Analytical Digest of Cases: Common Law Courts.

403

to pay the deposit of 27. 12s. 6d. per share plicants for more than the 120,000 shares. At thereupon, and to sign the parliamentary con- that meeting the plaintiff opposed the resotract and subscribers' agreement when re-lutions to continue the concern, and moved as quired. To this letter she received an answer, an amendment that the deposits should be resigned by the secretary, stating that the com- turned; but the chairman declined to put the mittee of management had allotted to her 30 amendment to the meeting. Subsequently the shares, and requesting her to pay the deposit scheme was abandoned, and the plaintiff of 2l. 12s. 6d., amounting to 781. 15s., into one brought his action against a member of the of certain banks on or before a day mentioned. managing committee to recover back the The plaintiff accordingly paid into one of those amount of his deposits. banks, in due time, the deposit of 787. 15s., and received the banker's receipt for the same. She afterwards presented the receipt to the company, and made several fruitless applications to the committee for scrip, and at length was informed that the directors had come to the resolution not to issue any scrip, and that the greater part of the deposits had been expended, and the balance would be rateably divided. It appeared that the directors, finding it impossible to go to parliament in the ensuing session, had determined not to issue any scrip; and that, of the entire number of 80,000 shares, 70,000 were allotted, but deposits were paid on 4,000 only, producing altogether the sum of 10,500l. In an action by the plaintiff to recover back from a member of the managing committee the sum of 781. 15s., so paid by her as deposits on the shares allotted to her: Held, 1st, That there was sufficient evidence of the final abandonment of the project.

2ndly, That, on its abandonment, under the circumstances above stated, the plaintiff was entitled to recover back, as money had and received to her use, the whole sum so paid by

her.

Held, First, that the application for shares and the letter of allotment constituted no binding contract. Secondly, that the advertisement amounted to a fraudulent misrepresentation, and having been so found by the jury, as also that it was a material inducement to the plaintiff to sign the subscribers' deed, as well as to pay his money, formed a good ground of action, to which the terms of the deed were no answer. Thirdly, that the plaintiff's conduct at the subsequent meeting did not amount to any waiver of his right to recover. And fourthly, that the omission to direct the jury as to whether or not there was a binding contract was no ground Wontner v. Shairp, 34 L. O. for a new trial.

156.

4. Action for deposits.-A. applied to the provisional directors of a railway company for an allotment of shares, and 40 were afterwards allotted to him. Between the time of the appli

cation for shares and the letter of allotment several names had been withdrawn from the provisional committee and additional names had

been added.

A managing committee was appointed from among the provisional directors, and by them an action was commenced to recover from A. the amount of the deposits to be paid on the shares allotted to him.

An association of this nature does not amount to a partnership. Walstabb v. SpottisHeld, that inasmuch as the shares were not woode, 15 M. & W. 501. allotted to A. by the persons to whom the ap Cases cited in the judgment: Pitchford v. Davis, 5 M. & W.2; Nockells v. Crosby, 3 B. & C. plication for shares was made, the evidence

814; 5 D. & R. 751.

3. Invalid contract.· -Fraudulent misrepresentation.-Recovery of deposits.-The prospectus of a railway company stated the capital to be 3,000,000l., in 120,000 shares. On the plaintiff's application by letter, sixty shares were allotted to him, and the letter of allotment was headed in the same manner as the prospectus, and stated further what was not to be found in the letter of application, namely, that the allotment was upon condition that the deposit be paid on or before a given day on pain of forfeiture, and the shares being disposed of to others. Eleven days before the given day the managing committee advertised that they had completed the allotment of shares, and there was some evidence of the plaintiff's having seen the advertisement. On the third day after the given one he paid his deposits, and in a fortnight afterwards executed the usual parliamentary contract and subscribers' agreement. In the following month a meeting was holden, the plaintiff being present, and it was then made known that at the date of the advertisement the committee had in fact only allotted 58,000 shares, although there were ap

failed to support the contract alleged in the declaration, and the plaintiffs were nonsuited. Woolmer and others v. Toby, 34 L. O. 302.

5. Inspection of documents.—In an action by an allottee of railway shares against a member of the provisional committee, to recover back his deposit, the court ordered that the plaintiff should have an inspection and copy of the subscribers' agreement and parliamentary contract, which both the plaintiff and the defendant had signed, and which were in the hands of the solicitors of the company; the plaintiff's affidavit stating that an inspection of them was necessary to him for the purpose of framing his case, and the defendant not showing that they were not within his power or control. Steadman v. Arden, 15 M. & W. 587.

Case cited in the judgment: Morrow v. Sanders, 3 Moore, 671.

ALTERATION OF LINE.

404

Analytical Digest of Cases: Common Law Courts.

Judgment.--Irregularity.-In an action against the members of a joint-stock company the managing director authorised an attorney to accept service of process for all the defendants. The case proceeded, and after notice of trial, the same attorney, by the authority of the managing director, consented to a judge's order for payment of debt and costs. The money not having been paid, final judgment was signed, and execution levied on the goods of a defendant who had no notice of the proceedings. The court set aside the judgment as irregular.

In such case, if a defendant has had notice of the proceedings, the court will not interfere, unless the attorney be insolvent, when they will relieve the defendant on equitable terms. If the attorney be solvent, the court will leave him to his remedy against the attorney. Bayley v. Buckland and others, 34 L. O. 279.

2. Costs. In a hostile suit between the directors of a railway company: Held, that the solicitor of a company would be liable for the costs of an interlocutory application, in case it should appear that he had acted without the authority of the company. Exeter and Crediton Railway v. Buller, 34 L. O. 180.

BROKER.

DEPOSIT.

See Allottee, 1, 2, 3, 4.

EJECTMENT.

Service of declaration, in ejectment against a railway company, upon the secretary of the company, is good, by stat. 8 & 9 Vict. c. 16, s. 135. Doe d. Bayes v. Roe, 16 M. & W. 98.

EVIDENCE.

See Provisional Committee, 4.

LIABILITY.

See Provisional Committee, 1, 2, 4.

PARTNERSHIP.

Provisional committee.-Contract.-Agent.The mere fact of a party having agreed to be a provisional committee-man, is no evidence of an authority to make contracts on his behalf.

The association of persons as provisional committee-men for the purpose of carrying out a scheme, is not in law a partnership, nor is there any implied agency on the part of one or more of the provisional committee to bind the others by his or their contracts.

Where a party has authorised his name to be inserted as a provisional committee-man in a prospectus, in which certain persons are described as the acting committee, and the prospectus has been publicly circulated, it is a question for the jury as to the inference to be drawn from the paper, and must depend upon the terms of each particular prospectus. Reynell v. Lewis, Wyld v. Hopkins, 33 L. O. 115.

PROMOTER.

Purchase of Railway scrip.-The defendant, a shareholder, bought for the plaintiff scrip certificates, which were sold in the share-market, at a premium, as "Kentish Coast Railway Scrip," and were signed by the secretary of the railway company. The genuineness of this scrip was afterwards denied by the directors, who alleged that it was issued by the secretary without authority. In an action to recover back from the defendant the price paid to him by the plaintiff for this scrip, and for his commission, on the ground of its not being genuine: 1. Liability. The defendant, in answer to Held, that the proper question for the jury was, an application from the secretary of a railway whether what the defendant intended to buy company to allow his name to be placed on the was that which was sold in the market as Kent-provisional committee, wrote to him consenting ish Coast Railway scrip. Lamert v. Heath, 15

M. & W. 486.

See Action.

PROVISIONAL COMMITTEE.

to do so, and, stated that "he concluded his liability would be limited to the amount of his shares." His name was accordingly published in the newspapers as one of the provisional committee, and on one occasion he attended and acted as chairman at a meeting of the committee: Held, that he was liable for the price of stationery supplied by the plaintiff, on the order of the secretary, and used by the committee, after the date of his letter to the secretary. Barnett v. Lambert, 15 M. & W. 489.

2. Liability. The mere fact of a person agreeing to become a member of the provisional committee of an intended railway company amounts to no more than a promise that he will act with other persons, appointed or to be appointed, for the purpose of carrying the scheme into effect. Therefore, in an action against a provisional committee-man for goods supplied on the order of the solicitor of the company, it was held, that the law could not imply, from the mere fact of his agreeing to be a member of such committee, an authority from him to the other members of it to make contracts by himself or by the solicitor, nor an authority to the solicitor to make them on be

Analytical Digest of Cases: Courts of Common Law.

405

Semble, that any authority given by the terms of a prospectus is not to be considered as derived solely from the provisional committee. Dawson and others v. Morrison, 34 L. O. 230.

PURCHASE OF LAND.

half of the committee. If the party not only cumstance of the defendant's being a member consents to be a provisional committee-man, of a railway provisional committee, it was proved but authorises his name to be inserted and that the published prospectus stated, that until published in a prospectus which merely states an act of parliament should be obtained the the names of the members of the provisional committee of management was to have the concommittee, and nothing more, that fact does trol of the company's affairs, and to apply the not alter the liability. If it state the names of funds, &c.: Held, that no authority, either exan acting or managing committee also, it is a press or implied, was given to the managing question for the jury to say, whether it means committee to contract on the credit of the prothat the latter are to take upon themselves the visional committee. whole management of the concern, or that the former have constituted the latter their agents to manage it on their behalf, in which case the former would be liable for the contracts of the latter. Or, if the solicitor's name were mentioned in it, the question for the jury would be, whether it meant that he was to be employed Expiration of powers given by a railway act. by those of the committee who acted, or that-Injunction.-Where a power for the compulhe was already appointed by all whose names sory purchase of land is given by act of parliawere mentioned, as their solicitor, to do all so- ment for the space of three years, and before licitor's work on their behalf; and further, the expiration of the three years a jury meet to what was the business then usually transacted assess the value of certain land, but do not find by solicitors in such undertakings on behalf of a verdict until after the expiration of the three the company. And the same as to the se- years: Held, that such verdict went for nothing, cretary. and an injunction granted to restrain the comWhere there is also evidence that the defend-pany from proceeding to take possession of the ant has acted with relation to the proposed Brocklebank v. Whitehaven Railway scheme, it is a question for the jury, whether Company, 34 L. O. 381. by his consent and acts, he has authorised the solicitor, or secretary, or any member of the committee, to pledge his credit for the necessary and ordinary expenses to be incurred in forming such a company; and if so, whether the work was done, and the credit given, on the faith of his being liable.

3. Decision of a co-ordinate court. Court of Exchequer having decided the same point as that sought to be raised on showing cause against a rule nisi to enter a nonsuit, this court refused to hear the arguments, holding that the Exchequer decision was to be considered as binding until reversed by a court of

error.

land.

REINVESTMENT OF RAILWAY MONEY.

9 & 10 Vict. c. 20.-Application to allow the under an order of the court to be changed, resecurity on which money had been invested the act 9 & 10 Vict. c. 20. fused, there being no authority for doing so in In re Harwich Railway, 34 L. O. 104.

See Broker.

SCRIP.

SECRETARY.

Assumpsit.-A. and B. were provisional directors of a projected railway scheme, and A. was afterwards, with the consent of B. and the other directors, appointed secretary to the company, and B. attended meetings of the company whilst A. acted as secretary. The scheme was afterwards abandoned.

Held, that 4. could maintain an action against B. for services rendered, and that B. by his own conduct was estopped from taking the objection that 4. having been once jointly interested in the undertaking with him, could not divest himself of that liability so as to support the action. Day v. Sharpe, 32 L. O. 543.

SHAREE OLDER.

Barker v. Stead, 33 L. O. 455. 4. Attendance at Meeting.-Evidence of identity. In order to establish the identity of the defendant as having been present at a meeting of a railway provisional committee of which he was a member, for the purpose of making a resolution passed at such meeting admissible in evidence against him, it is not enough to produce the minute book of the proceedings copied from a previous rough draft, and containing, shares in a proposed railway from "Dublin to Calls.-Alteration of line-A. applied for amongst those present, a similar name to the Mullingar and Athlone," and signed the subdefendant's, and to show that the defendant was the only person bearing that name on the pro- the scrip. scription contract, and shortly afterwards sold visional committee, and that he had been sum-tained an act of parliament enabling the comThe directors subsequently obmoned to attend it. Giles and another v. Cornpany to make a railway from "Dublin to Mulfoot, 33 L. O. 13. lingar and Longford," and there was a clause requiring the company to purchase a canal. In an action against A. for calls, held, first, that he was the shareholder and not the vendee of the scrip; secondly, that he was not discharged from liability by reason of the alteration in the'

See Action by Promoter: Partnership; Pro. spectus, Construction of.

PROSPECTUS, CONSTRUCTION OF. Provisional committee.-Authority of managing committee. Where, in addition to the cir

Analytical Digest.-Superior Courts: Lord Chancellor.-Rolls.

line sanctioned by parliament, or the obligation its leave to permit the plaintiff to remove an to purchase the canal. The Midland Great Western Railway Company v. Gordon, 34 L. O.

approved next friend and substitute another who may be a pauper.] This suit would not be stayed, as there is already a subsisting next friend; it is, therefore, merely an exercise of a judicious discretion to refuse the application of the plaintiff, as it would deprive the defendant of the security now possessed for the payment of the costs. This is not a case of appointing a next friend in the first instance. Dowden v. Hook, 8 Beav. 399; Pennington v.

4. Law of Property and Conveyancing, Aloin, 1 Sim. & Stu. 264; Anon. 1 Atk. 570,

RECENT DECISIONS IN THE SUPE- raised in the present case. There is a next

Superior Courts: Rolls.-Vice-Chancellor.

three illegitimate children of the testator, the was, first to obtain the general order, then an rents to be paid for their maintenance, and the order specifying some limited time, then the survivors and survivor of them, share and share four-day order, and then the order to commit. alike." Three different constructions were contended for by different parties.

The Vice-Chancellor said, that this was a common case of a mistake, and he mentioned before him about a twelvemonth since where a this particularly, because there had been a case clerk had made a slip, and he refused to relieve, not because there had been a mistake, but because there had been gross negligence. In the present case it seemed there was a mistake, In this case Mr. Rogers moved for an order coupled with an intention which existed on the to commit Mr. Taylor for not having delivered part of the plaintiffs so long ago as the 9th Feb. up certain deeds and papers, in compliance last, to go on and execute the order of the with an order dated the 22nd of April, which court. There was no opposition offered to the ordered their delivery within a week, and which motion, and the order was made on a mere had been preceded by an order of the 23rd of March, directing the delivery generally.