1850 and 1851.-Capper's Case.

ews' case, reported in the 14th Jurist, 928. There, undoubtedly, Vice-Chancellor Knight Bruce may seem to have acted on a view of the law not in conformity to the cases I have just referred to. But I must remark that none of the authorities to which I have referred, were brought before the court. The case was argued on the assumption that Mathews was clearly liable as a contributory, unless he could establish a fraud, on the part of the directors, on which he relied as exonerating him. His counsel never argued that he was not liable [*186] *if there had been no fraud; and this course may have been quite advisedly pursued by them; for Mathews, in his letter asking for shares, agreed to be bound by the regulations of the company; and, if it was part of those regulations that the deposits should be applicable to preliminary expenses, and that was known to him, the doctrine of the cases at law would not apply; or rather, it would be a case in which, according to the decisions in Clements v. Todd and Jones v. Harrison, he was bound to contribute to the preliminary expenses. These considerations may well reconcile this case with the others: and I must suppose that, on some such ground as this, the decision proceeded.

I have now noticed all the cases to which I was referred; and, so far from shaking the opinion I formed when the matter was. before me, they strongly confirm me in it.

What I have to decide, is, as I have already stated, a question of fact rather than of law: and this court, certainly, may, and very often must, decide a fact for itself. But, when it is once established, as matter of law, that a given state of circumstances affords no evidence for a jury warranting them to find a particular result, it is, certainly, the duty of this court, when it has to say what is the legal result from that same state of circumstances, to arrive at the same conclusion: and, applying this reasoning to the case now before me, I think, even if there were no other authority (and there are many), the principle of the decision of the Court of Error in Ashpitel v. Sercombe, is decisive. The only facts relied on, here, are the prospectus; the

1851.-Sichell's Case.

application for shares, with an agreement to pay the deposit, amounting to 10s. per 1007. beyond the sum required by

the Standing *Orders, and the allotment in pursuance [*187] of that application. Now, even assuming all these facts

to be made out, still they all existed in Ashpitel v. Ser

combe; but the Court of Error there held that (even though the applicant in that case accepted the shares and paid his deposit), yet there was no evidence of an agreement to allow the deposit to be expended in preliminary expenses. I am, therefore, clear that Mr. Capper's name ought to be erased from the list.

The costs of the parties will come out of the fund.

IN THE WINDING UP OF THE DIRECT BIRMINGHAM, READING AND BRIGHTON RAILWAY COMPANY.

EX PARTE SICHELL.

Joint-stock Companies' Winding-up Acts.-Contributory.

1851: 11th and 15th January.

Motion that the name of a contributory might be struck off the list, refused with costs; the case being undistinguishable, in principle, from Upfill's case.

That case observed upon.

THE facts of this case were as follows:

On the 10th October, 1845, the secretary to the company wrote to inform Mr. Sichell, who was a member of the provisional committee, that the committee of management had apportioned one hundred shares, in the company, to each inember of the pro. visional committee; and requesting to be informed, on or before Wednesday then next, whether Mr. Sichell would take that or any less number of shares. On the 14th of that month, Mr. Sichell wrote to the secretary, inquiring whether the surveyors would, positively, be ready for the next session; and adding

1851. Sichell's Case.

that, should it be so, he should be happy to accept the [*188] one hundred shares allotted to him. *On the next day the secretary replied that there was no doubt of the plans, &c., being ready, in the most perfect and satisfactory manner, for the then coming session of Parliament. On the 17th, Mr. Sichell replied as follows: "Please to put in my name fifty shares of the one hundred reserved for me in the Direct Birming ham, Oxford, Reading and Brighton Railway." On the 18th, the secretary wrote to Mr. Sichell, informing him that the committee of management had allotted him fifty shares, and requesting him to pay the deposits thereon to the company's bankers, on or before the 24th of the month, or the allotment would be null and void; and adding that the now-stating letter, with the bankers' receipt appended thereto, would be exchanged for scrip, upor. Mr. Sichell presenting it at the offices of the company and executing the parliamentary contract and the subscribers' agreement, which would lie at the company's offices on and after the 24th of the month.

The Master having placed Mr. Sichell's name on the list of contributories,

Mr. Rolt and Mr. W. T. S. Daniel now moved that it might be struck off. They distinguished this case from Upfill's(a) on the following grounds, namely, that an apportionment of shares was not a final allotment of them; and that Sichell did not accept the shares, except on a condition, which was not performed; namely, that the company would be prepared to go to Parliament in the then next session, and they referred to Carmichael's case.(b)

Mr. Roxburgh, for the official manager, contended [*189] *that this case was undistinguishable from Upfill's: and that it differed from Carmichael's case, because Carmichael never accepted any specific number of shares; but that it was a distinct acceptance of shares to say, as Sichell had done, "Put in my name fifty shares of the one hundred reserved for me."

(a) House of Lords Cases, 674.

(b) 17 Sim. 163.

1851-Sichell's Case.

Mr. Rolt replied.

THE VICE-CHANCELLOR:-I shall take the documents, in this case, home with me, in order that I may compare it with Upfill's case: but I confess that I do not understand that

case.

15th January.—THE VICE-CHANCELLOR:-I took these papers home, for the purpose of ascertaining, accurately, what the letters and documents and the facts, in this case, were, and comparing it with Upfill's case; because, though I stated that I do not know that I quite understand Upfill's case, yet it is a perfectly binding decision no doubt. It was the decision of the House of Lords, and much considered, as far as the tribunal was constituted. There were not many lords present; but I have nothing to do with that. It was a good deal considered by Lord Brougham, who gave great attention to the case; and the principle on which he decided, appears in many passages of his judgment; and particularly he says, in the latter part of it, after he had concluded, and when the subject was mentioned again: "I wish it to be distinctly understood, and it is of the greatest importance, that it is upon the two facts taken together that the judgment proceeds. One of them"-that is the being a provisional committeeman-" is found, at law, not to be sufficient without the second; *and it is a question whether the second [*190] is sufficient without the first."

I observe that the case of Ashpitel v. Sercombe(a) was not brought before the House of Lords at all, in the case of Hutton v. Upfill; at least, it does not appear, by the report, to have been cited. If it had been, no doubt Lord Brougham would not have said that it was not decided at law as to the second fact, when it is quite clear that was held to be nothing in Ashpitel v. Sercombe. However, what the House proceeded upon was this: that, where a party being a provisional committeeman, is informed that, in his character of committeeman, he is entitled to have a certain

(a) 19 Law Journ. 82, Exch. Cases.

1851. Sichell's Case.

number of shares; and, acting upon that information, he accepts the shares, then those two facts taken together, constitute him a contributory. That is the decision of the House of Lords. That being so, it is, at least, a very easy and intelligible state of facts. Whether the conclusion is such as I should have arrived at myself, I need not say. I have only to look at Sichell's case to see whether that state of circumstances did occur there. It happens to be the very same railway as in Upfill's case.

The evidence in Upfill's case was, first of all, this letter of information from the secretary to the company: "I am requested to inform you that the committee of management has apportioned one hundred shares in this company to each member of the provisional committee. You will please to inform me, on or about Wednesday morning next, whether you will take [*191] that or any less number. Should you not reply by *that time, the committee will consider you decline taking any." That was the letter in the present case; and being a circular letter, it was the same letter as in Upfill's case. In answer to that, in Upfill's case, Mr. Upfill wrote: "I accept the one hundred shares allotted to me in the Direct Birmingham, &c., Company.-James Upfill, P. C.”—“ P. C." meaning Provisional Committeeman. In the present case, as in Upfill's case, the party was a provisional committeeman; and, upon receiving that letter, he writes: "I feel obliged for your circular of the 10th instant; but upon looking into the report of the committee, I find no remark made whether the surveyors will positively be ready for the next session; and you will, perhaps, drop me a few lines on the subject; for, should it be so, I shall be happy to accept the one hundred shares allotted to me." To which the secretary answers: "There is not any doubt of our plans, &c., being ready, in the most perfect and satisfactory manner, for the coming session of Parliament." In answer to which, on the 17th of October, Mr. Sichell writes this letter: "Sir, please to put in my name fifty shares of the one hundred reserved for me in the Direct Birmingham, Oxford, Reading and Brighton Railway."

Now, the only question is whether that correspondence amounts