctioned certain proceedings which they are about to sanction, whether one director ought or ought not to be removed, and whether another director ought or ought not to have been appointed. If there is some one managing the affairs of the company who ought not to manage them, and if they are being managed in a way in which they ought not to be managed, the company are the proper persons to complain of that. It seems to me, therefore, that the thing is perfectly plain and obvious, and when the Master of the Rolls had the case before him he immediately pointed it out, and said, “You have the wrong Plaintiff here – the Plaintiff must be the company.” From the first opening of this case before us, I have never had any doubt in my own mind that this was a bill which, if it was to be sustained at all, could only be sustained by the company.

But then the Plaintiff says, “Give us leave to amend.” It is rather late to ask for leave to amend when the amendments might have been obtained from the Master of the Rolls before any costs had been incurred. But the question is, is there anything substantial in this case on which we should give leave to amend on the part of the company? I can see nothing. I do not think we ought to give leave to amend for the purpose merely of getting a declaration as to what the proper mode of dealing with the adjournment was, because that would be simply to give a declaration without any relief. The company cannot file a bill saying, “Tell us the meaning of the Rules, and what is to be done under them.”

They must find that out for themselves in the best way they can. We do not sit here to express an opinion on something which may lead to no practical result. I am not aware that there could be any practical result following upon a declaration obtained by the company as to the particular mode in which the meeting ought to have been adjourned, or in what particular way the meetings in future should be adjourned. If there is any doubt about it, if they cannot satisfy themselves as to the way of doing it out of doors, they must call a meeting and make it clear what is the mode in which they wish and propose to have it done.

Then, as to the rest of the relief prayed, that the directors were not to do something without the consent of the shareholders. Of course they cannot do so, and the shareholders can always call meetings if they please. Then, as to the part of the prayer which asks that somebody else shall be restrained from acting, that is in truth given up – it is admitted at the Bar that these resolutions could not have been properly put
at the meeting.

It seems to me, therefore, that upon the allegations of this bill there really is no relief which the company can ask for and which we could give the company. We happen to know that the party of the Plaintiff is now in full possession of the company, and the company will, no doubt, do what is right according to his view.

The demurrer must be allowed, with the usual consequences, and without leave to amend.

MELLISH, L.J.:-

I am of the same opinion. I think it is a matter of considerable importance rightly to determine this question, whether a suit ought to be brought in the name of the company or in the name of one of the shareholders on behalf of the others. It is not at all a technical question, but it may make a very serious difference in the management of the affairs of the company.

The difference is this:- Looking to the nature of these companies, looking at the way in which their articles are formed, and that they are not all lawyers who attend these meetings, nothing can be more likely than that there should be something more or less irregular done at them – some directors may have been irregularly appointed, some directors as irregularly turned out, or something or other may have been done which ought not to have been done according to the proper construction of the articles. Now, if that gives a right to every member of the company to file a bill to have the question decided, then if there happens to be one cantankerous member, or one member who loves litigation, everything of this kind will be litigated; whereas, if the bill must be filed in the name of the company, then, unless there is a majority who really wish for litigation, the litigation will not go on. Therefore, holding that such suits must be brought in the name of the company does certainly greatly tend to stop litigation.

In my opinion, if the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do regularly, or if something has been done illegally which the majority of the company are entitled to do legally, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes. Is it not better that the rule should be adhered to that if it is a thing which the majority are the masters of, the majority in substance shall be entitled to have their will followed? If it is a matter of that nature, it only comes to this, that the majority are the only persons who can complain that a thing which they are entitled to do has been done irregularly; and that, as I understand it, is what has been decided by the cases of Mozley v. Alston

(1).    and Foss v. Harbottle

(2).    In my opinion that is the rule that is to be maintained. Of course if the majority are abusing their powers, and are depriving the minority of their rights, that is an entirely different
(1) 1 Ph. 790.
(2) 2 Hare, 461.

thing, and there the minority are entitled to come before this Court to maintain their rights; but if what is complained of is simply that something which the majority are entitled to do has been done or undone irregularly, then I think it is quite right that nobody should have a right to set that aside, or to institute a suit in Chancery about it, except the company itself.

BAGGALLAY, J.A.:-

The matters complained of by this bill, and in respect of which relief is sought, are two in number – the one the refusal of the chairman at the meeting on the 14th of October to grant a poll, and the other that certain arrangements are in contemplation by the directors which may have a prejudicial effect upon the shareholders generally. As regards the first of these two matters, a declaration is asked that the refusal to grant a poll was illegal, and two alternative forms of relief are prayed consequent upon such declaration – the one that the resolutions which were passed at the meeting held under the presidency of the Plaintiff after the original chairman had retired were valid and binding; the other that a meeting should be called under the direction of the Court for the purpose of having those resolutions submitted to the meeting so called.

Now, as regards the former of those two alternatives, I think it was very wisely and properly abandoned in the course of the argument, because one of two things is clear – either that the second meeting of the 14th of October was a continuation of the former one, or an original and independent meeting; if it was a continuation of the former one, the only proper proceedings which could have been taken would have been to have treated the declaration of the former chairman that the meeting was adjourned as a nullity, and to have directed a poll to be taken on the subject of adjournment; if, on the other hand, it is regarded as an original meeting, it was not summoned in manner provided by the articles, and the resolution passed could not be binding. The other alternative form of relief seems to me to be such as this Court is not in the habit of granting, namely, to direct a meeting to be called in order that at that meeting certain resolutions should be submitted. I am not prepared to say that a case for calling a meeting may not arise, particularly when the Court desires to have for its own information the views of the shareholders.

Meetings have been directed even where the company is not in course of liquidation, but such a course of proceeding is not usual, and certainly I am not aware that any such case has ever occurred when the calling of a meeting is within the power of the shareholders themselves.

Then if you get rid of these two alternative forms of relief, what becomes of the first paragraph of the prayer, which merely asks a declaration that the view taken by the chairman was illegal and improper, and asks a declaration to that effect with no consequential relief? I apprehend that it is not the practice of the Court to make declarations of so utterly useless a character as is there asked.

But that leaves the second paragraph of the prayer to be considered. Now that is based upon an assumed intention on the part of the directors to enter into certain arrangements which may be prejudicial to the shareholders. But what is the real fact? If you turn to the articles you will find that there the fullest possible powers are given to the directors not only to manage the affairs of the company, but to commence, prosecute, continue or discontinue, any litigation that is pending, and it is proposed to ask the Court to make a declaration that those articles are to be overborne by a further rule or declaration of the Court that the directors are not to act without the shareholders’ consent, and that a restriction which the shareholders have themselves waived is to be supplemented by the order of the Court. It appears to me, therefore, that not in respect of any one of the several species of relief asked by this bill could relief be given by whomsoever the bill is filed.

I entirely concur in the views expressed by the Lords Justices, that as far as regards the constitution of this suit, even if the allegations formed the subject-matter for a suit in this Court, the proper parties are not Plaintiffs. I entirely concur in the views expressed by them, and in the reasons assigned. I should certainly have been disposed to have assented to the proposition to give leave to amend the bill had I thought that by amendment of the bill a fair case for the intervention of this Court could have been made, but being perfectly satisfied, for the reasons I have just mentioned, that the allegations of the bill, apart from the parties who may happen to be Plaintiffs, are not such as this Court could act upon, I am of opinion that it would be most idle to give leave to amend. Solicitors: Bischoff, Bompas, & Bischoff; Valpy & Chaplin.

 

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