creditors. The firm was dissolved in March, 1848. In winding up the affairs under the inspectors, Mr. Noble, one of the firm, was the most active, attending at the premises at Austin Friars almost every day. Mr. Noble had no authority to act for the plaintiff as to his private affairs.

The premises in Austin Friars were not closed until two or three years after the stoppage.

:

*A Mr. James Edward Coleman acted as accountant for the [*735 inspectors in regard to the affairs of the firm but he did not act and had no authority to act touching the private affairs of any of the members of the firm; and he never had any communication with the plaintiff, and never saw him. Touching the private affairs of the plaintiff, a Mr. John Horsley Palmer, a merchant of London, acted as the friend of the plaintiff, and by his directions, in paying the trust dividends to his private creditors under a deed of arrangement hereinafter mentioned, and acted for him in nothing else.

No business connected with the private affairs of the plaintiff was transacted after the stoppage at the premises in Austin Friars. Letters addressed to him there, came there after he left England. The plaintiff left England in May, 1849, and went to reside on the continent, where he has ever since resided.

The plaintiff never slept at Austin Friars, or used the premises there otherwise than for business.

At the time of the stoppage of payment of the firm, the plaintiff occupied a house in Hyde Park Gardens, London, and another at Burton Hill, Wilts. He then gave up those houses, and afterwards became an inmate with his sister, at Loughton, Essex. He next went abroad; the premises in Austin Friars then being, and afterwards continuing to be, occupied as herein mentioned.

His shares were principally transferred to him. There were twelve deeds of transfer executed to and by him, in all of which he was described as of Austin Friars; and in the certificates of the same shares he was described as of Austin Friars. He was a director of the company from 1839, and attended several meetings. He was elected as of 8, Austin Friars. The plaintiff proved that notices and communications of every kind relating to the Van Diemen's Land Company were sent to his address there, *and that he never gave any directions that they should be sent in any other way.

[*736 Before leaving England, viz. on the 24th of November, 1848, the plaintiff made an arrangement with his private creditors, by a deed which was to be considered as part of the case.

A board, with an inscription of which the following is a copy, was affixed at the offices No. 8, Austin Friars, some time before May, 1852; but the precise time of its being affixed did not appear :-" Letters and

communications for Cockerell, Larpent & Co., to be left at the office of Mr. J. E. Coleman, 36, Coleman Street."

The plaintiff proved that the above board was put up without his knowledge or direct authority, otherwise than is to be inferred from the circumstances: nor did he know of the same until after the commencement of this action.

Before the plaintiff left England, it was the duty of the clerk at Austin Friars to forward all letters addressed to the plaintiff which came to Austin Friars, to the private residence of the plaintiff in Hyde Park Gardens, or the country.

After the plaintiff left England, Mr. Coleman gave directions that letters and communications for either of the partners should be forwarded to Mr. Noble, who had an office in the city; and Mr. Noble gave directions that all letters or communications for the plaintiff should be forwarded to the plaintiff's brother, Mr. S. P. Cockerell. Mr. Noble had no authority to act for the plaintiff touching his private affairs.

On the 15th of May, 1852, a clerk of the defendants' attorneys, on behalf of the defendants, went with the notice hereinafter mentioned to No. 8, Austin Friars, whereat the said business of the firm of Cockerell, Larpent & Co. had formerly been carried on, and, finding the office shut up, and after seeing the said board, he *left with Mr. Cole*737] man, at his office in Coleman Street, on the same day, a letter from the defendants' attorneys, of which the following is a copy :

19, Coleman Street,
"15th May, 1852.

"Dear Sir,-As we understand that the affairs of Messrs. Cockerell, Larpent & Co. are in your hands, may we request that you will procure the acceptance of service of the accompanying notice on behalf of Mr. John Cockerell. We enclose the notice in duplicate, and will thank you to get the receipt on the one copy signed by the party accepting the service.

J. E. Coleman, Esq."

"BISCHOFF & COXE."

In the letter was the following notice, in duplicate, addressed to the plaintiff, and signed by Mr. Cattley, the clerk of the defendants:"Sir,-By order of the court of directors of the Van Diemen's Land Company, I hereby give you notice, that, at a general court of proprietors of the said company, held on the 31st of March, 1851, it was, amongst other things, resolved, that, in consequence of your having neglected to pay the calls on the shares standing in your name, for the space of three calendar months next after the time appointed for payment thereof, the same shares, and all franchises and interest therein,

and all the profits and advantages thereof, and all moneys theretofore advanced on account thereof, should be absolutely forfeited to or for the use and benefit of the said company; and the same were thereby declared to be forfeited accordingly; and you were thereby declared disfranchised and removed from the said company: but no advantage will be taken of such forfeiture until after the expiration of thirty days from the date of this notice. Dated this 15th day of May, 1852."

No answer was sent to this letter; and the above notice *never came to the hands or knowledge of the plaintiff: and it was to [*738 be taken that the same was lost, without prejudice to any question of service of notice. Notice to produce it was duly given.

Mr. Coleman, who was examined as a witness on behalf of the defendants, said, that to the best of his recollection he forwarded the notice to Mr. Noble. Mr. Noble stated that he had no recollection of having received or seen any letter sent by Mr. Coleman to or for the plaintiff in 1852, and that he never saw a document like the above notice,—a copy of which was shown to him on his examination, by the defendants' counsel.

On the 20th of May, 1852, at a court of directors of the company, the following took place, and was duly entered in the books of the company :

"The chairman informed the court that the secretary had attended at the office of the company's solicitors on Thursday, the 13th instant, and had there signed certain notices drawn up agreeably with the requirements of the act of parliament, addressed to those persons whose shares had been forfeited, as follows:

"Shares forfeited at the general meeting of proprietors, on the 31st of March, 1851,

"And the chairman further informed the court, that, after the expiration of thirty days from the delivery of the said notices, the shares would become finally and completely forfeited, unless payment of the overdue calls was made in the mean time."

Save as in this case appears, no notice of the forfeiture of the said shares of the plaintiff was ever given, nor did the plaintiff, or any other person authorized to act for him, know of the above resolutions until after this action was brought; nor did the plaintiff, or any person authorized to act for him, know of the alleged forfeiture until the end of the month of December, 1852, when *Mr. Palmer was verbally informed thereof, and thereupon communicated with the plaintiff.

[*739

On the 11th of January, 1853, the plaintiff caused to be tendered to the defendants a sufficient sum to cover the amount of the calls on the 200 shares, with interest thereon from the time they were payable, and stated he did so to enable him to sell the shares. The defendants refused to receive the same, on the ground that they considered the shares

had been legally forfeited, and that they could not in any manner recognise the plaintiff's right to such shares.

It was proved by Mr. Wettenhall, a sharebroker called by the plaintiff, that the market-price of the shares on the day of the tender was 201. a share. The price between that time and the time of trial fluctuated very much they were as low as 141, and as high as 267. 10s. At the time of the commencement of the action, they were 141, and at the time of the trial they were 137. On the 5th of November, 1847, the prices were not quoted in the market. In June, 1849, after the second of the before-mentioned calls, they were worth 30s. On the 31st of March, 1851, they were worth 11. or 11. 108. On March 12, 1852, and in May, 1852, the shares were not quoted at all: and the price of the shares did not rise until October, 1852; up to which date it was a fact that the shares were worth very little; that, until the following December, there was no quotation for them. They then rose to 5, and on December 22d to 40%. In the quotation it is assumed that all calls are paid.

The amount of the verdict was taken, by direction of the Lord Chief Justice, subject to the opinion of the court. The shares were treated as worth 197. each on the day of the tender; his Lordship suggesting,— which was agreed to,-that 17. a share be deducted, to allow for a depreciation of the market by the selling of 200 shares at one time. The value of the shares, after *allowing for the calls and interest, it was agreed would by this mode amount to 30002.

*740]

The court was to be at liberty to draw all inferences that a jury would be justified in doing, and to have all powers of a judge at Nisi Prius as to amendment and otherwise.

The first question for the opinion of the court, was, whether the verdict was to stand for the plaintiff, or to be entered for the defendants, on any and what issues: If it was to be entered for the plaintiff,secondly, upon what principle was the amount of damages to be ascertained.

If the court should be of opinion in the affirmative of the first question, the verdict was to be entered for the plaintiff according to the principle which the court might direct,—the amount to be settled by the court.

If the court should be of opinion in the negative of the first question, the verdict was to be entered for the defendants upon such issues as the court might direct.

The Court of Common Pleas having given judgment for the plaintiff upon this special case,-18 C. B. 454,-the defendants brought error, pursuant to the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 32, which now came on for argument before Coleridge, J., Erle, J., Martin, B., Crompton, J., and Watson, B.

Byles, Serjt. (with whom were Hugh Hill, Q. C., and Unthank, for

[*741

the plaintiffs in error. (a) The main *question is, whether the shares of the plaintiff below were forfeited. The material facts are these:-The act of parliament authorizing the incorporation of the company passed on the 10th of June, 1825. The charter of incorporation bears date the 10th of November in the same year. The plaintiff, who was a member of the firm of Cockerell, Larpent & Co., carrying on business at No. 8, Austin Friars, was the proprietor of 200 shares of 1007. each in the company, and was one of the directors. On the 4th of November, 1847, a call of 11. per share was made, which was paya-` ble on the 15th of January, 1848. The firm of Cockerell, Larpent & Co. stopped payment in September, 1847; and the partnership was dissolved in March, 1848. On the 24th of November, 1848, the plaintiff executed a deed of arrangement with his private creditors. In May, 1849, he went abroad, and remained abroad until the time of the trial. On the 7th of June, 1849, a second call of 17. per share was made, which was payable on the 18th of July; and on the 15th of August, 1850, a third call of 17. per share was made, which was payable on the *25th of September. None of these calls having been [*742 paid by the plaintiff, at a general meeting of the proprietors of the company, held on the 81st of March, 1851, his shares were duly declared forfeited; and, on the 15th of May, 1852, a notice of the forfeiture was served in the manner stated in the special case,-upon which service a subordinate question hereafter to be noticed arises. In December, 1852, the shares, which were worse than valueless at the time of the forfeiture, had risen considerably in the market; and on the 11th of January, 1853, the plaintiff tendered the amount of calls and the interest, and demanded the shares, -with which demand the directors refused to comply. The validity of the forfeiture depends upon the construction of the 14th section of the act of parliament, by which it is enacted, "that if any subscriber or any proprietor or proprietors of any share or shares in the capital stock of the said company, his, her, or their executors, administrators, successors, or assigns, shall neglect or refuse to pay his, her, or their part or portion of the money to be called for by

(a) The points marked for argument on the part of the plaintiffs in error were,"That, by the company's act, 6 G. 4, c. xxxix., s. 14, the plaintiff's shares were absolutely forfeited on non-payment of the calls for three calendar months:

"That the plaintiff, who had so forfeited his shares, could not by his own act, as, by tendering the amount of calls, without the assent of the company, purge the forfeiture:

"That, until the company waive the forfeiture, the plaintiff has no right to sue the company on the footing of the plaintiff being entitled to the shares:

"That, as the plaintiff had forfeited his shares, and the company had not agreed to waive the forfeiture, the company and its officers had the right to refuse to receive from the plaintiff the calls, and had a right to remove his name from the register-book:

"That the notice in writing mentioned in the case was unnecessary, but was, if necessary, under the circumstances, sufficient, and was sufficiently served:

"And that if, by tendering the calls, and without the company's consent, the plaintiff could purge the forfeiture, then the shares still belong to the plaintiff, and he is not entitled to recover the full value of the shares,-a recovery in the present action for breach of duty, not having the effect of changing the property in the shares."