such arrangement, and at the request of the said parties hereto of the second part, the said Alexander Hamilton Gunn hath duly signed the appointment of Mr. F. S. Hull as the solicitor to make returns under the said Act, and the same, and his acceptance thereof, has been duly filed: Now, therefore, for the considerations herein expressed and referred to, the said Alexander Hamilton Gunn doth, and the said parties of the second part do, hereby agree with each other as follows,-1. That the said Alexander Hamilton Gunn shall relinquish his rights as a promoter of the said Company, and shall not have any power, control, or right of interference in the affairs or proceedings of the said Company, and he shall not do any act, matter, or thing in the name or on behalf of the said Company or the directors thereof *without the previous express authority of the directors for the time being of the said Company for that purpose first had [*698

and obtained: 2. That the said Alexander Hamilton Gunn shall, however, upon every reasonable request of the said directors, give all the assistance and services in his power which the said directors for the time being shall or may require of him, in the furtherance of the affairs and objects of the said Company to the time of the complete registration of the Company, and shall not be entitled to any reward or remuneration whatever for such assistance and services, beyond travelling expenses: 3. That, provided the said Alexander Hamilton Gunn shall perform his part of this agreement, the said directors of the said intended Company shall and will, at or before the expiration of fourteen days after the Company has been completely registered, pay and otherwise carry out whatever may be requisite for the complete performance on their part of one of the two following alternatives, the option of which it is hereby expressly agreed shall remain with the said parties hereto of the second part and their co directors, that is to say, either they shall appoint the said Alexander Hamilton Gunn to the office of manager of the agency department of the said Company for the term of seven years, at a salary of 5001. per annum, and a commission of 17. per cent. on all business to be brought during that period by agents appointed on his recommendation (but excluding existing agents of the Queen Assurance Office), and pay to the said Alexander Hamilton Gunn the sum of 10007. in cash, and also the amount of the advertising account incurred by him in reference to the said Company, and all other claims and demands incurred by the said Alexander Hamilton Gunn in reference to the said Company, amounting to the further sum of 20007., or, as to the other alternative, they shall pay to the said Alexander Hamilton Gunn the sum of [*699 50007., one-half thereof in cash, and the other half in 1000 shares of the said Company upon which 27. 103. per share shall be considered as paid; and, in such last-mentioned case, the said sum of 50007. shall be considered as inclusive of and comprising the fees and charges of Mr. Jenkin Jones in the valuation ar other business transacted by him in relation to the contemplated purchase or amalgamation with the fire business of the said Queen Assurance Company, and also all charges for brokerage of whatever description, and all other expenses whatsoever incurred in or about or in reference to the formation and establishment of the Company, and the procuring of subscriptions to the capital thereof, up to and including the 14th of November

now instant, except solicitors' charges, which are to be borne and paid by the Company or the directors thereof: And the said Alexander Hamilton Gunn will accept either of the said two alternatives in full satisfaction and discharge of all claims and demands of the said Alexander Hamilton Gunn in respect of the registration, formation, and promotion of the said Company, and relating thereto, and also in full discharge of all debts, claims, demands, liabilities, and expenses which have been incurred, paid, or laid out by him either on his own behalf or in the names or for the account of the said directors of the said Company, or any of them, in or about the advertising of or otherwise relating to the said Company,-it being, however, distinctly understood and agreed, that the said parties of the second part are to be at liberty, in the first place, to pay and discharge all or any such debts, claims, demands, liabilities, or expenses which they or any or either of them shall or may have incurred or be liable for up to the date hereof, for or in respect of advertising the prospectus, and notices, *700] *printing, stationery, books, salaries, rent, and postages as aforesaid, from and out of the said sums payable to the said Alexander Hamilton Gunn, and to pay the balance thereof to the said Alexander Hamilton Gunn, and the sums so paid shall be and operate as a discharge or discharges by the said Alexander Hamilton Gunn to the said parties of the second part, to the extent of the moneys so paid in respect of the said sums payable to him under these presents: 4. That, in consideration of the engagements therein before contained on the part of the said parties of the second part, the said Alexander Hamilton Gunn shall and will hold harmless and indemnify the said parties of the second part, and all other directors of the said intended Company, and each and every of them, from and against all debts, claims, liabilities, and demands whatsoever to all and every persons and person for or on account of the said Company, and the advertising of its propectus and other papers, and all things relating to the said Company, and all loss, costs, charges, damages, and expenses for or in respect of advertising the prospectus and notices, printing, sta tionery, books, salaries, rent, postages, messengers, porterage, and provisional registration fees as aforesaid, and all other charges, expenses, and liabilities whatsoever to which the said parties hereto of the second part, or any of them, may be or become liable in relation to the said Company, which may have been incurred on or prior to the 14th of November instant, except solicitors' charges, which are to be borne and paid by the said Company or the directors thereof As witness," &c. Averment, that the said contract in the said articles of agreement mentioned was not made conditional on the completion of the said Company, and to take effect after the certificate of complete registration of the said Company should have been obtained, according to the statute in such case provided. *701] *To this plea the plaintiff demurred, the ground of demurrer stated in the margin being "that the said contract in the said articles of agreement mentioned, having been ratified and confirmed by the deed of settlement, as alleged in the count, is binding on the defendants, although not made conditional on the completion of the said Company." Joinder.

Philbrick, in support of the demurrer.(a)—The contract declared on was clearly one which it was competent to the Company to enter into. The plaintiff was the sole registered proprietor and promoter; and, in *consideration of his ceding all the rights which the statute [*702 gives him, the Company agree to pay him a certain sum when they are completely formed. The contract is ratified by their deed, and is made the basis of their legal existence, and to take effect after 'they are completely formed. It is clearly a contract which they had power, under the 23d section of the 7 & 8 Vict. c. 110, to enter into. That section enacts, "that, on the provisional registration of any Company being certified by the registrar of joint stock Companies, it shall be lawful for the promoters of any Company so registered to act provisionally, &c.; and it shall be lawful for the promoters of such Company to assume the name of the intended Company, but coupled with the words 'registered provisionally,' and also to open lists, and also to allot shares and receive deposits thereon, &c., and also to perform such other acts only as are necessary for constituting the Company, or for obtaining letters patent, or a charter, or an Act of Parliament; but not to make calls, nor to purchase, contract for, or hold lands, nor to enter into any contracts for any services, or for the execution of any works, or for the supply of any stores, except such services and stores or other things as are necessarily required for the establishing of the Company, and except any purchase or other contract to be made conditional on the completion of the Company, and to take effect after the certificate of complete registration, Act of Parliament, or charter, or letters patent shall have been obtained," &c. [WILLES, J., referred to Hutchinson v. The Surrey Consumers Gas Company, 11 C. B. 689 (E. C. L. R. vol. 73), where it was held that a joint stock Company completely registered under the 7 & 8 Vict. c. 110, is not liable upon contracts entered into by the promoters before provisional registration.] They may do such acts as are necessary for the formation or establishing of the * *Company. This was a contract which they were competent to enter into, [*703 and was for their benefit. Taking the 23d section with the 25th,— which provides, that, upon complete registration, "any covenants or engagements entered into by any of the shareholders or other persons

(a) The points marked for argument on the part of the plaintiff were as follows :—

"1. That the defendants were bound by the articles of agreement, as they were ratified by the deed of settlement of the Company:

"2. That the defendants were liable on the contract with the plaintiff, as such contract was executed, and was for their benefit, after the complete registratior of the Company, although not in terms made conditional on such complete registration:

"3. That the contract set out in the declaration was not one that required to be expressly made conditional on the completion and complete registration of the Company, as it was a contract for the relinquishment by the plaintiff of his right to complete registration, and could only take effect by such registration:

"4. That, even assuming the contract was one that required to be made conditional on the complete registration of the Company, it sufficiently appears by the declaration to have been made so conditional, inasmuch as no part of the said contract was to be performed by the defendants till after the complete registration:

5. That there is nothing on the face of the plea to show that it was necessary that the contract set out should be made conditional on the completion of the said company, and to take effect after the complete registration, and the plea is therefore bad:

"6. That the said contract was not one required by the statute to be made conditional on the complete registration of the Company."

with any trustee on the behalf of the Company, at any time before the complete registration thereof, may be proceeded on by the said Company and enforced in all respects as if they had been made or entered into with the said Company after the incorporation thereof," -it is clear that certain contracts made before are binding on the Company after complete registration. [WILLES, J.-The 23d section is to be read as part of the general scheme of registration, and as absolving the directors from penalties for doing certain acts before the complete registration of the Company. WILLIAMS, J.-To make a contract valid, there must be parties existing at the time who are capable of contracting. The Company did not exist at the time this agreement was made. I feel great difficulty in saying that the 23d section intended to give them that sort of pre-existent capability of contracting.] The contract is impliedly conditional on the complete registration of the Company.

J. Brown, contrà. (a)-In Payne v. The New South Wales *704] Coal and International Steam Navigation Company, 10 Exch. 283,† the first count of the declaration stated, that the plaintiffs had projected a joint stock Company within the meaning of the 7 & 8 Vict. c. 110, which Company was afterwards provisionally registered; that, within twelve months after its provisional registration, articles of agreement were entered into between the plaintiff of the one part, and P. and L. of the other part, whereby the plaintiffs agreed to transfer to P. and L., on behalf of the Company, all the interest of the plaintiffs therein: and P. and L. on behalf of the Company agreed, that, in case the plaintiffs should, within six calendar months after the arrival of the first of the steam-vessels to be despatched by the Company in the colony of Australia, commence the business of shipbrokers at Sydney, the plaintiffs should be the ship-brokers of the Company for the port of Sydney; and further that the Company should provide the plaintiffs with a free passage to the said colony by the first of the Company's steam-vessels so to be despatched. The count then averred, that, afterwards the Company was completely registered, that, after the provisional registration of the Company, the first steam-vessel was despatched by the Company to Australia, and that the plaintiffs were willing to have gone by it, and did all things necessary to entitle them to the agreed passage; and alleged for breach that the Company refused to permit the plaintiffs to go by that vessel. It was held, on demurrer, that the count was bad, *705] *since the completely registered Company was not liable on the contract made by the provisionally registered Company. Martin, B., there says: "This was a contract by the promoters of the Com

(a) The points marked for argument on the part of the defendants were as follows:"1. That the defendants, being a corporation under the 7 & 8 Vict. c. 110, were no parties. to, and were not liable to be sued on, the contract declared on, which was made before the corporation existed:

"2. That the contract declared on was made by the individual directors of the Company provisionally registered, and not by the Company, as such :

"3. That, if the contract was made by the provisionally registered Company, it is not binding on the completely registered Company, who are defendants in this action:

"4. That the contract was not one which the provisional directors had power to make under the 7 & 8 Vict. c. 110, s. 23, and was not made conditional on the completion of the Company, and to take effect after the certificate of complete registration should be obtained, as required by the statute:

"5. That the only parties liabl on the contract, are, the directors who made it."

pany after provisional and before complete registration; and it is clearly not a contract which the completely registered Company is bound to perform. The 23d section of the Act authorizes the promoters of a Company to obtain a certificate of provisional registra tion, and, upon that being done, it becomes lawful for them to do certain things which are specified. But, so far from being enabled to bind the completely registered Company by this contract, they can make very few contracts to bind themselves."

Per CURIAM.-If the plaintiff wishes to raise this point, he must do so in the Court of error. Judgment for the defendants.

In the Matter of JOSEPH JOHN WRIGHT, an Attorney,-Ex parte MARY ANN THOMAS. May 27.

Practice on a rule calling upon an attorney to answer the matters.

It is no answer to such an application, that the applicant has already filed a bill in equity against the attorney for an account in reference to the transactions complained of,-even though the proceedings in equity have resulted in a decree against the attorney.

Where it has been referred to the master to examine into the charges and to report to the Court, it is not competent to the counsel for the accused to go into the evidence given before the master the Court will only look to his report.

UDALL, in Michaelmas Term last, moved for a rule calling upon Joseph John Wright, an attorney of this Court, to show cause why he should not answer the matters contained in certain affidavits which charged him with having fraudulently appropriated to his own *use moneys to the amount of 22521. which had been intrusted [*706 to him by the applicant for investment, and with a series of misrepresentations as to the manner in which he had disposed of them. It also appeared from the affidavits that the applicant had filed a bill in Chancery against Mr. Wright and had obtained a decree, but that she had been prevented from obtaining any fruits from it in consequence of Mr. Wright having gone to Scotland and there availed himself of the Scotch law of bankruptcy. [ERLE, C. J.-Has not the applicant precluded herself from taking this course by her election to proceed by bill in equity for an account?] It has been decided that filing a bill in equity against an attorney is no answer to an application against him to the summary jurisdiction of the Court for misconduct. Chitty's Archbold, 11th edit. 147, citing Anonymous, 4 Jurist 630. [ERLE, C. J.-That was a mere application to Chancery. Here, it is rem judicatam. I am unwilling to grant a rule which may be discharged. But possibly a rule might be sustained if anything like misconduct in the attorney could be shown in his going colourably to Scotland to defeat a just claim.]

Udall renewed his motion on a subsequent day, with further affidavits, and the rule was granted.

Bovill, Q. C., and T. J. Clark, in Hilary Term last, appeared to show cause against the rule, strongly arging the staleness of the transactions (they having arisen nearly eleven years ago), and that the present motion was only resorted to for the purpose of extorting money from the attorney in satisfaction of a debt from which he had been discharged by means of the Scotch sequestration.