Cooper's Case. master, on the 23d of June, 1851, made his certificate in the matter, and by his settlement of the list of contributories he included the name of the present respondent, William Cooper, Jun., of Henley in Arden, in the character of an allottee, who had applied for, and had had allotted him, twenty shares. The master's certificate also admitted that he had thus included the respondent's name in the list of contributories, notwithstanding it had been proved to him that the required deposit of 2l. 12s. 6d. per share had not been paid as required by the terms of the letter of allotment, nor had the respondent signed either the subscribers' agreement or parliamentary contract, and that those documents had been regularly prepared, yet they had afterwards been abandoned and cancelled for the purpose of obtaining the return of stamp duty thereon. The respondent having received an official intimation that his name had been placed upon the list of the allottee contributories on the 24th ult., appealed against the certificate of the master. The appeal was heard before Vice Chancellor Cranworth on that day, when it was ordered that the decree of the master should be reversed, and that the name of the said William Cooper, Jun., should be expunged from the said list of contributories of the company as such allottee. The present appellant now appealed against this order of Lord Cranworth as being erroneous and contrary to equity and justice, and submitted that it ought to be reversed or varied for the following among other reasons, namely, because the said William Cooper, Jun., according to the true construction of the Winding-up Acts of 1848 and 1849, is a contributory of the said company within the true intent and meaning of the said acts or one of them. In the course of the arguments much stress was laid on behalf of the appellant upon the terms of the letter of allotment, and the two letters with which that letter was itself accompanied; and it was urged that by the respondent's not having sent back the third of these letters, he had clearly rendered himself liable to be placed upon the list of allottees. These documents ran thus: “Wolverhampton, Chester, and Birkenhead Junction Railway Company. "[Provisionally registered pursuant to 7th and 8th Vict. c. 110.] Capital, 1,000,000l., in 50,000 shares of 201. each. Deposit, 21. 2s. per share. Allotment, No. ; 20 shares. Deposit, 421. "Birmingham, Nov. 1, 1845. "Sir, I am directed to inform you that the committee of management have, in compliance with your application, allotted to you twenty shares in this undertaking, and that the deposit of 21. 2s. per share, amounting to the sum of 421., must be paid to one of the under-mentioned bankers on or before Saturday, the 8th day of November, who, upon receipt thereof, will sign the voucher at the foot of this letter. This letter, with the banker's receipt, must be exchanged for scrip certificates, which will be granted upon your executing the subscribers' agreement and parliamentary contract, without Thompson's Case. which no person will be recognized as a subscriber, or be entitled to any interest in the undertaking. "I am, sir, your obedient servant, "Charles W. Jackson, Secretary pro tem.” "JOHN SMITH, Solicitor. With this letter was sent the accompanying: "40 Temple Street, Birmingham, "Nov. 1, 1845. "Sir,- The managing committee, though they feel assured you will take up the shares which have been allotted to you on your own application, by paying the deposit thereon within the period fixed, nevertheless deem it right to state that you may decline them if you see fit, as the shares will be readily taken by other parties; but if such be your wish, in consequence of the recent panic or any other cause, you will at once see the propriety of immediately communicating your intention by signing and forwarding the letter enclosed,1 otherwise the committee will fully calculate that the deposit will be duly paid. "I am, sir, your obedient servant, Bethell, in support of the appeal. C. P. Cooper, for the respondent. "JOHN SMITH." A discussion then took place between their lordships and the respective counsel as to the best course to be adopted in reference to this and the following case of a somewhat similar character, and it was ultimately arranged that one counsel should be heard for the respective appellants and respondents in each of the two cases. HUTTON V. THOMPSON.2 THIS was also an appeal by the official manager of the Direct Birmingham, Oxford, Reading, and Brighton Railway Company, under the Winding-up Acts, against an order of Vice Chancellor Lord Cranworth, which, as in the above case, went to reverse the certificate of Master Brougham, by which the name of Henry Thomas Thompson had been put on the list of contributories. The main distinction 1 66 Wolverhampton, Chester, and Birkenhead "Junction Railway Company, - It is not my intention to take the shares allotted to me. 2 17 Law T. 237. "I am, sir, your obedient servant." Thompson's Case. between the two cases was this, that while the respondent Cooper did not pay any deposit, the respondent Thompson not only accepted the allotment so made to him, but paid the deposit on his twenty shares, amounting to 521. 10s. The facts of the second case were as follow: A company was projected in 1845 to construct a railway from Birmingham to Oxford, and thence to Reading and Brighton. The project was provisionally registered under the title and style of "The Birmingham, Oxford, and Brighton Railway." A prospectus having been issued in the accustomed form, the respondent Thompson, on the 10th of October, 1845, applied for an allotment of thirty shares. This application was responded to by an allotment of twenty shares, intimated by the following letter: "Letter of allotment, not transferable. "Direct Birmingham, Oxford, Reading, and Brighton Railway. Capital, 2,000,000l., in 80,000 shares of 25l. each. Deposit 21. 12s. 6d. No. of letter, 8; No. of shares, 100. "46 Moorgate Street, London, 18th of October, 1845. "Sir, The committee of management have allotted to you twenty shares in this undertaking, and I am directed to request you will pay the deposit of 2l. 12s. 6d. per share, amounting to 52l. 10s., into one of the under-mentioned banks, on or before Friday, the 24th day of October, 1845, or this allotment will be null and void. "This letter, with the banker's receipt appended thereto, will be exchanged for scrip upon your presenting it at the offices of the company and executing the parliamentary contract and subscribers' agreement, which will lie at the above offices on and after the 27th of October, and notice will be given when the deeds will be sent into the country. "I am, sir, your obedient servant, "To Henry T. Thompson, Esq." "J. B. RAYNER, Secretary. The respondent duly paid the deposit of 21. 12s. 6d. per share on the said shares to the bankers of the said company; of the 70,000 shares alloted in the said company, the deposits were paid on 4295 shares only, and the undertaking was consequently abandoned. The committee of management collectively and individually had paid large sums of money on account of debts properly contracted by them in discharge of their duties in the due prosecution of the said undertaking, and the said debts of the company are still remaining due and unpaid. On the 21st of December, 1849, an order was made by the vice chancellor on the petition of Stopford Thos. Jones, whereby it was ordered that the said "Direct Birmingham, Oxford, Reading, and Brighton Railway Company" should be dissolved and wound up. Master Brougham, the master in rotation to whom the winding up of the company was referred, on the 28th day of January, 1840, appointed the appellant official manager of the company. The Thompson's Case. appellant, as such official manager, made out and delivered to the said master a list of the contributories of the company, and in such list he included the name of the respondent Henry T. Thompson as a contributory as an allottee of shares who had paid his deposit in respect of twenty shares in the said company. The master settled this list, and included the name of the respondent as a contributory in respect of twenty shares. The respondent thereupon appealed from that certificate, and upon that motion Lord Cranworth reversed the direction of the master, and ordered that the name of the respondent should be excluded from the list of contributories. The present was an appeal from that order, with a view to its being discharged, upon the ground that "the said Henry Thomas Thompson, according to the true construction of the Winding-up Acts, 1848 and 1849, is a contributory of the said company within the true intent and meaning of the said acts or one of them." Roxburgh, in support of the appeal in this case. Rolt, for the respondent. The LORD CHANCELLOR. On a question of such extensive importance as that raised by the learned counsel at the bar, and from the vast number of cases that depend upon the decision of your lordships, considering its importance and its extent, I should propose the following questions to the learned judges: I propose, first, to ask this question, as bearing immediately and directly on the question upon which their decision will ultimately turn, Ought the name of A. B., under the circumstances set forth in the certificate, in the case before your lordships, to be included in the list of contributories of the company in such certificate? The certificate, my lords, which I advert to, is embodied in the finding of the master in chancery in the present case. The provisional registration was made under the statute the 7 & 8 Vict. c. 110, of a proposed company, by the name of the "Direct Birmingham, Oxford, Reading, and Brighton Railway Company." The prospectus was registered and published as follows: Certain persons associated together as a committee for the establishment of the company, and to obtain an act of Parliament; individuals applied to the committee for an allotment of shares, and the committee did allot shares to the applicants, and among them twenty shares to A. B. Such application and allotment took place in consequence of a certain correspondence; the learned judges have the notes before them, and they will refer to the correspondence. A. B. took no steps after the application for shares, and neither paid the required deposit nor signed any subscribers' contract or parliamentary contract; then the question I propose is, whether A. B. ought to be considered a contributory. Your lordships are aware of the distinction between the two cases of Norris v. Cooper and Hutton v. Thompson. In Hutton v. Thompson, the respondent actually paid the deposit that was required by the letter of allotment; whereas Cooper did not; instead, therefore, of the paragraph I have inserted in the question, I propose to Thompson's Case. put in relation to Cooper's Case: "A. B. took no steps after the appli cation for shares, and neither paid the required deposit nor signed the subscribers' contract or parliamentary contract," I propose to substi tute: "A. B. paid the required deposit, but did not sign any subscribers' or parliamentary contract." I advert to the distinction between the two cases, as it perhaps will enable the judges to dispose of both. But, my lords, the argument has reference to another circumstance, namely, to the question as to how far the company stood in the posi tion or condition of a company at the time the order of reference was made, so as to come within what are properly called the Winding-up Acts. I propose to put the following question to the judges: "Under the provisions of the 7 & 8 Vict. c. 110, certain promoters of a provisionally registered or proposed railway company, with a large specified capital to be divided into shares, and certain persons named, were appointed to act as a committee for the purpose of establishing the company, and that committee allotted shares to certain individuals who made application to them, the committee incurred considerable expense and contracted debts in the obtaining an act of Parliament, but not being able to procure a sufficient number of subscribers to form the proposed company the project was abandoned, Do the above. circumstances constitute an association, company, or partnership within the meaning and intent of the several statutes for winding up the affairs of joint-stock companies? and would it make any difference if the committee, in contracting the debts, were less than seven, or more than nine?" How far this latter question may be material for your lordships to consider when you have received the judges' answer, I do not know at the present moment; but I would venture to say, at all events, I think it desirable that your lordships should have the judges' opinion on the first question, and then you can determine whether you think it necessary or expedient to enter into the consideration of the other question. Bethell. Will your lordship forgive my calling your lordship's attention to the fact that the words "not being able to obtain a sufficient number of subscribers" is contrary to the fact as admitted in the case? The difficulty was, not being able to obtain payment of the deposits by the subscribers who took the shares for three times more in amount than the number of shares that were to be allotted. A very trifling alteration, my lord, is necessary to meet the facts, not being able to obtain deposits, and the sums agreed to be paid. The LORD CHANCELLOR. the question. I will make such alteration as will raise Cooper. Your lordship will find it stated in page 3 of the case. The judges retired to consider the questions, and on their return,— POLLOCK, C. B., read the following opinion: The judges have considered the questions which have been submitted by your lordships, and I have to report to your lordships, in answer to the first question |