The Sun.
London, England, 1847-04-27 00:00:00

Of The .
no3ld.eration was, that there should be 40,000 shares
:11:oreit‘tedeit:.i4
* Inane RR continued—He contended that the allot-
krther wowuidbaehaares was not a condition precedent ;if it
ground of arrest of judgment. It was
coletended by the counsel for the defendant, that the
action could
; ..,fendant would Neek., not be sustained, because, on the authority of
ds t•• Crosby," and " Walstab v. Spottiswoode," the
Ze_r!cover backdhhisavmeoaneryighotnotfhaectiorn against the company
13a4t,chef wthoeuldech
g ound of the abandon-
' and the failure of the consideration.
action ask, could the defendant have brought such
he_ on the 21st of December, the day after ls. e should
Ililleovej*lls. deposit? Besides, what was it that occa-
of the
defendant
of this scheme? Nothing but the default
their Part of
and other allottees. If they had fulfilled
abandoned': the contract the scheme would not have been
Tile
would have gone on, for it was a good under-
Wemalasitnaebd et. Spottiswoode" defendant could not allege his own default as
answer to this action. The doctrine laid down
'we it r • Spottiswoode" was not yet settled law,
it ere be decided by the Court in Error. Again
es argued
hu the decl •
that the contract had been incorrectly stated
Were
to
baratien, as it was not alleged that 40,000 shares
e allotted, and there was no averment that that
denlinib_e! had been allotted. If that were a condition preen-
ehl;;,e;rtweli:bjest avouls/ be valid. But the application for
allot that made when it was not known that there were
ae
area pplications for so many as 40,000 shares. Suppose 39,999
tO 411dbeeeniei allotted,ebare is it to be supposed that the. failure
tetewould be sufficient to avoid the con-
subst
iustent•
It should have been put to the jury, whether it was a
these. 'al part of the contract; but it was not so put to
The defendant ought to have shown that there was
36,400 substantial variation between the two things. In this case
Served for had been allotted, and the rest were re-
eernrsa r the provisional committee. There never was a
way in which every share was allotted. It was
,euiio thought proper to reserve shares, in case of anial-
rine:" n with other companies, and for landowners on the
Atialeled Ilie Learned Friend further contended, that part of
deeycoonsideration wee., that the plaintiffs contracted to en-
i;i• to obtain an Act of Parliament, and had not ful-
tend that part of their contract- He (Mr. Crowder) con-
„e ed that they would have done so but for the default of
e'ltbdefendent and the other allottees. The plans and sections
e railway were made and deposited in the usual way, for
_ng- __
lee as thought to be a very good line, and Mr. Sergeant. Ki
eeeoe could not deny that. But there was nothing mentioned
go,eg to Parliament in the letters which formed the
contract. It was objected further, that the defendant did
not promise to pay the deposit on the 20th of December,
iii:tev When he was required. The two letters, however, must
eta taken together ; and he contended that they showed, sub-
stantially, an agreement to pay on the 20th of December.
e declaration might, perhaps, have been open to a special
demurrer, but it was too late to make such an objection after
verdict. Then, it was contended that the damages could not
amount to more than 3s. per share, because of the resolution
.1 the committee, that if the allottees would pay that sum,
it would be sufficient. The defendant did not go to the jury
neon it ; but the Learned:Judge said, that if there was any point
of law in it, the Court might reduce the damages as it might
think tit: He contended, that as the defendant had con-
tracted to pay a certain amount and had failed to do so, the
measure of damages was the sum which he contracted to pay.
Another objection made by the Learned Sergeant was, that
the Learned Judge misdirected the jury as to the reasonable-
ness of the time when the shares were allotted after the ap-
plication. The Learned Judge left it to the jury to say,
whether they were allotted within a reasonable time ;
and he expressed his own opinion, that the allotment was
Made within a reasonable time. That was not a misdirection.
Mr. Justice Parresox—lf the shares had not been allotted
Within a reasonable time, that would have gone to the plea
of fraud and covin.
Mr. CaowDEtt continued—lf the allottees had kept their
faith the scheme would have gone on. There was no fraud;
t_la, plaintiffs were ready and willing to perform the contract
°ntheir part. It was urged by the Learned Sergeant, in
arrestek of judgment, that, as it appeared by the advertisement
that 40,000 shares were to be allotted by the company, it
ought to have been alleged that that number had been al-
lotted; but that could not be a condition precedent, and
therefore it was not necessary to allege it at all. On these
grounds he submitted that the rule must be discharged.
,e.3fr, Sergeant -KINGLAKE, in support of the rule, said-
4',!'e first question was, with whom was the contract made?
Ine evidence • was that it was made with the provisional
committee, and not with the managing committee, who were
the mere agents of the provisional committee. The pro-
jectors of the scheme were the members of the provisional
c°mrnittee, who held themselves out to the public in the pro-
spectus,i as the projectors. The Learned Sergeant then
4" the original prospectus to show this. They
-were there called the provisional directors, and a very
long' list of names was appended. That list of names
mightC,. now be very inconvenient. Mr. Farrant, the secre-
ti. nad told the Court, that the provisional directors and
provisional committee were the same body. The pro-
visional directors named their solicitors, their acting en-
gineers, their secretary, and their local agents. The pro-
visional committee published that prospectus, and directed
applications
plications for shares to be made to " the provisional com-
mitt
of management," without mentioning their names.
_ then deposits were paid. a receipt was given to the follow-
gig effect :—" Received, &c., on account of the Provisional
`grnmittee of the Direct Exeter, Plymouth, and Devon-
port Railway Company." That showed that the contract
_o made with the provisional committee, who were the
gurblectors. The " managing committee', was merely a
under of the provisional committee, and acting
r them, with but a limited authority. On the 13th
of
_October, 1845, the " managing committee" wrote
provisional committee,
and Co., of Exeter, in the name of the
rov'sional committee, to make arrangements for open-
an account with that bank. On the 17th of October
they heg Passed a resolution, in which it was recited that
Y had been appointed by a special meeting of the provi-
'Cal committee held at Exeter, which had determined that
committee of management should consist of twelve mem-
the.,!!..with power to add three to their number, and that Mr.
ee,"elooolmer should be the chairman. The prospectus was
si'keet,st,
and
by the provisional committee, who had done these
visi;„ n‘d applications for shares were to be made to the pro-
m us, commit tee.
fej. Justice PATTE:iON—The applications were to be made
toe' the provisional committee of management," and the
t -trident in his application save, " I request you to allot
° me," &c., " subject to the regulations of the company,"
making a distinction between the managing committee and
the company.
Mr. Sergeant Kixat.awn continued—The prospectus was
issued before the " committee of management" was formed,
and it could not have referred to them.
Lord Deeesea.N—lf the managing committee was in exist-
ence when the application for shares was made, it must
apply to them.
Dir. Justice ERLE—They are ell called " provisional com-
mittees" till an Act is obtained.
Mr. Sergeant KINGLAKE—The word " provisional" is not
applicable to a managing committeeman ; it is only appli-
cable to those who are going to Parliament. The words
" committee of management" imply that they are agents.
Lord DZNSCAX—But that will not prevent them from nuk-
ing contracts.
Mr. Justice WIGTITMAN—Suppose the case were reversed,
and Toby had had to sue.
• Mr. Sergeant KINGLAKE—The defendant would have sued
the provisional committee; he knew nothing of any other
parties. On the Ist, 15th, 17th, and 27th of December,
various matters were referred to the provisional committee by
the committee of management; and, on the latter date, they
were summoned to consider the best means of settling the
Canna on the company., The committee of management had
*Ply a delegated authority. The provisional committee, on
tne recommendation of the committee of management, re-
solved that applications should be made to each allottee fur
3s. per share, and that if that sum t, ere not paid by a given
time other means would be had recourse to. The Learned
Sergeant cited the case of " Piggot v. Thomson " to show,
that where a contract was made 4o pay a sum of money to
the treasurer of certain commissioners, an action in the name
of the treasurer could not be sustained.
Mr. Justice EntE—That was a contract with the commis-
Missionera to pay the treasurer.
Mr. Sergeant KII4GLAKE—The contract hero was made
`with the provisional cormeittee, through the medium of the
committee of management. There was also a change of the
provisional committee. The contract was made up by the
Proposal and acceptance, and he contended that the accept-
ance must be in the terms of the proposal. Here that was
riot the ease. The names of the provisional committee were
a very material part of the contract, upon the faith of sehich
the defendant made his application for shares.
Lord DENMAN—You say that the contract is not the same
if the names be changed ; I see the prospectus provides for an
addition of names.
Mr. Sergeant KINGLAXE—The contract was that 40,000
shares should be allotted, and they ought either to have,
allotted them, or to have been willing to do so. If the de-
fendant contracted for a certain portion of 40,000 shares, aqd
that portion of 36,000 was allotted to him, that was not the
same contract. There were applications made for 45,000
shares, but they did not allot them ; they reserved them for
the provisional committee, to take them or not as they '
should please. The cases of a Fox a. Clifton," and " Nockell
Crosby," were in point; If the terms of the contract were
not fulfilled a party might recover his deposit. The only dif
ference was, that there the scheme had been abandoned, and
the abandonment was proof of the failure of the considera-
tion. " Walstab v. Spottiswoode" and " Pitchford .. Davis"
showed that the allotmeht of shares was * part of the con-
tract. The case of" Wontner v. Sharp," before the Common
Pleas, showed that it is part of the contract that the whole
number of shares should be allotted. Ile contended, also,
that the contract was not correctly stated. There was no
allegation that the plaintiffs were ready to allot the 40,000
shares, and they did not prove it at the trial. There was no
allegation that the plaintiffs were ready to go to Parliament.
The Learned Sergeant contended that the contract to pay was
not properly alleged in the declaration. The contract was to
pay when required, not on a particular day, as alleged. They
ought to have alleged that the contract was a contract to pay
when required,• and then to have alleged that they did re-
quire him to pay within a reasonable time. If they had done
so, the defendant might have taken issue on the reasonable-
ness of the time. The plaintiffs had no right to let October,
November, and part of December go on, and then suddenly
to require payment. As to the amount of damages, the
plaintiffs had themselves shown Apia 3s. per share would
cover all the loss sustained. There was an omission of the
allegation to pay on the 20th of December, but the record
was amended on the morning of the trial. The Learned
Sergeant submitted, that, if the decision In " Waltstab e.
Spottiswoode" was good law, the plaintiffs were not entitled
to any damages, for they must pay the money back, and were
not entitled to deduct anything for expense* There was one
question left to the jury, and that was whether the shares had
been allotted within a reasonable time. It was quite clear
that they did not think of allotting the shares; they waited
from the I•3th of October till the 15th of Decernbes, when the
Panic came. The question was, whether they accepted the
offer of the defendant within a reasonable timeP
Lord lacimax —ls there such an issue?
Mr. Sergeant KINGLAKE—That arose on non asstimpsit.
The Learned Ridge told the jury that he did not see that
there was anything to show that the allotment was not
made Within a reasonable time. lie submitted that the
Learned Judge ought not to have left it with that strong
remark to the jury ; and the juey, in adopting it, gave their
Verdict, he submitted, 'against the evidene. On these
grounds he trusted that their Lordships would make the rule
absolute.
"be MONTAGU SMITH, on the same aide, said that the
committee of manaivinent were never alluded to in the
Pre°e3e"Pe,,ecta% and their Lordships would not go out of the
d
se cut, unless there was a latent ambiguity. if there
..as a„
Went ambiguity it was patent upon*. face of the duct--

51ri Justice PArrEsoN—That is assuming that any person
reading it would come to the conclusion that "the provisional
corunitttee" and " the provisional committee of management"
are the same. But I think 441 any one reading it would
conclude directly the contrary.
510:1-ractr SMITII—'By the Registration Act (7 and 8
y oictoria, chap. 110), each member of the cominittee was
bLind to take shares in the company. In this case that was
nc. done. He contended that a pa`rty might contract with
a
with agent when the principal was unknown, but not
pwaltrtll an unknown agent when the principal was known. A
contracting with an agent elects him as it were eo
""i"e, !nit here the defendant did not know the names of
tile tzarattae of menegemont. Re contended OW the
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