1851.-Upfill's Case. shall be made, should, partly or wholly, fail to pay their respective proportions of the same." Therefore, the Master has power, when he has got the list of contributories, to make calls: [*400] *and he is to make a call for such a sum of money as shall appear to him will probably be sufficient to raise the sum to be raised, having regard, inter alia, to the circumstance that some of the contributories, if such should appear to be the fact, may be unable to pay at all. Taking these two clauses together, it follows that the Master has an absolute power to make a call on any contributory: that is, by reasonable intendment, to make a call to the full extent of the whole sum to which the contributory could be made liable at law, besides the costs. The party on whom the call is made, has no right to complain because others may be liable to the same debt: that must be made mat ter of after arrangement between himself and his co-contributories. But, certainly, the legislature could not have intended to authorize the Master to make a call on a contributory, for payment of debts in respect of which he is not liable; and so to leave the contributory, afterwards, to get repaid by those who are liable. I confess I should be inclined even to torture the language of the Act of Parliament to exclude such a construction; it is so manifestly absurd and unjust. But, in fact, no such violence is necessary; for section 83 fully meets the case. That section, which authorizes the call, expressly limits the right to make the call to be made, so far only as the contributories shall be liable, at law or in equity, to pay the debts in respect of which the call is made. That is the language of the Act of Parliament: and it is obvious that that must have been the meaning: for any other construc tion would lead to the notion that the legislature had, wilfully, committed an act of the grossest injustice; that the Master should have the power to make contributory A., who, perhaps, may be only liable, altogether, to pay 1007., liable to pay a call of 1,000l. made for payment of other debts. Such a construction [*401] would be manifestly unjust and absurd. It follows, therefore, from this, as I think, that the Master cannot make a call on any contributory until he has decided that he is liable to the payment of the debt or debts in respect of which the call is made. In respect of companies fully formed and com 1851.-Upfill's Case. pletely registered, where the affairs wound up are strictly partnership concerns, this difficulty does not occur: but, where the affairs wound up are affairs, not of a partnership the members of which are all liable to every debt, but of an association of persons liable, some to one creditor and some to another, there the most obvious principles of justice require that, before a call is made upon any contributory, the liability in respect of which it is made, should be ascertained. Perchance the contributory may choose to pay the whole debt off, himself. It may be a small debt, and he may prefer paying it off, rather than be involved in further litigation about it. If the Master, having ascertained the liability of Mr. Upfill, had exercised his discretion as to the proper amount of call, I should have been very unwilling to interfere with his discretion. But, here, the Master has proceeded upon what appears to me an erroneous principle; and, therefore, the appeal under section 99 of the first act, which authorizes the appeal, is quite proper. I shall, therefore, discharge this order for the call, on the ground that no call ought to be made, on any contributory, till the Master has ascertained him to be liable, either alone or jointly with others, to the discharge of the debts in respect of which the call is made. I am aware that, beyond this, the contributory may be further liable for a share of the costs of the winding-up: but this does not seem to me to vary the prin ciple. The question as to what are the debts and liabilities to which Mr. Upfill is liable, is not properly before me. The Master must decide that: and then, any party *dissatisfied [*402] with his decision, may bring the case before the court by way of appeal. Order discharged, with costs out of the estate. 1851.-Riddell's Case. IN THE WINDING-UP OF THE SHREWSBURY AND LEICESTER DIRECT RAILWAY COMPANY. EX PARTE RIDDELL. Joint-Stock Companies' Winding-Up Acts.-Certificate.- 1851: 1st and 2d May. The Master certified that he had included A.'s name in the list of contributories, not as a shareholder, but as a contributory in respect of any expenditure which he might be proved to have incurred. The court held the certificate to be informal, and directed the Master to review his certificate, with liberty to either party to adduce further evidence. RIDDELL was a member of the provisional committee and a trustee of the company, but not an allottee of shares in it. The Master charged with the winding-up of the company, certified that he had included Riddell's name in the list of contributories, "not as a shareholder, but as a contributory in respect of any expenditure which he might be proved to have authorized." Mr. Rolt and Mr. W. T. S. Daniel, for Riddell, now moved that his name might be expunged from the list, on the ground that the evidence produced before the Master on the part of the official manager, did not show that Riddell had contracted or authorized the contracting of any debt or the incurring of any expenditure. Mr. Bethell and Mr. Glasse, for the official manager, [*403] *said that, in November, 1845, Riddell attended a meeting held at the company's offices, and concurred in résolutions which authorized the incurring of expense. THE VICE-CHANCELLOR said that the certificate was incorrect in point of form: that the Master ought to have ascertained that Riddell had authorized the incurring of some expense and to have made him a contributory in respect of it: that it appeared 1851.-Russell's Trust. that he had concurred in a resolution for appointing a gentleman named Jellicarse, secretary to the company, at a salary of 3501. per annum, in respect of which he was liable; and, therefore, it must be referred back to the Master to review his certificate, with liberty to either party to adduce further evidence; and that Riddell's costs of the application must be paid by the official manager. *IN THE MATTER OF THE TRUSTEE ACT, 1850. [*404] EX PARTE RUSSELL. Trustee Act, 1850, 13th and 14th Vict. c. 60.-Trustee. 1851: 24th and 29th January and 5th May. The surviving trustee of a sum of stock, neglected, for twenty-eight days after a request in writing had been made to him by persons who had been duly appointed new trustees, to transfer the stock to them. The court held that they were persons absolutely entitled to the stock, within the meaning of the Trustee Act, 1850, and ordered the stock to be transferred to them. IN February and April, 1846, M. Lievesley and John Russell and Eliza, his wife, purchased certain sums of stock, and caused them to be transferred into the names of M. Lievesley and J. T. Schomberg; and, by a deed-poll dated the 16th of May, 1846, they declared that Lievesley and Schomberg should stand pos sessed of those sums in trust for Mrs. Russell, for her separate use for life, remainder in trust for Mr. Russell for life, remainder in trust for the children of Mr. and Mrs. Russell as tenants in common absolutely: and they further declared that, so often as any trustee or trustees of the deed, should die or decline to act or become incapable of acting, it should be lawful for Mr. and Mrs. Russell, or the survivor of them, and, after the decease of the survivor, then for the trustees or trustee of the deed or the executors or administrators of the survivor of them, to appoint new trustees or a new trustee, as the case might be. Lievesley died in September, 1849. Schomberg never accepted the trusts, 1851.-Russell's Trust. and declined to act therein on Lievesley's death. In consequence of which, Mr. and Mrs. Russell, by a deed-poll dated the 27th of November, 1850, and in exercise of the power reserved to them by the declaration of trust, appointed two gentlemen, named Dixon and Hooper, trustees of the stock; and, on the 30th of the same month, Mrs. Russell caused to be delivered, to Schom berg, a notice in writing, signed by her, whereby, after [*405] stating the appointment of Dixon *and Hooper to be such trustees, she requested Schomberg to receive the dividends of the stock which were payable at, or had become payable since Lievesley's death, and to pay them to her, or to Dixon and Hooper, upon or for the purposes of the trusts declared as before mentioned, and also to transfer the capital, to Dixon and Hooper, upon the same trusts; and Mrs. Russell thereby gave Schomberg notice that, unless he complied with her request within the time mentioned in the Trustee Act, 1850, she would apply to the court to make an order vesting the sole right to transfer the stock and to receive the dividends thereof, in such person or persons as the court should deem fit to appoint for such purposes. (a) Schomberg did not comply with the request. In consequence of which a petition was presented on the 14th of January, 1851, by Mrs. Russell by her next friend, (her husband being out of the jurisdiction,) and by her daughter and only child, Clementina Russell, an infant, by her next friend, and also by Dixon and Hooper, stating the facts above mention. ed, and also that the stock was then standing in the sole name of Schomberg, (b) as the survivor of the trustees named in the declaration of trust, and praying that the right to transfer the stock and to receive the dividends which had accrued due thereon as before mentioned, might be vested in Dixon and Hooper, to be held, by them, upon the trusts declared by the declaration of trust. Mr. Bevir appeared in support of the petition. (a) Sic. (b) The petition appears to have been presented under the 23d section of the act, which is stated in the judgment. |