Company (2), the company gave the plaintiff notice of their intention to take his lands, and summoned a jury to assess the value; but the time allowed for the exercise of their compulsory powers to take lands having expired before the jury gave their verdict, the Vice Chancellor of England granted an injunction to restrain them from proceeding; but, upon appeal, the Lord Chancellor sent a case to the Court of Common Pleas, to ascertain the validity of the verdict given under those circumstances; the proceedings, however, terminated there, as the matter was arranged. It was only when the company overstepped their authority that the Court would interfere: so long as they kept within their powers, the Court would be cautious how it interfered with them, especially by injunction, and more especially as the railway could only be made step by step. Had the bill been filed by a landowner he might have complained if the company had proposed to make a part, instead of the whole line, for which the act of parliament had been granted, as a fractional part might have been useless to him; but a shareholder had the power to compel the company to complete its contract with the public. In The Queen v. the Eastern Counties Railway Company (3), the company's act authorized them to make a railway from London to Norwich by Colchester; the company gave the usual notices on the line to Colchester, but they shewed by their acts that they did not intend to proceed further; accordingly a landowner upon the line applied to the Court of Queen's Bench, which granted a mandamus to compel the company to make the line and keep their contract with the public. If, therefore, the Court of Chancery were to grant an injunction to restrain the company from making their railway, and the Court of Queen's Bench were to grant a mandamus to compel them to observe their contract with the public, the two Courts would be directly in conflict. The plaintiff did not pretend that there was any difference of opinion among the members at their meetings. It must, therefore, be assumed that the proceedings were legal, and that (2) 15 Sim. 632; s. c. 16 Law J. Rep. (N.S.) Chanc. 471. (3) 1 Rail, Cas. 509; s. c. 8 Law J. Rep. (N.s.) Q.B. 340. the shareholders acquiesced in the proceedings, and that the consent of all was obtained; but, notwithstanding, the plaintiff, for some unexplained object of his own, instituted this suit, and asked the Court to stop the whole proceedings of the company. In Lord v. the Copper Miners' Company (4) it was said that "a court of equity could not assume jurisdiction in cases where the corporation acted within the powers of their act without opening its doors to all parties interested in corporations or joint-stock companies, or private partnerships, who, although a small minority of the body to which they belonged, might wish to interfere in the conduct of the majority. This could not be done, and the attempt to introduce such a remedy ought to be checked for the benefit of the community." These observations were applicable to this case, as everything that had been done had been sanctioned at the meetings of the company. If the company proposed to stop at any distance, however short of the Portsmouth terminus, if they intended to make any the slightest deviation, according to this case it would be illegal, and if this bill was sustained, there would be innumerable applications to this Court. But the interference of this Court might do irreparable injury. powers of the company were still existing; if, therefore, an injunction were granted, and the time for exercising them expired, and ultimately the injunction should be dissolved, this Court could not restore the powers or position of the company, and the plaintiff could not be made responsible in damages for the injury sustained. It might be the determination of the company to proceed with their line as far as possible under the powers they then had, and to apply to parliament for an extension of the time to enable them to complete the whole. These were things with which no individual shareholder could interfere : would, therefore, this Court assume to itself a jurisdiction, not only to interfere with the resolutions of a body of shareholders, but also to deprive them of the very powers granted by the legislature, and this at the instance of a solitary shareholder ? The Court will not assume such a jurisdiction, and consequently the demurrer must be allowed.— The (4) 1 Hall & Twells, 85; 2 Phill. 740; s. c. ante, 65. Stone v. the Commercial Railway Company, 4 Myl. & Cr. 122. The Queen v. the Eastern Counties Railway Company, 2 Rail. Cas. 260; s.c. 9 Law J. Rep. (N.S.) Q.B. 303. Ware v. the Grand Junction Waterworks Company, 2 Russ. & M. 470; s. c. 9 Law J. Rep. Chanc. 169. Salmon v. Randall, 3 Myl. & Cr. 439. Mr. Turner and Mr. Cole, for the plaintiff. The case made by the plaintiff is that the legislature in passing the act incorporating this company did so to enable them to make a railway from Epsom to Portsmouth, and not merely from Epsom to Leatherhead, which was but a small part of the line; that the shareholders subscribed their money upon the faith that the whole line was to be made; that the directors of the company had abandoned all intention of making the entire line, and that they did not intend to go beyond Leatherhead. The company, therefore, had obtained powers which they did not intend to use, and they were exercising those powers for purposes not contemplated when the act was passed. They were at once acting contrary to the powers granted by the legislature, and the contract made with the shareholders. This Court would therefore interfere to prevent any abuse of the powers of the act, and also any misuse of the money of the shareholders, and it would also interfere at the instance of any person whose rights or property were improperly or illegally interfered with. It was admitted that a case might arise for a landowner to ask for the interference of the Court, but it was said that a shareholder could have no such right but the principle was the same in both cases. The landowner sold his land upon the faith that the contract with the public would be kept, and that the whole line would be made; and it was under the same idea that the shareholders contracted to subscribe the capital. In Colman v. the Eastern Counties Railway Company (5) a bill by a shareholder was supported, and he was held entitled to sue on behalf of himself and all other the shareholders except the directors, who were defendants, not (5) 10 Beav. 1; s. c. 16 Law J. Rep. (N.s.) Chanc. 73. withstanding some of the shareholders had taken shares in a separate undertaking, and an injunction was granted to restrain the misapplication of the funds, which was considered a breach of trust, though it appeared that the plaintiff was suing at the instance of a rival company. The principle in the present case was the same. The contract made by the shareholder was that which he subscribed, and no contrary resolution of the company could vary that contract or bind the plaintiff. It was the contract made which a court of equity would see duly performed. Before a court of law would grant a mandamus it would ascertain that there was a possibility of completing the line; if that could not be done before the powers of the act would expire, as in the present case, where the powers would expire in a few days, it would not issue a mandamus. The argument, therefore, respecting the mandamus was beside the question, and the demurrer must be overruled. Agar v. the Regent's Canal Company, 1 Swanst. 250, cited. Natusch v. Irving, Gow on Partnership, App. No. 6, 404, 4th edit. The Mayor of King's Lynn v. Pemberton, Gray v. the Liverpool and Bury Rail- Ward v. the Society of Attornies, 1 Coll. Blakemore v. the Glamorganshire Canal Navigation, 1 Myl. & K. 164; s. c. 2 Law J. Rep. (N.S.) Chanc. 95. Foss v. Harbottle, 2 Hare, 461, 497. The Queen v. the Eastern Counties Railway Company, 10 Ad. & E. 531; 2 P. & D. 648; s. c. 8 Law J. Rep. (N.S.) Q.B. 340. Bagshawe v. the Eastern Union Railway Company, ante, p. 193. Mr. Malins, in reply. The MASTER Of the Rolls.—This case seems to be shortly as follows:-The defendants are the Direct London and Portsmouth Railway Company, which is constituted under an act of parliament enabling the company to construct a railway from a A place near Epsom to Portsmouth, with the usual power of raising capital in shares and taking the land required for making the road. It was enacted that the Lands Clauses Consolidation Act, 1845, should be incorporated in the act, and moreover that certain specific communications should be completed within three years from the passing of the act. The act received the royal assent on the 26th of June 1846. The plaintiff was an original subscriber to the undertaking, and is now entitled to seventy-one shares in the company. considerable sum of money has been subscribed, but no part of the line of railway has yet been made or commenced; and the bill alleges, in my opinion with sufficient distinctness, that the company and the directors have abandoned all intention of constructing the railway from near Epsom to Portsmouth, which is a distance of fiftysix miles, and have determined to make a railway which shall extend from near Epsom to Leatherhead only, being a distance of about four miles. The bill alleges that it was and is the duty of the defendants to construct the whole railway, in consideration of which the act was passed and its powers given, and that to apply the funds of the corporation to the construction of only a part of the railway is illegal and it prays a declaration that it is not within the powers of the company to make the proposed railway from Epsom to Leatherhead only; and that the funds of the company cannot be lawfully applied for that purpose. It then prays for an injunction. To this bill the defendants have put in a general demurrer. They must, therefore, be held to admit the facts stated, and to insist that the persons who govern the company have a right under that act to make as much or as little as they please of the whole railway, and have a right to apply the capital raised by the subscriptions of the shareholders, in constructing as much of the railway as they think proper. I apprehend it, however, to be perfectly clear that the powers given by these acts are given only in the contemplation of the supposed public good to be obtained from the completion of the whole work authorized, and that it never is or can be deemed to be intended that the powers would have been given on any less consideration, or any less obligation on the party to whom the powers were given. There are two classes of persons who may be affected by any deviation from that principle:-the owners of the land, over which the work is to pass, and the shareholders, who have subscribed their money for the work. In the case of Salmon v. Randall, the present Lord Chancellor said, that the principle laid down by Lord Eldon, in Agar v. the Regent's Canal Company, did not apply to the case then under his consideration, and he commented on its inapplicability, and some other circumstances, which he particularly mentioned; but he stated the principle as one which might be extremely important in its application, and the ground of it was, "that where acts of parliament impose certain severe burthens on individuals, by interfering with their private rights and private property, for the purpose of obtaining some great public good, if the Court sees that the undertaking cannot be completed, and therefore that the public cannot derive that benefit which was to be the equivalent for the sacrifice made by the individual, the Court will protect the individual from being compelled to make that sacrifice under the circumstances, and until it appears that the public will derive the proposed benefit from it." On principle I conceive the Court is to interfere when it sees, at the proper time, and in proper circumstances, that the undertaking cannot be completed, and that proper protection will be afforded to the owners of the land who are called on to make such sacrifice for the public benefit; the interference and protection are not to be made or afforded upon surmises or conjectures, or upon occasions, and in a manner in any way inconsistent with the powers given by parliament with reference to circumstances existing when the act passed, but only on circumstances arising subsequently to the act, in which it clearly appears that the object which parliament had in view cannot be obtained, and the consideration for which private rights were intended to be sacrificed has failed. But it is said, that no such protection ought to be afforded to the shareholders, who are bound by the act of the company of which they are members. Let the situation be considered: happily on this occa sion I have no need to talk of the gambling speculations, the cheats and dupes who have become so notorious. I may at this time reasonably assume that all parties have been and are acting bona fide, and this shareholder is a person who has subscribed and paid his money, no doubt, on the faith of an undertaking sanctioned by parliament, on the ground of its being expected and intended to produce public benefit by its completion. His object may be his own particular benefit, his own particular profit; but his advances are made on a scheme, the whole of which must be considered as that which alone has been approved and authorized by parliament, which is to be conducted and managed in the way approved by parliament, for the end proposed by parliament, and for no other end, and the governing body of which must be considered to have entered into the obligation to complete the work authorized. It is on those expectations that the shareholders become members, and I am of opinion that they are entitled to have those expectations realized, if they can be. The company is not like a partnership for general trading purposes, in which one portion of the business may be encouraged and another discouraged, or abandoned according to the contingencies of trade, and a general authority to use the capital to the best advantage, and a general authority to pay; but it is a partnership for a public purpose, for effecting a work, which it is a duty to complete, and for which alone the capital is advanced in shares, or authorized to be raised. The obligation to complete the work appears to me to be co-extensive with the authority to make it. Neither this act nor any of these acts contain authority to substitute a less work, or part of the whole, and if the governors or directors of the company take on themselves to determine that they will not perform the whole work, but will apply the capital collected on the faith of the whole work being completed in completing only a part of it, I am of opinion the determination is without authority, and contrary to the provisions of the act of parliament. I am of opinion that the act is illegal as against the landowners: and if there were no sufficient reason for saying that the act is also illegal as against the shareholders, I should be glad to have an answer to the question, why are the directors to be at liberty to involve the shareholders in an illegality, and the consequences of an illegality, towards the landowners? I need not speak of the consequences of allowing such authority as is claimed here. It is plain, that if it were allowed certain portions of the shareholders might defeat the authorized intention of all the rest, founded on the authority of parliament, and apply the funds in a manner quite different from, and even contrary to, the intention of the contributors. On this occasion there is no controversy as to facts. The powers are given for the whole work. The directors have, as I must now take it, determined to perform only a part of the work. I am of opinion the shareholders are not bound by that determination, and that there is, or may be, a right to relief in this court; and therefore I must overrule this demurrer. Infant-Two Suits Amending after Reference-Common Order-Jurisdiction. After an order of the Vice Chancellor, referring it to the Master to ascertain which of two bills it would be most for the benefit of an infant to prosecute, the plaintiff in one suit obtained the common order, and amended his bill :-Held, that the order was irregular, and it was discharged, but without costs. Held, also, that the Master of the Rolls, upon an application to discharge the order for irregularity, had not jurisdiction to order the amendments to be taken off the file, even with consent. This was a motion, on behalf of Alice Moore, an infant defendant, to discharge, for irregularity, an order of course obtained by the plaintiff to amend the bill in this cause, and also to take the amended bill off the file. The Vice Chancellor had made an order referring it to the Master to inquire, whether it would be most for the benefit of the infant that the above or Practice. Bill- Amending -TimeSpecial and Common Order. Upon appeal the Lord Chancellor allowed a demurrer as to parties, but at the same time gave the plaintiff leave to amend his bill without limiting the time. After the time allowed by the General Orders of the Court for making amendments had expired, the plaintiff obtained, as of course, the common order, under which he filed an amended bill:-Held, upon an application to discharge the order for irregularity, that, where no time is limited by a special order for making amendments, it is limited by the General Orders of the Court; that the cause was not out of court by not acting upon the special order, and that special application might have been made to the Court for further time; and that the order of course was irregular, and must be discharged, with costs. This was a motion, on behalf of the defendants William Arnold Bainbrigge, Thomas Arnold and Harriet Arnold, to discharge an order made in this cause on the 29th of May 1849, for irregularity, and that the amended bill, filed by the plaintiff in the cause on the same day might be taken off the file, and that the plaintiff might pay the costs of this application. On the 5th of March 1846 the plaintiff filed his amended bill, to which W. A. Bainbrigge and others put in a demurrer, which was allowed in this court, and no liberty was given to amend. Upon appeal to the Lord Chancellor, he, on the 29th of December 1847, allowed the demurrer as to parties, but gave the plaintiff leave to amend, as he should be advised; but did not specify any time within which the amendments were to be made. No amendment was made under this order, but on the 29th of May 1849 the plaintiff, with the consent of the only defendant who had answered, obtained an order of course to amend, and filed an amended bill. 3 D |