Beardshaw v The Right Hon. Albert Lord Londesborough

[498] beardshaw v. the eight hon. albert lord londesborough. Nov. 11, 1851. ^.n action against a contributory of a joint-stock company, in respect of a demand for which the company may be liable, is not necessarily an action against the company, or against a person authorized to be sued as nominal defendant, under the 50th section of the winding-up act, 1845, 11 & 12 Viet. c. 45.-Such an action is within the 62nd section, which empowers the official manager, by leave of the master, to defend the same in his official name, or in the name of the original defendant. Assumpsit for money lent, money paid, and money had and received, and money found due upon an account stated. Pleas,-first, as to so much of the declaration as relates to the money therein alleged to have been lent and advanced to, and paid, laid out, and expended for, the defendant, non assumpsit. Secondly,-except as to so much of the declaration as relates to the money therein alleged to have been lent and advanced to, and paid, laid out, and expended for, the defendant,-that theretofore, to wit, on the 1st of September, 1845, divers persons, whose names were unknown to the defendant, projected a line of railway, to be constructed between Dover and Deal, in the county of Kent by a public company to be called " The Dover and Deal Eailway, and Cinque Ports, Thanet, and Coast Junction Eailway Company;" and thereupon, afterwards, to wit, on the day and year aforesaid, a committee was formed for the purpose of considering and carrying out the said project, and which committee was composed of divers persons, to wit, the defendant, and others whose names were unknown to the defendant: That afterwards, to wit, on the day and year aforesaid, it was determined by the said committee to form a public company, for the purpose of constructing the said railway, with a capital of 180,0001., to be raised by 9000 shares of 201. each; and that thereupon, afterwards, to wit, on the 2nd of October, 1845, the said intended company was provisionally, and in all respects duly, registered, in conformity with the requirements of the [499] statute in that behalf, to wit, a certain act of parliament made, &c., for, &c. ; and that divers persons, to wit, St. P. B. Hook, of, &c., and G. T. Thompson, of, &c., were then registered as the promoters of the said company, under the name of " The Dover and Deal Eailway, and Cinque Ports, Thanet, and Coast Junction Eailway Company;" and the said promoters thereof, from the time of such registration as aforesaid, thenceforth, used the said name of the said company, coupled with the words " registered provisionally :" That afterwards, to wit, on the day and year last aforesaid, the said promoters of the said company proceeded to form the same under such name and with such addition thereto as aforesaid, and for that purpose allotted and issued divers, to wit, 8000 of the said shares; and that divers, to wit, 100 of such shares were then allotted to the defendant, who then became and was, and remained, a shareholder in and a member of the said company; and divers other of the said 8000 shares, to wit, 200 thereof, were then also allotted and issued to the plaintiff,- upon receipt whereof he paid to the said company, to wit, to the defendant and the other members of the said company, who then had and received from him, th 568 BEARDSHAW V. LORD LONDESBOROUGH llC.B. soc plaintiff, a large sum of money, to wit, the said sum of money in the declaratior supposed and alleged to have been paid and received for the use of the plaintiff, bj way of deposit on the said shares so allotted and issued to him as aforesaid, and tc be duly and lawfully applied for the purposes of the said company: That the said promoters of the said company afterwards, to wit, on the 5th- of February, 1846, applied to parliament for an act to incorporate the said company, but failed in obtain^ ing it; and that the said company never was incorporated by act of parliament: whereupon the said money so as aforesaid had and received from the plaintiff became money had and received to his use, as in the declaration [500] mentioned: That afterwards, and before the making by the high court of Chancery of the order next thereinafter mentioned, to wit, on the llth of January, 1850, in and by a certain petition and statement then made to and preferred before the Et. Hon. Lord Cottenham, then lord high chancellor of Great Britain, in the high court of Chancery, by one J. Short, then being a shareholder and member of the said company, it was stated, shewn, and alleged to the said court, that, in or about the month of October, 1845, the said com-i pany was projected under the name of, &c., for making a railway from Dover to Deal, in the county of Kent, for the carriage and conveyance of passengers and goods; that the said company was, in or about the said month of October, 1845, duly provisionally! registered pursuant to and under the provisions of the first-mentioned act of parliament; that the capital of the said company was 180,0001., in 9000 shares of 201. each, with a deposit of 21. 2s. per share; that the prospectus issued by the projectors invited parties to take shares in the said company, and contained a form of application for: shares ; that a portion of the said shares was allotted and paid upon, and that divers \ persons more than fifty in number had shares allotted to them, and paid the said deposit of 21. 2s. on the shares so allotted; that 100 shares were allotted to and taken by the said J. Short, and that he paid into the hands of the bankers of the said company the sum of 2101., being the deposit of 21. 2s. on each of the said 100 shares, and that he and divers other persons to whom shares had been allotted, and who hadi accepted such shares, and had paid the said deposit of 21. 2s. per share thereon, respectively, executed the subscription agreement and parliamentary contract in respect thereof; that divers other persons applied for shares in the said company, and agreed in writing to take such number of shares as might be allotted to them, and pay the deposit [501] thereon respectively, and accordingly shares were allotted to the last-mentioned persons, and that the said last-mentioned persons, after such last-mentioned allotments, refused or neglected to take such shares or to pay the deposits thereon, by means whereof the liability of the petitioner and of the other persons who took shares in the said company, and paid their deposit thereon, for contribution to the expenses of the said undertaking, was considerably increased; that the said J. Short became as aforesaid, and then was, a member and contributory of the said company within the intent and meaning of the joint-stock companies' winding-up acts, 1848, and 1849, and entitled to a share of the assets of the said company; that the said company, or the directors thereof, solicited and made and proceeded in an application to parliament for a bill for the purpose of the construction of the said railway and works, or some portion thereof, but were unsuccessful in obtaining the said bill; that the directors of the said company, in the exercise of the powers conferred upon them, also laid out and expended large sums of money in prosecuting the said undertaking, out of the deposits so paid by the said J. Short and the said other persons as aforesaid, and incurred liabilities in respect thereof, and that divers of such liabilities were then outstanding, and that there was then in the hands of the said directors, or the solicitors to the said company, a large sum of money, the produce of the deposits paid by the said J. Short and the said other allottees, in respect of the shares so taken by them as aforesaid; that the said company had been dissolved, and ceased to carry on business, and the secretary and clerks of the said company discharged, and the place of business of the said company abandoned, although the affairs of the said company had not been fully wound up; and that the said J. Short was desirous that the said company might be wound up under the said joint-stock companies' winding-[502]-up acts, 1848, and 1849 ; the said petitioner did therefore pray that the said company might be absolutely wound up under the provisions of the said joint-stock companies' winding-up acts, and that it might be referred to one of the masters of the said court to wind up the affairs of the said company,-prout patet, &e.: That the said matters and things so as aforesaid stated, shewn, and alleged in 1C.B.503. BBAEDSHAW V. LORD LONDESBOROtTGH 569 ;he said petition, did, in the opinion of the said court of Chancery, render it just and iquitable that the said company should be absolutely wound up under and according ;o the provisions of the said joint-stock companies' winding-up acts, 1848, and 1849; md that the said petition was afterwards and before the making of the said order ibsolute for winding up the said company thereinafter mentioned, to wit, on the 15th )f January, 1850, duly advertised, as by law required in that behalf, to wit, in the London Gazette, and was, to wit, then, together with a copy of the said London Gazette therein the said order was advertised as aforesaid, served at the head and only office of the said company, situate, &c., upon the proper party in that behalf, to wit, the solicitor, and one of the registered promoters of the said company, to wit, Dne St. P. B. Hook: That afterwards, to wit, on the 25th of January, 1850, by a jertain order of the said high court of Chancery, then made by the then vice-chan-3ellor of England, to wit, &c., to whom the said petition had been duly referred by bhe said lord high chancellor, it was ordered that the said company should be absolutely wound up under the provisions of the said joimVstock companies' winding-up icts, 1848, and 1849, and that...