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said note, the plea is bad as an argumentative denial of the contract. If not a condition precedent, then the plea shews no answer to the action. The plea is also double and multifarious, as setting up the defence that the note was given on a condition, which turns out to have been fulfilled; and a second defence, that the note was made without any consideration, &c. Joinder in demurrer.

Couch, for the plaintiff.-The second plea is bad for ambiguity, as not shewing whether the defence relied on is, that the note was obtained by duress of the defendant's goods, or that it was given without consideration; and though the latter defence may be badly pleaded, the plea is nevertheless double. (Stephens v. Underwood, 4 Bing. N. C. 655). But duress of goods is no answer to this action. [Coltman, J.-Then the plea is not double, if duress of goods is a bad defence in substance.] If the defendant relies upon the want of consideration, the plea does not shew how the consideration fails. The statement that there was no consideration is not traversable; (Atkinson v. Davis, 11 Mee. & W. 236); and if the facts do not shew that there was none, that averment will not help the plea. [Maule, J.-Surely want of consideration is only stated as subsidiary and supplemental to the former part of the plea. The words are, "except as hereinbefore mentioned, there never was any value." You can hardly say there are two defences, when the latter is exceptive of the former.] That may distinguish the present case from Stephens v. Underwood; and, if so, the defendant must contend, that duress of goods is a good answer. But the judgment of Parke, B., in Atlee v. Backhouse, (S Mee. & W. 650), is an authority to shew, that, in order to avoid a contract by reason of duress, it must be duress of a man's person, and not of his goods. Consistently with this plea, the note might have been given in order to get back goods taken under an illegal distress. It is questionable if money paid for such a purpose could be recovered back, as the law gives the owner of the goods one remedy, by replevin. But, in addition, there might have been here a question of right between the parties, or a doubtful claim to the goods, which would furnish a good consideration. The defendant could not maintain an action for money had and received if he had given the money instead of the note. It is not alleged that the note was given under protest, which distinguishes the case from Parker v. The Great Western Railway Company, (7 Man. & G. 253). The third plea is also bad, as setting up, first, that there was no consideration, except as aforesaid; secondly, that there was no consideration absolutely and without exception. [Maule, J.-"Except as aforesaid" must extend to both allegations of want of value; otherwise they are inconsistent.] Still the plea contains two defences: first, that the note was obtained under circumstances which amount to fraud. [Maule, J.-I do not think that it sets up fraud as a defence.] If no fraud, still the plea is bad, on the ground that it shews the note was payable on a condition, which amounts to a denial that it was payable on demand. If there was any agreement varying the effect of the note itself, the plea, in fact, shews it was contemporaneous with the making of the note; the plea ought, therefore, to have stated that it was in writing; for, though a subsequent verbal agreement may vary a written contract not under seal, a contemporaneous verbal agreement cannot, as the law presumes that a written contract contains all the terms agreed upon at the time of making it. [Coltman, J.-The agreement might have been in writing, but must the plea aver that it was?] The plea ought to shew that it was binding upon the parties, which it would not be unless reduced to writing. This is not a plea relying upon the Statute of Frauds: if it were, it needed not to allege that the agreement was in writing. Peacock, for the defendant. The second is a special

plea that there was no value or consideration for the note, and the circumstances are stated which shew there was none. Atkinson v. Davis is, therefore, an authority in favour of the plea. Duress of goods is not relied upon as a defence; and the judgment of Parke, B., in Atlee v. Backhouse, as to that being no answer, is not in point. The subsequent passage is in favour of the plea-"If my goods have been wrongfully detained, and I pay money simply to obtain them again, that, being paid under a species of duress or constraint, may be recovered back; but if, while my goods are in possession of another person, I make a binding agreement to pay a certain sum of money and to receive them back, that cannot be avoided on the ground of duress." By "binding agreement" may be meant a bond, which requires no consideration; and it is no answer to an action on a bond, that it was made. under duress: but a promissory note imports consideration; and the defendant, by way of denial of consideration, shews such a state of circumstances as would have avoided a parol agreement to pay money. Astley v. Reynolds, (2 Str. 915), however, is an authority to shew that money paid under duress of goods even may be recovered back. [Maule, J.—The judgment of Parke, B., in Atlee v. Backhouse, may mean, that, where the man first gets the goods and then pays the money, the payment is voluntary, and the money cannot be recovered back.] Stephens v. Underwood was a different case from the present; but the principle contended for by the plaintiff does not apply, for the only question is, do not the facts stated in the plea shew that there was no consideration? Had there been any point of law undecided as to the rights of the parties to the goods, or any doubtful claim made by the plaintiff to detain them, it might have amounted to a good consideration. [Coltman, J.-Those facts are not negatived in the plea.] It was for the plaintiff to reply them: the defendant was not bound to negative every fact from which consideration might be implied. The defendant shews all that is requisite-a primâ facie answer. It is for the plaintiff to reply anything that would defeat this defence: he might have traversed the illegal detention, or replied de injuriâ. [Maule, J.Would de injuriâ be a good replication? The plea in effect sets up an agreement between the plaintiff and the defendant that the latter should not pay the note. That is within the third resolution in Crogate's case, (8 Rep. 132). Those things which specially lie in the knowledge of the plaintiff he must specially reply to.] The plaintiff's title here lies peculiarly within his own knowledge. (Lindon v. Hooper, Cowp. 414). The replication in Atkinson v. Davis, which merely denied the facts stated in the plea, was held good; the form of the plea was not questioned: and a similar replication would have been good here. As to the third plea, it is said, that it sets up an agreement to vary the effect of the note, which should have been averred to have been in writing; that is not so: the plea only states that the note was made and delivered on condition that it should not be enforced if it should appear that no balance was due. No doubt a man may deliver a note on such a condition, and why may he not also say he made it on that condition? The plea sufficiently shews there was no consideration; also it is good, for it shews, that, if the plaintiff were to recover on the note, the defendant would maintain an action to recover the amount back again; and circuity of action is to be avoided.

Couch, in reply.-As to the second plea, suppose the goods to have been illegally taken under a distress, the fact of the plaintiff having given them up without putting the defendant to his action of replevin might amount to a good consideration. Had the defendant affirmatively shewn how the plaintiff illegally got possession of his goods, there would have been no necessity to negative in the plea all possible cases in which an illegal holding

A Poor-rate which has not been allowed by Two Justices is a Nullity; and the Non-payment thereof does not disqualify a Claimant from being registered as a Scot and Lot Voter, under 2 Will. 4, c. 45, s. 33, although there has been no Appeal against the Rate.

Case. At a court held before the Barrister appointed to revise the list of voters for the borough of Shaftesbury, Thomas Lodge objected to the names of James Fox, Joseph Davis, and nine other persons being retained on the list of scot and lot voters for the parish of Shaston Saint Peter, in that borough. Before and since the act 2 Will. 4, c. 45, Fox had been a scot and lot voter for the parish of Shaston Saint Peter, and had duly exercised his franchise. In June, 1848, but on what day did not appear, (the heading being "this day of June"), a new rate was levied, the allowance of which is in the following terms:— "The foregoing rate or assessment is allowed by us, of Shaftesbury.

"A. B., Church wardens." "C. D., Í

might furnish a good consideration. [Williams, J.-Is | there any authority for saying that the plaintiff's parting with property which he has no right to hold is a good consideration for the defendant's promise? If the facts in this plea are true, the defendant might have maintained trover; is the plaintiff's not putting him to his remedy a good consideration? I should doubt it.] In Haigh'v. Brooks, (10 Adol. & Ell. 309), a promise, made in consideration of giving up a void guarantie, was held to be valid. [Williams, J.-The guarantie mentioned in that case might, possibly, have been a good one.] In Gulliver v. Cosens, (1 C. B. Rep. 798), the defendant had distrained the plaintiff's sheep, and refused to re-deliver them, except upon payment of a certain sum. The plaintiff paid that sum under protest, and brought an action of debt to recover it back, as money had and received to his use; and Cresswell, J., said, "The payment appears to me to have been made for the purpose of avoiding all question or dispute as to the right to distrain. The plaintiff cannot, there- two of her Majesty's justices of the peace for the borough fore, now turn round and recover back the money which he so paid upon an adequate consideration." As to the third plea, the defendant says, there might have been an oral agreement that the plaintiff should not de- A. B. is a justice of the peace for the borough, and mand payment of the note, except under certain circum-churchwarden of the parish of Shaston Saint Peter; stances; but Rawson v. Walker (1 Stark, 361) shews, and C. D. is churchwarden of the parish, but not a justhat, where the instrument purports to be an absolute tice of the peace for the borough. The allowance and engagement to pay on demand, parol evidence of a con- confirmation are not signed by any other parties. This temporaneous oral agreement, that the payment should rate has been variously received by the parish-some depend upon a contingency, is inadmissible. [Coltman, voters paying it, and some not; but no attempt has been J.-That does not prove that you must in this action made to appeal against it, either for its illegality or its plead that the agreement was in writing.] The plea is irregularity; and the Revising Barrister did not think, also bad, as setting up what may amount to two de- sitting as he was, that he could enter into either quesfences, though imperfectly pleaded. tion. He was of opinion, that Fox, not having paid the rate thus imposed upon him, could not be said to have discharged all demands payable by him, and his name was expunged. If the Revising Barrister is wrong, the name of Fox will be restored to the register; if otherwise, the register will remain as it is. The decision will affect the votes of the following voters, who have agreed to abide the issue of this appeal. Here followed the names of nine other voters.] Joseph Davies and Edwin Thorn, overseers of the parish of Saint Peter, Shaftesbury, were appointed by the Revising Barrister respondents to this appeal. Otter, for the appellant.-The claimant in this case is qualified as a scot and lot voter, under 2 Will. 4, c. 45, s. 33, unless his not having paid the rate in question disentitles him to exercise his franchise. First, it is not stated what the rate was, or for what purpose it

COLTMAN, J.-We all are of opinion that the third plea is good. It states, in substance, a good answer, that there was no consideration for the making of the note. As to the second plea, there may be some doubt. If it had alleged that the plaintiff knew that he had no right or title, or reasonable or colourable right or title, to detain the defendant's goods, I should have thought it would have been a good plea; but, in the absence of any allegation of the circumstances under which the plaintiff claims to detain them, it appears to me that it

is not a good plea.

MAULE, J.-It is stated, in the third plea, that the pote was male and delivered on the condition that the plaintiff should not demand payment, unless it should appear that a balance was due to him; that allegation does not, I think, contradict the promissory note. I agree that the second plea is bad.

WILLIAMS, J.-I also think that the third is a good case might be sent back to be re-stated.] Assuming it, was raised. [Maule, J.-If that objection is taken, the plea. It states that there was no consideration for the then, to have been a rate for the 66 necessary relief of note; and to shew that, it sets out the circumstances the poor," it does not appear that it has ever been deunder which it was given, which I think support that manded. [Maule, J.-A case sent by a Revising Bardefence. I lis not aware of any authority for saying that the de- demurrer, required to be good in omnibus, but we are livery up of goods by a person who has no right to de- to look to the reasonable point raised for our decision. tain them is a good consideration for a promise. I am By stat. 43 Eliz. c. 2, s. 1, the churchwardens and not, however, prepared to say, that a state of things overseers are not authorised to raise a poor-rate, exmay not exist in which it might be a good considera- cept "by and with the consent of two or more justion; and, if such a state of things can exist, I think the tices of the peace." [Maule, J.-I thought the conplea is bad.-Judgment for the plaintiff on the second sent of the magistrates was not necessary, but only

plea; for the defendant

on the third plea.

their signature; that they acted ministerially, their duty being, not to determine whether the rate was the churchwardens or not.] The rate is undoubtgood or not, but only whether it had been made by edly invalid, unless allowed by two justices, whether they act judicially or ministerially. By the 6 & 7 Fox, Appellant, and DAVIES and THORN, Respondents.-requisite number of churchwardens and overseers; and Will. 4, c. 96, the rate is invalid, unless signed by the

APPEAL TO COURT OF COMMON PLEAS
UNDER REGISTRATION OF VOTERS ACT.
(Borough of SHAFTESBURY.)

Nov. 13.

17 Geo. 2, c. 3, s. 1, requires them to give public notice

Poor-rate, Allowance of, by Justices-43 Eliz. c. 2, s. 1- in the church, of every rate for the relief of the poor

c. 45, 8, 33,

Sunday, and unless such notice is given, the rate is in

valid.

And in Archbold's Poor-Law (vol. 1, 97 k) it is said, that "no rate shall be deemed valid unless the same be allowed by two justices." [Wilde, C. J.It seems to me to have been intended that the signature of A. B. and C. D., churchwardens, was by them as church wardens only; if so, there is no signature by the magistrates at all.] The rate must be signed by the churchwardens, (Reg. v. Fordham, 11 Adol. & Ell. 73), and it must be allowed by two justices. Therefore, unless the same persons can sign in both capacities, the rate is invalid, as wanting the signature of one of the two sets of persons. [Maule, J.-I see that in Rex v. Folly (1 Bott's Poor-Law Cases, pl. 86) it is said, "that justices for the county cannot allow a rate made by overseers of a borough." So that it would seem that the allowance of the magistrates is to some extent a judicial act.] And, further, only one of the persons signing was a justice. The rate, it is submitted, is not only voidable on appeal, but absolutely void; and the nonpayment of a void rate does not disfranchise the voter. In Reg. v. The Mayor of New Windsor, (7 Q. B. 908), B., an inhabitant of a borough, refused payment of a rate, and his name was in consequence struck out of the burgess list; but the Court awarded a mandamus to the mayor to enrol B.'s name, it appearing that the rate was invalid; and the non-payment, therefore, afforded no ground of disqualification.

|

published as required by the statute. Looking, there fore, to the effect of these cases, it is clear that there i no legal obligation upon a party to pay a rate which ha not been published on the Sunday after it is made, an that the rate so to be published is a rate to be allowe by two magistrates. The present case shews that n such rate has been made, the authorities shewing tha that which has not been allowed is no rate, thoug called one, so as to create an obligation to pay; and therefore, there seems to be no reason, on the ground o his non-payment, why the appellant should not hav voted on the last day of July, had the election been o that day. The Revising Barrister seems to have thought this might have been a rate in point of fact though open to objection on appeal; and that unless th appellant thought fit, which he did not, to appeal, h must pay it. But it seems to me that this was neithe in fact or law a rate at all; which is a very differen thing from a rate which may be liable to be quashe on appeal. The claimant here has not been guilty o default in not paying this so-called rate; and the peal must, therefore, be allowed.

ap

COLTMAN, J.—I concur in opinion. MAULE, J.-Under the statute of Elizabeth this rat is a public tax, to be paid by the parishioners, impose by the churchwardens and overseers, with the authe rity of the justices; and it is also to be published, a No counsel appeared for the respondents. required by statute; and, until these things have bee WILDE, C. J.-It seems to me that the appeal must done, no person can be taken to be cognisant of wha be allowed. There has not been what the law considers is or is not a poor-rate, which he is bound to pay. Th a rate made in this case at all, and, therefore, there justices are said to act ministerially in allowing th could be no non-payment of the rate, such as would rate; and I think it is correctly said, in this sense, tha disfranchise the voter. By the 33rd section of 2 Will. they have no power to judge of the goodness or bad 4, c. 45, (under which the appellant claims), the rightness of the rate, but are bound to confirm what i of voting in certain boroughs is preserved, but upon the offered to them by the churchwardens; but I als condition, that the claimant, on the last day of July, think they may be said to act quasi-judicially to this should be entitled to vote were the election upon that extent, that they are to determine whether the person day; if he is not, he is not entitled to be registered. who present the rate for their allowance are church The case here finds that the party was entitled to vote, wardens and overseers. This view seems to have bee unless disqualified by reason of his non-payment of this taken by the Court of King's Bench in the case of Re rate. Now, the form of document referred to as a rate v. Folly, (1 Bott's Poor-Law Cases, pl. 86), which i appears to have been a rate, if properly authenticated, cited as follows:-" On a mandamus to the justices o as required by law; but it also appears that it was not Wooton Bassett to allow a rate, they returned, tha allowed by two magistrates. What, then, is the effect ever since the 43 Eliz. c. 2, the justices had appointe of a document properly prepared as a rate by the four, three, or two overseers, within that part of the churchwardens, but not signed by the magistrates? Is parish which lies within the borough; and that the there any obligation to pay it until quashed upon ap- had always made rates within their jurisdiction. The peal? In Reg. v. The Earl of Yarborough, (3 Per. & they say that the rate was offered to them, made by D. 491; S. C., 12 Adol. & Ell. 416), Littledale, J., says, overseers appointed by the justices of the county, an as a reason why the mandamus should go to compel the not of the borough. By the Court.-The return mus magistrates to sign, "that if the justices refuse to allow be confirmed." In that case, therefore, the justice the rate, there is no power to amend, and, therefore, exercised jurisdiction to determine whether the rat there will be no rate." He seems to give that as a rea- was made by the proper overseers to whom the Legis son for shewing why the magistrates act ministerially, lature had given the power to make the rate; and because there is no appeal against their decision. If, that, I think, they judge exclusively. If the prope for any reason, whether good or bad, they may refuse solemnities are not complied with-if the rate is no to sign, the parish could make no valid rate at all, and made by the proper persons-not allowed by the jus the Court, therefore, would grant a mandamus to com- tices, or not published in due time-it is no more tha pel them to sign (provided the document were in the a claim made by any private person. What has bee proper form as a rate when submitted to them for sig- done in this case has the same effect as if it had been nature) in their ministerial capacity. Although that done by a private person without authority; and act is ministerial on their part, yet it is of considerable think the appellant is not guilty of any default, as importance, for there is nothing else to shew to the per-scot and lot voter, in not paying that which somebody sons called upon to pay it or to appeal, that a rate has called a rate, but which, in point of law and fact, wa been made. The stat. 17 Geo. 2, c. 3, which has been no rate at all. referred to, after noticing the allowance of the rate by the magistrates, says, that no rate shall be valid for the purpose of being collected, unless notice be given of the rate on the Sunday next after it has been allowed by them. Then the case of Sibbald v. Roderick and Others | (11 Adol. & Ell. 38) decides, that, unless the rate be published in proper time, it is a void rate; and in that case a distress for the rate was considered to be void, as being wholly unjustified, by the existence of that-Decision reversed. which had been called a rate, but which had not been

WILLIAMS, J.-I am of the same opinion. If thi had been a legal rate, and, in order to resist it, it ha been necessary to appeal against it, then, perhaps, the non-payment of it would have been a disqualification But the case of Sibbald v. Roderick and Others (1 Adol. & Ell. 38) shews that the rate was invalid though unappealed against; and, therefore, I thin that the non-payment of it did not disqualify the voter

COURT OF CHANCERY.

In the Matter of the JOINT-STOCK COMPANIES WINDING-
UP ACT, 1848; and in the Matter of THE BOROUGH
OF ST. MARYLEBONE JOINT-STOCK BANKING COMPANY.
Er parte TROUTBECK and Others, and Ex parte

WALKER.-Dec. 16.

11 & 12 Viet. c. 45, ss. 5 and 58-Suit not affected by Order to wind up.

The Cirennstances that a Joint-stock Banking Company
had ceased to carry on Business as far back as 1842,
and had now no outstanding Debts, and that there had
been a Decree for an Account and Contribution between
the Shareholders, are no reasons why the Order, abso-
lute for winding up the Affairs of the Company under
this Act, should not be made.

An Order for winding up, under this Act, does not pre-
Beat the Prosecution of a Decree for an Account in a
Swit;
and even a Defendant to the Suit, who is sought
to be charged thereby, may properly be a Petitioner un-
der this Act.

Preliminary Inquiries will not be ordered, where it is
perfectly clear and admitted that the Company cannot

go on.

This was an appeal from an order of Knight Bruce, V. C., made upon two petitions in the above matter, for the dissolution and winding-up of this Company, under the above-mentioned act. The first petition was presented by Eliza Troutbeck, Maria Stevenson, and Margaret Stevenson-Eliza Troutbeck as the executrix of George Troutheck, deceased, and the two other petitioners as the owners of five shares each. It appeared, that, in April, 1841, George Troutbeck, who was then the owner of ten shares, sold them to Donald McLean, a director; that he duly executed a deed of transfer on 30th April, which had been forwarded by the secretary of the Company, and that he returned the deed on the following day to the secretary; that in June following, Troutbeck, upon coming up to town, ascertained that his transfer had not been duly completed, and that the bank was in difficulties; that, to save the bank from bankruptcy, and allow the directors time to get in assets, 20,000l. were advanced by the London and Westminster Bank, on bills at six months, with notes, signed by directors and shareholders, to the same amount, as a collateral security; that Troutbeck, with notes of 5000% each, all of which were also signed by one or two other shareholders, put his name to four four directors. The bank did not pay the bills; the assets failed; the notes were taken up by E. Walker, one of the directors who had signed them, to whom Troutbeck had to pay, from first to last, as his contributive share, 3214/. That Troutbeck died 5th June, 1848, leaving Eliza Troutbeck, his widow, and John Trontbeek, his son, (an infant), executors; that probate was taken out by the widow alone, power being reserved to the infant; and that the bank had long ceased to carry on business.—The second petition was that of E. Walker, the director above named, and it was supported by an affidavit, stating that the petitioner had been called upon, by creditors of the Company, to pay, and had actually paid, large sums of money, in respect of debts and liabilities of the Company, to an amount greatly exceeding his contributive share. E. Walker was one of the defendants in the suit of Deeks v. Stanhope, reported, on demurrer, 8 Jur. 349; that bill was afterwards amended. Knight Bruce, V. C., made the one order on both petitions. This was a motion to discharge that order.

hope, in support of the motion. My objections to the order are three. First, this Company is not within the operation of the Winding-up Act; it had ceased business as long ago as 1842, and there were no public or outstanding debts due from the Company; it cannot, its pecuniary engagements. Secondly, the petitioner therefore, be said to be a company unable to meet Walker, being one of the defendants to the suit of Deeks v. Stanhope, which was a suit for the purpose of establishing grave charges of fraud and mismanagement against him and others of the defendants, must not be allowed upon a petition under this act to embarrass that suit, which would be the effect of directing a reference upon this petition; for if the plaintiffs went on in their suit, they would be doing over again what was already done under the reference on petition, or, if they did not proceed, they would be subject to have their bill dismissed for want of prosecution. Thirdly, the order should not be absolute, but should be to inquire whether it was advisable that the affairs should be wound up under this act.

Bacon and Lloyd, for the respondents.

Dec. 16.-LORD CHANCELLOR.-I do not see any ground of doubt as to the construction of the act. What has been stated, that there are no outstanding debts, is not at all essential to bring the case within the scope of this act. It is to enable those who have entered tions in certain cases. The seventh head of the 5th into certain speculations to escape from those speculasection says, "If any company shall have been dissolved, or shall have ceased to carry on business, or shall be its affairs, and the same shall not be completely wound carrying on business only for the purpose of winding up up," a petition may be presented in a summary way. not only so, but there is a suit for winding up its conThis is a company having ceased to carry on business; cerns, and, in this suit, to establish claims against innotwithstanding the existence of a suit, the Court may dividual shareholders. The act, however, says, that, exercise the power given by the act, (58th section). This case falls within the seventh head of the 5th section. Here there is not, indeed, a carrying on of the business in order to wind up the Company, but it is a case shewing the Company cannot go on. This is one

with companies going on, so as to enable a dissatisfied case contemplated. The act never intended to interfere party coming to put an end to their proceedings; but, where a company cannot go on, it is intended to afford means of avoiding the insurmountable difficulties attending the winding-up of the affairs in a suit. As to to be made liable by the suit. Does this disqualify Walker, all that is stated is, that he is a person sought him? It may be that the Court will not be able to the assets of the Company not being able to be ascercome to a final conclusion until the suit is disposed of, tained until the personal liabilities of the parties shall be disposed of; but it is quite competent for the parties to go on with the suit. The act, containing such a provision as that of the 58th section, must have contemplated all descriptions of suits. I cannot think it necessary to wait until the suit is determined; for, so far act does not interfere with it; but, as to winding up, as the liability of individual members is concerned, the the act affords a more speedy remedy than could be obtained in the suit. As to the other point, whether I should direct any preliminary inquiries, I do not see any ground for so doing. No doubt, circumstances may be brought forward justifying the Court in doing selves that they cannot go on, this is enough. Withthis; but seeing this Company agreeing among themout, then, adverting to what may be a proper order in any other case, I see nothing to require an inquiry in order to justify the order of the Vice-Chancellor, which The reporter is indebted to his friend, Mr. A. Gordon, for I think is right.-Order affirmed.

Glasse, for the plaintiffs in the suit of Deeks v. Stan

a note of this case.

VOL. XIII.

h

here

Ex parte REAVELY, in re THE NORTH OF ENGLAND of each person's liability: it may be primarily, second-
JOINT-STOCK BANK.-Jan. 11.

Stat. 11 & 12 Vict. c. 45—“ Contributory."
The LORD CHANCELLOR affirmed the decision of Knight
Bruce, V. C., reported 12 Jur. 1065.

Ex parte HAWTHORN, in re THE NORTH OF ENGLAND JOINT-STOCK BANKING COMPANY.-Jan. 30. The Joint-stock Companies Winding-up Act, 1848List of Contributories—Former Shareholder. In settling the List of Contributories, under the 77th and 81st Sections of the 11 & 12 Vict. c. 45, the Master is right in including all Persons who may be liable to contribute towards the Liabilities of the Company; but he does not thereby decide either the Amount or the Order of the Liability.

This was an appeal from a decision of Knight Bruce, V. C., refusing a motion on behalf of Robert Hawthorn, that the decision of the Master charged with the winding up the affairs of the above-named Company, whereby his name had been included in the list of contributories of the said Company as a contributory in respect of eighteen shares, and, as such, liable to the debts and losses, if any, up to the 1st January, 1847, inclusive, might be reversed, and that the name of the said Robert Hawthorn might be struck out of, and excluded from, the list of contributaries of the said Company. The facts of the case are stated in the report of the case before the Vice-Chancellor, ante, p. 77.

Russell and Bates, in support of the motion, made use of the same arguments that were urged in the court below. [They cited the cases of Steward v. Greaves, (10 Mee. & W. 711); Barker v. Buttress, (7 Beav. 134); and Eardley v. Law, (12 Adol. & Ell. 802).] [Lord Chancellor.-Is not the Master to settle a list of all the persons that are in any way liable? The Master has said nothing about the order of their liability.] The Master ought not to have placed Hawthorn, a former proprietor of shares, upon the list of contributories, without some qualification, until he saw that there was some probability of the present shareholders being unable to meet the liabilities of the Company; as between the former shareholders of the Company and the present there is no right of contribution.

Bacon, Lloyd, and Headlam, for the official manager of the bank, were not called on.

LORD CHANCELLOR.-There is nothing in this case. The 3rd section of the Winding-up Act defines the meaning of the word "contributory:" it says, "The word 'contributory' shall include every member of a company, and also every other person liable to contribute to the payment of any of the debts, liabilities, or losses thereof, whether as heir, devisee, executor, or administrator of a deceased member, or as a former member of the same, or as heir, devisee, executor, or administrator of a former member of the same, deceased, or otherwise howsoever." The official manager is bound to make out a list of the members and other contributories; and then the Master, having settled the list of contributories, and having determined the amount necessary to be raised by calls, he is, according to the 84th section, to apportion the same among the several contributories of the company, or such of them as ought to contribute thereto. Every person, therefore, who, in any event, may be liable to contribution, is to be included in the list. The insertion in the list does not conclude the amount or the order of liability, but only that there is some liability. Now, here is a party who, according to the Master's finding, was a shareholder, and, as such, liable to all losses anterior to the 1st January, 1847, but he, has decided nothing as to the proportion of liability. Having got all the contributories on the list, the Master is then to decide the order

arily, thirdly, or fourthly; but all he has at present done is to say that the party is liable in some degree and that Hawthorn is a person who may be liable for All that I decide is, that the Master's entry is correct. losses anterior to January, 1847.-Motion refused, with

costs.

SMITH V. PINCOMBE.-Feb. 9. Practice-Order to examine a Party—Notice of Names of Witnesses.

The common Order for Leave to examine a Party, "saving just Exceptions," does not require Service on the opposite Side.

Quare, whether there is any Rule of Practice that requires a Party examining Witnesses before a Commis sioner to give the opposite Side Notice of the Names, &c of the proposed Witnesses?

Circumstances under which a Motion to suppress Deposi tions taken before a Commissioner, on the Ground that no Notice of the Names, &c. of the Witnesses had been given, was refused.

This was a renewed motion by way of appeal from the Vice-Chancellor of England, (reported ante, p. 91). Since the decision of the Vice-Chancellor, the solicitor of the plaintiff filed an affidavit, stating, that, although he was present at the inn where the examination of the witnesses was taking place, yet that he was wholly ignorant of the names of the witnesses who were examined, and did not become aware of them until after publication had passed.

James Parker and W. H. Terrell, in support of the motion to suppress the depositions, took the same points that were taken in the court below, and, in addition to the authorities there cited, they referred, on the neces sity of service of orders of course in general, to Taylor v. Harrison (1 M. & C. 274) and Dearman v. Wych, (4 M. & C. 550). And, as to the necessity of giving notice of the names, &c. of the witnesses to be examined before the commissioner, they referred to the 26th Order of October, 1842, and to 1 Newland's Chan. Prac. 267, edit. 1819. Upon their proceeding to read the affidavit filed since the decision of the Vice-Chancellor, the Lord Chancellor said, that, if new affidavits were let in, it would be no longer an appeal motion.

Rolt and Follett, contra, objected to the reading of the new affidavit.

LORD CHANCELLOR.-It is a ground to have the motion stand over to answer the affidavit, if you wish. Parker referred to Const v. Barr, (2 Russ. 161), and stated the effect of the affidavit.

Mr. Munroe's Book of

They referred also to Earl Nelson v. Lord Bridport (7 Beav. 195) and Lord Mostyn v. Spencer, (9 Jur. 97). Rolt and Follett, contra.-The form of the order giving leave to examine a co-defendant originally contained these words, "and hereof give notice forthwith;" but Sir John Leach altered the form of that order, leaving out those words, and inserting the words "saving all just exceptions." Forms was produced before the Vice-Chancellor, shewing that those words are now invariably left out; and there is no general order of the Court requiring notice to be given. What analogy is there between this and other orders of course? All just exceptions are saved for the hearing. As to the second point, there is no rule of the Court that requires the names of the witnesses, about to be examined before a commissioner, to be given to the opposite side, neither was there under the old practice. The commissioner was furnished at once with all the interrogatories and cross-interrogatories, so that, in fact, there was no use in furnishing the names of the witnesses; but it was usual to give the names. This is all the books of practice say; but certainly not, unless the adverse solicitor attended the exe

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