In re The Dover and Deal Railway Company; Ex parte Beardshaw.

company, if the company should ever be formed. A, B, C, and all the letters of the alphabet are going to form a company, and I agree with them that I will take shares in the company, that is, if they succeed in forming the company. If they do succeed, then I will become a shareholder. How an agreement of that sort is to make me liable to contribute to the expenses of endeavoring to form a company, which they may not succeed in, I am at a loss to conceive, and always have been so. It has been determined in many cases, it is in fact admitted now, that an agreement to take shares, even though accompanied by a formal acceptance and agreement to pay the deposit, does not render a person liable to the expenses of endeavoring to form the company. If the company never is formed, the question of liability to contribute to the expenses of endeavoring to form it does not arise, for the agreement to take the shares in a company when formed, does not make him agree to the expenses of endeavoring to form it. If that were all- - if there were nothing more which could be alleged against Beardshaw, as a reason why he should be a contributory, I should think it unnecessary to refer to that undertaking of the directors in the letter of the 24th of January, 1846, by which the directors undertook to return the deposits in case the company was not formed.

But it is said that Beardshaw at all event made himself liable by signing or filling up that memorandum or paper, which was sent to him in May, 1846, by which he declares himself an original holder of 200 shares, and sanctions the continuance of the undertaking; and that, by requesting the directors to continue the undertaking, he does make himself liable to pay the expenses they might incur in continuing the undertaking. Now, it is to be recollected how he came to sign and fill up the declaration. He did it in consequence of its being sent to him to be filled up, accompanied by the addition of the secretary, Mr. Hook, by which Mr. Hook tells him there is going to be a meeting on the 28th, hoping that he would be able to attend, and then adding, "should it be otherwise, the directors solicit your confidence in continuing the undertaking." Then he says, "I am directed to add that, in order to secure the expenses of the undertaking, which are guaranteed by the South-Eastern Railway Company, it is absolutely necessary that the directors should proceed to obtain the act." It was on the undertaking that the deposits in full should be returned that Beardshaw first took the share. Then, was that undertaking done away with by the subsequent transaction of May? Beardshaw is here informed that the directors have the undertaking of the SouthEastern Railway Company for the expenses, and in order to work that act, it is necessary to proceed to parliament for a bill. How does their doing so militate against their undertaking that the deposits should be returned in case the act was not passed? The only reason why they then desired to have the paper filled up was, that it was necessary to go on in order to get the benefit of the arrangement with the South-Eastern Railway Company, and hoping that the shareholders would give them their confidence. All this was still on the faith of the original undertaking to return the deposits. Now, I

Cator v. Reeves.

am asked to say that Beardshaw was entering into a new arrangement with the directors, and that he was releasing them from the undertaking. It appears to me these transactions do not render him liable, assuming that he was not liable by the mere acceptance of the shares.

Then, it appears to me, if Beardshaw has succeeded in an action against the directors in recovering the remainder of the deposits, it is difficult to recognize his success in that action without its being a reason for his succeeding here. I do not rely on that, but on the fact that the acceptance of the shares and payment of the deposits cannot make a man liable to pay for the expenses in endeavoring to form a company in which he had agreed when formed to take shares. Under these circumstances, I think the application must be granted, and the name of Mr. Beardshaw struck off the list of contributories.

A claim was filed for foreclosure before the statute 15 & 16 Vict. c. 86, came into operation. There were several incumbrances, and on an application under the 48th section of that act, the court made an order for sale of the mortgaged property, and directed accounts of the sums due to the several incumbrancers.

THIS was a claim filed for foreclosure, and came on, before this court, in August last, from the list of the late Vice-Chancellor Sir James Parker, when, in the hope of an arrangement being come to, it was ordered to stand over until the present Michaelmas term.

Dauney, for the plaintiff, stated that no arrangement had been made, and proceeded to state the facts of the case as follows: — In 1844, Mr. John F. Reeves and Mr. Orlando Reeves, who were entitled as tenants in common, to freehold and copyhold estates in Somersetshire, mortgaged them to the plaintiff, Mr. Cator. In 1848, Mr. John F. Reeves deposited a policy of assurance on his own life, with the plaintiff, as a further security. In 1850, Mr. John F. Reeves made a second mortgage of his moiety of the freehold and copyhold property, and of the policy of assurance, to Mr. J. R. Wilkinson. In 1851, a joint judgment was entered up against Mr. John F. Reeves

1 22 Law J. Rep. (N. s.) Chanc. 19; 16 Jur. 1004.

2 Their lordships heard it in order to facilitate the despatch of business before the last long vacation.

Cator v. Reeves.

and Mr. Orlando Reeves; and in 1852, a judgment was entered up against Mr. Orlando Reeves alone. In February, 1852, Mr. John F. Reeves became bankrupt; and in June, 1852, Mr. Orlando Reeves also became bankrupt. The claim was filed by the plaintiff against the incumbrancers and the assignees of the two bankrupts for foreclosure of the freehold and copyhold estates and the policy of assur

ance.

The case properly belonged to the court of the Vice-Chancellor Stuart, who had succeeded to the business of Vice-Chancellor Parker, but as it had been before their lordships before, it was hoped they would consent now to dispose of it, and do so under the provisions of the Chancery Practice Amendment Act, the 48th section of which enacts, that "it shall be lawful for the court in any suit for the foreclosure of the equity of redemption in any mortgaged property, upon the request of the mortgagee, or of any subsequent incumbrancer, to direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the court may think fit to direct, and if the court shall so think fit, without previously determining the priorities of incumbrances, or giving the usual or any time to redeem." All parties concurred in asking for a sale.

Karslake appeared for the subsequent incumbrancers.

Murray, for the assignees of the bankrupt mortgagors.

KNIGHT BRUCE, L. J. We both think that the estates and the policy should be sold, and the funds be paid into court, and this latter had better be made to two accounts, one the land account, the other the policy account, or by such other names as will aptly distinguish them; and when the accounts are taken, the matter will go back to Vice-Chancellor Stuart's court.

The following was the form of the decree:-"Declare that the mortgaged property ought to be sold, and let the same be sold accordingly; let the proceeds of the sale be paid into court, distinguishing between the proceeds of the freehold and leasehold property and those of the policy. Let accounts be taken of what is due to the plaintiff and the other incumbrancers according to their several and respective priorities. Reserve further directions and costs. Liberty to all parties to apply to Vice-Chancellor Stuart."

A female ward of court, before the passing of the statute 15 & 16 Vict. c. 86, married without the leave of the court. She was the plaintiff in a suit at this time, and upon her marriage the suit was revived against her husband, and, under an order of the court, a settlement was made on her and her issue, by which her whole property was vested in trustees. Upon an application, on behalf of the plaintiff, under the 52d section of the statute: —

Held, that this was a change or transmission of interest within the spirit of the section, so as to authorize the court to make an order against the trustees under that section to the effect of the usual supplemental decree.

THIS was a suit instituted by a female infant, a ward of the court, by her next friend, for the administration of the real and personal estate of a testator, under whose will she was entitled to one seventh part of his property. The plaintiff married during the progress of the suit, being still an infant, and without the leave of the court, upon which event the ordinary bill of revivor was filed against the husband. A reference was afterwards directed to the Master by Sir J. L. Knight Bruce, then a Vice-Chancellor, to approve of a proper settlement of the young lady's fortune. A settlement was accordingly prepared and approved of and executed, whereby the property to which the wife was entitled under the testator's will was conveyed, assigned and transferred to, and duly vested in trustees upon trust for the benefit of herself and her issue. The husband had since died. An application was made on behalf of the widow, under the statute 15 & 16 Vict. c. 86, s. 52, for the common supplemental order for the purpose of carrying on the suit against the trustees of the marriage settlement.

Hardy stated, on behalf the plaintiff, that this matter had been mentioned to Vice-Chancellor Stuart, who had been asked to make the supplemental order which would have the effect of making the suit complete by adding the trustees of the settlement as parties, and so, as the legislature intended, save the expense of a supplemental bill; but his honor stated his doubt of the case falling within the words of the 52d section, "defective by reason of some change or transmission of interest," and suggested the propriety of taking the opinion of a higher branch of the court on the point. He contended that the statute should receive a liberal construction; and the present case, if it did not fall within the very letter of the enactment, was plainly within the spirit and intention of it. The conveyance, assignment, and transfer from the infant and her husband to the

1 22 Law J. Rep. (N. s.) Chanc. 20; 16 Jur. 1005; 2 De Gex, Mac. & G., 221.

Yeatman v. Mousley.

trustees of the settlement, was in truth such a transmission or change as the statute intended to provide against, although it must be admitted that it took place before the statute was passed.

KNIGHT BRUCE, L. J. What is wanted here is, the common supplemental order, so as to carry on the suit against the trustees of the settlement. We think we shall be acting in accordance with the spirit of this act of parliament in applying it to such a case as the one before us; and we think so the more especially as the trustees, the now defendants, can under this very section, apply to the court to discharge it. With great deference, therefore, to Vice-Chancellor Stuart, we think we may make the order, and we make it accordingly.

YEATMAN V. MOUSLEY.1

November 20, 1852.

Practice-Printed Bill- Procedure Amendment Act.

A printed bill was prepared, pursuant to section 1, of the statute 15 & 16 Vict. c. 86, but there being a mistake by the transpósition of the christian names of the next friend, the error was corrected in ink, and the officers declined to file it as a printed bill; but the court held, that the alteration was of so slight a nature, that it did not constitute a sufficient ground for refusing to file the bill, and directed it to be received and filed accordingly.

In this case a bill had been prepared and printed, which was by a next friend on behalf of an infant, and by some inadvertence the christian names, which were "Constantia Maria," had been transposed and printed as "Maria Constantia." This error appeared twice in the heading of the bill, and nowhere else, and the solicitor for the plaintiff struck out with a pen in the printed copy the word "Maria" in each place, and with a caret interlined it in ink after the word "Constantia," so as to make the bill read correctly. The bill so altered was presented to the clerk of records and writs, who declined to receive and file it as not being "a printed bill of complaint" as required by the first section of the statute 15 & 16 Vict. c. 86, but was, in part at least, an engrossment which, by that section, was forbidden to be received and filed.

Schomberg, on behalf of the plaintiff, now moved before their lordships that the clerk of records and writs might be directed to receive and file the bill so altered in ink. He stated that the application had been made to Vice-Chancellor Kindersley, who stating the great de

1 22 Law J. Rep. (N. s.) Chanc. 20; 16 Jur. 1004; 2 De Gex., Mac. & G., 220.