Richard Garth, C.J. and Pontifex, J.
1. We think that the appeal should be dismissed. Without going into the grounds upon which the Court below disposed of the application, we think that, in the exercise of our discretion, we ought not to order the Bengal Coal Company, under Section 34 of the Indian Companies Act, to register the transfer. That transfer was made in the absence from this country of Colonel Mowbray Thomson, who was the registered owner of the shares. It was made by a Mr. Thompson, a member of the firm of Nicholls and Co., who held a power-of-attorney from Colonel Mowbray Thomson: and it is conceded, that not only was the transfer made in blank, but that the Company knew it. It was made, moreover, by Mr. Thompson very shortly before  Messrs. Nicholls and Co., became insolvent: and it was brought to the Company to be registered on the very day when the insolvency took place.
2. The Company were then served with a notice by Messrs. Grindlay and Co., on behalf of Colonel Mowbray Thomson, not to register the transfer, and there appears to be a question between Colonel Mowbray Thomson and the transferee of the shares, whether the transfer was bond fide, whether Thompson had a right to make it, and whether it was valid as against the Colonel. That gentleman is not before the Court: and, under such circumstances, we think we ought not to make the order in his absence. It appears that in all the cases to which our attention has been called by the appellants, both parties to the transfer, as well as the Company, were before the Court.
3. Mr. Bonnerjee contends, that because Messrs. Grindlay and Co., may hold a general power-of-attorney from Colonel Mowbray Thomson, we ought to give the applicants an opportunity now, at this stage of the case, to call upon Messrs. Grindlay and Co. to produce that power-of-attorney; and not only so, but to order Messrs. Grindlay and Co. to accept service of the process of the Court for Colonel Mowbray Thomson, so as to make him a party to the proceedings.
4. It is possible, no doubt, that Messrs. Grindlay and Co., may have such a power-of-attorney. We do not know whether they have or not. But even if they have, we think that we ought not, at this stage of the proceedings, to allow Mr. Bonnerjee's client to do that, which he ought to have done, if at all, in the first instance.
5. But apart from this objection, we think, as at present advised, that if Messrs. Grindlay and Co. do hold a power-of-attorney, they would be at liberty, if they thought fit, to refuse to appear in this suit; or, in other words, they might act upon the power or not, as they might think proper.
6. We think, therefore, that the appeal should be dismissed with costs on scale No. 2.