of all the then subscribers, according to the information possessed by the officers of the company in respect of such names and occupations and places of residence; and also, 9, the number of the shares which each subscriber holds, and the distinctive numbers thereof, distinguishing the numbers of the shares on which the deposit has been paid from those on which it has not been paid; and also, 10, the names of the then directors of the company, and of the then trustees of the company (if any), and of the then auditors of the company, together with their respective places of business (if any), occupations and places of residence; and also, 11, the duration of the company, and the mode or condition of its dissolution; and that such deed must contain a covenant on the part of every shareholder, with a trustee on the part of the company, to pay up the amount of the instalments on the shares taken by such shareholders, and to perform the several engagements in the deed contained on the part of the shareholders; and that such deed must also make provision for such of the purposes set forth in schedule (A) to this Act annexed, as the nature and business of the company may require, and either with or without provisions for such other purposes (not inconsistent with law) as the parties to such deed shall think proper; and that every such deed of settlement must be signed by, at least, one-fourth in number of the persons who, at the date of the deed, have become subscribers, and who shall hold, at least, one-fourth of the [49] maximum number of shares in the capital of the company; and that every such deed must be certified by two directors of the company, by writing indorsed thereon in the form contained in the schedule (B) to this Act annexed; and that, on the production of such deed, setting forth such matters and making such provisions as are hereby required to be provided for, and being so signed and certified, together with a complete abstract or index thereof, to be previously approved by the Registrar of Joint Stock Companies, and also a copy of such deed, for the purpose of registering the same, or as soon after such production as conveniently may be, the Registrar of Joint Stock Companies shall grant a certificate of complete registration, according to the provisions of this Act in that behalf; and, unless such deed and other matters be so produced, and such conditions be so performed, it shall not be lawful for him to grant such certificate; and that, after such certificate shall be granted, it shall be taken as evidence of the proper provisions being inserted in such deed, and of the performance of the conditions hereby required previously to the granting such certificate of complete registration; and that any defect or omission as regards the matters hereby required in any deed of settlement may, from time to time, be supplied by a supplementary deed or deeds; and that, if any such supplementary deed be not inconsistent with or repugnant to this Act, or any Act respecting joint stock companies, and if it be duly registered, then it shall have the same effect as if there were only one deed for the purposes of this Act; and that, unless the same shall be registered, it shall be of no force or effect.

The company in this case was provisionally registered on the 13th of February 1847, and com-[50]-menced business shortly afterwards. On the 19th of October 1848 the registrar granted a certificate of the complete registration of the company. At that time the deed of settlement was signed by one-fourth in number of the subscribers to the capital of the company; and they held, amongst them, 2020 shares, which was twenty more than one-fourth of the maximum number of shares in the capital. But, as more than twenty of those shares were held by the trustee of the company, with whom the covenants in the deed were entered into, but who did not himself enter into any covenant, the Master, who was charged with the winding up of the company, was of opinion that the complete registration of it was unlawful, and on that account excluded Bird's name from the list of contributories.

A motion was now made, on behalf of the official manager of the company, that Bird's name might be restored to the list.

Mr. Bethell and Mr. Roxburgh, in support of the motion, cited The Banwen Iron Company v. Barnett; (1) which, they said, was a conclusive authority that, after the certificate of the complete registration of a company has been obtained, no defects in the deed of settlement can be set up; and that, if the company in this case had been

(1) 19 Law Journal Reports of Cases in Court of Common Pleas, p. 17.

only provisionally registered, Bird's name ought not to have been struck out of the list of contributories.

Mr. Calvert and Mr. Baggallay, for Bird, produced an extract from the deed of settlement of the company, [51] with the schedule thereto, authenticated by the Registrar of Joint Stock Companies; (1) from which it appeared that the deed recited that the company was intended to be completely registered as soon as such registration could be had, and that the shares held by the parties to the deed, exclusive of the trustee, were less than one-fourth of the maximum number of shares. They referred to the 7th, 8th and 25th sections of the Registration Act, and said that the deed had reference to a completely registered company; but, as the covenants in it had not been entered into by the holders of a sufficient number of shares (which appeared from the documents produced), the company had never been duly completely registered; and that the defect in this case could not be supplied by a supplemental deed; consequently, the object for which Bird had subscribed to the capital of the company could not be obtained; and therefore the Master had properly excluded his name from the list of contributories.

THE VICE-CHANCELLOR [Lord Cranworth], having asked, in the course of the argument for the Respondent, how persons who had had dealings with the company were to find out whether the certificate of complete registration had been properly granted or not, delivered the following judgment:

The seventh section of the Joint Stock Companies Registration Act enacts that no joint stock company shall be entitled to receive a certificate of complete registration, unless it be formed by some deed or writing under the hands and seals of the shareholders. It then [52] prescribes that the deed shall contain, amongst other things, a covenant on the part of every shareholder, with a trustee on the part of the company, to pay up the amount of the instalments on the shares taken by such shareholder, and to perform the engagements in the deed contained on the part of the shareholders; and that it must be signed by at least one-fourth in number of the persons who, at the date of it, have become subscribers and who shall hold, at least, one-fourth of the maximum number of shares; and that it must be certified by two of the directors; and that, on the production of it, together with an abstract or index of it to be previously approved by the registrar, and also a copy of it for the purpose of registering the same, or as soon after as conveniently may be, the registrar shall grant a certificate of complete registration; and that, unless such deed and other matters be so produced, and such conditions be so performed, it shall not be lawful for the registrar to grant the certificate. Now suppose that, after the registrar had granted a certificate of the complete registration of a company, it should turn out that the registrar, on the deed being produced to him, had miscounted the names of the executing shareholders, and that only 1999 instead of 2000, the proper number, had signed it, it would be monstrous to hold, as Mr. Justice Maule says in the case of The Banwen Iron Company v. Barnett, that all the acts and contracts of the company since their supposed incorporation were null and void. I think that that would not be a reasonable construction of the Act. But, if I had any doubt upon the subject; if I had entertained an opinion upon it directly the reverse of that which I do entertain, I should have considered myself concluded by the decision in the case to which I have referred. It is as strong a case as can be. I see no difference in principle between the omission of matters which [53] are pointed out in the schedule to the Act, and the omission of those which are pointed out by the Act itself. And if there were any such difference, the plea in that case does not raise any such distinction. The action was for calls; and the plea was, &c., &c.

[His Honour read the plea.] The Court held that to be no plea at all; that, notwithstanding the omission to state that, without the statement of which the registrar ought not to have given a certificate of complete registration, yet, he having done so, the company were enabled to sue for the calls which the statute, united with the deed, enabled them to sue for. If the company could sue, it follows, as a matter of course, that now, when the affairs of the company are to be wound up, there can

(1) In The Banwen Iron Company v. Barnett the deed of settlement was not before the Court. (See Mr. Justice Maule's judgment.)

be calls made by the official manager upon those who might have been called upon by the company to contribute to the company itself.

It seems to me a perfectly clear case; and I entertain but little doubt that, if this case of The Banwen Iron Company v. Barnett had been before the Master, he would not have reported as he has done. It is, in omnibus, the same case as the present. Therefore I shall order Bird's name to be replaced on the list of contributories; but I shall make no order as to costs.

[54] COPE'S CASE. In the Matter of THE WINDING UP OF THE INDEPENDENT ASSURANCE COMPANY. Nov. 9, 1850.

[S. C. 20 L. J. Ch. 28. See In re Anglo-Californian Gold Mining Company, 1867, 37 L. J. Ch. 80.]

Joint Stock Companies Winding-up Acts. Secretary's Salary. Agreement. Construction. A., who had been appointed secretary to a joint stock company at a yearly salary to commence on the 25th of March 1848, signed an agreement that no director or shareholder of the company should be personally responsible for the salaries of any of the officers; and that no officer should be paid for his services until a sufficient sum should be obtained, by the funds of the company, for that purpose. An order for winding up the company was made on the 23d of Feb. 1850. Held, that the agreement did not exonerate the shareholders from liability to contribute, as members of the company, to the payment of arrears of salary due to the secretary; and that though he was not in strictness entitled to more than a portion of his salary for the second year, yet, as he had served for nearly the whole of that year, it was but reasonable to allow him his salary for the whole of it.

Mr. Cope had been appointed secretary to the company, at a salary of £400 a year, to commence on the 25th of March 1848; and, on the 2d of November 1848, he signed an agreement (which had been drawn up in pursuance of a resolution of the directors), that no director or shareholder of the company should be personally responsible for the salaries of any of the officers of the company, and that no officer should obtain payment for his services until a sufficient sum should be obtained, by the funds of the company, for that purpose.

Cope continued to act as secretary to the company until the 23d of February 1850, when the winding-up order was made. Under that order he claimed to be paid two years' salary for the time he had acted, and another year's, on the ground that the directors had not given him any notice of their intention to discontinue his services. The Master wholly disallowed the claim.

Mr. Bethell and Mr. Roxburgh, for Cope, now moved [55] that the Master's decision might be reversed. They said that the Master had put this extraordinary interpretation on the words "the funds of the company " in the agreement, namely, that they meant "the profits of the company;" and, as there were none, had disallowed the claim. They contended, first, that the true meaning of the agreement was that no member of the company should be made responsible, individually, for the salaries of the officers; and secondly, that, as Cope's engagement was a yearly one, he could not be discharged without receiving a year's notice, or a year's salary in lieu of it: Beeston v. Collyer (4 Bing. 309).

Mr. Rolt and Mr. Speed, for the official manager, argued in favour of the Master's construction of the agreement, and said that "the funds of the company meant funds to arise from premiums on policies effected with the company, or otherwise in the course of carrying on the business of the company; that there were no funds of the company that they had all been exhausted; and, therefore, Cope's salary could not be paid without calls being made upon the shareholders, which would be contrary to the agreement: that, at all events, Cope was not entitled to more than his salary for the first year, and a proportionate part of it for the second year, in analogy to the practice in bankruptcy.

THE VICE-CHANCELLOR [Lord Cranworth]. I have no doubt that the meaning of the agreement is that the officers of the company shall not sue any particular member of the company for his salary, and say, "You are the person who employed me." It exonerates the members from personal liability; but it [56] does not exonerate them from liability, as members of the company, to contribute whatever they were bound to contribute by contract with the company.

With respect to the other questions, my opinion is that, in strictness, Mr. Cope is not entitled to his salary for more than the first year and about eleven months of the second year. But, as he served nearly for the whole of that year, I think that it will be but reasonable to allow him his salary for the whole of it; and, therefore, I shall admit his claim to the extent of £800.

[56] STUART v. LLOYD.(1) Nov. 14, 1850.

Practice. Dismissal.

After an answer was to be deemed sufficient, the Plaintiff filed exceptions to it for impertinence. Held, that the pendency of those exceptions did not prevent the Defendant from moving to dismiss the bill for want of prosecution.

The time at which the answer in this case was to be deemed sufficient expired on the 5th day of July; on the next day the Plaintiff filed exceptions to it for impertinence.

Mr. Phillips, for the Defendant, now moved to dismiss the bill for want of prosecution. He said :

The pendency of exceptions for impertinence is no answer to an application to dismiss; otherwise, as no time is limited for referring exceptions for impertinence, the Defendant might be prevented, for ever, from getting the bill dismissed. Besides, these exceptions were not filed till after the answer was to be deemed sufficient. Even if these exceptions are allowed, and the passages excepted to struck out, the answer will still be sufficient.

[57] Mr. Bethell and Mr. Bazalgette, for the Plaintiff.

By expunging the impertinence, the answer may become insufficient; we have filed our exceptions, and the bill ought not to be dismissed till they are disposed of. THE VICE-CHANCELLOR [Lord Cranworth]. It may be that, by striking out the impertinent matter, you will make the answer insufficient; but still I think that, within the meaning of the 16th Order of 1845, the answer must be taken to be sufficient and cannot be made otherwise, and the Plaintiff is right in moving.

[57] In the Matter of THE JOINT STOCK COMPANIES WINDING-UP ACTS, and of THE BOSTON, NEWARK AND SHEFFIELD RAILWAY COMPANY. Ex parte WILLIAMS. Nov. 16, 18, 1850.

Joint Stock Companies Winding-up Acts.

A provisionally registered railway company having abandoned their undertaking, the directors made two payments to the shareholders in part return of their deposits; and they offered to make a third and final payment, which the whole or nearly the whole of the shareholders, except A., accepted. All the debts and liabilities of the company were discharged, and all the assets of it were exhausted; and A. applied for and received the second payment, as being one of the shareholders who had concurred in the dissolution of the company. Nevertheless he, being dissatisfied, as he alleged, with the directors' accounts, petitioned for an order for the

(1) Ex relatione.

dissolution and winding up of the company, or for winding it up if it had been already dissolved.

The Court refused to make the order at once, and directed the Master to inquire and state whether it was necessary or expedient that the company should be dissolved and wound up, or wound up.

The above-mentioned company was provisionally registered in August 1845. The capital of it was to be £1,600,000 in 64,000 shares of £25 each; and the [58] deposit was to be £2, 12s. 6d. per share. The Petitioner took one hundred shares in the scrip of the company, and paid the deposits on them; and he executed the Parliamentary contract and the subscribers' agreement, as did the other allottees of shares. But the company having failed in their attempts to obtain an Act of Parliament for making their railway, owing to the Standing Orders not having been complied with on their behalf, they abandoned their project; and the directors paid to the Petitioner and other shareholders, first £1, and, afterwards, 10s. per share in part return of their deposits.

But

The latter payment was made out of stock of the Midland Counties Railway Company, a competing company, which the Boston, Newark and Sheffield Railway Company had received in consideration of the abandonment of part of their line. Before that stock was distributed the secretary of the company sent a circular-letter to the Petitioner and other shareholders, which was partly as follows:-"Scripholders cho concur in the dissolution of the undertaking, and wish to receive the Midland stock, are requested to send to the secretary for forms of application, which they are requested to fill up, sign and forward, with their scrip certificates, to No. 1 Little George Street, Westminister, on or before the 29th of September 1846. After that date these offices will be finally closed, and all subsequent communications, on this and every other business of the company, must be addressed to Mansfield, Notts. The scrip certificates will be returned to the holders after they have been marked and recorded, and the Midland stock will be issued as soon as it can be got ready." On the 15th of November 1848 the chairman of the company sent the Petitioner a statement of the accounts [59] of the company, together with a form of application for the final return of 1s. 6d. per share; and a letter requesting the Petitioner to return the form properly filled up, with his scrip certificates, and adding that, in exchange for them, a cheque would be sent to him for the amount of the return. the Petitioner being, as the petition alleged, dissatisfied with the accounts, and more especially in reference to the gross and exorbitant items for solicitors, Parliamentary expenses, engineering and surveying, and the application of £13,528 for the purchase of one hundred and fifty shares in the Mansfield and Pinxton Railway (with which the company had no concern) and the loss occasioned by the holding of eighty-six £50 Midland shares, and other departures and improper payments by the directors, refused to accept the final dividend. The petition further alleged that the Petitioner believed that there were liabilities of the company for which the members of it were or might be liable: that the company had ceased to carry on any business, and the project had been entirely abandoned, and the secretary and clerks discharged; but the affairs of it had not been wound up: that the Petitioner believed that there was, in the possession of the directors, a large amount of money arising from the deposits paid by the contributories, and which was available for distribution amongst them; and that the sums arising from deposits had been misapplied: that the Petitioner was one of the contributories, and that he and the other contributories were desirous that the affairs of the company should be wound up, and that the Court should declare that the company was or ought to be dissolved. The petition prayed for an order for the dissolution and winding up of the company; or, if it should have been already dissolved, for the winding of it up.

[60] The late chairman of the company made an affidavit in opposition to the petition, stating that the allegation in the petition, as to the gross and exorbitant items for solicitors, Parliamentary expenses, engineering and surveying was not true, inasmuch as the bills of the engineers, solicitors and surveyors were very heavily mulcted, and as great deductions made therefrom as the directors were advised would be safe and prudent: that one of the clauses in the agreement entered into by the