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persons, whether by the defendants or not, there is no evidence, at which meeting, according to the language of the secretary, "the company was formed."

On the 23d of March an advertisement appears, headed, "Imperial Distillery Company; capital 600,000l., in 12,000 shares of 50%. each ;" giving the names of the trustees and other officers, and adverting to other particulars which it will be necessary to refer to afterwards.

It was not until the 24th, the day following the advertisement, that an answer was sent to the different applicants, signed by the secretary, who had been appointed in the mean time, informing them that the directors had appropriated a certain number of shares to each, and requesting them to pay the deposit of five pounds per share before the 28th of March.

Now, the advertisement described the proposed undertaking as "The Imperial Distillery Company." It is said this description assumes that it is a company already formed: but the very circumstance of publishing an advertisement proves that it was only a project *for a company, not a company actually [*797 formed; for if the 600,0007. had been subscribed, and the 12,000 shares allotted, why publish an advertisement? It could only be intended for the purpose of inducing others to subscribe. The description employed in the advertisement of the advantages to be gained by the subscribers, proves also the object of the publication; and the conclusion points more directly to the future formation of a company: it states, that "A deed of settlement will be prepared forthwith, which must be executed within thirty days after the same shall be ready for that purpose; and every person who shall neglect to execute the same within that time shall forfeit all share and interest in the company. The deed is to contain all such clauses and conditions as the standing counsel and solicitors to the company shall deem necessary. The shares will be forthwith allotted; and, until offices are taken, all communications are requested to be made to the directors, at the City of London Tavern."

Now, this advertisement is the basis of the contract between the parties; it is upon the footing of this prospectus, that the seven defendants had their shares allotted to them, and paid their deposits: if they are not partners under this agreement, they are not partners under any; for they neither exchanged their scrip-receipts for certificates of shares; nor executed the deed when prepared; nor paid a second call when made; nor appeared at any meeting; nor interfered with any concerns of the company; nor did any act subsequent to the making this contract; nor any act before, other than applying for shares and paying the deposit of 57. per share, when they learnt from the letter of the secretary that a certain number of shares was appropriated to them. The paying of the deposits must undoubtedly be taken to imply an assent to the terms of the *advertisement; that is, an assent to l become partners [*798 in a company raising a capital of 600,000l., consisting of 12,000 shares, and to be governed by a deed which should contain the clauses and conditions to be agreed on in future: but we think it implies nothing more; and that it cannot be construed as an assent to the terms of a partnership already formed. When, therefore, instead of an allotment of 12,000 shares, the utmost that were ever allotted scarcely exceeded 7500; when, out of that number, no more than 2300 ever paid the first instalment; when not half the latter number paid the second instalment, and only sixty-five subscribers signed the deed; we think the subscribers were at liberty to say, This was not the trading company upon which we paid our deposit; neither the capital, nor the number of shares, bearing any reasonable proportion to the original plan and project. And this the more especially, because, by the terms of the advertisement, they were taught to expect that the utmost risk which they encountered was the loss of all share and interest "in the concern" upon their refusal to execute the deed; which loss they appear to have submitted to.

There are no facts subsequent to the payment of the deposit which in any manner affect the seven defendants. On the 30th of June, the deed was prepared for signature, and shortly afterwards signed by the directors, and those of

the shareholders who paid the second instalment, not exceeding sixty-five in number and it is not immaterial to observe, that so little was the partnership considered as fixed before the execution of the deed, that, according to the evidence of the secretary, any person producing a scrip receipt, and paying a second call, whether an original subscriber or not, was permitted to execute the deed. The defendants, however, on this record, with the exception of Plummer, *never executed the deed; nor did any more than two of them ever pay the second instalment.

*799]

On the 16th of July there was an advertisement in the Gazette, making a second call for 57., and informing the subscribers "that it had been determined by the directors, that no scrip-holder could receive shares for scrip until he had first signed the deed of settlement, and no scrip could be exchanged for shares. after Monday the 18th instant."

The defendants, except as above, neither exchanged their scrip, nor executed the deed. On the 12th of August the directors advertised that the deposits would become forfeited on all scrip for which the deed of settlement was not signed, and the first call paid on or before the 23d. And on the 27th of August a second advertisement appeared, declaring, "that such deposits on the now outstanding scrip were forfeited for the use and benefit of the proprietors; and authorizing applications to be made for the shares so forfeited."

At this moment, therefore, the consequence had followed which the original prospectus had declared, viz., "the forfeiture of the deposits, and all interest and share in the concern;" and no subsequent offer by the directors, to allow the subscribers to be restored to their shares upon the execution of the deed, could alter their relation to each other, unless assented to by themselves.

Upon this first question, therefore, whether a partnership was actually formed, we think, if the right to participate in the profits of a joint concern is to be taken, as undoubtedly it ought to be, as a test of a partnership, these defendants were not entitled at any time to demand a share of profits, if profits had been made; inasmuch as they had never fulfilled the conditions upon which they subscribed. We think the matter proceeded no further, than that the defendants had offered to become partners in a projected concern, and that the concern *800] *proved abortive before the period at which the partnership was to commence: and, therefore, with respect to the agency of the directors, which is the legal consequence of a partnership completely formed, we think the directors proceeded to act before they had authority from these defendants; for they began to act in the name of the whole, before little more than half the capital was subscribed for, or half the shares were allotted. The persons, therefore, who contracted with the directors, must rest upon the security of the directors, who made such contract, and of those subscribers, who, by executing the deed, have declared themselves partners, and of any who have by their subsequent conduct recognised and adopted the acts and contracts of the directors; but they have not the security of the present defendants, who are not proved by the evidence to stand in any one of such predicaments. It is unnecessary to advert to any of the cases which have been referred to, each of which must rest upon its own peculiar circumstances; except that with respect to Perring v. Hone, decided in this court, we think it right to observe, that the great point, whether there was a partnership or not, does not appear to have been made the prominent subject of argument, but to have been rather assumed than disputed; for the advertisement or prospectus was not brought to the attention of the Court, nor is there any argument upon the terms of it. It is not incompatible with that determination, that the Court might have held the proof of partnership incomplete, if the same materials had been brought before them which are presented to us.

Upon the view which we have taken of the two first questions in this case, it becomes unnecessary to give any opinion on the third, as to the divesting of the liability of any of the defendants by the sale of their scrip before this contract was entered into.

[*801

*On the whole, therefore, we make the rule absolute for setting aside the verdict for the plaintiff, upon the broad ground, that we do not think, under the circumstances proved, the directors had any authority to bind these defendants by the contract upon which the action is founded. Rule absolute.

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A prisoner in custody for debts exceeding 300l. is liable to be brought up under the compulsory clause of the Lords' Act.

ANDREWS, Serjt., moved that the defendant, who had been in custody in execution for debts not amounting to 3007., might be brought up under the compulsory clause of the Lords' Act, the plaintiff having given him the twenty days' notice of his intention to require a true account of all his real and personal estate, and all encumbrances affecting the same. Since the motion, he had been charged in execution at the suit of another creditor for 5007.; upon which

Bompas, Serjt., contended, that he ought not to be subjected to the compulsory power in the act of 33 G. 3, c. 5; inasmuch as the effect would be to take from him all his property, and still leave him at the mercy of the second execution.

There being a suspicion that the detainer was collusive, the Court remanded the prisoner for a week; when, upon his declining to give in a proper schedule, he was remanded for sixty days, subject to the consequences of his contumacy, the Court being of opinion that, notwithstanding the second execution, he was within the operation of the statute.

See Chappel v. Ashley, 5 B. & A. 537.

*REGULA GENERALIS.

[*802

IT IS ORDERED, That from henceforth, in all special arguments in this Court, notice, in writing, of the points which are intended to be insisted upon by each of the parties be delivered to the Judges at their chambers two days before the day on which the case shall be set down for hearing, either by marking the points in the margin of the books delivered to the Judges, or on separate paper: and that each of the parties do, within the same time, leave a copy of such notice at the chambers of the Lord Chief Justice, to be delivered to the adverse party upon his application.

MEMORANDUM.

N. C. TINDAL.

J. A. PARK.

S. GASELEE.

J. B. BOSANQUET

His Majesty King George the Fourth died on Saturday, the 26th June, upon which occasion, only one Judge sat in each Court for the purpose of taking bail.

AN

INDEX

TO THE

PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

ACCORD AND SATISFACTION. Certain stock of the plaintiffs was transferred under a forged power of attorney: the Bank of England offered to replace the stock if the plaintiffs would first prove the amount under a commission of bankruptcy, issued against a firm in which the forger of the power had been a partner: after this offer, the plaintiffs received a dividend, and engaged to tender a proof of their demand under the commission of bankruptcy:

Held, that they could not sue the Bank in respect of the stock, till they had fulfilled their engagement to tender the proof under the commission of bankruptcy. Stracy v. The Governor and Company of the Bank of England. Page 754

ACTION ON THE CASE.

See EVIDENCE, 2. CARRIER, 1. ". The plaintiff, who had a right to irrigate his meadow by placing a dam of loose stones across a small stream, and occasionally a board or fender, fastened the board by means of two stakes, which had never been done by his predecessors:

The defendant, who had rights on the same stream, removed the stakes and the board also:

A verdict having been given for the plaintiff in an action for such removal, the Court refused to set it aside; holding, that the defendant had no right to remove the board as well as the stakes, on the ground that the stakes gave the board a character of permanency incompatible with her own rights. Greenslade v. Halliday.

379

2. Where a party recommends an agent, by making statements which he knows to be false, he is responsible in damages for the misconduct of the agent, although it be not shown that the recommendation was given

3.

from malice, or with a view to the pecuniary interest of the party recommending. Foster and Another v. Robert Charles.

396

Plaintiff left in a hackney-coach in London, and lost her reticule, containing a 1001. bank post bill, endorsed in blank; she issued handbills proclaiming her loss. Defendant, a banker at Brighton, who had never heard of the loss, cashed the bill for a stranger eight days afterwards. The stranger, on being asked his name, said he was on a journey, and wrote on the bill a fictitious address in an illiterate hand. The defendant did not inquire at what inn he was staying: Held, that the defendant was liable for the amount 677 to the plaintiff. Strange v. Wigney.

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Plaintiff, who had taken a verdict subject o an award under an order of nisi prius, atter the case had been heard, and just before the

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See ACCORD AND SATISFACTION. 1. Defendants engaged plaintiff to superintend mines in America for three years, at a salary of 600l. per annum, to increase 501. every year, and commence from his leaving England, with a proviso, that plaintiff should not be dismissed without a twelvemonth's notice or a twelvemonth's salary, and the reasonable expenses of his return, and that if he stayed at the mines three years, a sum should be allowed for the expense of the return of his family.

Plaintiff left England in August, 1825, and arrived at the mines in April, 1826.

Defendants dismissed plaintiff in September, 1827, without giving notice, or paying a year's salary, or any expenses of return. In an action for breach of the contract, a verdict having been given with damages to cover a year's salary from the time of dismissal, with leave for the plaintiff to move to increase the damages by 3201., the expense of the return of the plaintiff's family, and 4701., the amount of salary from the end of a year after dismissal to the end of the third year after his arrival at the mines,

Held, that the plaintiff was not entitled to increase the damages by the amount of those sums. French v. Brookes and Another. 354 2 The defendant kept a heifer which he had bought of a drover on Sunday, and afterwards made a promise to pay for: Held, that having kept the beast he was liable at all events, on the quantum meruit, notwithstanding the contract made on Sunday. Williams v. Paul.

ATTESTATION.

See WILL.
ATTORNEY.

654

1. A suggestion that defendant defends by A. B., who has been appointed solicitor on behalf of his majesty, and acts as such in this behalf," is a sufficient disclosure to the Court that A. B. has authority to act under 9 G. 4, c. 25, and plaintiff cannot treat the plea as a nullity, although, otherwise than by such suggestion, the record does not show that the cause concerns matters of revenue. v. Taunton.

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West 404

2. An attorney, with the advice of counsel, in an action against J. B. for negligence in the conduct of plaintiff's defence to another action, produced the prothonotary's book to prove an allegation, that in consequence of the negligence of J. B. judgment by default had been signed, and such further proceedings had, that final judgment was afterwards signed and execution issued ;" whereupon, plaintiff was nonsuited for not producing the record of that judgment or a proper copy: Held, that this was not such negligence as rendered the attorney liable to an action. Godefroy v. Dalton, Gent. 460 3. Where the parties settle a cause without the intervention of the plaintiff's attorney, he

cannot proceed to trial for his costs, unless he can clearly establish collusion between the parties to deprive him of his costs. Nelson v. Wilson. 568

AVOWRY.

See PLEADING, 2.

AWARD

1. Where a plaintiff makes several claims against a defendant, and the defendant makes others against the plaintiff, if an arbitrator, to whom the cause is referred, finds that the plaintiff had no cause of action, his award is, in that respect at least, sufficiently certain. Hayllar v. Ellis.

2.

223

By a judge's order, an award was to be made by the first day of Trinity term, or such further day as the arbitrator should appoint by endorsement on the order. The arbitrator enlarged the time by endorsement, and before the expiration of the enlarged time, one of the parties, at his request, procured a judge's order for a further enlargement, which was acted upon by all parties, and the arbitrator made his award beyond the time of the first enlargement, but within the time so further enlarged, but made no further endorsement on the original order: Held, that he had authority for making his award. Leggett v. Finlay.

BAIL.

See BANKRUPT, 4, 7.

255

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