Ex parte Moss, L. R. 14 Ch. Div. 394. Has that consent been given here so that the sale may be viewed as ratified by the company? The defendants rely upon the vote of the shareholders which gives a majority in favour of the transaction, and that, they say, is to be regarded as the voice of the company. The minority represented by the plaintiff contend that their right to object to the sale cannot be overborne by this vote, especially as the scale in favour of the purchase was turned by the vendor's own shares.

The cases cited and relied upon by Mr. Robinson do not go far enough to support his argument that the majority in this case must govern. Pender v. Lushington, L. R. 6 Ch. D. 70, decides that a shareholder's, motives and interest in voting in a particular way cannot be a reason why his vote should not be taken by the chairman at a general meeting. So far as the question depends on legal rights he is entitled to cast his vote as he pleases, that being a right of property pertaining to the share. But Sir George Jessel carefully guards against giving any opinion as to the ultimate effect of shareholders' resolutions when carried by an interested vote, (p. 81). He decides that it is the duty of the directors to obey resolutions legal on their face, and passed by a majority of the shareholders. He does not decide what the right of the minority may be in any application to the Court, based on equitable considerations. To much the same purpose is the language of Wood, V. C., in East Pant du United Lead Co. v. Merryweather, 2 H. & M. 254, in which he was merely dealing with the right of interested shareholders to vote on the question of permitting the use of the corporate name in order to attack a transaction with the company, entered into by these shareholders for their own benefit. He does not determine what the right of the dissentients may be in such a case if they are obliged to sue, making the company a defendant. As a matter of fact relief was given to them in the subsequent history of that litigation in Atwool v. Merryweather, L. R. 5 Eq. 464, where it appeared that concealment and fraud had been practised in the sale of the property to the company.

The court has no power to direct a meeting to be called to ascertain the views of the company at which the corrupt or interested shareholders shall be debarred from voting-per James, L. J., in Mason v. Harris, L. R. 11 Ch. D. 97, but the Court is not nevertheless helpless in protecting the right of the minority. The Court is able to investigate how the majority has been obtained, and in how far it is made up of votes of shareholders whose acts are impeached. The same Judge who decided the case in 2 H. & M., also laid it down in Re London and Mercantile Discount Co., L. R. 1 Eq. 284, that in ascertaining the views of the real majority who were to control it would be reasonable to ignore or exclude such interested votes. The same principle was recognized in Melhado v. Hamilton, 29 L. T. N S. 364, and In re Wedgwood Coal and Iron Co., L. R. 6 Ch. D. 627, viz., that when & minority is sought to be bound, the vote must be by a disinterested majority.

I should feel great embarrassment in dealing with this case if the majority had been obtained without the vote of the vendor, in view of the remarkable expression of opinion by Sir George Jessel, in Re Haven Gold Mining Co., L. R. 20 Ch. D. 151, that a majority of shareholders would have power to bind the minority by agreeing to waive or condone fraud in the promotion of a company, or a fraudulent representation in the prospectus.

In regard to enforcing contracts such as this upon unwilling beneficiaries, it is the policy of the law not to enter into details of their fairness or unfairness. As put in the Aberdeen R. Co. v. Blaikie Bros., 1 MacQ. 461, “it obviously is, or may be, impossible to demonstrate how far in any particular case the terms of a contract have been the best for the interest of the cestui que trust which it was possible to obtain. It may sometimes happen that the terms on which a trustee has dealt or attempted to deal with the estate or interests of those for whom he is a trustee, have been as good as could have been obtained from any other person--they may even at the time have been better. But still so inflexible is the rule, that no inquiry on that

subject is permitted." My strong impression is that in such cases ratification is required by every individual of the class constituting the cestuis que trustent. The contrary was held by Lord Hardwicke in Whelpdale v. Cookson, 1 Ves. Sr. 9, and note in 5 Ves. 682; but that decision was disapproved of by Lord Eldon in Ex parte Lacy, 6 Ves. 628, as well as by Chancellor Kent in Davoue v. Fanning, 2 Johns. Ch. (N. Y.) 251, and has not been accepted as law subsequently. See cases collected in Lewin on Trusts, pp. 426, 435, 6th ed.

In a very recent case of Re Pepperell, 27 W. R. 410, Mr. Justice Fry held that the concurrence of all the beneficiaries was necessary to validate a transaction as between them and the trustee touching the trust estate. It is not

necessary to decide this case upon this view of the law, because the facts carry it beyond any region of doubt. I refer to the result of the shareholders' vote, if the shares held by the vendor are ignored. Then the majority would be largely against the purchase, and if the vote of the director who was the owner of the vessel, and also the largest shareholder, could turn the scale, he would be virtually voting the company's assets into his own pocket, against the will of a majority of disinterested shareholders. His threefold character of director and shareholder, and vendor necessarily involves a conflict between duty and interest, and the rule of the Court is not to permit a man so circumstanced to hold or exercise the balance of power in the conduct of a company's affairs, to the possible prejudice of any of the shareholders.

The allegations of fraud and unfair dealings are not proved, and while I give judgment for the plaintiff I do so without costs. My judgment proceeds upon the ground that the vendor's fiduciary position incapacitates him from coercing the minority by means of a majority secured by his own vote in his own favour, without regard to the fairness or unfairness of the transaction.

There has been no valid ratification by the company, and the sale must be set aside, the vessel restored to the

vendor and the profits made by her (if any) accounted for to him, he restoring to the company what was received as the price, and the profits made (if any). If desired a reference may be had on these points.

Mr. Bethune cited American decisions which support my conclusions. I refer to Thomas v. Brownsville, &c., R. W. Co., 1 McCrary's R. 392; Cumberland Coal and Iron Co. v. Sherman, 30 Barb, 553.

A. H. F. L.

[CHANCERY DIVISION.]

RE SHAVER.

Will-Evidence-Errors in description-Quieting title proceedings—Infant heir-at-law-Jurisdiction of referee.

A testator, by his will, devised as follows: "I devise the south-west quarter of lot 5, concession 2 of Westminster, containing fifty acres, more or less, to H. P. S., his heirs and assigns, in fee simple." The evidence shewed that the testator did not own the south-west quarter of the lot. but did own the south-east quarter; that he and the devisee had lived on it for many years, and that he did not own any other part of the lot, except the fifty acres of the south-east quarter. Held that the evidence was admissible to explain the error, and cause the will to operate on the south-east quarter.

The erroneous part of the description in a will may be rejected if there is enough left to identify the subject matter devised.

Summers v. Summers, 50. R. 110 distinguished.

Quare, whether an order made by the referee of titles barring the claims of an infant heir at law would have the effect of divesting the estate of the infant.

THIS was a petition of Horace Philemon Shaver, of the township of Westminster, in the county of Middlesex, praying that his title to the east-half of the south-half of lot 5, concession 2, in the said township of Westminster, might be investigated and declared under the Quieting Titles Act.

On the matter coming before the Referee of Titles, at Toronto, it appeared that all the heirs at law had quitted claim to the petitioner except three, two of whom were adults and one Ida Shaver, an infant. These three were

notified of the proceedings. One of the adults did not appear, and one put in a claim which the Referee barred by his order. The official guardian was appointed guardian ad litem to the infant, and had put in a claim on her behalf, which the Referee also barred.

The Referee found the petitioner entitled to a certificate, and presented the matter before Boyd, C. His Lordship, however, expressed a doubt how far the case was affected by the decision in Summers v. Summers, 5 O. R. 110; and also, whether, notwithstanding the infant was barred by the order of the Referee, her estate as heir-at-law was divested, and directed an argument before him.

The matter came up for argument on Monday, March 24th, 1884, before Boyd, C.

The facts are sufficiently stated in the judgment.

Sanderson, for the petitioner.

The following authorities were referred to. Summers v. Summers, 5 O. R. 110; Re Callaghan, 8 P. R. 474; Ex parte Lyons, 2 Ch. Ch. 357.

March 26th, 1884. BOYD, C.--The petitioner's title rests on a devise in the following words:

"I devise the south-west quarter of lot No. 5, in the 2nd concession of Westminster, containing fifty acres more or less, to my son Horace Philemon Shaver, his heirs and assigns in fee simple." The evidence shews that the testator did not own the south-west quarter of the lot: he did own the south-east quarter, and he and the devisee had lived on it for many years. He did not own any other part of the lot 5 in the 2nd concession, except the fifty acres of the south-east quarter, and the question is whether evidence is admissible to explain the error and cause the will to operate on this land. The authorities shew that you may reject an erroneous part of the description if you have enough left to identify the subject matter devised. It is evident that the testator intended to devise the quar40 VOL. VI O.R.