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(1) Power to contract or draw Bills on behalf of Company.

(2) Rights and Liabilities of.

(3) Removal of. [See (c) Deed of Settlement.]

(e) Shares.

(1) Sale of.

(2) Forfeiture of.

(F) WINDING-UP ACTS.

(a) What Companies are within the Acts.
(1) Generally.

(2) Foreign Companies.

(b) Jurisdiction of the Court.

(c) Upon whose Petition a Company may be
wound up.

(1) Contributory sued for Company's Debt.
(2) Creditor of the Company.
(3) Where Company abandoned.

(4) Provisional Committee.

(5) Other Cases.

(d) Order for Winding up.

(e) Reference to the Master.

(f) Official Manager.

(g) Distribution of the Funds.

(h) Actions and Suits against the Company or Contributories.

(i) Jurisdiction and Powers of the Master.

(1) Settling the List of Contributories.
(2) Production of Documents.

(3) Payment of Balances.

(4) Examination of Witnesses.

(5) Other Matters.

(j) Appeal and Confirmation of Report.

(k) Contributories, who may be.

(1) Assignees.

(2) Executors.

(3) Infant Shareholder.

(4) Husband of Female Shareholder. (5) Trustees.

(6) Pledgee of Shares.

(7) Party indemnifying the Holder.

(8) Allottee of Shares.

(9) Promoters and Provisional Committee. (10) Directors.

(11) Transferor under invalid Transfer of Shares.

(12) Transferee of Shares.

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The gauge of railways regulated by 9 & 10 Vict. c. 57; 24 Law J. Stat. 158.

The provisions for inclosing and improving commons extended by 11 & 12 Vict. c. 99; 26 Law J. Stat. 254.

Commissioners of Railways appointed by 9 & 10 Vict. c. 105; 24 Law J. Stat. 284.

The time for making railways may be extended on application to the Commissioners of Railways by 11 Vict. c. 3; 26 Law J. Stat. 13.

The abandonment of railways and dissolution of railway companies facilitated by 13 & 14 Vict. c. 83; 28 Law J. Stat. 209.

(A) RAILWAY AND OTHER INCORPORATED COM

PANIES.

(a) Construction of Acts of Parliament.
(1) Bye-Laws.

The Plumbers' Company of London were incorporated by a charter of James the First, and empowered thereby to make bye-laws. They made a bye-law, that the master and wardens might call, choose, elect, and admit into the livery of the company such person free of the art or mystery of plumbing as they should think fit; and that every person so chosen should, immediately upon notice thereof, prepare himself to serve the same place at the then next meeting of the master and wardens, in such seemly and decent manner as formerly had been used; and that every person so called and chosen into the same livery, and accepting the same, should bring in and pay at the next meeting unto the master and wardens, to the use, maintenance, and relief of the company, and to the officers of the company, for entering the same, and for the warning given, such fees as formerly had been paid in like cases; "and which of them soever, so called and chosen into the same livery, refuseth to pay the said fees, or what person or persons, so called and chosen to be of the same livery, and refuseth the same, shall forfeit and pay to the master and wardens for the time being, for every such default, the sum of 51. or less, at the discretion and pleasure of the master and wardens, so it be not less than 40s." In a declaration in debt on this bye-law, against a person who had been elected into the company, and taken the oath to obey the bye-laws,-Held, first, that the bye-law was not bad for uncertainty in the amount of the penalty; secondly, that the declaration was not bad for not shewing that the company was a company that had a livery, a livery being mentioned in the charter and bye-law; thirdly, that it was not bad for not shewing that

the defendant was a freeman of the City of London; for that the Court could not take notice that none but freemen of the City of London were admissible into the livery of a company unless it had been certified to the Court by the Recorder of London; fourthly, that the master and wardens alone might sue for the penalty, though it was reserved to the use of the company generally.

The breach alleged in the declaration was, that the defendant although requested, and although a reasonable time had elapsed, and although he was and continued such freeman, did not nor would attend or serve the said place to which he had been so chosen, and did not nor would attend and serve the said place at the next meeting or at any subsequent meeting of the master and wardens, but therein made default and refused to prepare himself to serve the said place: — Held, that the breach was well assigned; for that one refusal, to which by the bye-law the penalty was attached, was the refusal to prepare to serve, and to serve at the next court. Piper v. Chappell, 14 Mee. & W. 624.

The 5 Will. 4. c. x. incorporated the London and Croydon Railway Company, and (by sec. 106. empowered the company to make bye-laws for the good government of the affairs of the company, and for regulating the proceedings, and remunerating and reimbursing the expenses of the directors, and for the management of the undertaking, and of the officers and servants of the company in all respects whatever, and to impose and inflict reasonable fines and forfeitures upon persons offending against the same, not exceeding 51. for any one offence, to be levied and recovered as any penalty might by that act be levied and recovered; such bye-laws to be binding upon and be observed by all parties; provided that they were not repugnant to the laws of England, or the directions of that act.

The 148th section enacted that it should be lawful for the company to make orders and regulations for regulating the travelling upon and use of the railway, and for or relating to travellers upon the line; such orders and regulations to be binding upon travellers and passengers passing upon the railway, upon pain of forfeiting and paying a sum not exceeding 51.

By section 163. penalties and forfeitures imposed by the act (of which there were several) or by any bye-law might be recovered in a summary way, by the adjudication of Justices; half the penalty to go to the informer and the other half to the company.

And section 165. enacted that it should be lawful for any officer or agent of the company to seize and detain any person whose name and residence should be unknown to such officer or agent, who should commit any offence against that act, and to convey him, &c. before a Justice without any warrant or other authority than that act.

The company made a bye-law, whereby a passenger not producing or delivering up his ticket was to be required to pay the fare from the place where the train originally started :-Held, that this was not a bye-law imposing a penalty or forfeiture; and that the arrest of a passenger not producing his ticket, and refusing to pay the fare from the place where the train originally started, was illegal.

Quære-Whether the 165th section gives power to

apprehend a person, except for an offence against the act of Parliament itself.

Quare, also, whether the bye-law was a reasonable and valid bye-law. Chilton v. London and Croydon Rail. Co., 16 Law J. Rep. (N.s.) Exch. 89; 16 Mee. & W. 212.

(2) Voting by Proxy.

By the 7 & 8 Vict. c. 21. it is enacted that any "letter or power of attorney, or other instrument, made for nominating a proxy, and chargeable with duty under this act, shall authorize such proxy to vote on any matter at one meeting of the proprietors, &c., the time of the holding whereof shall be specified in such instrument, or at any adjournment of such meeting, and shall not be further available."

By a local act, 7 & 8 Vict. c. ciii., it was enacted that it should be lawful for the plaintiffs to "depute and appoint any one of the elder brethren of their guild or brotherhood, by writing under their common seal, to represent their guild or brotherhood at all meetings of the company, &c., and to vote at such meetings as the proxy of the said guild or brotherhood on whatever question, matter, or thing might be proposed, discussed, or considered thereat": -Held, that there was no inconsistency in the provisions of the two acts, and that the general proxy to vote at all meetings was good. Trinity House at Hull v. Beadle, 18 Law J. Rep. (N.S.) Q.B. 78; 13 Q.B. Rep. 175.

(3) Tolls.

The Great Western Railway Company are entitled to take tolls authorized by the 5 & 6 Will. 4. c. cvii., 6 & 7 Will. 4. c. xxxviii. and 1 Vict. c. xcii. until they have completed the purchase of either the Birmingham and Oxford Junction Railway, or the Birmingham, Wolverhampton and Dudley Railway; but after such completion the tolls both on the original line and on such purchased line must be reduced to the lower scale fixed by the 10 & 11 Vict. c. cxlix. and 10 & 11 Vict. c. ccxxvi. Attorney General v. Great Western Rail. Co, 19 Law J. Rep. (N.S.) Exch. 407; 5 Exch. Rep. 520.

(4) Exception or Proviso.

To an action for money had and received the defendant pleaded, that after the passing of the 7 & 8 Vict. c. 110, and after the 1st of November 1844, the defendant, as the broker and agent of the plaintiff, sold on account of the plaintiff fifteen scrip shares of and in a certain joint-stock company, called the Boston, Newark and Sheffield Railway Company, for the sum of 941. 2s. 6d., the formation of which company was commenced after the 1st of November 1844, and which, at the time of such sale was a joint-stock company established in England for profit, within the meaning of the said act of parliament, that is to say, a partnership whereof the capital was intended to be divided into shares, and so as to be transferable without the express consent of all the co-partners, and not then being a banking company, school, or scientific or literary institution (following the words of the 2nd section); and that the said sum of 941. 2s. 6d. so received by the defendant for the plaintiff, was the price and proceeds of the sale by the defendant of such shares; and that at the time of the sale, and of the receipt

of the said sum, the said joint-stock company had not been completely registered, nor had obtained any certificate of complete registration:-Held, on demurrer, that the clause at the end of section 2. in the 7 & 8 Vict. c. 110. was an exception and not a proviso; and that the defendant ought to have negatived in his plea that the company was one which could not be carried into execution without the authority of parliament. And per Alderson, B., assuming the sale to be illegal, the defendant, who had received the proceeds from the purchaser, could not refuse to pay them over to the seller, on the ground of the illegality of the transaction. Bousfield v. Wilson, 16 Law J. Rep. (N.s.) Exch. 44; 16 Mee. & W. 185.

(b) Shares.

[Pearson v. London and Croydon Rail. Co., 5 Law J. Dig. 676; 14 Sim. 541.]

(1) Allotment of.

A projected railway company issued prospectuses, containing names of provisional directors, and directing applications for shares to be made, in a form annexed, to the provisional committee of management of the company. An application was accordingly made by the defendant on the 13th of October in the prescribed form, and a letter of allotment sent to him on the 15th of December, announcing that the committee had allotted him certain shares. At the foot of this letter was the form of a banker's receipt, which purported to be given" on account of the provisional committee." It also appeared by resolutions that there was a provisional committee, and also a part thereof formed into a committee of management, by whom the business of the formation of the company was conducted. Between the time of application and the allotment to the defendant, some of the members of the provisional committee had withdrawn from that body, and others had been added:-Held, that the contract to take shares and pay the deposit was made with the provisional committee and not with the committee of management; and,

Quare-Whether the change in the state of the company between the application and allotment affected the contract.

It appearing that the committee had delayed to allot the shares until it became impossible to carry on the concern,

Quare-Whether the defendant's proposal was accepted within a reasonable time. Woolmer v. Toby, 16 Law J. Rep. (N.s.) Q B. 225; 10 Q.B. Rep. 691.

The defendant having applied to a railway company for an allotment of 100 shares, undertaking to accept the same or any less number, and to pay the deposit thereon, received an assignment of sixty shares, by a letter of allotment, from the company, headed by the words "Not transferable":-Held, in an action by the company against the defendant, to recover the deposit, that the contract was not binding on him, inasmuch as his proposal was absolute, whereas the acceptance in the letter of allotment was conditional, as it contained a qualification that the contract was 66 not transferable." Duke v. Andrews, 17 Law J. Rep. (N.s.) Exch. 231; 2 Exch. Rep. 290.

DIGEST, 1845-1850.

By a railway act, power was given to the directors to borrow money upon debentures, when all the shares should be allotted and half the capital paid up. The company having a great number of shares unallotted, contracted to sell them to the defendant at a discount of 51. per share, and upon payment by the defendant of the whole sum agreed upon, the company were to deliver debentures to the amount of 51. per share to the defendant, payable three years after date, provided they were in a position legally to do so. At the time of the contract, much less than half the capital had been paid up-Held, upon demurrer to a bill by the company for specific performance, that the contract could not be enforced. West Cornwall Rail. Co. v. Mowatt, 17 Law J. Rep. (N.s.) Chanc. 366. [See (4) Deposits, Payment of.]

(2) Sale and Transfer of.

The 26th section of the 7 & 8 Vict. c. 110. enacts, "That in any joint-stock company, commenced after the 1st of November 1844, until complete registration, a sale of shares by a subscriber, &c. shall be void, and every person entering into such contract shall forfeit a sum not exceeding 101.:" Held, that that section did not render void the sale of shares of a railway company commenced after the 1st of November 1844, and requiring an act of parliament for the execution of the railway, such company not being specially provided for in that section within the meaning of the words in the 2nd section, "except as hereinafter specially provided." Young v. Smith, 15 Law J. Rep. (N.s.) Exch. 81; 15 Mee. & W. 121.

A stockbroker, having an order to purchase shares in a foreign railway, bought a letter of allotment. There were no shares in the market, and the practice of the stock exchange was to buy and sell letters of allotment as shares, in that railway. In an action for the value and broker's commission,Held, that the jury were properly directed to consider whether the order was to buy that which was sold in the market as shares, or to wait till the actual shares were procurable. Mitchell v. Newhall, 15 Law J. Rep. (N.s.) Exch. 292; 15 Mee. & W. 308.

The defendant, a sharebroker, bought for the plaintiff certain scrip certificates of the Kentish Coast Railway Company, which had been sold in the share-market as genuine scrip, and at a premium. In an action by the plaintiff to recover the price paid to the defendant, on the ground of their not being genuine,-Held, that the question for the jury was whether the defendant obtained that which he desired to buy. Lambert or Lamert v. Heath, 15 Law J. Rep. (N.S.) Exch. 297; 15 Mee. & W. 486.

A sharebroker employed to purchase shares or scrip of a railway company, does not thereby undertake to procure them absolutely and at all events, but only to use due and reasonable diligence to endeavour to do so.

A employed B, a sharebroker at Manchester, and lodged money in his hands, to procure for him fifty shares in a certain railway company. B, without disclosing the name of his principal, entered into a contract with H, another sharebroker, to purchase them for him. According to the usage of the Stock

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Exchange at Manchester, there are two "settling days" in each month, on which all transactions between brokers, and between them and their principals, are to be settled, although in some instances settlement is not enforced by brokers on the prescribed days. H did not perform his contract with B by the next settling day; and B having, after that day, refused to return A his money,-Held, that A was entitled to recover it back from B in an action for money had and received. Fletcher v. Marshall, 15 Mee. & W. 755.

The plaintiff having on the morning of a certain day agreed to sell railway scrip to the defendant, the defendant in the afternoon of the same day signed the following document, with a view to its being shewn to the plaintiff: "Bought of NK (the plaintiff') fifty shares in the H, H, and B Railway Company, at 107. per share" :-Held, that the contract between the parties was contained in this document; that it required an agreement stamp, although signed by the defendant only; and that the sale of railway scrip was not a sale of "goods, wares, or merchandise," within the meaning of the exemption in the Stamp Act, 55 Geo. 3. c. 184. Sched. Part 1, tit. ' Agreement.' Knight v. Barber, 16 Law J. Rep. (N.s.) Exch. 18; 16 Mee. & W.66.

The plaintiff, a sharebroker at Leeds, bought for and by the orders of the defendant ten railway shares, to be paid for on delivery. The shares were delivered, and had fallen in price between the time of the sale and the delivery. The plaintiff not being able to pay at the time of delivery the vendor demanded the shares back from the plaintiff, who gave them back to the vendor, who sold them at the then market price, and called upon the plaintiff, according to the usage of the Stock Exchange at Leeds, to pay the difference, which he did :-Held, that the plaintiff was entitled to recover the sum so paid from the defendant as money paid to his use, as he must be taken to be cognizant of the usage of the Stock Exchange, which his broker attended. Pollock v. Stables, 17 Law J. Rep. (N.s.) Q.B. 352; 12 Q.B. Rep. 765.

The defendants, who were sharebrokers at Liverpool, on the 30th of August 1845, bought for the plaintiff, who was also a sharebroker, thirty-eight T and D railway shares, at the price, according to the advice note, of 21. 8s. 6d. per share. The scrip had not then issued, and the 21. 8s. 6d. was therefore premium. The deposit of 11. 7s. 6d. per share first appeared in the printed share lists (which were sent daily to the plaintiff) on the 2nd of September, and the amount of such deposits (411. 5s.) was paid by the defendants to the persons from whom they bought the shares. In an account sent by the defendants to the plaintiff on the 19th of September, they omitted to charge the sum paid for the deposits, and the plaintiff, who purchased for other persons, as broker, (though he dealt with the defendants as a principal,) only charged 21. 8s. 6d. per share, and had settled accounts with such other persons on that footing before any claim was made for the deposits.

The defendants, also, on the 18th of September, bought for the plaintiff eighty S S railway shares, at the price, according to the advice notes, of 41. 10s. per share. The 41. 10s. did not include the deposit of 21. 10s. per share, which first appeared in the share lists about the 26th of September; and

in settling with the vendors the defendants paid them the deposits, amounting to 2001. in addition to the 41. 10s. per share. But on the 26th of September the shares were sold by the defendants for the plaintiff at 71. per share, which sum included the deposits, and the plaintiff was credited with the full amount. In an account furnished to the plaintiff by the defendants on the 2nd of October, and also in subsequent accounts, the plaintiff was only debited with the 41. 10s. per share, and he only debited his principals with that amount, and settled with them on that footing.

On the 19th of November, the defendants, having received a letter from the plaintiff demanding a balance of 6051. 14s. 10d., examined their books, and discovered the mistake with regard to the deposits, and immediately acquainted the plaintiff with it:-Held, that they were entitled to set off the 2007., and also the 41. 5s. Dails v. Lloyd, 17 Law J. Rep. (N.s.) Q.B. 247; 12 Q.B. Rep. 531.

The defendant having employed the plaintiff, a sharebroker, at Liverpool, to sell twenty railway scrip for him, the plaintiff sold them to F, another Liverpool sharebroker. The defendant not having delivered the shares to the purchaser at the time when they ought to have been delivered, the latter bought twenty other scrip in the market, at an advanced rate, and applied to the plaintiff for the difference between the contract price and that at which he bought them. The plaintiff paid the difference, and brought an action against the defendant for money paid, to recover the amount. By the usage of the Liverpool share market, brokers are responsible to each other for the fulfilment of contracts relating to the sale and purchase of scrip: -Held, that the defendant was liable to the plaintiff; and, semble, per Parke, B. and Rolfe, B., that the defendant would have been liable even if he had not been cognizant of such usage. Bayliffe" v. Butterworth, 17 Law J. Rep. (N.S.) Exch. 78; 1 Exch. Rep. 425.

Until the deed of transfer upon the sale of railway shares has been registered by the transferee, whose duty it is to procure such deed to be registered, the transferor continuing the registered owner is liable for all subsequent calls, and cannot, after he has been compelled to pay the amount of such calls, recover the same from the transferee, upon the common count for money paid to his use. Sayles v. Blane, 19 Law J. Rep. (N.s.) Q.B. 19.

R

By a rule of the Hull Stock Exchange brokers are individually responsible to each other for the fulfilment of their contracts. Plaintiff was a broker of that exchange, and sold, on behalf of the defendant, to one R, also a broker, certain railway shares then in the course of registration. Defendant refused afterwards to complete the contract; but no convey. ance of the shares, as required by 8 & 9 Vict. c. 16. ss. 14, 15, was ever tendered him to execute. subsequently purchased shares in the railway at a higher price, in the place of those contracted for, and the plaintiff paid him the difference, after notice from the defendant not to make the payment: -Held, that the payment by the plaintiff, before a transfer was tendered to the defendant, was a payment in his own error, and which he was not entitled to recover against the defendant, in an action for money paid to his use; secondly, that a letter,

written by defendant to plaintiff, requesting all further communications to be made to his attorney, did not dispense with a tender of the transfer.

A contract for the sale of shares is not a contract for the sale of goods, wares or merchandise, within the 17th section of the Statute of Frauds. Bowlby v. Bell, 16 Law J. Rep. (N.S.) C.P. 18; 3 Com. B. Rep. 284.

On the 15th of October the defendants bought of the plaintiffs 100 railway shares, to be paid for on the 31st of October. On the 14th of October a call was made upon the shares. On the 1st of November the plaintiffs applied to the defendants for a name to be inserted in the deed of transfer, which, by the custom of the share market, was to be prepared by the vendors. The defendants refused to give a name, and subsequently, on a tender of the shares being made, declined to accept them. The 16th section of the 8 & 9 Vict. c. 16. prohibits a shareholder from transferring his share until he shall have paid all calls due upon his share. The plaintiffs had not paid all the calls due upon the shares: -Held, in an action against the defendants for the price of the shares, that the plaintiffs were entitled to the verdict on the issue raised on the plea that they were not ready and willing to transfer the shares, as they were in a condition, by paying the cails, to make a valid transfer. Shaw v. Rowley, 16 Law J. Rep. (N.S.) Exch. 180; 16 Mee. & W. 810.

In an action for the non-delivery of shares on a given day, pursuant to contract, the proper measure of damages is the difference between the contract price and the market price on the day when the contract was broken. Shaw v. Holland, 15 Law J. Rep. (N.s.) Exch. 87; 15 Mee. & W. 136.

Plaintiffs, on the 20th of October 1845, sold the defendant twenty railway shares at 25s. premium, no day being mentioned for the delivery of the scrip. On the 21st of October the shares had fallen to 14s. premium, and on that day, but after business hours, the defendant gave the plaintiffs notice that he should not take the shares. On the 22nd the shares were at 8s. premium, and the price continued to fall till the 6th of December, when the plaintiffs sold the shares at 17s. discount. An action being brought for breach of the defendant's contract,-Held, that the proper measure of damages was the difference in price between the 20th and 22nd of October. Pott v. Flather, 16 Law J. Rep. (N.S.) Q.B. 366.

(3) Forfeiture of.

The power given by 8 & 9 Vict. c. 16. s. 29. to companies to declare shares forfeited for the nonpayment of calls, is not an alternative remedy with the right of action; and, therefore, in an action for calls, a plea puis darrien continuance that the company had declared the shares forfeited, is bad.

The plaintiffs having demurred to a plea of puis darrien continuance, the Court at the instance of the plaintiffs directed the case to be argued on the first paper day in term. Great Northern Rail. Co. v. Kennedy, 19 Law J. Rep. (N.s.) Exch. 11; 4 Exch. Rep. 417.

Construction of a railway act as to the forfeiture of interest on shares upon which the calls were not all paid up. Naylor v. South Devon Rail. Co., 1 De Gex & S. 32.

(4) Deposits, Payment of.

The declaration stated that the plaintiffs had agreed with 200 other persons to endeavour to form a joint-stock company for making a certain railway; that a deposit of 21. 2s. for each share was to be paid by the allottees; that the plaintiffs were the committee of management of the said company, and that they allotted to the defendant twenty-five shares in the said company, upon the terms that a deposit of 21. 2s. per share should be paid by the defendant on or before the 9th of November 1845, to the account of the company, to certain bankers then agreed upon, to wit, &c., of all which premises the defendant then had notice. The declaration then averred mutual promises, and alleged that although the plaintiffs were always ready and willing to fulfil all things on their parts, and although the 9th day of December had elapsed, yet the defendant did not, before the 9th day of December, pay to the said bankers the deposit of 21. 2s. Fourth plea, that the plaintiffs were not always ready and willing to perform the terms in the declaration mentioned; fifth, that the defendant had not notice of the said several premises in the declaration mentioned; sixth, that before the commencement of the suit, the plaintiffs and the company, without the consent of the defendant, agreed to abandon, and did abandon, their endeavours to form a company:-Held, on demurrer, that the pleas were bad and that the declaration was good. Duke v. Dive, 16 Law J. Rep. (N.S.) Exch. 234; 1 Exch. Rep. 36.

Declaration in assumpsit, that on a certain day, to wit, on &c. the plaintiffs had agreed together with divers, to wit, 200 other persons, to establish a joint-stock company for making a railway, which required the authority of parliament; the capital, to wit, &c. to be divided into shares of 201. each, and a deposit of 21. 2s. per share to be paid by the persons to whom they should be allotted by a committee of management; that the plaintiffs were the committee of management; that the plaintiffs, to wit, on &c., at the request of the defendant, allotted him thirty-five shares in the proposed company, upon certain terms then agreed upon between them, that is to say, that the deposit on each share should be paid by the defendant on a certain day, to certain bankers then agreed upon; and thereupon in consideration of the premises, and that the plaintiffs, at the request of the defendant, had promised the defendant to perform the said terms on their part, the defendant promised the plaintiffs to perform the said terms on his part. Averment of the plaintiffs' readiness and willingness; and, breach, the non-payment by the defendant of the deposit: -Held, on general demurrer, that the declaration disclosed a contract between the plaintiffs and the defendant, on which they might sue him without joining the other members of the company. Also, that the declaration was good, though it did not allege that the company was provisionally registered pursuant to the 7 & 8 Vict. c. 110, or that it was formed previously to the date of that act.

And held, on special demurrer, that the declaration was not bad for not alleging that the company was continuing when the shares were allotted to the defendant; nor for not shewing with sufficient cer

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