In re The Direct Shrewsbury and Leicester Railway Company; ex parte Brittain.

duction of documents made by him during his agency, and with reference to his employment. The object of the suit is to have these documents delivered up. I am far from saying that all documents made under such circumstances ought to be delivered up, but it is impossible to form an opinion without seeing them. It was said that the plaintiff had no right to a view of the estate which was made by an agent who happened to be an artist. This might be true, but the picture and the other things in question must be seen before the court could arrive at any conclusion in directing what ought to be delivered up and what ought to be retained, or whether the work done was such that it was covered by the per centage, which was the method of remuneration adopted in the present case. I must, therefore, direct the whole of the documents to be produced.

Mr. Roupell. Certain of the documents consist only of calculations made for assessing the fines upon the copyhold tenants. These were made upon a system which had suggested itself to the defendants in the course of their practice. A production of these rough calculations, involving as it did the making copies, would be to lay open the manner of conducting their business. An affidavit stating these facts might possibly be thought sufficient to avoid the necessity of their production.

THE MASTER OF THE ROLLS. I cannot accede to this.

Mr. Lloyd. Many of the papers, &c. are referred to as bundles sealed. The seals will be broken that the plaintiff may inspect them. Mr. Roupell. I anticipate that.

In re THE DIRECT SHREWSBURY AND LEICESTER RAILWAY COMPANY; ex parte BRITTAIN.1

February 25, 1851.

Company - Winding-up Act― Contributory - Provisional Committeeman-Acceptance of Shares.

A party consented to have his name placed on the list of provisional committee-men, and agreed to take shares. Shares were allotted to him, but he did not pay the deposits thereon until after the undertaking had been abandoned, and he never executed the subscribers' agreement or parliamentary contract, without which it was expressly stated he could take no interest in the company. The master struck his name off the list of contributories:

Held, upon appeal from this decision, that he had brought himself within the rule in Upfill's case, and his name must be replaced on the list of contributories.

This was a motion to reverse the decision of the Master, who had struck the name of Mr. Brittain off the list of contributories to the above company.

2 20 Law J. Rep. (N. s.) Chanc. 479; 1 Simons, N. s. 281.

In re The Direct Shrewsbury and Leicester Railway Company; ex parte Brittain.

The company having been provisionally registered, a prospectus was issued, and a letter was addressed to Mr. Brittain, on the 18th of October, 1845, requesting him to allow his name to be placed on the list of provisional committee-men. Mr. Brittain, in answer, said he should be glad to have his name placed upon the provisional committee as an ornamental member, and was willing to take such shares as might be allotted to him, but that being connected with several other railway companies, it would be out of his power to act upon the executive. One month afterwards Mr. Brittain received a letter from the secretary, informing him that he had been allotted twenty-five shares in the undertaking by the committee of management, and that the instalinent of 2s. per share must be paid, before the 4th of December, to one of the bankers of the company, and on payment thereof, and of the residue of the deposit, amounting to 21. 2s. 6d. per share, he would receive scrip certificates, which would be granted on the due execution of the subscribers' agreement and parliamentary contract, without which no person would be recognized as a subscriber or be entitled to any interest in the undertaking. Mr. Brittain paid the whole amount of the deposit on the 16th of January into one of the bankers of the company, but previously to that time the undertaking had been abandoned. Mr. Brittain never executed the subscribers' deed or parliamentary contract. Upon this evidence, the master, in winding up the company, had struck Mr. Brittain's name out of the list of contributories.

Mr. Malins and Mr. Glasse, in support of the motion to reverse that decision, on behalf of the official manager, contended that as Mr. Brittain had consented to have his name placed on the list of provisional committee-men, and had accepted shares, he had brought himself within the rule in Upfill's case, 2 House of Lords Cases, 674; s. c. 1 Eng. Rep. 13.

Mr. Bethell and Mr. Manisty cited Barber's case, 18 Law J. Rep. (N. S.) Chanc. 242, and contended that as Mr. Brittain had not paid his deposits before the abandonment of the undertaking, and had not signed the subscribers' agreement or parliamentary contract, without which it was expressly stated he would take no interest in the undertaking, the master was right in striking out his name from the list of contributories.

LORD CRANWORTH, V. C. I have stated more than once that I did not understand the principle on which Upfill's case was decided, and therefore it is, at all times, difficult for me to say what cases come within that decision, but I confess I cannot see in what the present case differs from that of Upfill. Mr. Brittain was a member of the provisional committee, that is not disputed; and although he consented only to be an ornamental member, which I take to mean that he did not intend to take an active part in the management of affairs, still that can make no difference, as Upfill was not an active member of the provisional committee. Then, as to his taking shares, Mr.

3*

The South Staffordshire Railway Company v. Hall.

Brittain says he was willing to take shares, which was a prospective acceptance of them. If, however, upon the shares being allotted, he had not agreed to accept them, or if he had objected to the terms proposed, that might have brought his case within the decision in Barber's case, but he actually paid the full amount of deposits required, which was the strongest method of shewing that he accepted the shares. Under these circumstances, I think this case cannot be distinguished from Upfill's case, and that Mr. Brittain's name must, consequently, be placed on the list of contributories. The costs of the official manager must be paid out of the estate.

THE SOUTH STAFFORDSHIRE RAILWAY COMPANY v. HALL.1
July 18, 1851.

Injunction-Dissolution of.

The Vice-Chancellor, acting on the authority of The London and North Western Railway Company v. Smith, 1 Mac. & Gor. 216, granted an ex parte injunction on the application of a railway company restraining the land-owner from taking proceedings under the 68th section of The Lands Clauses Consolidation Act, 1845, for settling the amount of compen sation to be paid to him by the company: his Honor subsequently dissolved the injunction at the instance of the defendant on the authority of The East and West India Docks and Birmingham Junction Railway Company v. Gattke, 3 Mac. & Gor. 155; s. c. 3 Eng. Rep. 59; in the meanwhile, the time limited for taking proceedings under the 68th section had expired. The company, who had not raised the question before the Vice-Chancellor, appealed from the order dissolving the injunction, on the ground that it ought to have been made on such terms as that their rights to take proceedings under the 68th section might not be affected by the lapse of time. The Lord Chancellor refused the application.

THE circumstances of this case were precisely similar to those in The London and North Western Railway Company v. Smith, 1 Mac. & Gor. 216.

The defendants, on the 12th December, 1850, had served on the company a notice under the 68th section of The Lands Clauses Consolidation Act, 1845, claiming a sum of 550l. by way of compensation for damage occasioned to the farm of the defendants by reason of the railway crossing on a level the only road leading to the farm; and the defendants called on the company either to pay the sum so claimed, or else to summon a jury to assess the amount of the damage.

The company thereupon filed a bill, which was almost a transcript of that in The London and North Western Railway Company v. Smith, 1 Mac. & Gor. 216; praying an injunction restraining the defendants from taking any proceedings whatever against the company pursuant to their notice, or from taking any other proceedings under The Lands Clauses Consolidation Act, 1845, for settling the amount of compen

sation.

On the 2d January, 1851, the Vice-Chancellor Lord Cranworth

13 Mac. & Gor. 353.

The South Staffordshire Railway Company v. Hall.

granted an injunction ex parte in conformity with the prayer of the bill, and did so on the authority of Lord Cottenham's decision in the case of The London and North Western Railway Company v. Smith, 1 Mac. & Gor. 216. On the 24th February, 1851, the defendants applied to the Vice-Chancellor to dissolve the injunction, relying on the case of The East and West India Docks and Birmingham Railway Company v. Gattke, decided by the Lord Chancellor on the 11th February, 1851, (since reported, 3 Mac. & Gor. 155; s. c. 3 Eng. Rep. 59.) On the 22d March, 1851, the Vice-Chancellor delivered judg ment, and, considering the decision of the Lord Chancellor in the case last referred to as directly in point, and notwithstanding the decision of Lord Cottenham in The London and North Western Railway Company v. Smith, dissolved the injunction. 1 Sim. (N. s.)

373.

Under these circumstances, the company desired to avail themselves of the provisions of the 68th section of the act, and to issue their warrant to the sheriff to summon a jury for settling the amount of compensation, but found they were precluded from doing so in consequence of the time limited by the act, namely, twenty-one days after the receipt of the defendant's notice, having expired while the injunction was in force: the injunction had been obtained on the last day of the time limited.

No notice was apparently taken before the Vice-Chancellor of the difficulty in which the company was placed; but the company now appealed to the Lord Chancellor from the order made by the ViceChancellor, on the ground that the injunction ought not to have been dissolved absolutely, but on such terms as would have placed the company in the same position as when the injunction was obtained.

Mr. Rolt and Mr. Speed, for the company, did not dispute the validity of the Vice-Chancellor's order, so far as related to the dissolution of the injunction, but submitted that it ought to have been made on such terms as to prevent the effect of allowing the time which had elapsed between the granting of the injunction and its dissolution being reckoned as against the company; and that it was in the discretion of the judge, on dissolving an injunction, to impose such terms as the circumstances of the case rendered equitable.

[The Lord Chancellor referred to the case of Marquis of Waterford v. Knight, 11 Cl. & Fin. 653; where it was held that a party who mistakes his right and sues in a wrong form, is not entitled to an order that would deprive the defendants of the benefit of any alterations made in the law in the mean time.]

Mr. J. Parker and Mr. Willcock, for the defendants, submitted that the only question on an appeal was, whether the judge below was right at the time he pronounced the order appealed from, and not whether, in consequence of some subsequent event, the propriety of the order might be questioned; that the point now raised was one to be submitted to the Vice-Chancellor, and not to be treated as the

Dew v. Clark.

ground of an appeal. They insisted that they were entitled to have the injunction dissolved, and that they ought not to be deprived of any right arising out of such dissolution.

The LORD CHANCELLOR (stopping the counsel for the defendants) said that he would, if necessary, hear the reply after he had remarked on one or two points in the case. His Lordship then observed, that there appeared to be no instance in which the court had imposed terms on dissolving an injunction where such dissolution proceeded on the ground that the injunction ought not to have been granted; that, in the present instance, the plaintiffs ought never to have had the injunction, and that there was no ground for depriving the defendants of any advantage that the existence of that injunction might have conferred upon them; that, at all events, the plaintiffs should have made the present application to the Vice-Chancellor when he dissolved the injunction, and could not be permitted to gain the indulgence now sought by way of appeal.

His Lordship also remarked on the delay of the company in making the application, observing that, in cases like that under consideration, the court requires a party to be prompt, whereas the plaintiffs, though fully aware of the legal rights of the defendants, had deferred applying to the court till the present time, and had also, as it appeared, resisted the enforcement of those rights at law by pleading to an action brought by the defendants, and raising the same points at law as they had originally relied on in equity.

His Lordship concluded by expressing his opinion, that the court had no authority to impose any terms on the defendants.

Mr. Speed stated, that after this declaration of the opinion of the court he would not further prolong the discussion.

The LORD CHANCELLOR accordingly dismissed the application with

DEW v. CLARK; and in the Matter of the Act 1 Will. 4, c. 36.1 July 12, 19, 1851.

Order to pay Money-Charging Party in Custody.

The Lord Chancellor has no jurisdiction under the 17th rule of the 15th section of the Act 1 Will. 4, c. 36, to discharge a party in custody for the non-payment of a sum of money ordered to be paid in a suit.

THIS was the petition of Thomas Clark, one of the defendants in the above suit. It stated that on the 27th February, 1827, the peti

13 Mac. & Gor. 357.