1880. BUSBY V. THE BANK OF Duff, J. to the statute (see 34 Vict. c. 5, ss. 30 and 69), I should have referred to the statute and ascertained how long it was required to be published, had I not regarded the delay as sufficiently accounted for by the suggestion with reference to Mr. Barbeau's recent arrival, and the plaintiff's ignorance of the bank's intention to vote, until he came. In fact, there is no doubt I was largely influenced in granting the order by the ingenious way in which the facts of which I am now satisfied are two distinct cases are blended in the bill. On these two grounds, without discussing the others taken by Mr. Weldon, I am of opinion that the injunetion must be dissolved. I will speak of the costs again, on some Chamber day. 66 By the Bank Act, 53 Vict. c. 31, s. 18 (D.), the shareholders of a bank may regulate, by by-law, the day upon which the annual general meeting of the shareholders for the election of directors shall be held. By section 3 the provisions of the Act apply to certain banks enumerated in Schedule A" to the Act, and to every bank incorporated after the 1st of January, 1890. Section 18 does not apply to the Bank of British North America, or to the Bank of British Columbia. It applies to the Merchants' Bank of P. E. Island. See Maclaren, Banks and Banking, 19. Where directors of a company are seeking to do an act which is ultra rires, and illegal, and incapable of ratification by the shareholders, an individual shareholder may maintain an action in his own name, without suing on behalf of other persons as well as himself to restrain the directors from doing the act. In Hoole v. Great Western Railway Co., L. R. 3 Ch. 272. Lord Cairns, L.J., said: "I have a very strong opinion that any corporator or member of a company may maintain a bill against the corporation, and the executive to restrain them from doing an act which is ultra rires, and therefore illegal." And Sir John Rolt, L.J., said: "If the act complained of is illegal, I do not at present see why any single shareholder should not be at liberty to file a bill to restrain the company from exceeding their powers." In Russell v. Wakefield Water Works Co. L. R. 20 Eq. 474, Jessel, M.R., said: "We are all familiar with one large class of cases. They are cases in which an individual corporator sues the corporation to prevent the corporation either commencing or continuing the doing of something which is beyond the powers of the corporation. Such a bill, indeed, may be maintained by a single corporator, not suing on behalf of himself and of others, as was settled in the House of Lords in a case of Simpson v. Westminster Palace Hotel Co., 8 H. L. C. 712." The question was very fully considered in Cass v. Ottawa Agricultural Ins. Co., 22 Gr. 512. The defendant company was incorporated by statute, which provided that it should not commence business until at least $50,000 of its capital stock should be paid up. The company borrowed this sum and deposited it with the Minister of Finance, and obtained a license to commence business. The plaintiff, one of the stockholders, thereupon filed a bill in his own name to restrain the company from carrying 1880. BUSBY v. MONTREAL et al. on business until the $50,000 should be actually paid up. On demurrer by the company it was held that the bill was properly filed by the shareholder alone, and that it need not be on behalf of himself and others. Proudfoot, V.C., said: "The acts complained of being in my opinion ultra vires, has an individual THE BANK OF shareholder a right to sue without suing on behalf of himself and the other shareholders except the defendants? There is no doubt that it is competent for one shareholder to institute a suit on behalf of himself and co-shareholders, for the purpose of obtaining relief in respect of illegal acts done or contemplated by directors. And most of the cases have been framed in that form. In Armstrong v. The Church Society, 13 Gr. 562, Mowat, V.C., is said to have gone a step further, and held that the plaintiff must sue in that way. The acts complained of were such as might entitle the corporation to relief against its officers, but did not absolutely, and of necessity, fall under the description of void transactions. The corporation might elect to adopt them, and hold the officers bound by them. In other words, the transactions admitted of confirmation at the option of the corporation. The corporation itself, in ordinary circumstances, might have been the plaintiffs. And in Cooper v. Earl Powis, 3 De G. & S. 688, the bill was to restrain the company from applying to Parliament for an alteration of their charter, a matter which was clearly capable of confirmation by the company. In Mozley v. Alston, 1 Ph. 790, so often cited in questions of this nature, the bill was filed by two shareholders, not on behalf, etc., against a company and the directors, charging improper conduct on the part of the directors in refusing to affix the seal of the company to a resolution of the shareholders to oppose a bill in Parliament for the union of the company with another company; and complaining of irregular conduct in the election of the directors, alleging that twelve out of eighteen directors were illegally in possession of the office. Upon the latter ground the Chancellor held that the Court had no jurisdiction. Upon the former complaint he held that it was an injury to the corporation itself, and the corporation should have been plaintiffs, quoting with approval the decision in Foss v. Harbottle, 2 Hare, 461. It was a matter capable of confirmation by the whole body of shareholders, and the bill alleged that a large majority of them approved of the objects of the bill, so that there was no difficulty in the way of setting the corporation in motion. The marginal note is calculated to mislead. It is true, as there stated, that the plaintiffs could not impeach the illegal transaction there attacked, but it was not because they were mere shareholders, but that the Court had no jurisdiction on the subject complained of. There is nothing in the case to show that to attack an illegal transaction, the plaintiffs must represent all the shareholders except those implicated in it. These cases do not seem to me to establish the proposition that where the acts are void as not authorized by the Act of incorporation, and admit of no confirmation, that an individual corporator cannot sue." A motion to discharge an er parte injunction on the ground of its having been obtained by misrepresentation is proper, though the injunction would expire on the day the motion was made: Winkledon Local Board v. Croyden Rural Sanitary Authority, 32 Ch. D. 424, per North, J.. distinguishing Bolton v. London School Board, 7 Ch. D. 766, 771. 1880. August 16. CHASE v. BRIGGS. (No. 2. Ante, p. 53.) Practice Costs of order to set aside order to set cause down for hearing—At- An order nisi to set aside with costs an order setting a cause down for The clerk on the taxation of the above costs allowed five dollars for brief, Held, that brief should be taxed per folio as a writing not otherwise provided for. Costs allowed of abbreviating affidavits used on the application for the above order, and of making copies of abbreviations. The facts appear in the judgment of the Court. J. J. Kaye, Q.C., for the plaintiff. D. S. Kerr, Q.C., for the defendant. 1880. August 16. PALMER, J.: In this case Mr. Kerr, on behalf of the defendant, at the sittings of the Court in Fredericton in March. last, obtained on affidavits an order nisi to set aside an order that I had made at the instance of the plaintiff, to set the case down for hearing on vira voce testimony, and all subsequent proceedings with costs. At a subsequent sittings Mr. Kaye, on behalf of the plaintiff, showed cause, and Mr. T. C. Allen supported the rule on affidavits. I, at a subsequent sitting, made the order absolute and ordered the plaintiff to pay the costs. This order the Clerk drew up at the instance of Mr. Kerr, the defendant's solicitor, with an appointment to settle the minutes for the 14th of June last, calling that day "Wednesday" instead of "Monday," and sent copies by mail to the solicitors on both sides. He settled the minutes on Monday, the 14th, Mr. Thomson, the plaintiff's solicitor, not attending, as he thought it was to be settled on Wednesday, not Monday. This is of no consequence now, as he only intended to attend to protest against the right to settle at all, and there is no pretence that the order is drawn up wrongly. The counsel before me very properly agreed to waive any question that might arise in consequence of what I have stated, in consideration that the whole question should be disposed of on this application to review the taxation. The costs were taxed by the Clerk, both parties attending, when the plaintiff's agent objected to all the costs connected with the settling of the minutes on the ground that the order made was neither a decree nor a decretal order, and the practice did not authorize or require the minutes to be settled, and even if the practice did so require, still the fee of $1.34 allowed by the Clerk for attendance on him on settling was not authorized by the table of fees, and therefore should be disallowed. By the Act 17 Vict. c. 18, s. 2, the practice of the Court of Chancery in England prior to the 23rd March, 1839, together with the then practice of the Court of Chancery in this Province, was made the practice of this Court, and this was continued by the 49th chapter, section 2 of the Consolidated Statutes, and as there are Lo rules or orders of the old Court of Chancery or of this Court affecting the matter I must look at the prac tice of the Court of Chancery in England to guide me, and according to that I think the order in question is neither a decree nor a decretal order, but is what is called a special order. Grant in his Practice, vol. I., page 133, says on the subject of orders as follows: "Under this head are not intended the general and standing EQ. CAS.-6 1880. CHASE V. BRIGGS. Palmer, J. 1880. CHASE v. BRIGGS. Palmer, J. orders of the Court; nor such orders as form part of decrees made on the hearing, termed decretal orders; but, orders on further directions (which are also considered as decretal orders); and interlocutory or other orders, either antecedent to the decree, or subsequent to it, including special orders on motion or petition generally. The orders, therefore, here intended are either orders of course, otherwise common orders or special orders; the former, for the ordinary purposes which the common motion, on petition, seeks, such as for time to answer, and the other various unopposed occasions for forwarding the suit generally; the latter obtained for particular purposes on special application." From this it will be seen that the order absolute in this case was a special order and neither a decree nor a decretal order; but Grant, on page 135, lays it down that the proceedings to settle the minutes of a special order are the same as settling the minutes of a decree, that is, the solicitor attends the Clerk and leaves with him the brief and other papers necessary, and bespeaks a copy of the minutes, and gets the Clerk to name a day to settle the terms of the order. This is notified to the solicitors of all the parties to the suit, and all such as choose attend at the time appointed, when the Clerk settles the terms of the order, which is called settling the minutes. If all are not satisfied with the terms as settled, anyone may intimate his intention to apply to the Court to rectify them, which may afterwards be done. The proceedings thus necessitate the attendance of the solicitor having charge of the order twice before the Clerk. So it will be seen that the defendant's solicitor attended the Clerk in this case once on the order nisi, which is, in my opinion, a common order, and required no settling at all, and twice on the first special order. For these services the Clerk has allowed $1.34 for attendance on each order, $2.68 in all. In this I think he was in error. The item in the table of fees, chapter 119 of the Consolidated Statutes, under which the Clerk allowed them, is as follows: "Solicitor attending Clerk on every decretal order, $1.34." Then, as I have decided, this is not a decretal order, although there |