The Express.
London, England, 1852-07-29 00:00:00

OVISIONT OF THE JUDOFS.

Mr. Baron Parke—la answer to your lordships' question
I have to state that we are of opinion that the persons who
acted together fur the purpose of obtaining an act of parlia-
ment to make a railway in the manner therein stated were
a company or association within the meaning of the Joint
Stock Companies Winding-up Acts, 1818-1319, and that
the 116501.1i11i0n of those persons may be dissolvs d and wound
up under the directi in of the Court of Chancery, if that
court consider that it is fit and proper that it should be so
dealt with. The first of these two acts, 11 and 12 Vie.,
cap. 45, reciting the previous act of 7 and 8 Vie., cap. 111,
and the Irish act 8 and 9 Vic., cap. 9a, and the 9 and 10
Vic., cap. 28, and the propriety of amending them, and
giving further facilities for the dissolution and winding-up
of joint-stock companies and partnerships, enacts that the
act shall apply to all companies, corporate or incorporate,
within the provisions of the two first-mentioned acts, to
other companies not material to the present inquiry, and
lastly to all companies, associations, and partnerships to be
formed after the passing of that act, whereof the capital or
the profits is or are divided, or to be divided, into shares,
and such shares transferrable without the express consent of
all the co-partners, and by section 2, to all assoti 'terns and
companies formed for the purpose of working mines., and
i benefit societies not certified and enrolled. By the inter-
pretutiou clause, the word " company " inch. act is to
mean any partnership, association, or company, corporate
or incorporate, to which the act applies. Tee Leidy of per-
sons or association in question is not within the litter part
of the first section above reterred to, f.r it ha. no stock
divisible into shares; whether it is within the former, 7 and
8 Vict., c. 111, is a more doubtful question. It clearly does
not fall within the other act referred to, for it is an act con-
fined to Ireland. The 7 and 8 Vict., e. 111, comprises in it
various companies. it embraces commercial or trading
companies incorporated; this is not one. But it also
applies to any company or body of persons associated
together for commercial or trailing purposes to which pri-
vileges have been granted under 7 XS illiarn IV. and 1 Vice,
c. 78, or which is registered provisionally or completely
under 7 and 8 Viet., c. 110. Now this is not a company
or body of persons associated together directly for
commercial or trading purposes (if the malting of a
railway be such a purpows, which may ho a question);
the immediate object of this association is not the
making of a railway but the obtaining r.n act to
enable them to do so, after subscriptions hare been
obtained, and a company has been formed ; but as the act
speaks of such a body being provisionally registered as a
condition, and • complete campaey practically never ii, the
probable meaning of the section is, that a bt .1y of persons
associated to obtain an act of nareament to . cable them to
act as a company for commercial or trading purposes,
whose ultimate though not immediate purpose is commer-
cial er trading, is within this act, and if so, it would be
within the 11 and 12 Vice, e. 45, us Viet act is expressly
made applicable to every company within the provision of
the former act 7 and 8 Vice, c. 111. If the question de-
pended upon this company or association le ing within the
7 and 8 Viet., c. 111, we should have to decide whether the
construction of a railway were a " commercial or trading
purpose ;" but it is not necessary to du so. 1' is however
material, 11.5 it seems, to show that an association of pro-
moters may be dealt with by the Court of Chancery, for
the purpose of being wound up, if their object is to form a
company for commercial or trading purpose... The statute
9 and 10 Viet., c. 28, shows this more clearly. It provides
that persons or companies who, before that act, have en-
tered into • subscription contract, or any other agreement
or agreements in writing or otherwise, for the formation of
a company or partnership, for making soy railway which
cannot be carried into effect without obtaining the autho-
rity of parliament, and in respect of which no act had been
obtained to dissolve the company or partnership contract or
agreement, whether or not such contract er agreement shall
contain any provisions for the dissolution of the company or
partnership intended to be thereby formed—this statute
provides that it shall he lawful for the committee, provi-
sional directors, or other persons of such contract or agree-
ment, entrusted with the management or carrying on of the
undertaking, to call a meeting, to ascertain if the com-
pany shall be dissolved, and whether such disso-
lution shall be deemed an act of bankruptcy,
in which case the affairs of the company shall be wound up
under the provision of the 7 & 8 Vic., c. 111, otherwise *sea
ordinary partnenhip. No such proceeding appears to have
been taken in the case supposed in your lordships' ques-
tions, and therefore that particular statute is not applicable
to it. But the statute shows that an undertaking by pro-
jectors to form a future company is capable of being dealt
with under 7 & 8 Vic., c. 111, as a company, and may have
its affairs wound up and settled by the Court of Chancery
under section 22 of that act if that company shall think fit.
It does not follow that every case of projectors of an in-
tended company ought to be or would be so dealt with.
This statute was followed by the 11 & 12 Vic, c. 45, which
extended the operation of the prior winding-up acts, and
gave the Court of Chancery the power on the application of
a contributory, by petition to the Lord Chancellor or !die-
ter of the Rolla, to order the dissolution or winding.up
of the company or association therein referred to, not
merely in case of bankruptcy, but in case of insolvency
or • judgment or a decree against the company unpaid,
or on a proceeding by a creditor of the company, or if
any other matter or thing should be shown which
in the opinion of the court shall render it just and equitable
that the company should be dissolved. This statute as has
been before stated, does not in terms embrace this coca-
riany, unless it be a company or body of persons formed,
for commercial or trading purposes, under 7 and el Vict., a.
111, and it contains many provisions which arc inapplicable
except to regularly formed companies. In the ease of pro-
visional committees, or the projector of • company, it is
now perfectly well settled law, and acted upon in every
court of law in Westminster-ball, that there is no partner-
ship between them, no common power of binding each other
merely by such a relation, each binds himself by his own
acts only. There are, therefore, very few creditors of such
a body collectively, though many of one, two, three, or
Moro of the acting individuals who compose the committee
Of are projectors, and so there may he • series of contracts
to which there are different contributories, according as
they have been authorised by different persons, very few
binding all, and those only upon the rare accident of each
individual authorising that particular contract. These in-
choate undertakings have generally no joint estate, effects,
or credits, of which there can be a manager (11 and I'2 Vie.,
e. 45, sec. 19,20), the body cannot have a judgment or decree
against the whole body, except in the rare cage that all the
projectors have jointly contracted, ro that no proceedings
could be taken under that statute, sect. 5, nor are there any
contributeries of the entire corrpany, except in the extra-
ordinary ease of all having contracted, for contributories
are those only who have contracted he themselves or agents
with • creditor, or who have agreed to indemnity or repay,
in part or in all, those who have contracted with the cre&-
tor on their own account. We consider the law to have
been most correctly laid down by Lord Cranworth in " Car-
rick's case" (1 Simons N. C., 609). All the question.' of
contributories resolve themselves into two simple questions
of fact. First, by far the most frequent occurrence, did the
alleged contributory make or authorise to be made the con-
tract in respect of which he is called on to contribute on his
account jointly with others; or, secondly, if any one or
more entered into the contract on his own or tiro it behalf,
did he agree to indemnify the person or persons contracting
in part or in all easiest the consequences of that contract/
The machinery of this act, 11 & 12 Vict. c. 45, is undoubt-
edly not well adapted to such a ease. This statute was
followed up by 12 & 13 Viet. c. 108, easecal to amend the
former. It is enacted, that notwithstanding at.ything in
that act importing a more limited application thereoe the
same shall apply to all partnership associations or compa-
nies whereof the partners or aesociates aro not less than
seven in number, whether incorporated or unincorporated.
This statute renders all liable, whether their purpose were
commercial or not. We think that the term " association"
is applicable to such • body of persons as is described in
was 4:
ow
at cons/
to
fluect description. Sewt
hur ie p
formertpi uo
to .
your lordships' question. That body would, we think, have
13
tion
tteifedliThu
se objectbody ofw theuld ,12 sod
been within the 11 and 12 Vict. if its object had been
lim
acts upon which a
com-
mercial, the only question on that act being whether a rail-
,