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again." That would have amounted to a payment of those two debts, but there was no need to go through that form, and writing it off in the books is, to my mind, perfectly equivalent to payment. I also agree with what the Lord Justice has said upon the other point. As at present advised, I doubt extremely whether this case comes within the 25th section of the Act of 1867.

Lord Justice JAMES.-The appeal will be dismissed with costs.

Kay, Q.C.-I believe the rule is that, when an order is made against an official liquidator with costs, that prima facie means that he is to pay the costs whether he gets them out of the estate or not.

Lord Justice JAMES.-Yes. The respondent is not to be done out of his costs. They are to be paid by the liquidator.

Solicitors for the appellant, Wansey and Bowen. Solicitors for the respondent, Whitakers and Woolbert.

Wednesday, Feb. 25.

(Before the LORDS JUSTICES.)

Re THE HOYLAKE RAILWAY COMPANY (LITTLEDALE'S CASE).

Company-Contributory-Transfer of shares-Un• paid calls-- Acquiescence- Companies Clauses Consolidation Act (8 § 9 Vict. c. 16) s. 16. The 16th section of the Companies Clauses Consolidation Act 1845, which provides that" no shareholder shall be entitled to transfer any shares, after any call shall have been made in respect there of, until he shall have paid such call, nor until he shall have paid all calls for the time being due on every share held by him," is intended for the protection of companies and not of their creditors, and if the directors of a company assent to a transfer of shares on which calls are due, the property in the shares passes to the transferee, and the transferor cannot be placed on the list of contributories in respect of the shares so transferred, though he may be sued at law for the amount of the calls due at the date of the transfer. Decision of Malins, V.C., affirmed.

THIS was an appeal from a decision of Malins, V.C., who ordered the name of Mr. Harold Littledale to be removed from the list of contributories to the above company.

In 1866 Littledale was the chairman of the company and the holder of 100 shares in it

Littledale having expressed himself dissatisfied with the proceedings of Piercy, who was the engineer and contractor of the company, the latter proposed to Littledale that he should retire from the board of directors, and offered, in order to relieve Littledale from any liability, to take a transfer to himself of Littledale's shares, upon which a call of £2 per share was then due, and to transfer to him in lieu thereof an equal number of fully paid-up shares which had been given to Piercy in part payment of the amount due for the construction of the line.

Littledale accepted this offer, and on the 8th Aug. 1866 he transferred his 100 shares to Piercy and resigned the office of director.

Notwithstanding the fact that a call was due in respect of the shares the directors accepted the transfer and registered Piercy as holder of the shares, and he was debited with the amount due

upon the shares in the current account between him and the company.

The company was ordered to be wound-up in the year 1872, and at that time some of the 100 shares remained standing in Piercy's name, and the rest were standing in the names of persons to whom he had transferred them.

The official liquidator having placed Littledale on the list of contributories, he applied to the ViceChancellor who ordered his name to be removed from the list.

From this order the official liquidator appealed. Jackson, Q.C. and Westlake, Q.C., for the appellant. The transfer to Piercy was invalid, inasmuch as at that time a call was due upon the shares, and the 16th section of the Companies Clauses Consolidation Act 1845 (8&9 Vict. c. 16) provides that "no shareholder shall be entitled to transfer any share, after any call shall have been made in respect thereof, until he shall have paid such call, nor until he shall have paid all calls for the time being due on every share held by him." It was a breach of trust on the part of the directors to allow such a transfer before the call due was paid. Littledale was chairman of the company, and the arrangement between him and Piercy in pursuance of which the transfer was made was very improper, and he ought not to be allowed by such means to escape from his liability in respect of the shares, but ought to be placed on the list of contributories. The Vice-Chancellor founded his decision on Re The County Palatine Loan and Discount Company, Teasdale's case (29 L. T. Rep. N. S. 707) but that was quite a different case and has no application here. Littledale is liable to be placed on the list of contributories under the 200th section of the Companies Act 1862.

Without calling upon

Higgins, Q.C. and Bardswell, who appeared in support of the Vice-Chancellor's order,

Lord Justice JAMES said: I am of opinion that the order of the Vice-Chancellor in this case ought to be affirmed. Mr. Littledale was a shareholder in the company, and he transferred his shares to a Mr. Piercy. The transfer was duly registered in the books of the company. Mr. Piercy, with respect to some of the shares, as we are told and I suppose it is a fact, has remained on the register of shareholders and Mr. Piercy's transferees under certain subsequent transfers, were the registered owners of others of those shares at the time of the winding-up. Mr. Littledale therefore was not a shareholder on the register. Why is he to be put upon it? It is said that he was a chairman of the company and that he transferred those shares by reason of some bargain between him and Mr. Piercy which was not proper as regards the company. It might be the foundation of some application in respect of any loss that might be sustained through a breach of trust; but it cannot make a man, who was not a shareholder, a shareholder or a contributory in respect of those shares. The shares belonged to Mr. Littledale, and he had a right beyond all question at the time he transferred the shares to Mr. Piercy, to transfer them to any person in the world whom he might get to be transferee. The directors could not have prevented him. He had no duty in respect of that transfer in his character of chairman or director of the company. It is suggested that he allowed them to be transferred while there was in arrear a call of £2 per share due from him in respect of those shares. It is said

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that there is a section of an Act of Parliament (Companies Clauses Consolidation Act, s. 16) which provides that a shareholder shall not be entitled to transfer his shares while there is any call in arrear on those shares, or upon any other shares in the company held by him. The very nature of that provision, to the extent to which it goes, clearly shows that it was intended for the protection of the company, and to be a mode by which the company should have a lien upon all the shares of every shareholder in respect of any calls due from him in respect of any shares whatsoever. That was intended for the protection of the company, and if the company waived it, it does not make the transfer void. It does not make the shares still remain the shares of the person who transferred them, or cease to be the shares of the transferee. If there was any breach of duty on the part of a director in respect of that transfer, that breach of duty might be the ground of a special action or suit against him. The breach of duty here was the breach of duty of the directors for the time being who assented to the transfer, if there was any breach of duty. It is said, on the one side, however, that the calls were really paid, so that there was no breach of duty at all. On the other side it is said they were not paid. What appears on the evidence is this, that the transferee Mr. Piercy was a gentleman who had contracted to make the whole line, who had contracted to buy the land and to make the works. He continued for a couple of years after the date of this transfer to go on laying out money in executing the works for the company; and immediately after the transfer, in the course of the current account between Mr. Piercy and the company, the 300l. that was due in respect of the shares was debited to Mr. Piercy on the one hand as the contractor, and credited to him on the other side in his character of shareholder. So that in that current running account between the two parties, the calls were actually paid, and if they were not actually fully paid then there would still be a ground of action against Mr. Littledale, because he was the shareholder at the time when the calls were made, and he would still be liable in respect of the calls then due, and the non-receipt of which was the only thing that could be alleged to be improper either in respect of himself or in respect of the other shareholders. If they have not been paid his liability still continues, but his liability in respect of those calls is not a thing which can be determined in this proceeding, which is an application to make him a contributory in respect of those shares. It is said, indeed, that the 200th section of the Companies Act 1862 is applicable to this case. That section provides that "in the event of an unregistered company being wound-up, every person shall be deemed to be a contributory who is liable at law or in equity to pay or contribute to the payment of any debt or liability of the company." Mr. Littledale was not liable at law or in equity to pay or contribute to the payment of any debt of the company. If any. thing, he was merely in the position of a debtor to the company, to whom he might owe money. He could not be made a contributory in that capacity, or for the purpose of adjusting the rights of the contributories among themselves. A debtor to a company cannot be made liable as a contributory, because the money coming in might afterwards be used for the purpose of settling the debts owing by the company. He was to all intents and

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purposes in the same position as if his shares had been forfeited, that is, he would be a debtor for the call due if any call was due. It is impossible for us in a case of this kind to go into the running account which was going on for years before and years afterwards between the contractor, Mr. Piercy, and the company, for the purpose of ascertaining whether there was anything due at that time or becoming due afterwards which was properly attributable to the payment of these calls. I should think it exceedingly difficult to make out that anything would be due having regard to the time at which this was done or the time these works went on. However that will be determined if ever the liquidator is advised to try the case by making a claim against Mr. Littledale as a debtor to the company. I think the order of the ViceChancellor was quite right, and that the appeal ought to be dismissed with costs.

66

Lord Justice MELLISH.-I am of the same opinion. It appears to me that the only real question in this case is whether the 16th section of the Companies Clauses Act prevented the transfer, which was registered, from passing the property in the shares, and I am of opinion that it did not. That section provides that no shareholder shall be entitled to transfer any share after any call shall have been made in respect thereof until he shall have paid such call, nor until he shall have paid all calls for the time being due on every share held by him." Now the mere fact that that section applies not merely to the calls on the shares in respect of which the call is made, but to all other shares which the shareholder holds in the company, seems to me to show very clearly that the object of the section is to give the company a charge on the shares. If that was not so, the consequence would be that if, when calls are due, the company allow either those shares or any other shares belonging to the same shareholder to be transferred, if that transfer was absolutely void, neither the purchaser nor anybody who subsequently purchased from that purchaser, would ever become the real holder of the shares. Then it is said that we ought to hold that, because the section is for the benefit of the creditors as well as the company. But in the first place I do not think that there is anything in that section which shows that the Legislature had the rights of creditors in view at the time they passed it. But if they had them in view, I am not at all certain that it would be for the benefit of the creditors to hold that such a transfer is absolutely void, because the 36th section, which is the only section that gives a right to creditors, provides that if, after a creditor has recovered judgment and issued execution, he cannot get satisfied out of the property of the company, then he may, by scire facias, have execution against any shareholder. It seems quite clear that he cannot have execution against two shareholders as the holders of the same shares. Then which of the persons is the holder of the shares-the man who has transferred them without having paid a call, or the man who has purchased them and is registered in respect of them? I do not see why it should not be quite as much or more for the benefit of creditors to go against the purchaser who is registered in respect of the shares. Therefore if the directors do assent to a transfer being made the property in the shares passes. That being so, it appears to me that whatever other remedy there may be against Mr. Littledale, he cannot be made

a contributory in respect of these shares. If the liquidator has any remedy, as has been pointed out, he may bring an action against Mr. Littledale for not having paid the calls which were made at the time he was a shareholder, if those calls have not since been paid by Mr. Piercy. Possibly there might be a remedy against all the persons who were directors of the company at the date of the transfer, and who assented to the transfer being made without the payment of the calls then due, on the ground that they were guilty of a breach of trust. But it is not necessary to give any opinion on that subject at all. This is not an application of that kind. The question before us is simply, whether Mr. Littledale ought to be held to be the contributory in respect of these shares. It cannot be so unless he is, in point of law, the person who ought to be on the register as the holder of the shares, and in my opinion he is not the person who ought to be on the register in respect of those shares.

Lord Justice JAMES.-The costs will be paid by the liquidator.

Solicitors for the appellant, Ashurst, Morris, and Co.

Solicitors for the respondent, Cunliffe and Beaumont.

Held (affirming the decision of the Master of the Rolls) that this was a substantial interference with the free navigation of the river, and that it ought to be restrained by injunction.

THIS was an appeal from a decision of the Master of the Rolls.

The hearing in the court below is reported in 29 L. T. Rep. N. S. 716, where the facts of the case are fully stated.

The Master of the Rolls having granted an injunction, the defendant appealed.

Fischer, Q.C., and G. Beaumont, in support of the appeal, contended that no case of obstruction or public nuisance had been established against the defendant; no evidence was produced of any vessel having been impeded or injured by reason of the alleged obstruction. Indeed the works erected by the defendant would be a benefit rather than a hindrance to the navigation of the river. At all events, on the principle of the maxim "De minimis non curat lex," the obstruction, if any, was so infinitesimally slight that the court ought not to interfere by injunction. They cited

Hale de Portibus, Hargreave's Law Tracts p. 85;
Attorney-General v. The Mayor and Corporation of
Kingston-on-Thames, 12 L. T. Rep. N. S. 665; 11
Jur. N. S. 596;
Taylor on Evidence, p 54;
Angel on Carriage by Water, p 200;
Rexv. Russell, 6 B. & C. 566;
Rex v. Ward, 4 Ad & E. 384;

Reg. v. Randall, Car & M. 496;

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Attorney-General v. The Sheffield Gas Consumers' Company, 3 De G. M. & G. 304;

Rickett v. Morris, 14 L. T. Rep. N. S. 835; L. Rep. 1 Sc. App. 47-60;

Attorney-General_v. The Earl of Lonsdale, 20 L. T. Rep. N. S. 64; L. Rep. 7 Eq. 377;

The Sandwich Haven Improvement and Regulation Act, ss. 12, 37.

Without calling upon

Roxburgh, Q.C., and E. P. C. Hanson, who appeared in support of the order of the Master of the Rolls,

The LORD CHANCELLOR (Cairns) said that in disposing of this case he would refer merely to facts as to which there was no controversy, and would avoid any reference to facts that were in dispute between the parties. The river Stour was a navigable river, which seemed to be considerably used, especially by ships trading in connection with the town of Sandwich. Its navigation had been placed in a special manner under the guardianship of the corporation of Sandwich by an Act of Parliament passed in 1847, by the 12th section of which Act the Mayor and Corporation of that town were themselves prohibited from constructing any work in the river without the consent of the Admiralty, and by the 37th section the water bailiff, an officer of the corporation, was authorised to remove any obstruction. His Lordship referred to that Act for the purpose of pointing out that it was considered of great public importance to preserve the navigation of the river Stour unimpeded, and that a special duty devolved upon the relators to keep the river free from obstruction. The defendant had a private wharf and a warehouse, in front of which there was a way for horses and foot passengers, over which the public had a free right of passage, and high up over this way was a projecting hutch or loft, which formed part of the defendant's warehouse. Before the commencement of the works complained of there had been a row of old piles in front of the wharf, which had been placed there some sixteen years ago, perhaps for the purpose, on the one hand, of preventing injury to ships from their scraping against the river bank, and, on the other hand, of protecting the river from injury which would be occasioned by ships rubbing against and bringing down the banks. These old piles had rotted away, and there was no distinct evidence before the court who had placed them there; but it was sufficient to say that if they had occasioned any obstruction to the navigation of the river, no right was thereby acquired by the owners of the ground opposite to them to continue the obstruction. The defendant, finding that his warehouse was sinking, and that he could not place anything in the nature of a support upon the public way between the river and his warehouse, had driven piles deep into the soil of the river, and erected a platform, resting on a tripod, floored over at the top and boarded on the front parallel to the bank. This projected three feet into the river, and the practical effect of it was that the defendant had provided himself with a wharf three feet in width outside his old wharf. He used this structure in the first place for the purpose of supporting his warehouse by fixing poles from it to the foundations of the warehouse; and he further proposed to send a shoot from the hutch up above to the floor of the platform erected on the piles, and to use this shoot for the purpose of loading and unloading vessels ranged alongside the platform.

At this part of its course, the breadth of the river Stour, for navigable purposes, was about sixty feet at high water-there was sixty feet of navigable space for ships drawing from eight to eleven feet of water, the ordinary class of ships employed on the river. His Lordship thought that the evidence clearly established that prior to the erection of this structure a ship drawing not more than eight and a half feet of water could at high water have ranged close up to the defendant's wharf and have remained close to that wharf, and that ships drawing more than eight and a half feet of water would probably have grounded, but now they were compelled to range up against the new structure, three feet further out. The undoubted effect of this was that the defendant had lessened the navigable breadth of the river by about three feet; in other words, he had taken and abstracted three feet out of sixty. It had been strongly urged that there was no real obstruction, and that this court ought not to interfere, but his Lordship felt bound to say that this was exactly one of those cases in which it was proper that such an act should be challenged at the very outset by the persons appointed to act as conservators of the river. In his Lordship's opinion, if three feet were taken unchallenged at one time, it was very likely that six feet would be taken at another time, and although his Lordship could not say that there might not be an obstruction of such a very trifling nature that this court would not interfere, he was prepared to hold without any qualification that this subtraction of three feet from the navigable breadth of the river was a tangible and substantial interference with the free navigation of the river, which ought at once to be challenged by the corporation in performance of the duty with which they had been entrusted of preserving unimpaired the navigation of the river, and ought to be restrained by an injunction of this court. The question of the towing path was out of the case; it had crept into the decree per incuriam. His Lordship regretted that application had not been made to the Master of the Rolls as to that mistake, but that ought not to make any difference in the order to be now made. The appeal would therefore be dismissed with costs.

Lord Justice MELLISH was of the same opinion. This was an indictable nuisance upon which a jury, properly directed by a judge, would give a verdict. The piles were erected in the stream of a navigable river where every foot was required for the purposes of navigation. There might, indeed, be places by the banks of the river where the water was so shallow that it was practically of no use for navigation, and as to such places that which would otherwise be a nuisance might not be such as to make it the duty of this court to interfere to prevent it, but in places which were actually useful for navigation there was no difference between the obstruction of them and of a highway. It was no answer to the bill to say that there was room enough left for navigation, and that if ships were navigated with skill and care they would not suffer from the obstruction. The public had a right to navigate over the whole space of the river. Neither was it any answer to say that the obstruction only occurred at certain states of the tide, that it made no difference to ships drawing eleven feet of water, and that in some respects the works complained of would be advantageous. The advantage of one person could not be set off against

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the disadvantage of another. If this was, in the ordinary course of navigation, an obstruction, it was in point of law an indictable nuisance, and that being so it was the duty of the Court of Chancery to restrain it by injunction.

Lord Justice JAMES was of the same opinion. He only desired to add that where a public body was entrusted with the duty of being conservators of a river, it was their duty to take proceedings to prevent any obstruction to the navigation of the river. This was eminently a case for their interference. Appeal accordingly dismissed with costs. Solicitors for the appellants, Lowless, Nelson, Jones, and Thomas.

Solicitors for the respondents, Prior, Bigg, Church and Adams.

Monday, March 16.

(Before the LORDS JUSTICES.)
HALFHIDE v. ROBINSON.

Person of unsound mind not so found-Next friend
-Suit for partition-Jurisdiction in Chancery-
Lunacy Regulation Act 1853 (16 & 17 Vict. c. 70)
8. 120.

The Court of Chancery will not entertain a suit by

his next friend of a person of unsound mind, not so found by inquisition, for the sale of his real estate.

Where the value of such real estate does not exceed the sum of 5001, and the person of unsound mind has no other property, the Lords Justices will make an order for its sale under the 120th section of the Lunacy Regulation Act 1853, and will order the proceeds of sale to be paid to the next friend on his undertaking to maintain the person of unsound mind.

THIS was a petition in Chancery for a vesting order in a partition suit, which was presented to the Lords Justices in the first instance by special leave.

The facts of the case were as follows:

The plaintiff Amelia Halfhide, who was a person of unsound mind not so found by inquisition, was entitled as tenant in common to an undivided third part of a small freehold estate of the value of about 6001, situate at Hookwood, in the county of Surrey, the other two undivided thirds belonging to two persons named respectively Thompson and

Robinson.

The bill in the above suit had been filed on behalf of Amelia Halfhide by her next friend (her uncle) for a partition or sale of the estate, and a decree had been made by Stuart V.C. under the 3rd section of the Partition Act 1868 (31 & 32 Vict. c. 40) dirccting the sale of the estate.

As the title to the defendant Robinson's share was doubtful, and could not be settled without very expensive inquiries, which would in all probability have exhausted the greater part of the property, a petition was presented to Hall, V.C., and came on for hearing along with a re-hearing of the cause (which had been directed by the late Vice-Chancellor Wickens), praying for the sanction of the court to an arrangement whereby the defendant Thompson was to buy the whole property, with all defects of title, for 6001.

The Vice-Chancellor considered Thompson's offer a beneficial one, and gave his sanction to its acceptance. But as it appeared doubtful on the