Cooper's Case. - Thompson's Case.

me to say a word to your lordships, and my reason for speaking is chiefly to exclude any possibility of a notion that I doubted, upon this subject, on the propriety of my own opinion. I had no doubt whatever on the subject, and I confess, except that doubt which one always must entertain in matters that have not been absolutely decided, I never did, or could, entertain a doubt that, prior to the passing of these acts-the Joint-stock Company's Acts-the Winding-up Acts-that parties were not liable to contribute to the expense of forming a company when they had merely agreed to take shares in the company when formed, was a matter which had been decided in a great many cases up to the time to which my noble and learned friend has adverted, and that when the matter is examined it requires no case to enable you to arrive at such a conclusion. What does a person do when he agrees to take shares in a company? All he agrees to is to this effect: "You tell me you are forming a company to consist of ten thousand shares; very well- I shall be glad to be a shareholder of one of those ten thousand shares." "You shall," he says. I either do pay earnest or I do not. In either case I sit down and remain passive. If, six months after, he tells me, "I am sorry to say I could not form that company," I say, "I am sorry for it, you must give me back my deposit if you have received it, or the remainder of what you have." There is an end of it. What is there in that which leads to the conclusion that I am bound, myself, to contribute to the expenses which he has been at in trying to do that, the doing of which was the reason for my assisting him at all? It is obvious, when the matter is looked into, that not only are there plenty of authorities to show that I am not liable, but all principle goes with that conclusion. That being the state of the law before the passing of any of these acts, and it being the state of the law in so exact and clear conformity with the obvious principle and good sense I have stated several times, it would require very cogent acts to show me the liability before I could suppose there was any such intention.

Now, the two acts relied on have been, first of all, the Joint-stock Registration Act (mainly relied on; there were others partially alluded to) and the Winding-up Act. I may dismiss that in a word. The Winding-up Act was an act passed two or three years ago for the purpose of facilitating the winding up the affairs of companies, in the winding up of which, according to the ordinary rules of courts of justice, the ordinary proceedings had been found infinitely complicated and difficult, and regulations were made for that purpose, and which to some extent, no doubt, have answered their object; but it hardly requires to be propounded that the legislature could have meant to make other people liable than those who were liable before. It would have been an act of such monstrous injustice, if a man were not liable to contribute to 10,000l., to pass an act under the pretence that it was to give facility for the winding up of the affairs of those who were liable, that somebody else was to be made liable who was not liable before; and, in truth, it would be so obviously unjust, that it is hardly necessary to propound the proposition. But, in looking

VOL. V.

2

at the Winding-up Acts, there is nothing that points to any thing of the sort, and, therefore, I dismiss that. The other act, which was relied on equally, is an act not bearing on the case when it is clearly analyzed, although undoubtedly some of the expressions in it have been used in a way that has, I believe, misled the public. I allude to the Joint-stock Companies Registration Act.

The only observation that I shall make further and trouble your lordships with on this case is, to show, by analyzing very shortly a few of the provisions of the act, that they do not alter the law at all. In the first place, what is the preamble? "Whereas, it is expedient to make provision for the due registration of joint-stock companies. during the formation and subsistence thereof, and also after such complete registration as hereafter mentioned, be it enacted." And what are the objects there? Why the objects are to make provisions for the due registration while the company is in course of formation, and after it has been formed, and when formed to give it many of the incidents of a corporation; and then to make certain regulations. There is nothing there suggested as to the object to make other people liable to the expenses of forming the company, than those who were liable before. The two or three first sections are preliminary sections, giving the definition of words to be used in the act, and so forth; and then comes sect. 4, one of the sections which has been mainly thought to have the effect of altering the liability of parties. It enacts, "Before proceeding to make public any intention to form a company, it shall be the duty of the promoters to make to the officer thereby provided a return to the following effect;" that is to say, the proposed name of the intended company, the names of the promoters, together with their residences; that is, that due notice may be given to the public of what the company is to be, and what are to be its objects, and who are the parties promoting it; and then several other particulars, namely, the names of the members, and so on; and a variety of other matters that would be useful for the public to know. When one of those schemes that were really only mere bubble schemes, as they have been called, was in progress of formation, that is what is to be done for provisional registration before forming; then, when it is completely formed, this is enacted: "It shall not be lawful for any joint-stock company to act otherwise than provisionally until such company shall have obtained a certificate of complete registration, and no joint-stock company shall be entitled to receive a certificate of complete registration unless it be formed by deed;" and then a great number of details are entered into of what you are to do in order to become a completely formed company. Then there are a number of regulations as to the registration of the company registering the change of shares, so that the public. might always, by going to a particular office, know who are the parties constituting a joint-stock company.

Now come the important sections, the 23d and 46th. The previous section had said what was to be done; first, provisionally registering it; and, secondly, what was to be done when completely registered. Now, what is to be done while it is simply provisionally registered?

Cooper's Case. Thompson's Case.

Sect. 23 says this, "On the provisionally registering of any company, it shall be lawful for the promoters of the company so registered to act provisionally; and it shall be lawful for the promoters of the company to assume the name of the company, but coupled with the words 'registered provisionally;' to open the subscription list; to allot shares, and to receive a small sum, namely, 10s. in every 100l. by way of earnest upon the shares; but not to make calls, or execute any works except such as are necessary to make surveys and so on, in order to the establishment of the company." Now, that section makes a manifest distinction between the company and the promoters during the period of provisional registration; that is, before the company have been actually formed; and although the promoters of the company are entitled to assume the name of a company, coupling, however, with it "provisionally registered," yet it is not the company that is there acting, and for the best of all reasons, that there is no company at all; for the act of Parliament says, expressly, there shall be no company until they are completely registered; and, therefore, although these parties call themselves the word "company," they must couple with it "registered provisionally;" and then, looking at the clause, you will see that all the acts done by the parties so describing themselves a company provisionally registered, are merely done by certain individuals, the promoters of the company; and, therefore, the expenses then incurred are not the expenses of the company, there being no company; they are expenses incurred by the promoters; and, therefore, how can you alter the law, which before said, if I have agreed to become a member of this company when you have got it completely registered, what is the liability I have incurred? The liability I have incurred is to pay for those shares when completely registered; what have I to do with the expense you have incurred in the mean time? If you have been hastily and without due security incurring enormous expenses in making surveys and advertising, and so on, in a hope and confidence. that you would get this company, that which you have made me agree, I will, when it is formed, take a share in; what have I to do with any expense you have been incurring in the mean time? That is the common sense of the thing before this act passed; and I certainly must say to your lordships that I have looked through the act many times, and have been unable to find any thing that points to any intention of varying it. On these grounds, my lords, which I have stated because my noble and learned friend has gone into the matter so fully, I see no reason to doubt the propriety of the decision which was given by myself in these cases. Of course, I conceive my confirmation of your lordships' views will be of very little weight, as it is an appeal from my own judgment; but I felt bound to state the ground on which I proceeded. I proceeded then, advisedly, and nothing has ever occurred to make me doubt the propriety of that decision to which I came, and which I entirely concur in advising the House to confirm.

Judgment in both cases affirmed with costs.

Scadding v. Lorant.

[Present: The LORD CHANCELLOR, LORD BROUGHAM, and other LORDS.]

SCADDING, Defendant in Error, v. LORANT, Plaintiff in Error.1 July 7 and 11, 1851.

Rating

Poor Rate

Adjournment of Vestry Replevin.

It is as competent to vestry-men de facto to join in making a rate for the relief of the poor as vestry-men de jure.

A meeting to make a poor rate was adjourned, but no further notice of the adjourned meeting, or of the purposes thereof, had been given on the doors of the churches and chapels of a parish, as required by a local act for that parish:

Held, that notice of the original meeting having been duly given, and the purpose for which it was to be held, such notice extended to all adjourned meetings, such adjourned meetings being held for the purpose of completing the unfinished business of the first meeting, and consequently a poor rate made at such adjourned meeting was valid.

In replevin, the defendant avowed specially under a distress for poor rate assessed on plaintiff in respect of his dwelling-house, and as a collector of such rate:

Held, that the facts found as to the making the above rate sustained the avowry.

THIS was a writ of error upon a judgment of the Court of Exchequer Chamber, reversing a judgment of the Court of Queen's Bench upon a special verdict in an action of replevin, in which the plaintiff in error was plaintiff, and the defendant in error and one Joseph Patrick (since deceased) were defendants.

The declaration complained that the defendants, on the 28th of August, 1840, seized and took certain goods and chattels of the plaintiff, then being in his dwelling-house in the parish of St. Pancras.

The defendant Lorant avowed specially under a distress for a poor rate assessed on plaintiff in respect of his said dwelling-house, in and for said parish, and as a collector of such rate. The plaintiff pleaded in bar de injuria. The jury found a special verdict, setting forth by whom and under what circumstances the rate was made and levied; and the main questions for decision were, whether the facts found disclosed a valid rate, and whether these facts sustained the avowry.

The verdict found that before and at said time when, &c., the parish of St. Pancras was governed by the local act, 59 Geo. 3, c. 39, intituled "An Act for establishing a select Vestry in the Parish of St. Pancras, in the County of Middlesex, and for other purposes relating thereto," in conjunction with the act 1 & 2 Will. 4, c. 60, intituled" An Act for the better regulation of Vestries and for the appointment of Auditors of Accounts in certain Parishes of England and Wales;" that the election of vestry-men for said parish took place annually, one third of the vestry-men going out by rotation each year, and vacancies from death or other causes being filled up at the same time; that the number of rated householders in said parish exceeded 10,000; that on the 6th day of May, in the year of our Lord one thousand eight hundred and

1 17 Law T. 225.

Scadding v. Lorant.

thirty-nine, the annual meeting of the parishioners of the said parish for the election of vestry-men and auditors of accounts for the said parish took place at the vestry rooms in Gordon Street, within the said parish, pursuant to previous due appointment by the vestry of the said parish, and that notice thereof was duly given, such notice having been duly signed by the church-wardens of the said parish. And the jurors aforesaid, upon their oath aforesaid, further say, that there were six vacancies in the vestry, by death or other causes, to be filled up at such election, in addition to forty who were to go out by rotation. And that, at the said annual election, an election in fact of forty-six persons took place to supply the places of the forty vestrymen, who were so to go out by rotation as aforesaid, and to fill up the said vacancies so to be filled up as aforesaid. And the jurors aforesaid, on their oath aforesaid, further say, that the names of the said forty-six persons were and are as follows, (setting out the names.) That the said forty-six persons were not, nor was any of them, duly elected at the said annual election, nor was there ever, during the said year one thousand eight hundred and thirty-nine, any due election of vestry-men of the said parish, to supply the places of the said forty who were to go out by rotation at the said election as aforesaid, or any of them, or to fill up the said six vacancies, or any of them; but that the said forty-six persons so elected in fact as aforesaid continued to act from the time of the said election until after the end of the year one thousand eight hundred and thirty-nine, as vestry-men of the said parish. That all the said persons so elected in fact as aforesaid were duly qualified to fill the office of vestry-men, if they had been duly elected as such. That nineteen of the said persons so elected were a portion of the forty who were to go out by rotation. That on the twelfth day of August, in the year of our Lord one thousand eight hundred and thirty-nine, a meeting of the persons acting as vestry-men of the said parish was duly convened and held at the vestry rooms, in Gordon Street, within the said parish, in the manner directed for vestry meetings by the said act, made and passed in the said fifty-ninth year of the reign of his late majesty George III., chapter thirty-nine, and in the manner and for the purpose in the within avowry in that behalf mentioned, and that notice of the said last-mentioned meeting, and of the purpose thereof, had been reduced into writing and signed, and copies thereof, also signed, were affixed on the Sunday preceding such last-mentioned meeting, in the manner mentioned in the within avowry, and that all those persons who were members of the vestry of the said parish at the time of the said election, and who were not to go out by rotation at the said election, as well as the said forty-six persons so elected in fact as aforesaid, were summoned pursuant to a resolution passed at a meeting of the persons acting as the vestry of the said parish, held on the third day of August, one thousand eight hundred and thirty-nine, which said meeting was the next previous meeting to the said meeting of the said twelfth day of August. That of the forty vestry-men who were to go out by rotation at the said election, those who were not reëlected in fact as aforesaid were not summoned to the said meeting of the twelfth day of August, one thousand eight hun