has access to them, has been considered as a ground for affecting him with the admission of the facts stated in them:" Phillips on Evidence (a), Alderson v. Clay (b). The book in question was a minute-book of the committee of management, of which the plaintiff in error was a member, and was produced by him as such to the committee of shareholders, and examined by them in his presence, together with other documents relating to the undertaking. Secondly, the direction of the learned Judge was correct. As the provisional registration continued in force for one year only, and it is found as a fact that the undertaking was abandoned as abortive, unless Nockells v. Crosby (c) and Walstab v. Spottiswoode (d) are bad law, the defendant in error is entitled to succeed. It is said that the letter of allotment must be read as subject to the provisions of the subscribers' agreement; but no such agreement was in existence at the time the allotment was made; and though one was afterwards drawn up, it does not appear that the defendant in error was aware of its contents. But, assuming that he was bound to execute a subscribers' agreement, his contract was a contract upon the terms of the prospectus, and he would only be bound to execute such an agreement as contained the powers and authorities conferred on the promoters of the Company by the 23rd section of the 7 & 8 Vict. c. 110. This deed gives them unlimited power either to increase or diminish the capital of the Company, also to extend the railway to any distance, and to apply the deposits in a manner wholly unauthorised by the statute. Such a deed no allottee could have been compelled to execute. The terms, "subject to the provisions of the subscribers' agreement," mean an agreement in pursuance of the statute. Walstab v. Spottiswoode expressly decided, that the application for (a) Vol. 1, p. 357, 9th edit. (6) 1 Stark. 405. (c) 3 B. & C. 814. 1850. ASHPITEL ข. SERCOMBE. 1850. ASHPITEL v. SERCOMBE. shares, and the allotment and payment of the deposit, do not make the allottees and promoters in any respect partners in the proposed association. Reynell v. Lewis(a) and Wyld v. Hopkins (a) are authorities to the same effect. The 7 & 8 Vict. c. 110, does not alter the nature of the contract between the promoters and the subscribers, but the former are merely placed in the same position, after the concern is provisionally registered, as they were at common law. The deposit of each subscriber is a mere earnest until the whole is subscribed for, and if the promoters of the scheme think fit to proceed before that time, they do so at their own risk. Then Nockells v. Crosby (b) is an express authority in favour of the direction of the learned Judge, that, upon the final abandonment of the scheme as abortive, the plaintiff below was entitled to recover back his money. In the present case, the question was left to the jury in the same way as in Wontner v. Shairp(c). There the deed had been executed, yet, there being fraud, the plaintiff recovered. In Garwood v. Ede (d), the deed, which gave the directors power to dispose of the deposits, had been executed by the plaintiffs, and it was conceded that no fraud could be imputed to the directors, and that the whole of the deposits had been expended. In Clements v. Todd (e), the plaintiff paid his money on the same terms as the person who signed the deed. Atkinson v. Pocock (f), Vane v. Cobbold (g), Jones v. Harrison (h), and Willey v. Parratt (i), are the same in principle as Garwood v. Ede. Crowder replied.-As to the admissibility of the resolution in evidence, he cited Burnside v. Dayrell (k). With respect to the other point, he argued that the plaintiff be low ought to have put in the subscribers' agreement, and have shewn that it contained terms enabling him to recover back his money if the scheme were abandoned. Also that the 23rd and 24th sections of 7 & 8 Vict. c. 110, empowered the promoters to expend the deposits for the purpose of carrying the scheme into effect. Cur. adv. vult. The judgment of the Court was now delivered by PATTESON, J.-This was an action for money had and received, brought by the plaintiff, an allottee of shares in a proposed Railway Company, which had been abandoned before the commencement of the action, without any fraud or misconduct, against the defendant, one of the managing committee, to recover back the plaintiff's deposit. The plaintiff applied for shares on the 6th of October, 1845, by letter, in which he says, "I agree to accept the same, or any portion thereof, subject to the provisions of the subscribers' agreement; and I further agree to execute the same, and any other agreement or deeds, and to pay the deposit when required." On the 11th of October, a letter of allotment was sent to the plaintiff, containing notice to pay the deposit on or before the 20th of October, and adding, "I beg also to inform you, that scrip for the shares will be delivered to you, in exchange for this letter and receipt, upon your executing the parliamentary contract and subscribers' agreement, which lies here (11, Clement's Lane, London) for signature until further notice, and afterwards at such other places as will be hereafter notified." The plaintiff resided at Exeter. He paid the deposit on the 20th of October, as required. On the 3rd of December, the subscribers' agreement was sent to Exeter, and the plaintiff had an opportunity of executing it, but did not. It was not, however, proved that he was called upon to execute, VOL. V. M EXCH. 1850. ASHPITEL บ. SERCOMBE. 1850. ASHPITEL v. SERCOMBE. nor that any notice was given to him that the deed was at Exeter. The subscribers' agreement authorises the directors to take such measures, and incur such preliminary expenses, as they may think advisable; also to extend the railway, or, if they shall think fit, to abandon the undertaking; and it also specially authorises them to apply the deposits in payment of the expenses; and the deposits have been so applied; but the undertaking was abandoned, in consequence of the allottees not furnishing sufficient money to carry it on. On the trial of the cause, a bill of exceptions was tendered to the learned Judge, by the learned counsel for the defendant, on two grounds. The first ground was, that he had received in evidence a certain resolution, to which it was urged that the defendant was not sufficiently shewn to be a party. It appeared that, on the winding up of the concern, a committee of inquiry had been appointed, and the defendant had handed to them the minute-book, containing the resolution in question, as part of the proceedings of the directors. We think this an abundant recognition by the defendant, and that the learned Judge was quite right in admitting the evidence. The other ground of exception was, that the learned Judge told the jury, that, if they thought that the project had been abandoned as abortive at the time the action. was commenced, they should find a verdict for the plaintiff. There seems to be no doubt that the plaintiff, having paid his money for shares in a concern which never came into existence, or a scheme which was abandoned before it was carried into execution, has paid it on a consideration which has failed, and may recover it back as money had and received to his use, unless he can be shewn to have consented to or acquiesced in the application of the money which the directors have made. On these two grounds, -the failure of the project, and the want of consent or acquiescence, the plaintiff's claim is founded. They are both of them questions of fact, and ought both to be determined for the plaintiff, to enable him to recover. We think it clear that the onus probandi on the first question is with the plaintiff, on the second with the defendant. That it is so with respect to the first cannot be questioned; and, as to the second, there seems no doubt that, in the absence of all evidence, documentary or other, the plaintiff cannot be presumed to have consented to the expenditure. Each of these questions, being one of fact, is for the jury, unless the evidence on either of them should consist of written documents only, in which case it must be determined by the Court. In the present case the learned Judge left the first question only to the jury, and they having decided it in the affirmative, the verdict was directed for the plaintiff; and the ground of the exception is, that the verdict was directed to depend on the first question only, to the exclusion of the second. This direction is wrong, if there were any evidence for the jury on the second question, or if it were a question for the Judge, and he ought to have determined it in favour of the defendant. The case was treated, in some part of the argument for the defendant, as if the learned Judge had affirmed as a general proposition, that in all cases where a project has been abandoned as abortive, the deposit may be recovered; but that is not the right view of his decision, which was not general, but only that in this particular case there was no other question for the jury, and no question for the Judge which he ought to have decided for the defendant, and which would entitle him to a verdict. It is necessary, therefore, to inquire-First, whether there was any evidence of consent or acquiescence in the application of the money besides the written documents, viz. the letters of application and allotment, and the subscribers' agreement; and, secondly, whether, if there were no such evidence, upon the true construction of these do 1850. ASHPITEL v. SERCOMBE. |