1851.-The Shrewsbury and Chester v. The Shrewsbury and Birmingham R. Co. any of the affidavits which were before the court. If it is to be assumed, as a matter of course, that because the bill was not demurrable, therefore an injunction was to issue, I should say then I have to decide between what Lord Eldon says and what Lord Cottenham says. It is quite clear Lord Eldon says that that is not the law of the court: it cannot be: and I come to that conclusion, because, although Mr. Bethell, who was counsel in the case, stated (I have no doubt quite accurately) that the injunction was sustained, yet I very much doubt whether that could mean anything more than this, that the injunction was sustained because there were no circumstances, brought before the court, putting the propriety of the injunction and the decision on the demurrer at all in conflict the one with the other. Not having the affidavits before me in that case, I do not know what there was to show any countervailing inconvenience that would result from issuing the injunction. Probably there was none; and if so, when it is once determined that there is a bill for the specific performance of an agreement, and that the defendant is going to enter into a contract that will *embarrass the [*431] plaintiff in his litigation, the first impulse of the court will be to prevent that. If there was nothing else to hold the hands of the court, it would be right to do so; and I must take for granted that, if the injunction went, it was because there was nothing of that sort brought forward. I cannot but suppose that if there had been a conflict on the point, namely, what quantity of inconvenience resulting to the defendant would induce the court to hold their hands, that would have been argued, and the affidavits would have been contrasted, and Lord Cottenham would have given some opinion on it. Is that the case here? I must say that so far from that being the case here, I think that by granting the injunction in the terms in which I am asked to grant it, I might be occasioning to these defendants irreparable injury, to an extent that it is fearful to contemplate. They are proposing to enter into a contract with the London and North-Western Company, under which the London and North-Western Company bind themselves, as I understand it, to pay to them a sum which amounts to 40,000l. or 50,000l. a 1851.-The Shrewsbury and Chester v. The Shrewsbury and Birmingham R. Co. year, for twenty-one years. Supposing it were to turn out, in the result, if I were to issue this injunction, that the defendants are right, and that the agreement which the plaintiffs have entered into, is invalid in toto, and therefore there was no legal bar to the defendants entering into this contract, (and Mr. Chesshire has made an affidavit that he believes this contract to be most highly beneficial to the defendants, and that he believes the London and North-Western Company are now ready to enter into it, but that he verily believes that if it is delayed, they will not be willing to enter into it,) in what predicament would this [*432] court then find *itself, if it should have issued an injunc tion restraining the defendants from entering into a contract ex hypothesi a valid contract, which there was no legal ground to prevent them from entering into, and then afterwards they should be unable to enter into it, and so lose 50,000l. a year for twenty-one years? Therefore, whatever may have been the case of the Great Western Railway Company against the Birmingham and Oxford Company, in this case it is obvious that the effect of my injunction will or may be likely to cause enormous injury to all the shareholders in the company who are the present defendants. Now, that is the ground on which I feel myself bound in this case to refuse the injunction. I have explained it shortly, I hope clearly, so that the parties may see the ground upon which I am acting. It is this, that although I am perfectly satisfied of the authority of this court to issue an injunction, not merely to restrain parties from doing acts, but also from entering into contracts pending litigation that may embarrass the plaintiff in his suit, and that the court is entitled to do so whenever it sees there is a fair ground for litigation raised by the plaintiff, yet that right of the court must be guided by a discretion not to exercise it where it sees that on the balance of convenience and inconveni ence between interim interference and non-interim interference, the balance greatly preponderates in favor of the defendant and against the plaintiff. Now, here, the injury to the plaintiffs, in comparison with the injury to the defendants, is extremely small. The contract between the plaintiffs and the defendants may be 1851.-The Shrewsbury and Chester v. The Shrewsbury and Birmingham R. Co. put an end to in three years. The present rate of through traffic seems to be something like 12,000l. a year. Three years would be something like 36,000l., that is on *both lines, [*433] so that it would be the half of that. The plaintiffs would be entitled, if there was no other remedy, to an action for that; and though it may not be quite easy for them to prove the exact amount they lose, yet that is a matter not altogether incapable of being estimated: and, on the whole, if the convenience and the inconvenience are weighed against each other, the inconvenience seems to me to preponderate, beyond all measure, in favor of the party who has the legal right to enter into any legal contract he pleases. That is the short ground on which I feel myself bound to refuse the injunction. I think it is necessary for me to add, that I had some little. doubt whether I ought not to issue an injunction in the terms of the last part of the notice of motion, in which I am asked to restrain the party "from doing, or omitting to do, or procuring the doing or omission, either by resolution or otherwise, of any act, matter or thing, the doing or omission of which is, or may be in breach or violation of, or repugnant to, or inconsistent with the agreement of July, 1850." But on full consideration, I do not think I ought. My decision refusing this injunction, does not at all prejudice the question whether, if the proposed agree, ment, or any similar agreement, should be entered into, the plaintiffs may not be entitled to an injunction restraining the defendants, or rather, in that case, restraining the North-Western Company from so acting under that agreement as to exclude them. from the Shrewsbury and Birmingham line or from conducting the through traffic according to the terms of the agreement of July, 1850. My refusing this injunction does not at all prejudice that question; and I think I should very much embarrass the case if I were to grant an injunction on that which, in *truth, was not the point argued before me. The [*434] point mainly, almost entirely, argued before me, was as to the holding of this meeting and entering into the contract. think I ought not to embarrass it for two reasons. In the first place I think I ought not to interfere to restrain parties, not from VOL. I.-N. S. 24 I 1851.-Hunter's Case. doing anything which they at present are going to do, but which it is supposed they will, under a contract which they will enter into, authorize other persons to do. I think that would be an unnecessary anticipation of an evil that never may happen. I cannot tell that the meeting may sanction this agreement, or that it will be entered into. I cannot tell that it may not be so modified as to secure, to all parties, the rights they may have under the agreement of July, 1850; and, after all, the parties to be restrained in such a case, namely, the London and North-Western Company would have to be made parties by supplemental bill, or in some other way. Therefore, on the ground I have stated, namely, the enormous preponderance of inconvenience in granting the injunction over any possible inconvenience in refusing it, I shall refuse the injunction, but I shall make no order as to costs. [*435] *IN THE WINDING-UP OF THE DIRECT BIRMINGHAM, OXFORD, READING AND BRIGHTON RAILWAY COM PANY. HUNTER'S CASE.[1] Joint-stock Companies' Winding-up Acts.-Contributory.—Costs. 1851 5th June. No order ought to be made for a call upon the contributories of a provisionally reg istered company, on account of the costs of winding up the company, until the liabilities of the contributories have been ascertained, or at least till the Master has ascertained the liability of the contributories to the costs in respect of which the call is made. The contributories of a provisionally registered company, are not liable, în propor tion to the number of their shares, to the costs of winding up the company: semble. MR. HUNTER's name had been placed, by the Master, on the [1] See 1 D. G., Macnaghten & Gord., 358. 1851.-Hunter's Case. list of contributories to the above-mentioned company, which was only provisionally registered; and the Vice-Chancellor, on appeal, held that it had been properly so placed, on the authority of Upfill's case.(a) The official manager not having received any money on account of the company, and having incurred expenses in winding it up, and the court having ordered him to pay costs out of the estate, in several cases in which persons whose names had been placed on the list of contributories, had appealed to the court, (which expenses and costs amounted to 2,0637.,) the Master ordered 800l., towards payment of that amount, to be raised by a call of 12s. 6d. per share on Mr. Hunter (who held one hundred shares) and on the other contributories whose names were on the list. Mr. Rolt and Mr. Shapter now moved that the order might be discharged as to Mr. Hunter, on the ground that he had not been ascertained to have incurred any liability whatever as a member of the company. Mr. Roxburgh (Mr. Bethell was with him) appeared for the official manager. In the course of the argument, Ex *parte Price and Evans in the winding-up of the Rugby, [*436] Warwick and Worcester Railway Company, a case recently decided by Vice-Chancellor Knight Bruce, was cited. THE VICE-CHANCELLOR, without hearing the reply, said:I am of opinion that, before the Master, in the exercise of his discretion, make a call for costs, he must have ascertained that the sum for which he is making the call, is costs for which, in the distribution of the costs among the different parties, the persons on whom the call is made, are liable. It does not at all follow, because 2,0631. have been incurred for costs, that 8007. is a proportion in respect of which this gentleman may have to contribute. It is not necessary for me to say more than that, at the present moment, because the Master has only said that there certainly will be 8001. of costs, and he has made a call to raise (a) 2 House of Lords Cases, 674. |