company; it is a mere financial statement from ex parte evidence. If it is a report, it must be made to some Court, but this is only a report of the Master to himself. Besides it was made on the same day with the call, and there was no time for calling it in question if it was necessary to do so.

Mr. Bethell and Mr. Roxburgh were for the official manager.

THE LORDS JUSTICES said that as the report had been made at the same time with the call, the appellant ought to have an opportunity of going before the Master, and of being heard upon it, and their Lordships ordered the appeal to stand over, with liberty for the appellant to apply to the Master as he should be advised, and that all proceedings under the order should be suspended till further order.

The appellant afterwards appeared before the Master, and was heard in opposition to the report. The Master, however, adhered to the finding contained in it.

Mr. Glasse and Mr. Greene for the appellant. — The present is the only form of objecting to the Master's *517 finding, for we still submit that the memorandum upon the file of the proceedings is not a report to which we can except or object, otherwise than by moving to discharge the order founded upon it. There are no facts before the Master supporting the finding or the call. There is nothing to show any legal liability on the part of Mr. Dale to pay the demands or the costs for which the call is made. The costs are not even taxed, so that there is really no constat as to the amount of them or as to the sum that is really required.

They referred to Upfill's Case (a) and Hunter's Case. (b)

Mr. Bethell and Mr. Roxburgh, for the official manager. Instead of coming to dispute the report, the appellant comes here to dispute the validity of that which is the legitimate consequence of it, and which cannot be disturbed so long as the report remains

unimpeached. All that the appellant now says is that he is not liable at law or in equity. The report disposes of that argument. With regard to the evidence that the amount is required to be raised, the Master has acted under the 83d section of the Act of 1848, and the 28th section of the Act of 1849, which enable the Master to make such a call as should appear to him to be probably sufficient to raise the amount of them, having regard, among other things, to the circumstance that any of the contributories might not be in a condition to pay.

Mr. Glasse, in reply.

* 518

*THE LORD JUSTICE LORD CRANWORTH.

We are both

of opinion that the decision of the Master is right. The Master's order proceeds upon a report of even date with it, and no doubt some anomaly and difficulty might exist in dealing with that in point of form; because it is true, as has been argued, that if the appellant objects to the order as founded upon an error in fact, the proceeding which ought to have been questioned was the report and not the order for a call. And as the report in this case was concurrent with the order of the same date, and being, therefore, in all probability a document to which the parties affected by the order never had access, there is in point of form, or there might have been, some difficulty. But it would be a difficulty which this Court would not permit to stand in its way. If the appellant was damnified by an order, proceeding upon a report which he had no practical opportunity of questioning, the circumstance that he made his complaint to the form of the order itself, and complained of the order instead of the report, would be a matter which this Court certainly would not have regarded as permanently affecting his rights. We should, if necessary, have given him an opportunity of questioning the report, and of having a decision upon the merits of the case. Indeed, we thought we had done so, by giving him an opportunity of going before the Master to make any application he might be advised to make; and if he had any means of questioning the accuracy of that which the Master calls, and probably accurately calls his report, by showing that it was inaccurate, no doubt he would have done so. As the appellant has failed to do this, I think we are bound to assume that the report is substantially accurate as to the demands that are exist

ing against this association or company, or by whatever name it is to be designated.

*Taking that to be so, what the Master finds in substance* 519 is this that the contributories of this company consist now only of forty persons; that every one of these forty persons is liable to the same amount, each having become liable, because they all, on the 1st of November, 1845, agreed, being members of the provisional committee, to take shares. Mr. Dale was one of these persons, and it has been said (though I do not go much on that) was a leading member of the committee. Expenses were incurred between that day and the 1st of December following, to the extent of 5000l. and upwards. The Master finds all that, and therefore, acting upon the principle laid down in the House of Lords in Upfill's Case, has proceeded to ascertain to what extent each of the contributories is liable, and having done so, has made a call to meet that liability. He has ascertained, that the amount to which all the contributories are liable, is something more than 50001. They are liable also to the costs of winding up the concern, which is their concern exclusively. There is no other contributory, no other liability to be at all wound up. The Master, therefore, says, "As a call must be made to meet this 50007., together with the costs, I now will do, with regard to the costs, the best that the nature of the thing enables me to do. I cannot tell to a shilling what it will be, but I estimate and make the best account I can; and having made out that account, I find that the whole amount is the sum of 5000l. together with another sum of 12001. Therefore to the extent of that 5000l. and 12007. the parties are to contribute." Almost all of it has been paid by means of another call, and, as I suppose, by payments before any call was made; large sums have been paid on account, but in order to equalize all this and to do justice, the Master now, having previously made a call of 1207. makes a call which, in his judgment and in the judgment of the official man* 520 ager, will meet the case with practical accuracy; namely, a further call of 607.

I think that is all the Master can do, or ought to do. He has no possibility of arriving at a conclusion as to what absolutely to a farthing these persons will have to pay. The section which has been referred to, clearly shows that the Act did not mean to impose upon the Master a practical impossibility in point of

figures. Having ascrtained all the data on which he is to proceed, and having ascertained that the parties before him are all equally liable to outstanding liabilities, so far as there are any outstanding, he proceeds to equalize the contributions among them, and to apportion their contribution to the costs, and makes a call for that which, on the best estimate which he can form, will raise the necessary sum.

That I think is all the Master could do; he seems to me not at all to have come in conflict with my decision in Upfill's Case, or with Hunter's Case, which does not touch the present. I think the Master was quite right in making such call, and therefore that the motion must be refused, with costs.

The Lord Justice KNIGHT BRUCE concurred.

* 521

* WEBB v. THE DIRECT LONDON AND PORTSMOUTH RAILWAY COMPANY.1

1852. March 5, 6, and 22. Before the LORDS JUSTICES.

The promoters of a railway company, in consideration of a land-owner's opposition to the bill being withdrawn, agreed to pay him 4500l., as the purchasemoney of land, not exceeding eight acres, to be taken by the company for the formation of this railway and for consequential damage. The Act was obtained, and the agreement adopted by the company in consideration of the land-owner releasing the promoters from their covenant. The agreement was so framed as to render it doubtful whether it was not to be contingent on the formation of the railway. The railway was abandoned, and after the expiration of the time limited for the acquisition of land for the purposes of the undertaking by the company, the land-owner filed a claim for a specific performance of the agreement. Held, to be a case in which a decree would produce more injustice than justice; and a specific performance was therefore refused."

1 1S. C. 10 Hare, Ap. 16; 9 Hare, 129.

* See Sugden V. & P. (14th Eng. ed.) 76; Stuart v. The London and NorthWestern Railway Co., post, 721, 733; Hawkes v. The Eastern Counties Railway Co., post, 737, 754 and cases in note, 760 and cases in note; Ffooks v. SouthWestern Railway Co., 1 Sm. & Gif. 142; Parkin v. Thorold, 16 Beav. 59, 67 ; The Shrewsbury and Birmingham Railway Co. v. The London and North-Western Railway Co., &c., 4 De G., M. & G., 115; Inge v. The Birmingham,

THIS was an appeal from the decision of the Vice-Chancellor TURNER, reported in the ninth volume of Mr. Hare's Reports, p. 129.

By an agreement dated 23d of July, 1845, and made between C. S. Crowley, B. Baines, and J. Laurie, three of the promoters of an Act of Parliament for making a railway from the Croydon and Epsom Railway at Epsom, to the town of Portsmouth, to be called "The Direct London and Portsmouth Railway Company," on behalf of themselves and all others the promoters of the said act, of the one part; and P. B. Webb, the appellant, of the other part; and it was agreed as follows: "First, that the company to be incorporated under the said Act of Parliament when passed, should at their own costs and charges build a bridge over the railway at a specified place, or at such other place as Mr. Webb should by writing direct; and that such bridge should be of the dimensions and description therein set forth. Secondly, that the company should deviate from their proposed line as delineated in the plan, so far to the eastward thereof as to avoid altogether any interference with a piece of meadow land, the property of Mr. Webb, or the plantation round the same. Thirdly, that the company should, if empowered so to do, purchase a 522 piece of land, the property of the Dean and Chapter of Salisbury, containing by estimation one acre (more or less), which would lie between the said deviated line of railway on the one side, and a piece of meadow land and plantation numbered 152 and 153, and a piece of land in the said plan marked 35, on the other side; and immediately on such purchase being completed, should convey the same at their own costs and charges to Mr. Webb, his heirs or assigns, or as he or they should direct, for a nominal consideration. Fourthly, that the company should build an archway under their railway, between certain specified points.

*

There were other stipulations as to accommodation works. And the last clause was as follows:

Wolverhampton, and Stour Valley Railway Co., 3 De G., M. & G. 658; Norwich v. The Norfolk Railway Co., 4 El. & Bl. 397; Bland v. Crowley, 6 Exch. 522; Gage v. Newmarket Railway Co., 18 Q. B. 457; Preston v. Liverpool, &c., Railway Co., 17 Beav. 114; 2 Macq. H. L. 420; Gooday v. Colchester, &c., Railway Co., ib. 132; London and Brighton Railway Co. v. London and South-Western Railway Co., 4 De G. & J. 389; Williams v. St. George's Har. Co., 2 De G. & J. 547.

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