shareholders, who did not, by his contract, agree that it should be placed there. Now, this contract amounts to nothing more than an agreement to pay the deposit and become a shareholder; and if there is any right of action against the defendant (which I do not think there is, for I concur with my Brother Parke that it is open to a person to elect to forfeit the deposit), it is for the breach of that agreement. The persons to be put upon the register are those entitled to shares, that is, persons who have a right to require the Company to give them shares. The defendant has no such right, because he has not fulfilled the terms upon which the shares were offered. The legislature, no doubt, meant that, in order to become a subscriber, a person should put his name to some document which would speak for itself, and thus authorise the putting his name on the register.

POLLOCK, C. B.-I am of the same opinion. The difficulty arises from the ambiguous meaning of the word "subscribe," which means, in some phrases, the consent to pay a sum of money; in others, the assent to some particular thing, such as an article of faith. This statute uses the word "subscribe" in its literal sense, viz. putting down a person's name for some interest in the capital of the Company; and that the defendant never did. Even assuming, that, if a person paid the whole sum, he would be entitled to a share, whether he had signed the deed or not, the mere payment of this small sum, which is collected for a special purpose only, is by no means to be considered as a subscription.

Rule refused.

1853.

THE WATERFORD, WEXFORD,

WICKLOW,

AND DUBLIN RAILWAY Co.

v.

PIDCOCK.

1852.

Jan. 27th.

An interim manager is not

the same as the

official manager

under the Wind. ing-up Act, 11 & 12 Vict. c. 45; and therefore

A

Hilary Term, 1852.

BRETTELL v. Dawes.

RULE had been obtained in this case calling upon the plaintiff to shew cause why all proceedings on the judgment recovered in this action should not be stayed until after proof, or exhibiting, or making such proof as the plaintiff might be able, of his debt or demand, before the Master in Chancery to whom the winding up of the affairs of the Pennant and Cragven Consolidated Lead Mining been appointed. Company had been referred, pursuant to the Joint Stock Companies Winding-up Act, 11 & 12 Vict. c. 45.

the 73rd section

of that Act does not apply where

manager has

From the affidavits it appeared that the Company was formed in the year 1848, and that this action was commenced in June, 1851, against the defendant, a shareholder in the Company, to recover the price of goods sold to the Company. Notice of trial had been given for the 13th of November; but, on the 7th, the defendant concented to a Judge's order to stay proceedings on payment of debt and costs on the 15th of December, and in default thereof the plaintiff was to be at liberty to sign final judgment and issue execution. On the 15th of December, the plaintiff was served with notice that an order had been obtained under the 11 & 12 Vict. c. 45, for windingup the affairs of the Company, and that an interim manager had been appointed. Default having been made in payment of the debt and costs, the plaintiff signed final judgment on the 16th of December, and issued execution on the 17th, under which the sheriff levied on the defendant's goods; but, before they were sold, a summons was taken out before Martin, B., to stay the proceedings; and his Lordship ordered that the amount of the execution should be paid into Court to abide the event of this rule.

B. C. Robinson shewed cause.-First, this is an application against good faith after the consent to the Judge's order: In re Sudlow (a). Secondly, the Court has no jurisdiction to stay proceedings under the 73rd (b) section of the 11 & 12 Vict. c. 45, because no official manager has been appointed; the character and duties of an interim manager are perfectly distinct, his authority is limited to the preservation of the estate until an official manager is appointed. The 58th section enacts, "that, except as is by that Act expressly provided," nothing therein contained shall affect the rights and remedies of creditors.-Further, the sheriff has already levied execution; and consequently, quoad the plaintiff, the matter is at an end. Macgregor v. Keily (c) does not apply; for there an official manager had been appointed, and the application was before execution. He also referred to Prescott v. Hadow (d), and 12 & 13 Vict. c. 108, s. 7.

Bramwell contrà -The interim manager and official manager are, in truth, the same officer, the only difference being, that the appointment of the one is permanent, that of the other temporary. [Alderson, B.-Is that so? The duties of an interim manager are simply to collect the property and pay the judgment debts of the Company (sect. 20);

(a) 19 L. J., Chanc., 524.

(b) Which enacts, "That, after the first appointment of an official manager, no creditor or other person shall, except so far as the Master shall permit, have power to commence or to proceed with any action against the official manager or against the Company, or any other person representing the same, or who is sued as a contributory thereof, until after proof, or exhibiting or making such proof as he may be able, of his debt or demand before the

Master, as hereinafter mention-
ed; and it shall be lawful for
any Judge of the Court in which
such action shall be pending, up-
on summons taken out before
him for that purpose, to order
that all further proceedings in
such action shall be stayed until
after such proof shall have been
made or exhibited before the
Master."

(c) Ante, Vol. 6, p. 208; 4
Exch. 801.

(d) 5 Exch. 726.

1852.

BRETTELL

v.

DAWES.

the official manager is to make up the accounts, sell the estate, wind up the affairs of the Company, pay the debts, and distribute the surplus assets among the parties entitled (sect. 34). Looking, therefore, to their different duties, it seems evident that the provisions of the 73rd section are confined to cases in which an official manager is appointed. The interim manager is to act as a receiver, and protect the assets; the official manager is to settle the affairs of the Company. If an interim manager is the same officer as an official manager, why should the legislature say, that, "until an official manager shall be appointed," the Master may appoint an interim manager. If, indeed, an interim manager were appointed, and then an official manager, and the latter died, the 73rd section would apply, because it says, "after the first appointment of an official manager," &c.] The legislature clearly contemplated the proof of debts before the appointment of an official manager (sect. 72). The 20th section provides, that no action shall be brought by or against any interim manager otherwise than by the style and designation of the official manager. That section is explained by the 50th, which enables dissolved Companies to sue and be sued in the name of the official manager. Those sections are a legislative interpretation of the meaning of the term "interim manager." It is immaterial that the plaintiff has proceeded to judgment, the action being still pending.

POLLOCK, C. B.—I think that this rule ought to be discharged. The statute in question has given rise to much discussion and doubt; and it is not advisable to express an opinion upon any point not necessary for the disposal of this case. It appears to me that the statute makes a distinction between an interim and an official manager; and that distinction is sufficient to dispose of this rule. Mr. Bramwell insists before us that an "interim manager' is only another name for the "official manager;" and

some members of the Court entertained sufficient doubt upon the point to render it worthy of consideration. But we are now satisfied that there is not so clear an identity between the interim manager and official manager as to prevent the plaintiff from having the benefit of the 58th section, which enacts, that nothing in that Act contained shall affect the rights of creditors, "except as therein expressly provided." It is sufficient to say, that this case is not expressly provided for. The application is founded on the 73rd section, which enacts, that, after the first appointment of an official manager, proceedings shall be stayed until proof before the Master; and it is admitted that here there has been no such appointment. It is enough to say, that the construction of the statute is sufficiently doubtful to prevent us from interfering. And as this is an appeal from the decision of a Judge at Chambers, the rule must be discharged with costs.

PARKE, B.—I am of the same opinion; though, when the motion was made, I felt some doubt whether the term "official manager" might not be construed to include the interim manager, seeing that the 73rd section prohibits proceedings against the official manager until after proof: and by the 20th section an interim manager can only be proceeded against by the style of official manager, and in the same manner and with the same effect as if an official manager were appointed. But, on full consideration, that doubt is removed. It is best to adhere to the ordinary grammatical construction of a statute, unless it leads to an apparent inconsistency or absurdity. The words "official manager" must be understood in the sense in which they are previously used, namely, a manager having the entire control over the property of the Company. It is unnecessary to express any opinion on the other point.

ALDERSON, B.-I also agree with the rest of the Court. If the goods had been converted into money, there could

1852.

BRETTELL

v.

DAWES.