o_amitan lion here is, whether or not it shall Lord Fullerton. The question here is, held that the testator Gordon was domiciled in Scotland. For understand that the affirmative of this proposition is indispenble for the success of the Crown in the present application. he was not domiciled in Scotland, their claim cannot be pported. New, in this view, I see no irrelevancy in the argument intained with such force on the part of the executors, that the testator's residence in Tortola took place under circum es which withheld from that residence the character of a aldomicil, (being the view taken on the part of the Crown), consequence would be, the revival, not of the domicil of gin, but of the last domicil of choice, being the island of whatever in a question of this kind. The appointment, no doubt, was by the Crown; but the acceptance of that appointment, and the consequent adoption of a domicil in the island, in order to discharge its duties, was the pure act of the animus or will of the party. There can be no doubt, then, of his animus to reside in the island-though it is possible that, if the appointment and salary had been withheld or withdrawn, that animus might never have existed, or, if it did once exist, might have ceased. But that, surely, is no objection to the acquisition of a domicil. A change of circumstances might have induced him, as it induces thousands every day, to acquire and to change their domicil; and if, in order to constitute a domicil, there were required an animus remanendi so permanent and so absolute as to be independent of any possible change of circumstances, I do not understand how, in the constant uncertainty and transition of all sublunary events, a domicil ever could be established. I think, on the contrary, that the domicil is entirely independent of the motive by which the party was influenced in adopting it. If the motive was one which naturally led to a permanent residence, and if, under the influence of that motive, the party did act, the animus is sufficiently established, and the presumption cannot be taken off by the mere possibility, or even the probability, that, but for the existence of the inducement, the party might have established himself elsewhere. 19 Accordingly, I never understood it to be doubted, that the numerous functionaries in India and our colonies did effectually acquire domicils by their residence in the discharge of their duties, though it is clear enough that, but for those appoint ments, they never would have quitted their original homes. The case of the Crown, then, if it has any foundation at all, must rest on the circumstance, that the testator was an officer drawing half-pay, and residing in Tortola only by the sufferance, or with the leave of the Crown. Now, the last circumstance, so far from operating against the acquisition of a domicil, seems to me rather to confirm it. The Crown grants permission to the officer drawing half-pay to reside in a particular island and that for the purpose of enabling him to discharge the duties of an office which at the same time the Crown confers upon him, and an office, too, which requires constant and permanent residence. It appears to me that, conjoining these two considerations, they amount to this, that the Crown not only permitted, but required the party, if he chose to accept the office, to domicil himself in Tortola. And this conclusion is not in the least affected by the statement, that the Crown had the power of retracting the permission and recalling him to Great Britain. Even holding the power of the Crown to be as extensive as is here assumed, the only result would be, that the Crown had the power to oblige the party to cliange the domicil which it had at one time authorized him to acquire; and if he died before that power was exercised, and before that change took place, the domicil which he had acquired, and which he retained till the moment of his death, must afford the rule for the determination of all questions regarding his personal succession.net the to But it is a mistake to say that the Crown had to return oblige the party to change his domicil. The order might have been issued; but, for anything I can see in the re gulations respecting half-pay, the only consequence of his refusal to obey would have been the forfeiture of his half-pay; so that in no sense of the term can it be said, that his residence in Tortola was dependant on anything but his own will though it is likely enough that that will might have been materially in dua & to ourapon on yd of 90 no fluenced by his recal. In truth, I cannot help thinking, that the whole case on the part of the Crown rests on the supposed analogy between the case of half-pay officers and that of officers on full-pay, or, more properly speaking, officers on service. It is, I believe, generally understood, that officers in the latter predicament do not acquire a legal domicil in the quarters to which they may be sent, and in which they remain in the performance of their duty. But the principle of that exception I take to be, not that the Crown has the power to recal them, but the more important consideration, that the Crown has the power of sending them there, and that they presumably are there only in obedience to that power. The inference from this is supposed to be, that however long their mere corporeal residence may be in any particular place, that residence is to be ascribed, not to any animus of theirs, but to the animus of their military superiors, to which, so long as they continue in that profession, they are bound to yield obedience. There is consequently, in such a case, a complete separation between the mere de facto residence in particular locality, and the animus of betaking themselves to that locality and continuing in it, which last is indispensable to the existence of a domicil, in the legal sense of the term. But the analogy entirely fails in the most essential particular, when it is attempted to be applied to officers on half-pay. The Crown has no power, as I understand, to determine where they shall remove themselves to. There could have been no effectual order on the late Lieutenant Gordon, while he remained on half-pay, to remove himself to Tortola. His removal there was purely his own act-the result of his own free will. It may be true that will was influenced by the inducement held out by the Crown. But still the act was his own-the animus to remove and to reside there was his; and that, combined with the fact of continued residence till the time of his death, affords a perfect compliance with all the requisites for constituting a legal domicil. Lord Robertson.-I entirely concur in the opinion now delivered, and have little or nothing to add. All cases of domicil, although regulated by certain legal principles, are necessarily dependant on facts and circumstances, and to a great degree are of the nature of jury questions. The case of Munro was dealt with in the House of Lords, on the branch of the cause regarding domicil, mainly as a question of fact. Lord Brougham, in particular, while treating the question of legitimacy as one of law, expressly says-"The other question is one of fact, namely, with respect to the domicil of the parties at the time of the marriage:" and so he considers it throughout, differing from the Court of Session in the conclusion he draws from the facts. The whole life of the party must be looked to. Now, in this case, Gordon was born in Scotland, but had no estate or dwelling-place of his own in this country. He entered the navy in boyhood, and continued in active service till the year 1828. He then had done nothing, certainly, to establish any new domicil, and the forum originis must have prevailed had he died at this time. On going on half-pay, however, he did not return to Scotland, but took up his residence in Jersey, where he lived with his first wife till about 1834. This showed no intention of choosing or continuing Scotland as his domicil; and he had then no tie to this country but as the place of his birth. His enjoyment of half-pay made him no doubt liable to be called into actual service, but did not disqualify him from acquiring a domicil where he pleased, and did not connect him with Scotland more than with England. He was then appointed a resident magistrate at Tortola, where he set up an establishment, and became a member of council. He continued there for several years-came to this country on a visit-and set off to return home (as I consider it) to Tortola, taking his second wife along with him. He did so for the purpose of living in that island as the residence of his choice, and the place where his acceptance of the comparatively lucrative office of stipendiary magistrate rendered it necessary for him to be resident. He died at St. Kitts on his way to Tortola. Whether, if Mr. Gordon had been called on to serve in the navy at the sacrifice of his half-pay, on the one hand, or the necessity of abandoning his far more advantageous situation of magistrate at Tortola, on the other, it may not perhaps be difficult to conjecture. But, in point of fact, the alternative never was put to him-the government who gave him his salary having allowed him also, at the sametime, to draw his half-pay. What, then, connected him with Scotland at the time of his death? Nothing but the fact that he had been born there. After 1828, when for the first time his situation in life enabled him to exercise a choice, he never showed any intention of selecting Scotland for his domicil. He never had any home or establishment here. Nothing is stated to show any intention on his part of coming to Scotland; and his actual residence was elsewhere. He paid only one short visit to this country, on which nothing can be rested. He had first a residence in Jersey, which in no way strengthened, however much it changed, his Scots domicil of mere origin. He had then an establishment-an important situation-occupation and residence for some years in Tortola ; and, when he died, he was returning there with the lady he had married, and with the view of continuing his residence on that island, and discharging the duties of his office. He had, as I humbly conceive, in the language of the Lord Chancellor in the case of Munro, abandoned his domicil of origin. "To effect this abandonment of the domicil of origin, and substitute another in its place, it required le concours de la volonte et du fait-animo et facto-that is, by actual residence in the place, with the intention that the place then chosen should be the principal and permanent residence, larem rerumque ac fortunarum suarum. There must be residence and intention; residence alone has no effec per se, although it may be most important as a ground fre which to infer intention." I therefore, in this view, and on the grounds fully explain by Lord Fullerton, consider that the Crown has not establish Mr. Gordon to have been, at the time of his death, a domicile Scotsman ;-which is decisive of the present question. Judgment for the Executors. JET-4 For the Crown, Lord Advocate (Rutherfurd), Cleghorn; Agent.-For the Executors, Young; Robert Ainslie, W.S. Age (F.H.) No. 92. DONALD GRAY, (Sutherland's Trustee Pursuer, v. W. S. FRASER, Defender. Personal Objection- Bankrupt- Sequestration ment of Claim-At a meeting of creditors, it was res abandon all challenge of a transaction of sale entered in the bankrupt within sixty days of his sequestration, and all be an illegal preference. One of the creditors dissented from t resolution, and afterwards raised, in name of the trustee alow action to set aside the transaction-Held, under the 61st section the bankrupt act, that the resolution was a bar to the action. The estate of Angus Sutherland, fish-curer in Helms dale, in the county of Sutherland, was sequestrated 5th October 1846. On 3d September preceding, he had entered into transaction of sale with the defender, under which he that day delivered to the latter 280 barrels of herring At a meeting of the creditors held upon the June 1847, the question was considered, whether not a challenge for behoof of the estate should not instituted to set aside this transaction as an illegal p ference. The minutes of that meeting were as follow "The meeting are of opinion, with the exception of Mr. Smil who dissents, that, under the circumstances now disclosed them by the trustee, it would not be at all advisable for th creditors to involve themselves in a litigation about a claim which is attended with so much difficulty and doubt, and fr which, taking the most favourable view of the matter, vary little if anything can be realized, and the creditors present co ceive that it will be more advisable to renounce at once and ever any claim that might be available, or could accrue to the from the sale of these herrings, and the meeting therefore a proved of the conduct of the trustee in this matter. Mr. Smi protested against the form in which the above resolution, porting to be that of this meeting, had been taken down, and which resolution he totally objected. He repeated, and bege still to insist in, the whole former statements made by charging the trustee, Mr. Fraser, and Mr. Donald MK with an act of gross collusion, the correctness of which chan he stated to be now perfectly apparent. The other member the meeting are satisfied that there are no grounds for the founded charges of collusion, and that it will be highly inex dient to enter into a desperate litigation about the sale of t herrings; and the meeting, with the exception of Mr. Sa abandon all claim to them. Mr. Smith intimated that he tended to impugn the conduct of the trustee before the Supre Court, but the other creditors saw no grounds for his doing whereupon Mr. Smith stated that he withdrew from the met and that anything done in his presence or absence would be held to commit him from objecting and complaining to Court in any way he thinks proper." No appeal was taken by Mr. Smith against this reso tion, which was immediately intimated to the defend The pursuer was appointed trustee in the room the person who filled that office when the above me ing took place. Boisbr This was an action for reducing the sale of herrin to the defender, as struck at by the act 1696. It instituted in the pursuer's name alone. The defender pleaded the resolution of 23d June 47 as a bar to the action, under the 61st section of bankrupt act : § 61.—That the trustee shall manage, realize and recover, estate belonging to the bankrupt, wherever situated, and vert the same into money, according to the directions given the creditors at any meeting." § 44.-That all questions at any meeting of creditors shall determined by the majority in value of those present, and end to vote, unless in the cases herein otherwise provided for." The Lord Ordinary pronounced the following inter rutor: -nd December 1849.-Having heard parties' procurators, and ale avizandum, and considered the summons and defences, process-in respect that the resolution of the creditors of 21 June 1847, founded on in the defences, while it remains a standing resolution of that body, is a sufficient bar to the seat action-sustains the same as a good preliminary defence, lismisses the action, but without prejudice to any compe*proceeding, if such there be, for reducing and setting aside said resolution, and decerns; and finds the defender entitled cxpenses, and remits the account," &c. The pursuer reclaimed. זי Coran for reclaimer-The question raised by this ence is, whether the pursuer shall get into the action ich he has set forth on this record. This was a prerace alleged to have been illegally obtained by the edonian Banking Company. The question, whether eeedings should be taken to set it aside, came before creditors at their meeting in June 1847. A majority the meeting resolved to abandon all claims against defender. No doubt this was binding on the geneudy of the creditors, and so far as the interests of late were concerned. But it is said to form a bar this action-and the Lord Ordinary has so found. at let it be seen what the nature of this action truly It is an action at the instance of the trustee on the akrupt estate. After the election of this trustee, ere was no new meeting as to a challenge of this action. The question is, are not a minority of ch a meeting in titulo to insist that the trustee shall ise this challenge, and that he shall lend his name that purpose. Moncreiff-How can this be allowed in the face of the section of the statute? Your argument is, that the resolu is binding on the majority, but not on the minority. Now, tatute expressly says that it shall be binding on the trusad all the creditors]. hat is, in their corporate capacity. We admit that a body corporate they are bound, so far as the sequesated estate is concerned. But we stand here on our ghts as an individual creditor. We are willing to ad ourselves to relieve the trustee and the other crediof any expense which they may incur through this allenge-Sprot v. Paul, 5th July 1828; Spence v. ition, 13th Dec. 1832; 2 Bell's Com. 415; Burton the Bankrupt Law, 515. Dera of Faculty for defender-This action is raised * the instance of the trustee in his character of trustee, nd containing conclusions in his favour as trustee. der the statute, the creditors have a certain power f control over the trustee's proceedings; and if, at any eeting held for that purpose, the majority come to a -olution which must be considered as an improper ne with reference to the minority, that minority can plain in proper form. Here, if was thought by some. the creditors that there was a good claim against the defender. The creditors were convened, and the sense of the meeting was taken upon that matter. It was resolved to abandon the claim. Now, any minority of that meeting might have complained to the Court of that resolution. This was the course followed in the two cases which have been referred to. But this was not the course followed here. No complaint was made against the resolution; and this action was brought nearly two years after it had been taken. Until that resolution be set aside in competent form, it must bar this action, which, as set forth in the summons, is nothing else but an action at the instance of the trustee for behoof of the estate. Lord Justice-Clerk.-Before this action can be given effect to, I think there must be an amendment of the summons, setting forth that the action, though in name of the trustee, is for behoof of this creditor. Lord Cockburn.-I am clearly of opinion that no amendment can be allowed that entirely changes the ground of action. Now, an action at the instance of the trustee for behoof of the estate in one thing, and an action at the instance of this creditor for his own individual interest, with the concurrence of the trustee, is another thing. Lord Justice-Clerk.—If a complaint had been presented against this resolution, we could not have altered the resolution, whatever might be the grounds for setting aside this transaction. It was carried by a competent majority of the creditors. This just shows that the petition and complaint, which the Dean contended to be necessary, are not requisite to enable the pursuer to sue this action. It is not said that the dissenting creditor is bound to give notice, at the meeting, of his intentions to bring a reduction. I think he is entitled to call on the trustee to do it for him without an action. This state of matters is 'not, however, set forth in the summons, which it ought to be. I still think that an action setting this forth is not so different from the action before us, that the defect may not be supplied by an amendment. There is another ground on which judgment may be given for the defender I mean the ground of acquiescence. The abandonment of the claim was intimated to the defender, and this abandonment was acquiesced in for nearly two years. A judgment on that ground would avoid the general question; and I would not have much hesitation in adopting that course, if your Lordships should think that ground sufficient. Lord Moncreiff I take an entirely different view of this case. 'I don't think we can entertain this action in the face of the 61st section of the statute, which declares such a resolution as that on which the defender pleads to be binding on all the creditors. I don't see why the dissentient creditor could not complain of the resolution so far as it compromised his individual rights. He might have complained to the effect of preventing this resolution from being binding on him. He might have complained in proper time, and on proper grounds. He does no such thing; but he now, after the lapse of two years, comes here suing in the name of the trustee, who, ex facie of this sum 'mons, sues for behoof of all the creditors. This being an action at the instance of the trustee, I hold it to be barred by the 61st section of the statute. I can't hold this to be a competent proceeding at all. He might have applied for an assignation of the trustee's right to do so. But nothing of all this is done. I therefore take the same view of the general question as the Lord Ordinary. Lord Cockburn.—I wish to decide nothing else but the general question before us---and that is, that this resolution is a sufficient bar to the present action. Lord Moncreiff-I too mean only to decide the general question. Lord Justice-Clerk.-But will not the effect be, that unless the party complains within thirty days, he will lose altogether his individual right of challenge? 1 Lord Cockburn.-I have not at present either ears to hear, or eyes to see that result. I am for adhering. The Court adhered. Lord Ordinary, Wood.-Act. Cowan, Logan; Hunter, Blair, and Cowan, W.S. Agents.-Alt. Dean of Faculty (M'Neill), Gordon; Baxter and M'Dougall, W.S. Agents.-R. Clerk.--(F.H.) 7th February 1850. FIRST DIVISION. No. 93. MRS. JANE HAY PRIMROSE of Burnbrae, Disentail-Statute 11 and 12 Vict. c. 36-Husband and Wife- This was a petition under the statute 11 and 12 Vict. c. 36, by Mrs Jane Hay Primrose, spouse of G. F. H. Primrose, Surgeon H.E.I.C.S., at present in the East Indies, for disentail of the estate of Burnbrae, of which the petitioner was heiress of entail in possession. In reporting that the authority craved should be granted, the Lord Ordinary brought under the notice of the Court the circumstance, that though the petitioner was a married woman, the application was made by herself alone, without concurrence of her husband.* With reference to this subject, the party to whom the case had been remitted to report observed "There has been exhibited to me (and it will be produced in process) an extract of an antenuptial contract of marriage between her and her husband, wherein it is declared, that he shall have no concern with, or control over, the rents and annual profits of the estate in question, or with any other heritable or moveable subjects presently belonging, or that shall at any time hereafter belong, to the said Jane Primrose, in virtue of his jus mariti or right of administration, both of which are hereby expressly excluded. And after reserving to the petitioner the most unlimited power of managing the estate by herself alone, the contract contains the following clause:-'And to the effect the said Jane Primrose may possess the powers above reserved, the said George Foster Hay hereby renounces and makes over, in favour of the said Jane Primrose, his jus mariti and power of administration, with all the powers and privileges to which he would be entitled in virtue thereof."" Further, with reference to § 6 of the act, which provides, that if there be any provisions "to husbands, widows or children, affecting, or that may be made to affect, the fee of the said entailed estate, or the heirs of entail," they shall be set forth in the affidavit by the heir in possession, the reporter observed, that the marriage-contract contained an obligation on the petitioner, and the heirs succeeding to her under the entail, to make payment to the child or children of the marriage, not succeeding to the estate, of the sum of £1400, which was estimated to be less than three years' free rent of the estate: That though the petitioner's affidavit was ex facie regular, no mention was made in it of this provision; but her agents had stated that they did not consider any mention thereof necessary, inasmuch as * On the first moving of the petition, the Lord Justice-General remarked, that it was necessary that a curator ad litem should be appointed to the petitioner, which was done accordingly. the petitioner was married in the year 1837, had nev had a child, and was now in the 61st year of her age In these circumstances, the Court sustained the pet tion as competent, and found that the petitioner w entitled, in her own name, to subscribe the instrume of disentail. Their Lordships further held, that t affidavit was a sufficient compliance with § 6 of the and that it was not necessary to order any provisi to be made for the younger children nascituri oft petitioner. Authority granted in common form. Lord Ordinary, Robertson.-Act. Marshall: Baxter and M dougall, W.S. Agents.-L. Clerk.-(W.G.T.) 7th February 1850. FIRST DIVISION. No. 94.-ANDREW MILLER, Pursuer, v. GEORGE HENDERSON of Barkerland, Defender. Jurisdiction-Reduction-Competency-Sheriff's Small-D Court Decree-Statute 1 Vict. c. 41, §§ 30, 31-Process reduction of a Sheriff's small-debt decree, and diligence folkm thereon, to sequestrate and sell, was brought on the ground that decree bore to be for a certain sum as “the rent due at Whit day," whereas the summons on which the decree proceeded that sum as the rent "from Whitsunday to Martinmas." fence of want of jurisdiction sustained, in respect of the 30th 31st sections of the statute 1 Vict. c. 41. In January 1849, the defender raised and execu a summons of sequestration and sale before the She in the small-debt court of Dumfries, against the purs for £22: 6, as the rent of a house possessed by from Whitsunday to Martinmas 1818, and concludi in common form, for warrant to inventory, appraise, questrate, and sell, the goods and effects upon or wit the premises, in payment of the rent and expens Warrant to sequestrate was accordingly granted; the sequestration was executed on 20th January lowing. On 1st February thereafter, decree forpayme was pronounced, and following that there was a dere for sale. The present was a reduction of the summons, and sale, with subsidiary conclusions for damages. The second reason of reduction was, that "the said decree and warrant of sale is disconform to its w rant, in respect that it bears to be for the said sum of £1:1 as 'the rent due at Whitsunday last' by the pursuer to the fender, whereas the summons or complaint, upon which same proceeded, was for the foresaid sum, being the rent house possessed by him from Whitsunday to Martinmas, last,' and which rent was not due till the term of Martin rent wa 1848." By 1 Vict. c. 41, under which the proceedings place, it is provided, § 30 "That no decree given by any sheriff, in any cause or pros tion decided under the authority of this act, shall be subje reduction, advocation, suspension or appeal, or any other of review, or stay of execution, other than provided by this either on account of any omission, or irregularity or informa in the citation or proceedings, or on the merits, or on ground or reason whatever." The 31st section authorizes review to be bro before the next Circuit Court of Justiciary after decree has been pronounced, and this "only when founded on the ground of corruption, or malice oppression, on the part of the sheriff, or on such deviation point of form, in the statutory enactments, as the Court think took place wilfully, or have prevented substantial ju om having been done, or on incompetency, including defect of jurisdiction of the Sheriff." After the decree sought to be reduced was probounced, a Circuit Court of Justiciary had been held it Dumfries. The defender, founding on the above statute, pleaded hat the action was incompetent, in respect of want of urisdiction in the Court of Session. The Lord Ordinary pronounced the following interlocutor: 6th November 1849.-In respect of the provisions in the 30th al 31st sections of the act 1 Vict. c. 41, and in conformity to e decisions of the Court in the cases of Grahame v. Mackay, 23 Feb. 1845, 7 Dunlop, p. 515; and of Louden's Trustees v. Fatallo, 17th Dec. 1846, 9 Dunlop, p. 281-Sustains the prelimirary defence of want of jurisdiction, dismisses the action, and cerns: Finds the pursuer liable in expenses; and remits the (Junt," &c. The pursuer reclaimed, and pleaded-The diligence Lay be bad though the decree cannot be touched. Here, he action was for one thing, and decree was given for other. If the summons had been for £5, and execuon had proceeded on a decree for £7, would reduction ave been excluded? Here, the decree of sale is dissform to its warrant, and consequently it ought to reduced. Lord Justice-General.-After the deliberate decisions in the quoted by the Lord Ordinary, we are not to be troubled eth actions of this kind. Lords Mackenzie and Fullerton concurred. The Court adhered. Lord Ordinary, Robertson.-Act. Maidment; Richard Arthur, C.Agent.-Alt. P. Fraser; Joseph Mitchell, W.S. Agent.L. Clerk-(W.G.T.) 8th February 1850. SECOND DIVISION. No. 95.-THE ARDROSSAN RAILWAY COMPANY, Purvers, v. THE GLASGOW, KILMARNOCK, and ARDROSSAN RAILWAY COMPANY, Defenders. [verdict-Railway-The Court refused to pass a note of suspension sad interdict in respect the complainers merely stated, in general terms, that certain transactions to their injury were in contemplation, without specifying any individual transaction of the nature alleged, the manner in which the complainers would suffer. Railway Companies Clauses Act, 8 Vict. c. 17-Question, Whether, under the 17th section of this act, a creditor of a railway company may obtain interdict to prevent the directors from sanctioning recognizing a transfer of stock where a call remains unpaid by the seller? The complainers were creditors of the respondents rder a contract of sale, sanctioned by statute, whereby the line belonging to the former was transferred to the ter for the price of £125,000, payable in four instalments, of which the first was due at Martinmas 1850. The complainers also alleged themselves to be creditors of the respondents for disbursements having reference to the contract, and amounting to £3111: 6:7. Certain calls had been made on the respondents' stock. It was averred by the complainers that several shareholders had not paid their calls; that, nevertheless, the directors of the respondents' company had agreed to transfers, by these shareholders, in favour of persons who were not bona fide nor responsible purchasers. No particulars of any such alleged transaction were given. SCOTTISH JURIST. The present application was founded on the 17th section of the Companies Clauses Act, 8 Vict. c. 17, which 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." The prayer of the note was "To suspend the proceedings complained of, and to interdict, prohibit, and discharge the said respondents from registering, or authorizing to be registered, in the books of the said Glasgow, Kilmarnock, and Ardrossan Railway Company, or in any manner of way recognizing or accepting purchasers or other transferees, whether onerous, gratuitous, in trust, or in security, or otherwise, in any manner of way, in the room and place of parties now registered as shareholders or proprietors of shares in the said Glasgow, Kilmarnock, and Ardrossan Railway Company, who are in arrear of calls unpaid on all or any one or more of the shares of which they severally stand now registered as proprietors in the said books; or to do otherwise," &c. The Lord Ordinary refused the application, and subjoined to his interlocutor the following "Note.-The Lord Ordinary does not consider that this is a case to which the remedy of interdict can be extended. 1st. No authority, either in Scotland or England, was referred to, sanctioning any application of this kind at the instance of a creditor of a railway company. It would lead to most anomalous results, and might be attended with detrimental consequences to railway companies. 2d. The statements in the note of suspension are quite vague. No individual instance is stated in which the shares of solvent partners have been allowed to be transferred, without payment of the calls, in favour of persons unable to pay future calls. It is very improbable that the directors, to their own prejudice, as well as that of the company at large, would sanction any such transaction; and if the complainers were aware that this had been done, they surely would have stated the particulars. It is positively denied that the directors have sanctioned any such transfer, or disobeyed any instructions of a general meeting. 3d. Assuming it not to be strictly legal to transfer shares until the calls are paid up, it does not follow that an interdict against any such proposed transfer would in all circumstances be immediately granted, even at the instance of a shareholder of the company. Supposing the party who had not paid his calls was utterly bankrupt, and that a solvent party agreed to take these shares, and bound himself to pay the callswithout actually paying the amount down, could a partner of the company obtain an interdict against such a wise and prudent course, to the prejudice of the company and of himself? The respondents do not dispute that transfers of this description have been made, and, whether strictly legal or not, the Lord Ordinary does not consider that there would be any ground for interfering with such an act by way of interdict. But, 4th. The complainers are not shareholders, and, as creditors of the company, (in a debt the first instalment of the larger portion of which is not yet due), they can have no title to interfere with the management. If the transfers be illegal, and the parties liable in their debt to the extent of the unpaid calls have not legally ceased to be partners by such transfers, they will not legally cease to remain liable for the debt. It is said there may be difficulty in prosecuting them, in respect their names will not continue in the register; but if this be really so, (which the Lord Ordinary by no means conceives to be the case), is it a ground for a creditor interdicting the debtor against making such arrangements as he considers best for his own interest? If there be a present existing debt, the creditor may raise action, and arrest the calls in security. It is said, as to the future debts, he cannot do so. But does it follow from this that he can demand the present interdict? The Lord Ordinary, on the whole, can see no ground for interfering in the manner here proposed. How far any specific, illegal, and improper transaction, may be reduced at the instance of a creditor, is not hujus loci. The simple question is, whether such a case has been stated as justifies the extraordinary remedy of interdict." The complainers reclaimed. Cowan for complainers-The partners of a joint-stock company have not, any more than the members of an VOL. XXII.-No. XVI. |