COMPANY. FIRST inchoate companies. I. Letter of allotment. Substitution of nominee, 307. tract, I. 1. II. Subscribers' agreement. VII. Register of shareholders. Mandamus for creditor to inspect, 784. Con- THIRDLY. Joint stock not registered. 1. Effect of previous parol agreement to return deposits if scheme fails, 307. Contract, I. 1. 2. Indemnification clause, its effect on collateral contract by parol, 307. Contract, I. 1. III. Deposits. 1. Recovery of by subscriber, 307. Contract, I. 1. 2. Effect of the original subscriber substituting nominees, 307. Contract, I. 1. IV. Provisional directors. Liability of provisional directors to return deposit, 307. Contract, I. 1. SECONDLY: Incorporated companies. V. Shareholders: liability to creditors of company. 1. Execution against shareholder whose shares are not paid up. Under sect. 36 of The Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16.), a party who has recovered judgment against a company is not precluded from issuing execution against the shareholders who have not paid up for their shares, though lands of the company have been delivered on elegit, if the proceeds of the lands be insufficient to satisfy the debt. Therefore, in such a case, a mandamus issued commanding the Company to give the creditor inspection of the register of shareholders. Regina v. Derbyshire, &c., Railway, 784. 2. Effect of previous elegit against company, 784. Ante, 1. VI. Creditor. His remedy against shareholders whose 1. On promissory notes made for the 1. Consequence of separable excess in the exercise of their powers, 1. Bank, II. 1. 2. Extent of their implied authority, 1, 38. Bank, II. 1. COMPENSATION. Under Lands Clauses Act. They must assume the right to exist. Notice was given by D. to a railway company that by their works they had permanently obstructed a way to the use of which D. was entitled as appurtenant to a messuage belonging to D.: whereby D. was prevented from enjoying the way, and his interest in the messuage was injuriously affected: and the Company were required, in default of their agreeing to pay to D. a sum named, to issue their warrant to the sheriff to summon a jury to assess compensation. E. & B. The Company issued a warrant, reciting the notice, stating that they did not admit D.'s right to the way, or the damage, or the injurious affection; but that they were willing that the amount of the said compensation should be settled as requested in the notice; and they required the sheriff to summon a jury to determine by their verdict the amount of the compensation in respect whereof D. by his notice had required the Company to issue their warrant. The sheriff' summoned a jury to try the question in dispute in the warrant. At the inquiry, the jury having been sworn to inquire and assess the compensation and damages in the warrant mentioned, evidence was given for and against the existence of the right. D. insisted that the existence of the right was to be taken for granted on the inquiry, and, further, that the right was proved. The Company insisted that the right was disproved, and that the jury ought to be told that D. was not entitled to any compensation. The sheriff told the jury to say whe ther D. was entitled to the way; but, if they negatived this, to say what was the compensation to be paid on the assumption that the right existed. Effect of difference of laws of evidence and procedure in the examination of witnesses, 114. Witness, I. 1. CONSIDERATION. The jury found that the right of way did not exist, and that on that ground D. had not sustained any damage: but, on the supposition that they were to assume its existence, they settled the compensation at 150l. This See Contract, VI. finding was specially incorporated in the verdict; and the sheriff gave judgment thereon that D. had not sustained any damage. This Court, on the application of D., quashed the inquisition, verdict and judgment, upon certiorari: holding: 1. That the jury, under sect. 68 of The Lands Clauses Consolidation Act, 1845, had no power to inquire into the right of D. to the way, but were bound to assess compensation upon the assumption that it existed. 2. That the verdict was totally bad, and could not be rejected as to the negativing the right but stand as to CONSTRUCTION. I. Generally. II. Ut res magis valeat quam pereat; rejection of excess, 1. Bank, II. 1. Of statutes. 1. So as to give cumulative remedy, 172. Appeal, IV. 1. 2. Not strained to meet mischief, 530, 544. Contract, II. 3. When not restricted by title and preamble, 563. Landlord and Tenant, II. 5. Of surety bond, 653. Surety. IV. Of particular words and phrases. 1. "All my other copyhold," 219. Devise, II. 1. 2. "Any," 563. Landlord and Tenant, II. 3. "Any annual or other future election," 653. Surety. 4. "Appears," 695, 700. County Court, I. 4. 5. "Clearly and explicitly stated," 724. Action, III. 1. 6. "Continue in the said office," 653, 675. Surety. 7. "Wherry, lighter, or other craft," 889. Shipping, I. 1. 13. "New manufactures," 256. Patent, I. 1. 14. "Greatest number of votes," 249. Election, I. 1. 15. "Rate made and levied," 390. Highway, IV. 1. 16. "Payment," 136. Limitation. 17. "In which such action is pending," 977. Patent, II. 2. 18. "Not hereby otherwise particularly directed," 390. Highway, IV.1. 19. "Remittances," 1, 46. Bank, II. 1. 20. "Road," 989, 1007. Highway, IX. 1. 21. "Scientific purposes exclusively," 793, 807. Poor, III. 2, 4. 22. "Security for the payment of money," 549. Carrier. 23. "Sickness," 587. Poor, XIII. 1. 24. "Street," 989, 1006. Highway, IX. 1. 25. "Secretary for the time being," 832. Bills, I. 1. 26. "Voluntary contributions," 416, 427, 793, 807. Poor, III. 27. "By words only," 136. Limitation. 28. "Writing," 549. Carrier. CONTINUATION. Of nuisance on adjacent land, 128, Drainage. 8. "Enlarging, or otherwise extend- I. Generally. ing," 779. Burial. 9. "Estate," 219, 572. Devise, I. II. 1. 10. "Give and bequeath," 572. Devise, I. 1. 11. "Hereditaments," 219. Devise, II. 12. "Material nuisance," 942. New Trial, I. 1. CONTRACT. 1. Parol contract, in consideration of which, a party pays money and executes a deed directing its application. The provisional directors of a projected railway company issued circulars, stating that they had made arrangements with the S. Company securing important advantages to the projected Company, which justified the directors in asserting that their proprietors would be insured against loss, and in proceeding to Parliament, and adding, "in the event of the act not being obtained, the directors undertake to return the whole of the deposits without deduction." This circular coming to plaintiff's knowledge, he applied, in writing for shares: the directors, in a written answer, inclosing the circular, stated that shares were allotted to him; that he must pay the deposit by a day named; and, on his doing so and presenting the letter, a receipt would be given him, which would be exchanged for scrip on his executing the Parliamentary contract and subscribers' agreement. He paid the deposit, got the receipt, executed the contract and agreement, and got the scrip. The agreement was a deed, prepared before the issuing of the circufar, in two parts: the subscribing shareholders of the first part, and two trustees of the second. The subscribers agreed with the trustees to form a company; and the ordinary powers, including those necessary for obtaining an act, were given to the provisional directors; and it was agreed that such directors should be indemnified in respect of all acts done in pursuance of their powers, and should, out of the funds of the company, reimburse themselves all expenses incident thereto that the subscribers should make deposits; that the directors might apply the funds for the purpose of the undertaking as they should think expedient; that, whether the act should be obtained or not, the subscribing shareholders would indemnify the provisional directors all expenses incurred by them in executing their powers. No act was obtained: and the S. Company made no payment. The directors expended part of the fund, raised by the deposits, in expenses bona fide incurred in attempting to obtain the Act. On an action for money had and received, brought by plaintiff against a provisional director who was a party to the circular and subsequent proceedings: Held, that such action lay for the whole deposit without deduction, on the undertaking to return; for that the contract embodying such undertaking was: (1) not merged in the subscribers' deed, which was between other parties, and for other purposes; (2) not superseded by such deed, or controuled by the clause of indemnity therein; the execution of the deed being an act done in the performance of the original contract in consideration of the directors undertaking to return the deposit. Held, also, that the contract, being made up of the written correspondence and the acts of the plaintiff, was not wholly in writing, and required no stamp. Before action brought, plaintiff wrote to defendant, stating that he claimed interest from a time named, which was earlier than the date of his demand, and not stating to what time he claimed it: held a sufficient compliance with stat. 3 & 4 W. 4. c. 42. s. 28., so as to entitle the jury to give interest from the date of the demand to the time of payment of the principal. After the scrip was obtained as above, the secretary of the company explained to plaintiff, that the reason of the directors issuing the circular was that they had a guarantie from the S. Company against all expenses; and he afterwards wrote to plaintiff, inclosing the circular, and stating that the guarantie of the directors for the return of deposits was made in pursuance of one they had received from the S. Company. Plaintiff then agreed to take more shares, and received a letter of allotment as before: but, as to some of these last, he named certain persons to whom the shares were allotted, as his nominees and for him; and the scrip was obtained by plaintiff for the whole, he paying all the deposits, but his nominees only executing the contract and agreement, in respect of the shares in their names. Held, that plaintiff was entitled to recover the deposits as to this scrip also; there being no distinction between the different contracts as to any of the above points. Mowatt v. Lord Londesborough, 307. 2. Partly oral and partly written, 307.! Ante, 1. 3. Estoppel by, 363. Friendly Society, IV. 1. 4. What is an interest in sale to contractor, 530. Post, II. 5. What is a security for the payment of money only, 530. Post, II. 6. Effect of the consideration that parties contract only with a view to the then existing state of the law, 653. Surety. 7. Whether an instrument can be both a promissory note and an agreement of another kind, 832. Bills, I. 1. 8. When not vitiated by excess, 1. Bank, II. 1. 9. Effect of extrinsic incidents as to the writing, printing, or form used, 48, 82. Insurance, VI. 1. 10. When it may be by parol though the subject matter is founded on a deed, 83. Accord, I. II. Disqualifying or prohibited as regards holders of office. Subcontract by alderman with contractor with corporation, when not a disqualification. Held: assuming a contract with such local board to be a contract with the council, within stat. 5 & 6 W. 4. c. 76. s. 28., and assuming also that a mayor, elected when alderman, is disqualified to act as mayor, under sect. 53, by reason of a disqualification as alderman: That, nevertheless, this was not an interest in a contract within sect. 28, and there was no liability to penalty. L. had contracted to construct some waterworks for commissioners for supplying the town with water. This contract not having been fully carried out, he gave it up, by deed, to the commissioners, they agreeing to pay him a certain balance if they abandoned the works, or completed them and obtained a specified quantity of water. The deed contained releases on each side, and covenants by L. not to molest the commissioners, that he had not injured the title, and for further assurances. The local board were afterwards constituted the commissioners. The works remained incomplete, but not abandoned, while L. was alderman, and also while he was mayor. Held on the same assumptions as before, that L. was not liable to a penalty for that this contract was taken out of the operation of sect. 28 of stat. 5 & 6 W. 4. c. 76., as being a "security for the payment of money only," within stat. 5 & 6 Vict. c. 101. s. 1. Le Feuvre v. Lankester, 530. III. Parties. By a provisional order of the General Board of Health, confirmed by statute, The Public Health Act, 1848, was applied to a district wholly comprised ́ within a single municipal borough, and the corporation were constituted, by the council, The Local Board of Health. L., an alderman of the borough, after such confirmation, sold some iron to a party who had contracted to supply the local board with iron railings, and who purchased the iron for the purpose of performing his contract. L. afterwards, continuing to be an alderman, was elected mayor, and acted as such. An action was then brought against him for penalties, under sects. 28, 53, of stat. 5 & 6 W. 4. c. 76., for having acted as mayor while disqualified by being IV. Change in the terms. 1. Shareholders through their directors: irregularities: excess, 1. Bank, II. 1. 2. Party suing upon a written contract not signed by him, 48. Insurance, VI. 1. 3. Provisional director, 307. Ante, 4. Designatio personæ, 832. Bills, |