Ex parte Tunstall; in re Tunstall. claim the rent due before the assignment to him, he not pretending that that assignment contains any words of transfer whatever beyond that of a transfer of the mere mortgage as incidental to that transfer. The plea, therefore, does not appear to me to be sustainable, it covering too much, and therefore it must be overruled. Plea overruled. Ex parte TUNSTALL; in re TUNSTALL.1 May 5, 1851. Trustee Act of 1850- Appointment of New Trustees - Vesting Order Additional Number of Trustees. A testator by his will, devised his real estate to one trustee upon certain trusts. The trustee died intestate. Under the stat. 13 & 14 Vict c. 60, the court appointed two trustees, and made a vesting order. As the property was very small, the appointment was made without a reference on affidavit of fitness of the new trustees. THIS was a petition presented by the tenant for life of the produce of a testator's estate for the appointment of new trustees. The tes tator, after arranging for the carrying on of his business by his wife, so long as the same could be done advantageously, directed the conversion of his whole estate into money, and the investment of the produce, and declared the trusts to be for his wife for life, and then in favor of his children. He had vested the whole of his property in John Blackburn, as sole trustee, and he was sole executor, and he proved the will. The property consisted of freehold and personal estates, the freeholds being subject to a mortgage for 700l., and there was no other property but the freeholds (so subject) applicable to the trusts of the will. The mortgage had not been paid off, and Mr. Blackburn died, in 1849, intestate, leaving an infant heir at law, and administration was taken out to his estate. There was no person interested under the will but one child, a daughter, and the widow. The will not containing any power to appoint new trustees, the present petition was presented by the widow and child, which, after stating the foregoing facts, and that Mr. Woods and Mr. Chatburn were willing to act as trustees, prayed their appointment, and a direction that the real estate so subject to the trusts of the will might be vested in them and their heirs upon the trusts of the same. KNIGHT BRUCE, V. C. Although by the will the testator appointed only one trustee, I consider the vesting of property in a sole trustee so very inconvenient, that I shall sanction the two; and, as the property is small, I can do so without a reference, if the affidavit of fitness be satisfactory. 1 15 Jur. 645, Carrick's Case. Prendergast said that the affidavit was quite satisfactory, and there was the consent of the proposed trustees to act. There were affidavits also of the service of the petition on the heir, and administration of the deceased trustee, and of the truth of the statement in the petition. The order was made. CARRICK'S CASE.1 July 4, 1851. Contributories - Liability. The liabilities of persons concerned in schemes for the formation of companies are not altered by the Registration or Winding-up Acts. What amounts to evidence of having authorized expenses. An allottee is not a contributory merely because he may be entitled to receive back what he paid as deposit. A committee-man is not a contributory unless he authorized expenses to be incurred. THIS was a motion to discharge the order of the master, placing the name of William Baldwin Carrick on the list of contributories to the Great North of England and Yorkshire and Glasgow Union Railway Company. Mr. Carrick had signed a writing containing his consent to act as a provisional committee-man, and to take a share or shares, and he had attended meetings as a member of the executive committee. At a meeting of the executive committee, held on the 16th of October, 1845, it was resolved, that a number of shares, not exceeding one hundred, be offered to each of the provisional committee, and not exceeding one hundred and fifty to each of the executive committee; and at a meeting held on the 31st of October, it was resolved, that letters of allotment should be sent to the provisional committee, and they were accordingly sent. The company was never formed, and at a meeting of the committee, held on the 6th of February, 1846, it was resolved, that a circular should be sent to each of the directors, calling for 301. towards defraying the expenses of the company, and that the shareholders should have 36s. per share returned, 6s. per share being retained for expenses. Mr. Carrick paid 50l. to Mr. Middleton, the secretary of the company, of which 30l. was stated by Mr. Middleton, in his evidence, to have been for Mr. Carrick's one hundred shares, at the rate of 6s. per share, and 207. for shares allotted to Mr. Carrick's brother. Mr. Middleton, however, admitted, that at the time when the payment was made the scheme had been abandoned, and that he had paid it in consequence of a call of 6s. per share, which it had been calculated would discharge the liabilities of the company. The evidence produced, showing that Mr. Carrick had authorized expenses, was a letter, to the following 1 15 Jur. 645. Carrick's Case. effect, to Mr. Middleton: "The fare, with cab hire to and from Leeds, is 21s.; but I do not remember the number of attendances; your book will most likely prove it. Add one visit to York, 20s., and the same amount for two evenings' expenses at Leeds;" and resolu tions by the executive committee for the appointment of a traffic taker and a secretary. Bethell and Baggallay, in support of the motion. Roxburgh opposed. LORD CRANWORTH, V. C. I will first consider how the rights of the parties would have stood prior to any of the recent statutes. Certain persons enter into a speculation for the purpose of forming a company for working or for making a railway. The capital was to consist of 150,000l., to be raised in seventy-five hundred shares of 201. each. Many persons agree to take shares, and pay deposits on account, but the promoters afterwards find it impossible to form the company, and the project is abandoned. It is clear on all the authorities, as well as on principle, that every person who so made a deposit would be entitled to recover it back as money had and received to his use. He paid it on a consideration which has, under the circumstances, wholly failed. Is this right, then, affected by the Joint-stock Companies Registration Act, 7 & 8 Vict. c. 110? I think not. The preamble of that act only states that it is expedient to make provisions for the due registration of joint-stock companies during the formation and subsistence thereof, and after complete registration to invest them with the qualities of corporations, with certain modifications and qualifications, and also to prevent the establishment of any company not duly constituted according to that act. There is nothing in this recital which points to any intention of adding to or detracting from the rights of those who may take part in the attempt to form the company, or who may agree to become shareholders in it when formed; nor do I find in the enactments any thing indicating such an intention. The first three sections of the act are employed in defining certain terms used in the act, and explaining to what companies or partnerships its provisions are meant to apply, and in fixing the period when the act shall come into operation. Sect. 4 then imposes on all parties concerned in forming a joint-stock company the obligation of provisionally registering its proposed name and objects, with certain other specified details, before any steps are taken for soliciting the public to become shareholders; and sects. 5 and 6 relate to the same subject. Sect. 7, then provides for the complete registration of the company, before which it is forbidden to it to carry on its business. The section enters minutely into the details of what it is to be registered, and enacts, among others things, that no company shall receive a certificate of complete registration, enabling it to carry on business, until the partnership has been formed by a deed under the hands and seals, of all the shareholders, stating certain particulars required by the Carrick's Case. act. The several sections which follow, up to and including sect. 22, all relate to the subject of the complete registration, and the periodical renewals of it to be made from time to time. The next two sections, i. e., sects. 23 and 24, define what acts may be done during the period of provisional and before complete registration. These acts are confined to the opening of a subscription list, the allotment of shares, and the receiving of deposits thereon to a limited amount, and to certain other specified acts necessary for the due formation of the company. Sect. 25 then enacts, that on complete registration the company-which, it must be observed, must have been previously constituted by deed - shall be incorporated, and may proceed in its functions, having previously, in cases requiring the sanction of the legislature, obtained the necessary act of Parliament. The subsequent section contains provisions as to the rights and duties of the shareholders and directors after the company has come into operation, and also as to the mode of transferring shares, and the mode of proceeding at law by or against the company, and various other clauses to which I do not feel it necessary to advert. It is sufficient to say that there is nothing in the act in any respect altering the relative legal obligations of the persons engaged in forming the company, and of those who have agreed to become members of it when formed; on the contrary, the act proceeds on the principle that these two bodies are perfectly distinct. During the period of provisional registration, the persons who are acting are expressly stated in sect. 23 to be the promoters of the company, not the persons who have agreed to take shares. I think they, i. e., the promoters are authorized to assume the name of the intended company, coupling with it the words "registered provisionally;" yet this is obviously merely an arrangement adopted for the sake of explaining to the public on behalf of what projected body the parties are acting. The parties so acting are still, according to the express words of the act, not the company, but the promoters of the company. I have been thus particular in examining the effects of this act, because I know it has been supposed that its operation was wholly to change the position in which the promoters and allottees of shares had previously stood towards each other. I am of opinion that it had no such operation, and that after the passing of that act no person in agreeing to take shares became liable to any of the expenses incurred by the promoters of the scheme in case it should prove abortive, but, on the contrary, every such person has the same. right since the passing of the act as he had before, of recovering back his deposit as so much money had and received to his use, it having been paid on a consideration which has wholly failed. Walstab v. Spottiswoode, 10 Jur. 460, 498; 15 M. & W. 501, is an authority for this, having been decided long after the passing of the act. So matters stood up to the passing of the Winding-up Act. What, then, was the effect of that act? Certainly, it in no respect altered the legal rights or liabilities of any one. Those who had incurred liabilities remained liable; those who had acquired rights retained those rights. The object of the act was to facilitate the process of liquida Carrick's Case. tion, not to add to or to detract from any existing right. Who, then, were, at the time of the passing of the act, the persons liable to pay the debts incurred in the attempts to form the company? Evidently those who had given the orders under which the debts were incurred, or who had sanctioned the giving of such orders by others. No one could be liable, unless either the creditor could say to him, "My debt was incurred under an order given or sanctioned by you;" or the party liable to the creditor could say to him, "I incurred this obligation under your engagement to contribute ratably with me." No person, by agreeing to take shares in the company when formed, enters into either of the three engagements. He neither gives orders for acts to be done in or towards forming the company, nor authorizes others to give orders on his account, nor appears to indemnify, or to contribute towards indemnifying, those who do so. If that were the true result of his agreeing to become a shareholder he could not, on the failure and abandonment of the scheme, recover back, as all the cases show he may recover back, his deposit as money paid on a consideration which has wholly failed. These principles appear to me so clear, that, until corrected by some higher authority, I shall feel myself bound to hold in all these cases, that no one can be put on the list of contributories merely by reason of his having agreed to take, or, what is the same thing, having become an allottee of shares, whether he has or has not paid a deposit. It was, indeed, argued, that even if a party so situate was not to be put on the list of contributories as a party liable to pay, yet that he ought to be placed there as a party entitled to receive back the amount of a deposit. But this is an argument evidently resting on no solid foundation. It would go to place on the list of contributories allottees who had paid deposits, and at the same time to exclude those who had paid. nothing. This would be a very strange result. But, in truth, the whole substratum of the argument fails. The word "contributories," by the interpretation clause, includes every member of a company, and also every other person liable to contribute to the debts and liabilities thereof. The language shows very clearly that "members" are only included, because they are of necessity liable to contribute. It is true, that though liable to contribute, yet they may, in the result, when the affairs are wound up, become entitled to receive from their co-contributories, because they may have contributed more than a due proportion; but they are placed on the list because the affairs to be wound up are affairs to the losses and liabilities of which they must of necessity contribute, though they may, in the result, be recipients, and not parties called on to pay any thing; whereas allottees of shares can never be liable to contribute to any of the debts or losses incurred in the abortive attempt to form the company, and so are neither members nor persons liable to contribute within the meaning of the word "contributories," as defined in the interpretation clause. Moreover, it is incorrect to speak of allottees of shares as persons who can have, under any circumstances, the right to receive money back as "members." They are not members at all. They have |