The Eastern Counties Junction and Southend Railway Company, and The Joint Stock Companies Winding-Up Acts, 1848 and 1849 Underwood's Case
| Jurisdiction | England & Wales |
| Judgment Date | 22 July 1854 |
| Date | 22 July 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1033
BEFORE THE LORDS JUSTICES.
See Smith's Case, 1869, L. R. 4 Ch. 615.
[677] In the Matter of the eastern counties junction and southend railway company, and In the Matter of the joint stock companies winding-up acts, 1848 and 1849. underwood's case. Before the Lords Justices. July 20, 21, 22, 1854. [See Smith's case, 1869, L. R. 4 Ch. 615.] In 1851 a managing director of a provisionally-registered projected railway company submitted to be placed on the list of contributories under the Winding-up Acts, on the authority of Upfill's case. On a call being made in 1854 on him and other contributories for the costs of winding up the company, he appealed, and at the same time moved that his name might be removed from the list of contributories on the ground of the law being changed by Bright's case. The Vice-Chancellor (having directed the notice of motion to be served on the other contributories and the creditors who had proved) made an order staying all proceedings under the winding-up order. Held,- C. xxin.-33* 1034 underwood's case bdeq. m. &o. 678. 1. That such an order could not properly be made on the motions before the Vice- Chancellor, some of the persons served not having appeared. 2. That Bright's case having been decided in 1852, the application of the contributory in 1854 to be relieved from his submission to be placed on the list was made too late. 3. That the call for costs would have been properly made if there had been a proper list of contributories; but, 4. That there being no list properly settled, but merely one having in many instances informal abbreviations placed opposite the names in the list, and in others marks importing that the case of the person named was adjourned, without shewing that it could not have been disposed of, no call could in that state of the proceedings be properly made. 5. That persons who have notice of a compromise between the official manager and any contributories must, if they wish to disturb it, take proceedings at once for that purpose. This was a motion on behalf of the official manager of the above-named company, that an order made in the above-mentioned matters by the Vice-Chancellor Sir John Stuart on the 14th of June 1854, might be discharged or varied. On the 6th of May 1854, the official manager had [678] been served with a notice of motion of that date by Mr. Underwood, one of the contributories, to discharge an order for a call. Pending this notice to discharge the call, a second or supplementary notice, dated the llth of May 1854, was served on the official manager by Mr. Underwood, to have his name removed from the list of contributories, or, if it should be retained on the list, then to discharge an order of the Master approving of a compromise with certain persons, being five of the contributories. Upon these motions coming on, on the 30th of May, the Vice-Chancellor ordered, that they should stand over until all the creditors and contributories of the company, or such of them as Mr. Underwood might be advised to serve, should be served with notice of the motions. The motions came on again for hearing, eight additional persons having been brought before the Court, viz., Robert Andrew Riddell, William Alexander Thomas, William Wright, Charles Grant and Thomas Gaskell (being the five contributories with whom a compromise had been effected by order of the Master), Nathaniel Cooke (the Petitioner for the winding-up order), Herbert Ingram (one of the managing committee), and a person who had been struck off the list of contributories, but to whom costs were payable by the official manager out of the estate. On that occasion, after the counsel for Mr. Underwood had addressed the Vice-Chancellor, His Honour desired in the first place to hear the question argued, on behalf of the official manager, whether the original winding-up order could be sustained. At the conclusion of the argument the Vice-Chancellor made the order under appeal, [679] which, after reciting the notices of motion and the evidence, proceeded thus:-"And it appearing that the said proposed company never was formed, and never transacted or carried on any business as a company, and never contracted any debts as a company, and that there are no affairs of the said company which have been or can be wound up pursuant to the order of this Court, dated the 25th day of January 1850, this Court doth order that the order of the Master for a call, bearing date the 27th day of April 1854, be discharged; and it is ordered, that all further proceedings under the said order to wind up, of the 25th day of January 1850, be stayed, except that the official manager, arid any person interested, are to be at liberty to apply to the Master or to this Court as they may be advised." The case of the official manager was, that Mr. Underwood was a member of the managing committee of the company; that his name was printed as such in the prospectus registered at the Office for Registration of Joint Stock Companies, and in the prospectus entered in the minute book of the company, and that in that capacity communications took place between him and the secretary from time to time during a period extending from the 4th of October 1845, to the 20th of May 1846, inclusive. aDEo.M.ao.680. underwood's case 1035 Among these communications were the following :- "Eastern Counties Junction and Southend Railway Company. "Off. 33 B. S. Bgs.-London, 6th October 1845.-Sir,-I am instructed by the committee of management to inform you, that, by a resolution passed by them, you are, as a member of the provisional committee, entitled to 100 shares in this company, or any less number you [680] may wish, provided you signify in writing, on or before the 9th instant, the number you are desirous of taking.-R. H. causton, Secretary." The secretary received on the 9th of October the following reply :- " 25 Eastcheap, Oct. 9th, 1845.-Sir,-I will take the 100 shares you name, and will agree to take 200 more if they can be allotted to me.-I am, Sir, your obedient Servant, J. underwood. " R. H. Causton, Esq." Mr. Underwood, however, declared, in his examination before the Master, that this letter was a forgery. On the 12th of November 1845, the secretary wrote to Mr. Underwood as follows:- " Sir,-I beg to apprise you that to-morrow is the day advertised for issuing the scrip, and that at present the name of one director only is attached to a very small proportion of it, the names of two being required. I shall therefore feel obliged if you will give your attendance at the office for a short time this afternoon.-R. H. causton, Secretary." Mr. Underwood replied on the same day, as follows:- "Eastcheap, Nov. 12th, 1845.-Dear Sir,-lean assure you that I have every inclination to be of use to your railway, but I have not a moment to spare. I left here at eleven this morning, and have this moment returned at six, and to-morrow I am par-[681]-ticularly engaged all day, but soon as I have an hour to spare, I will give you a call.-Believe me yours, J. underwood. " R. H. Causton, Esq." On the 14th of November 1845, Mr. Underwood wrote to the secretary, as follows:- "25 Eastcheap, 14th November 1845.-Dear Sir,-My time being so fully occupied that I find it quite impossible to attend the duties of a director in the Eastern Counties Junction Railway, I therefore, with much regret, beg of you to withdraw my name from the committee of management, as I do not consider it honourable to keep my name there and not be able to attend to the duties, which I trust will be sufficient excuse. " I have a strong feeling in favour of the line, and have no doubt, from all that I hear, you will succeed. " I beg you will convey my best thanks to the chairman and directors.-I am, dear Sir, &c., &c., J. underwood. " R. H. Causton, Esq." On the 17th of November 1845, the secretary replied as follows :- "London, 17th November 1845.-Sir,-I duly received your favour of the 14th instant, and have submitted the same to the board of directors, who have requested me to inform you that they have unanimously resolved at present your resignation lie not accepted.-R. H. causton." ( 682] The winding-up order was made on the 25th of January 1850. n January 1851, Mr. Underwood submitted to be placed on the list of contrilm-tories, conceiving (as it was now alleged on his behalf) that in the then state of the authorities, he could not dispute his liability without proceeding to impeach the genuineness of his alleged signature to the application for shares, which, although able to do so, he wished to avoid doing. 1036 underwood's case bdeg.m. &o. ass, In June 1852, a call for costs was made, against which Mr. Underwood did not appeal, although other contributories did. On the 18th of November 1853, an order was made by the Master sanctioning a compromise entered into between the official manager and five of the contributories,. by which, on payment by the latter of 120 each, they were discharged from all right, title, claim or demand which the company or the official manager had or might have against them respectively as contributories or otherwise howsoever. The above amounts were paid, and the contributories, thus settled with, were not afterwards served with any notices of the proceedings under the winding-tip order. On the 27th of April 1854, the Master made the call now in question on the...
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