PRIV. Co.]

he is, to produce your petitioner before your Lordships and to show cause why he should not be discharged, or may make such other order in the premises as to your Lordships may seem meet." The petition was opposed by the Right Hon. Cecil J. Rhodes, at that time Prime Minister and Secretary for Native Affairs of the Colony of the Cape of Good Hope, and by the Hon. W. P. Schreiner, Q.C., the Attorney-General. The case was heard before the Supreme Court, when it was maintained by the Attorney-General that the proclamation of the 11th June was a special law, which the Governor had full power to enact under the provisions of sect. 2 of the Pondoland Annexation Act 1894, which have already been cited at length, and that the court had therefore no jurisdiction to interfere with its execution. De Villiers, C.J. delivered the opinion of the court, who ordered "that the said applicant be forthwith discharged from custody Mr. Rhodes and Mr. Attorney-General Schreiner applied to the Supreme Court for leave to appeal to her Majesty in Council, which was refused upon the ground that such leave can only be granted by them in civil suits or actions in which the sum or matter at issue exceeds 500l. On the 12th Dec. 1895, her Majesty, upon the advice of this board, granted leave to appeal, subject to the condition that the appellant should in any event pay the costs as between solicitor and client incurred by the respondent in defending the appeal. Mr. Rhodes and Mr. Schreiner having ceased to hold office in the Cape Government, the Supreme Court of the Colony, on the 21st April 1896, substituted the new premier of the colony, Sir John Gordon Sprigg, as appellant in the room of his predecessor, omitting the new attorney-general, the Hon. Sir Thomas Uppington, who had previously been a member of the Supreme Court, and was a party to the judgment under appeal. The proclamation in question is described in the appellant's case as an act of State, which is beyond the cognizance of any judicial tribunal. Whatever may have been meant by that expression the character of the document is on the face of it abundantly clear. It is an edict dealing with matters administrative, judicial, legislative, and executive, in terms which are beyond the competency of any authority except an irresponsible Sovereign or a supreme and unfettered Legislature or some person or body to whom their functions have been lawfully delegated. If the Governor and High Commissioner of the Cape Colony could be shown to have occupied one or other of these positions a court of law would be compelled, however unwilling, to respect his proclamation. If he did not, then his dictatorial edict was simply an invasion of the individual rights and liberty of a British subject. It set aside the established law of Pondoland with respect to arrest, trial, conviction, and punishment, and condemned the respondent, Sigcau, untried and unheard to imprisonment, the place and duration of his captivity being left to the uncontrolled will of the framer of the edict. It was satisfactory to find that the appellant's counsel did not, in the argument before this board, venture to trace the power of the Governor to enact such a proclamation to any authority directly derived from Her Majesty, because autocratic legislation of that kind in a colony having a settled system of criminal law and criminal tribunals would be

[PRIV. Co.

little calculated to enhance the repute of British justice. Various Acts of the Cape Parliament annexing different tracts of country to the colony were referred to in the course of their argument, but none of these had a direct bearing upon the question raised in this appeal save the Pondoland Annexation Act 1894, which is the only statute professing to confer legislative power upon the Governor within the territory of Pondoland. Whether his excellency had, or had not, power to enact the proclamation of the 11th June 1895 is, therefore, a question depending in the first instance upon the due construction of the provisions of the Act of 1894. The general scheme of all these Acts appears to have been to delay the enactment of many salutary laws elsewhere prevailing throughout the colony until the native inhabitants of the newly-annexed territories had so far advanced in civilisation and in social progress as to make the gradual introduction of these laws advisable. Thus the new laws, which were in future to be made by the Governor under the provisions of the Tembuland Annexation Act, were to be (sect. 2) "new laws applicable to the said territories," an expression which obviously refers to general laws applying to all inhabitants of the territory, whether natives or not, and does not seem to contemplate or include special legislation directed against an individual inhabitant, and that in derogation of the rights conferred upon him by the general law of the colony. The legislative authority delegated to the Governor by the Pondoland Annexation Act is very cautiously expressed, and is limited in its scope. There is not a word in the Act to suggestthat it was intended to make the Governor a dictator or even to clothe him with the full legislative powers of the Cape Parliament. His only authority, after the date of the Act, is to add to the laws, statutes, and ordinances which had already been proclaimed and were in force at its date, such laws, statutes, and ordinances as he "shall from time to time by proclamation declare to be in force in such territories." In the opinion of their Lordships, these words do not import any power in the Governor to make "new laws," in the widest sense of that term; they do no more than authorise him to transplant to the new territories, and enact there, laws, statutes, and ordinances. which already exist and are operative in other parts of the colony. It was argued for the appellant that the expression "all such laws made,' occurring in the proviso, indicates authority to make new laws which are not elsewhere in force; but these words cannot control the plain meaning of the enactment upon which they are a proviso; and besides, that enactment is left to explain the meaning of the proviso by the reference back which is implied in the word "such." Their Lordships think it sufficient for the disposal of this appeal to pointout that the proclamation of which the respondent Sigcau complains exceeds any delegated authority which was possessed by the Governor in twoparticulars, which constitute its leading features. It is a new and exceptional piece of legislation, differing entirely in character from any of the law, statutes, and ordinances which he is authorised to proclaim; and it in substance repeals the whole provisions of the existing law, with respect to criminal proceedings, in so far as the respondent is concerned. Upon these grounds their Lord

ships are of opinion that the issue of the proclamation was an illegal and unwarrantable act, and that the Supreme Court of the colony did right in refusing to give effect to it, and in liberating the respondent. On the assumption that the Pondoland Annexation Act did, as the appellant maintains, confer upon the Governor, either expressly or by plain and reasonable implication, the arbitrary powers which would be required in order to justify his proclamation, a variety of important questions would arise; but upon these, in the view of the case which they have taken, their Lordships find it unnecessary to express any opinion. Their Lordships will, therefore, humbly advise her Majesty to affirm the order of the Supreme Court appealed from, and to dismiss the appeal. The appellant must pay to the respondent his costs of the appeal as between solicitor and client.

Solicitors for the appellant, Wilson, Bristows, and Carpmael.

Solicitors for the respondent, T. Beard and Sons.

Supreme Court of Judicature.

[CT. OF APP.

COURT OF APPEAL.

Friday, Jan. 29.

(Before LINDLEY, SMITH, and RIGBY, L.JJ.) Re SIMPSON; Re WHITCHURCH. (a)

APPEAL FROM THE CHANCERY DIVISION.

Settled land-Trustees-Sale of settled landInfant beneficiary -Appointment of persons resident in a colony as trustees-Form of order -Settled Land Act 1882 (45 & 46 Vict. c. 38), 88. 2 (sub-sects. 1, 8), 38, 59, 60-Settled Land Act Rules 1882, App., Form 19.

Where an infant domiciled in New South Wales and having no relatives in England became entitled under a will to a small share of real and leasehold property in this country, and in order to effect a sale of the infant's share it was necessary to apply to the court for the appointment of trustees under the Settled Land Act 1882, the Court under the circumstances appointed two persons domiciled in New South Wales trustees of the settlement effected by the will for the purposes of the Act.

Form of order in Re Wright's Trusts (24 Ch. Div. 662) followed.

By his will, dated the 29th Jan. 1895, R. J. Whitchurch, then of Nyngan, in New South Wales, but formerly of Westlands, Burstow, in Surrey, devised to Marie W. W. H. Simpson, the infant daughter of E. H. Simpson, of Nyngan, New South Wales, all the interest to which he was entitled under the wills of his aunts, E. M. Whitchurch and Margaret Whitchurch, for her separate use, and appointed E. H. Simpson sole executor and trustee of his will. The testator died on the day the will was executed, and it was duly proved in New South Wales and England.

The testator was at his death entitled under the wills of his aunts to one twenty-fifth share of certain freehold and leasehold hereditaments in

(a) Reported by W. C. Biss, Esq., Barrister-at-Law.

infant should be realised, and the proceeds remitted to the colony where they could be safely invested so as to produce at least 5 or 6 per cent., and where the money could be more conveniently applied for the benefit of the infant, and that the terms of the sale were beneficial to the infant. Affidavits as to the fitness of the proposed trustees were obtained from New South Wales.

The summons came before North, J. in chambers, on the 20th July 1896, and was dismissed, and this was an appeal from that de. cision.

Vaughan Hawkins for the appellant.-The will of R. J. Whitchurch is a settlement within the Settled Land Act 1882, sect. 2, sub-sect. (1), and sect. 59. The persons who are the trustees of a settlement for the purposes of the Act are mentioned in sect. 2, sub-sect. 8. The appointment of trustees by the court is provided for by sect. 38. Sect. 60 provides that where the tenant for life, or a person having the powers of a tenant for life under the Act, is an infant, the powers of such tenant for life may be exercised by the trustees. There is nothing in the Act to prevent the appointment of persons resident in a British colony as trustees under it. Then the court having jurisdiction to appoint the proposed trustees, it is for the benefit of the infant that they should be appointed, and this sale carried out and the proceeds invested in New South Wales, where the infant is domiciled and resident. North, J. considered he had jurisdiction to make the order, but refused to do so on the ground that he ought not to sanction the sale of an infant's real estate in this country in order that the proceeds might be handed to trustees out of the jurisdiction who might invest it in unauthorised securities. Then as to the form of the order. In Re Morgan (48 L. T. Rep. 964; 24 Ch. Div. 114) the proposed trustees were appointed trustees under the settlement for the purposes of the Act, which is the form given in the appendix to the Settled Land Act Rules 1882 (Form 19). But in Re Wright's Trusts (24 Ch. Div. 662) the persons proposed as new trustees

CT. OF APP.]

were appointed trustees of the settlement effected by the will, for the purposes of the Act.

LINDLEY, L.J.-We think that there is jurisdiction to make the order, and that it ought to be made. It is eminently a case in which it is for the benefit of the infant that the order should be made if there is jurisdiction to make it. We are not in the habit of appointing as trustees persons who are resident in a colony, and if the infant had been domiciled in England it would no doubt require very special circumstances before the court would make such an order. But in this case the infant is domiciled in Australia, and she has no friends or relatives in this country, and so far as appears is not likely to have any. The property in which she is interested is divided into shares, and obviously the business-like thing is to do what we can to facilitate the disposition of her share so as to avoid the necessity of a partition, and if it is desired that it should be sold to some of the co-owners there is no reason why it should not be sold, and the proceeds arising from the sale handed to trustees. The infant being in New South Wales there is no reason why such proceeds should not be paid to trustees in the colony. The order will be, that the persons proposed as trustees be appointed trustees of the settlement effected by the will of the testator for the purposes of the Settled Land Act 1882.

SMITH and RIGBY, L.JJ. Concurred.
Solicitor, George M. Light.

Jan. 28 and Feb. 6.

(Before LINDLEY, SMITH, and RIGBY, L.JJ.) ANDREWS v. GAS METER COMPANY LIMITED. (a)

APPEAL FROM THE CHANCERY DIVISION.

Company-Memorandum of association-Articles of association-No provision for priority of shares-Alteration of articles-Issue of preference shares-Validity.

A limited company was empowered by its memorandum of association to increase its capital as provided by the articles. The articles provided that the company might increase its capital, any such increase to be considered as part of the original capital, and to be subject to the same provisions. There was no provision in the memorandum or the original articles for the priority of any shares. The company altered their original articles, and under the provisions of the articles as altered issued preference shares by way of increase of capital.

Held, that the issue of the preference shares was intra vires, as a limited company has power by special resolution to alter its articles of association so as to enable it to increase its capital by the issue of preference shares, although there is no power in its memorandum or original articles of association to create any preference between the shareholders.

Hutton v. The Scarborough Cliff Hotel Company (13 L. T. Rep. 57; 2 Dr. & Sm. 521) overruled. Decision of Kekewich, J. (75 L. T. Rep. 267)

reversed.

THIS was an appeal from a decision of Kekewich, J. The facts are shortly stated in the

(a) Reported by W. C Biss, Esq., Barrister-at-Law.

[CT. OF APP.

judgment of Lindley, L.J., and are fully set out in the report before Kekewich, J. (75 L. T. Rep. 267).

Warrington, Q.C., A. R. Kirby, and H. E. Wright for the preference shareholders.-Kekewich, J. held that the company had no power to create preference shares, and relied on the decision of Kindersley, V.C. in

Hutton v. The Scarborough Cliff Hotel Company, 13 L. T. Rep. 57; 2 Dr. & Sm. 521.

In that case the memorandum did not refer to the articles, and the articles contained no power to create shares with special privileges. Here clause 5 of the memorandum of association in express terms gives the company "power to increase the capital as provided by the articles of association." That means the articles for the time being. The articles also provide that any capital raised by the creation of new shares shall be in the same position as the original capital. In Harrison v. The Mexican Railway Company (32 L. T. Rep. 82; L. Rep. 19 Eq. 358) Sir George Jessel, M.R. held that an increase of capital by the issue of preference shares was valid where the articles provided for it, though it was not referred to in the memorandum. Here the memorandum contains an express reference to an increase of capital. The Companies Acts give the company power to alter the articles, and the public knew that. The articles deal with internal management, and by sect. 50 of the Companies Act 1862 they can be modified or altered subject to the conditions of the memorandum of association. The conditions of the memorandum which may be modified are mentioned in sect. 12 of that Act. The articles could have provided for the increase of the capital without any mention of it in the memorandum. The amount of the original share capital and the division into shares are all that is necessary to mention. [LINDLEY, L.J. referred to Guinness v. The Land Corporation of Ireland Limited (47 L. T. Rep. 517; 22 Ch. Div. 349).] There the articles were inconsistent with the memorandum. The Companies Act does not say that every increase of capital must be by the issue of ordinary shares. The amount of the capital is one of the conditions to be mentioned in the memorandum which may be altered. There is nothing in this memorandum from which one can infer that an equal division of the profits is a condition. The new articles do not alter the conditions more than is permitted by sect. 12 of the Companies Act 1862. But, even if this memorandum refers only to the original articles, yet the equal division of profits is not one of the conditions of the company, and there was power to create preference shares. The decision of Kindersley, V.C., in Hutton v. The Scarborough Cliff Hotel Company (ubi sup.) does not apply to this case, but, if it does, it should be overruled. That case was distinguished in Harrison v. The Mexican Railway Company (ubi sup.), and in Re South Durham Brewery Company (53 L. T. Rep. 928; 31 Ch. Div. 261), and it was expressly dissented from by Lord Macnaghten in

British and American Trustee and Finance Corporation v. Couper, 70 L. T. Rep. 882, 887; (1894) A. C. 399, 417.

P. O. Lawrence, Q.C. and Eustace Smith for the ordinary shareholders.-The original articles provided for an increase of capital, but not for

CT. OF APP.]

inequality of dividend. The memorandum referred to the original articles only. Equality of dividend is implied by silence in the memorandum. Hutton v. The Scarborough Cliff Hotel Company (ubi sup.) has never been overruled. Lord Macnaghten's remarks, in British and American Trustee and Finance Corporation v. Couper (ubi sup.), are only dicta. The decision has been approved of in

Ashbury v. Watson, 54 L. T. Rep. 27; 30 Ch. Div. 376, 386;

Re South Durham Brewery Company (ubi sup.). It is cited as an authority in

Lindley on Companies, 5th edit., pp. 322, 334, 343, 396, 405, and 597; and in

Buckley on Companies, 6th edit., p. 182.

But,

On the construction of the memorandum and original articles, the bargain between the shareholders was that there should be equality of dividend. It was one of the original and unalterable conditions of the company. Sect. 8 of the Companies Act 1862 does not say that equality of dividend is one of the things that must be mentioned in the memorandum. if there were an express provision for equality in the memorandum, it could not be altered, although the argument on the other side goes to that length. The issue of the preference shares was altra vires and void, and the company issued preference shares or nothing; therefore they have issued no shares at all. Assuming that the preference shareholders have been admitted to membership the company can hold them to their bargain; that is, to have preference shares with a maximum dividend of 5 per cent., and no right to anything else. The only part of that that is bad is the preference. The bargain should be altered as little as possible. Therefore, the word "preferential" should be struck out and the rest of the

bargain retained. Further, the appellants have acquiesced in the payment of large dividends to the ordinary shareholders, and cannot set up this claim now. The ordinary shareholders never contemplated that they were admitting other ordinary shareholders. They also referred to

Re Guardian Permanent Building Society, 48 L. T.
Rep. 134, 144; 23 Ch. Div. 440, 460;

Re London and New York Investment Corporation, 73 L. T. Rep. 280; (1895) 2 Ch. 860. Warrington in reply.-The fact that Hutton v. The Scarborough Cliff Hotel Company (ubi sup.) is referred to in text-books shows nothing, as since that decision this point has always been provided against in the memorandum of association. This company was incorporated before that decision. At all events, the appellants are ordinary shareholders.

Cur, adv. vult.

Feb. 6-The judgment of the Court was delivered by LINDLEY, L.J.:-The question raised by the appeal is whether certain preference shares issued by a limited company as long ago as 1865 were validly issued or not. If they were not, a further question will arise, which is what are the rights of their present holders ? The company was formed and registered as a limited company under the Companies Act 1856, but in Oct. 1862 it was registered under the Companies Act 1862, and it is by that Act and the decisions upon it that the above questions have to be determined. The company's original capital, as stated in its memoranVol. LXXVI., 1951*.

[CT. OF APP.

dum of association, was "60,000l., divided into 600 shares of 1001. each, every share being sub-divisible into fifths, with power to increase the capital as provided by the articles of association." By the articles of association which accompanied the memorandum of association, and were registered with it, power was given to the company to increase the capital (article 27), and it was provided that any new capital should be considered as part of the original capital (article 28). The issue of preference shares was not contemplated or authorised. In 1865 the company desired to acquire additional works, and passed a special resolution under the powers conferred by the Companies Act 1862, sects. 50 and 51, altering the articles and authorising the issue of 150 shares of 100l. each, fully paid, and bearing a preferential dividend of 51. per cent. per annum. Those shares were accordingly issued to the vendors of the works referred to, and are the shares the validity of which is now in question. The company has been prosperous, and the ordinary shareholders have for years received a higher dividend than the preference shareholders. A considerable reserve has been also accumulated, and this action has been brought to determine the rights of the preference shareholders to this reserve fund. The learned judge has held that the creation of the preference shares was ultra vires, and that their holders never became and are not now shareholders in the company, and that they have none of the rights of shareholders, whether preference or ordinary. He has not, however, declared more definitely what their rights are. They have appealed from this decision, but on the appeal they only claimed to be preference shareholders entitled to a preferential dividend of 5 per cent. Their claim to any share of the reserve fund was dropped. The judgment against the validity of the preference shares is based upon the wellknown case of Hutton v. The Scarborough Cliff Hotel Company, which came twice before Kindersley, V.C. in 1865 (12 L. T. Rep. 228; 13L. T. Rep. 57; 2 Dr. & Sm. 514 and 521), and which Kekewich, J. very naturally held to be binding on him. The first decision of Kindersley, V.C. was that a limited company which had not issued the whole of its original capital could not issue the unallotted shares as preference shares unless authorised so to do by its memorandum of association, or by its articles of association. This decision was affirmed on appeal (12 L. T. Rep. 289; 4 De G. J. & Sm., 672), and was obviously correct; and would have been correct even if the whole of the original capital had been issued, and the preference shares had been new and additional capital. The company, however, afterwards passed a special resolution altering the articles and authorising an issue of preference shares. This raised an entirely different question, and led to the second decision (ubi sup.). The Vice-Chancellor granted an injunction restraining the issue of the preference shares, and he held distinctly that the resolution altering the articles was ultra vires. He did so upon the ground, as we understand his judgment, that there was in the memorandum of association a condition that all the shareholders should stand on an equal footing as to the receipt of dividends, and that this condition was one which could not be got rid of by a special resolution altering the articles of association under the

CT. OF APP.]

powers conferred by sects. 50 and 51 of the Companies Act 1862. The judgment of the Vice-Chancellor is a little obscure, because he treats the condition as a'condition of the constitution of the company, and he may have meant by that expression either the constitution as fixed by the memorandum of association or the constitution as fixed by the memorandum of association and the original articles. But unless he had meant the constitution of the company as fixed by the memorandum of association his decision is unintelligible; for, so far as the constitution depended on the articles, it clearly could be altered by special resolution under the powers conferred by sects. 50 and 51 of that Act. A company cannot deprive itself of this power (see Malleson v. National Insurance and Guarantee Corporation, 70 L. T. Rep. 157; (1894) 1 Ch. 200), and Walker v. London Tramways Company (12 Ch. Div. 705). The Vice-Chancellor further seems to have been of opinion that the condition could be excluded by contemporaneous articles of association, and his decision has been so understood by succeeding judges. Accordingly, in 1875, in the case of Harrison v. Mexicun Railway Company (ubi sup.), Sir G. Jessel held that the condition of equality imported into the memorandum of association by the decision of Kindersley, V.C. was negatived by one of the articles of association filed with the memorandum, and which article authorised the creation of additional capital by the issue of new shares, “in such manner, to such amount, and to be with and subject to such rules, regulations, privileges, and conditions as the company should think fit. In our opinion it is impossible to uphold this decision, or the view of Kindersley, V.C. himself, as to the effect of articles on the memorandum, if it is once conceded that it is a condition in the memorandum of association that there shall be equality amongst the shareholders. If the condition is really one of the conditions of the memorandum it is immaterial whether the condition is express or implied. If the memorandum of association really prescribed equality amongst all the shareholders, as Kindersley, V.C. held that it did, the articles of association could not override the memorandum of association in that particular: (see sect. 12 of the Companies Act 1862, and Ashbury Railway Carriage Company v. Riche, 33 L. T. Rep. 450; L. Rep. 7 E. & I. App. 653, 667; and Guinness v. The Land Corporation of Ireland (ubi sup.). The departure thus made by Sir G. Jessel from the principle on which the Vice-Chancellor based the second decision in Hutton v. The Scarborough Cliff Hotel Company (ubi sup.) was sanctioned by the Court of Appeal in 1885 in the case of Re South Durham Brewery Company (ubi sup.), and again in 1887 in Re Bridgewater Navigation Company (58 L. T. Rep. 866; 39 Ch. Div. 1), a case which, although reversed on another point (61 L. T. Rep. 621; 14 App. Cas. 525), was not questioned on the point now under consideration. These decisions turned upon the principle that, although by sect. 8 of the Companies Act 1862 the memorandum is to state the amount of the original capital and the number of shares into which it is to be divided, yet in other respects the rights of the shareholders in respect of their shares and the terms on which additional capital may be raised are matters to be I

[CT. OF APP.

regulated by the articles of association rather than by the memorandum, and are therefore matters which (unless provided for by the memorandum as in Ashbury v. Watson, ubi sup.) may be determined by the company from time to time by special resolution pursuant to sect. 50 of that Act. This view, however, clearly negatives the doctrine that there is a condition in the memorandum of association that all shareholders are to be on an equality unless the memorandum itself shows the contrary. That proposition is, in our opinion, unsound. Its unsoundness was distinctly pointed out by Lord Macnaghten in British and American Trustee and Finance Corporation v. Couper (70 L. T. Rep. 887; (1894) A. Č. 416, 417). The view taken by Kindersley, V.C. cannot, in our opinion, be supported by reference to the Companies Act of 1862; and it is inconsistent with the decisions to which we have referred, and which, if wrong, can only now be set right by the House of Lords. It was, however, contended that this court, at all events, had approved and followed the decisions of Kindersley, V.C., and Ashbury v. Watson (ubi sup.) was referred to on this point. In that case the memorandum of association stated that preferential shares might be created and what the preferential rights were to be; and it was held that these were conditions which could be properly introduced into the memorandum of association, and which, being introduced there, could not be afterwards departed from and be treated as articles of association capable of change. No doubt Fry, L.J. relied on Hutton v. The Scarborough Cliff Hotel Company to show that provisions about preference shares were conditions which could properly be inserted in the memorandum of association, but the propriety of the decision of Kindersley, V.C. in that case was not before the court, and we do not regard Ashbury v. Watson (ubi sup.) as conflicting with any of the other decisions of the Court of Appeal, in which the decision of Kindersley, V.C. has been judicially considered. We desire to add that we do not base our judgment in this case on the words "with power to increase the capital. as provided by the articles of association," which are in the memorandum of association. That power would have existed under sect. 12 of the Companies Act 1862 if those words had not been in the memorandum. We prefer to rest our decision on the grounds above explained. But the words in the memorandum to which we are now referring certainly show that the conditions on which new capital was to be issued were not to be implied from the memorandum of association, but were to be ascertained from the articles : and as these might be changed from time to time under the powers conferred by sects. 50 and 51 of the Companies Act 1862, it would follow from Harrison v. The Mexican Railway Company (ubi sup.) and other cases like it that the resolutions of 1865 would be valid, even if the second decision in Hutton v. The Scarborough Cliff Hotel Company could still be regarded as good law. For the reasons, however, which we have given we are of opinion that the second decision of Kindersley, V.C. in Hutton v. The Scarborough Cliff Hotel Company (ubi sup.) was wrong, and ought not to be followed, and that the decision appealed from must be reversed and the resolutions thereby declared to be ultra vires must be declared intra vires and valid. If,