Page:Federal Reporter, 1st Series, Volume 7.djvu/801

 FLINN V. BAGUET. ���78^ ���Lord Juatioe Mellish used the followinjg language : �" It appears to me that the oaly contract entered into by these gentle- men with the Company being that they became members of the company by accepting certificates of paM-up shares, that contract must either be adopted or rejected in its entirety. If it la rejected, they aie net share- holdors at all. If it is adopted, the company is entitled to say 'they are net your shares but ours,' but that does not make them hold unpaid shares." �Thia intimation would tend to show that the assignee in this case might bring an action against the defendants for the value of the shares they agreed to take ; but as there is no evidence that the shares were worth any more than the defendants paid for them, such action would probaibly be fruitless. �In De Ruvigne's Case, 5 Ch. Div. 306, it was held that an arrangement witH a subacriber by which he was to ta^e 200 shares of stock waa fraudulent and ultra vires, but as there wia? no agreement to take any but paid-up shares, he could not be placed on the list of contributories in respect of the ^00 shares. The court held that the company must either thrpw' over the agreement altogetlier, or they must take .|t aWo- getiier. ""They cannot adopt it as io one part and rejeqt it as'to the rest." �In AiidersorCs Case, 7 Ch. Div, 94, similar languaige was, used, and the raaster of the rpUs observed : �'* i am not going to alter men's contractsunless the provisions of an act of parliament compel me to do so. If a man' eontract for paid-up sharos with a company, and there is no other contract, — that is to say, if there is no previoua contract to take shares at all, — and the company allotstho paid-up shares, * * * it is quite evident that neither party can alter the contract. # * * It may ask to set aside the contract altogether, and in that case the shares would not be treated as allotted at all, and the consideration would have to be returned to the director or other person holding a flduciary position, or the company may adopt another course, and may treat the director or other person holding a flduciary position as trustee for the company of the profit made by the contract, and may take away the profit from him. * * * But you can- not alter the contract to such an extent as to say, though you have bar- gained for paid-up shares, we will change that into a bargain to take shares not paid up, and to put you on the list of contributories on that ground." �In F&reman v. Bigelow, 18 N. B. E. 457, these cases were �cited Tyitb approval by Mr. Justice Clifford, although the ��� �