his affidavit that he did not depose to the Commissioner, as represented, that the buildings on the mortgaged property had not, in his opinion, been built substantially enough for the purposes to which they were put, and therefore were not in a state of good and tenantable repair in the year 1826; but on the contrary, the witness stated that the buildings were then all new, and that he did not see how they could be out of repair. That to the question "Were not the cottages in 1826 in bad repair?" the witness replied, "No; all being then new or nearly so"; and that this question was repeated once or twice. That the Commissioner then said, "But the warehouse was in bad repair?" to which the witness answered, "It could not be, having been only newly built; but it is possible to break anything with over-weighting." The other witness stated in her affidavit that she did not say to the Commissioner, as represented, that certain sums were paid with the assent and concurrence of the several persons entitled to the equity of redemption of the mortgaged premises and every of them; but said that such sums were expended without the consent of any one except the late mortgagee and his son. That the witness was asked whether the mortgaged property had not been let to her brother, one of the defendants, and that when she replied that she did not know, the Commissioner said it did not matter, as this fact had been sworn to by other witnesses, and in particular by one Mr. H. The witness also stated that she did not know when the depositions were read over to her by the Commissioner; that her first answer meant that the money had been paid with the consent of the persons entitled to the property, subject to the mortgage; but thought it meant with the consent of the mortgagees; otherwise she should have objected to sign such depo sitions. The Commissioner and his clerk filed affidavits, denying partiality and the statements of the first witness, and stating that the respective depositions had been carefully read over to each witness, and particularly explained to the latter. These affidavits were not answered by the defendants. NEW SERIES, XVIII.-CHANC. The Solicitor General and Mr. Batten, for the motion, cited Richardson v. Fisher, 1 Bing. 145. Mr. Kenyon Parker and Mr. Shee, for the plaintiffs, opposed the motion, and cited Whitelocke v. Baker (1). The Solicitor General replied. March 28.-WIGRAM, V.C., after briefly alluding to the facts, said that he should reject all the charges of partiality brought against the Commissioner. The latter had denied them in an affidavit which was corroborated by his clerk and uncontradicted by the defendants. Sometimes the Court would, as in the case of Cass v. Cass (2), allow a witness to be re-examined, after publication, on a point alleged to have been incorrectly taken down at the examination. This was not asked in the present case, but the whole of the depositions were required to be suppressed. It was doubtful whether the Court could adopt a worse course than that. Still it was very important that it should be clearly known what the depositions really were. If the parties would consent to go before the Master he could decide (and the Court afterwards if necessary) whether the affidavits on this motion were or not material. If the affidavits were allowed counsel might go into evidence before the Master. If the parties would not consent to that course it must be specially ordered, the plaintiffs not asking that the Commissioner or his clerk should be examined, that the defendants moving should be at liberty to cross-examine (or examine if the plaintiffs should decline) the two witnesses on the disputed parts of their depositions vivá voce in the Master's office; and that the costs should be reserved. (1) 13 Ves. 511. (2) 4 Hare, 278; s. c. 14 Law J. Rep. (N.s.) Chanc. 223. 21 By the 11 & 12 Vict. c. 45. s. 10. (the Joint-Stock Companies Winding-up Act, 1848), it is enacted, "that every petition for winding-up the affairs of any company shall be advertised, and shall be served, at the head or only office of the company, upon any member, officer or servant of the company there; or, in case no such member, officer, or servant can be found there, then by being left at such office; or, in case no office of the company can be found, then upon any member, officer, or servant of the company." A petition was presented for winding up the affairs of "The Tring, Reading and Basingstoke Railway Company," and served upon one of the members of the company. The petition was brought on for hearing. Counsel appeared for the member of the company so served, and the usual order was made. In drawing up the order a question was raised in the Registrar's office, whether an affidavit of service on the member so served was not necessary. Mr. Chandless now mentioned the question to the Court. KNIGHT BRUCE, V.C. (after consulting with the Registrar) said he thought that, as the order affected other persons besides the member so served, an affidavit of service was necessary. L.C. April 16, 17, 18. In re THE LONDON AND MANCHESTER DIRECT WAY COMPANY (RE- Company Railway-Winding-up Act— Provisional Registration Commercial or Trading Purposes. An association, provisionally registered, for the purpose of obtaining an act of parliament for the formation of a railway, whether it is the intention of the association to use the railway for the conveyance of passengers and goods in their own carriages, or to let it out to others for that purpose, is an association "for a commercial or trading purpose;" and as such, though the project be afterwards abandoned, is within the operation of the Winding-up Act, 11 & 12 Vict. c. 45. The This was a petition under the JointStock Companies Winding-up Act, for the dissolution and winding up of the London and Manchester Direct Independent Railway Company (Remington's line). petition stated that in April 1845 the company was projected for the construction of a railway between London and Manchester for the carriage of passengers and goods, and the capital was to consist of 3,000,000l. in 60,000 shares of 50%. each; that an extension of the line and an increase of the capital was afterwards proposed; that the company was provisionally registered according to the provisions of the 7 & 8 Vict. c. 110; that the petitioner was the holder of 200 shares; that the subscribers' agreement in the usual form was signed, and the parliamentary contract duly executed. In the subscribers' agreement, the parties to it were described as being subscribers to an undertaking for making a railway to be called "The London and Manchester Direct Independent Railway;" and it was thereby agreed that the directors should have full power for carrying all or any part of the undertaking into effect, and for that purpose to cause all necessary surveys, &c. to be made, and also arrangements and contracts with land owners and others; and to buy up and amalgamate with other railways; and to apply for an act of parliament, and to apply any part of the monies in meeting the necessary expenses of applying for an act of parliament, and all other costs incident to the undertaking; and power was given to them with consent of the majority of the shareholders wholly to put a stop to the undertaking or to abandon any part thereof. The petition then stated that, instead of complying with the Standing Orders of the Houses of Parliament and applying for an act, the managing committee, without the consent of the shareholders, had entered into some arrangement for amalgamation with a competing line (which was never carried into effect), and in consequence thereof, the scheme had become abortive and the undertaking had been wholly abandoned, and the company had altogether ceased to carry on any business whatever; that, by the deposits, considerable sums had been received by the managing committee, a large balance of which was still applicable to the discharge of the outstanding liabilities of the company; and that if the same was insufficient for that purpose, the contributories and members ought to pay and make up the same rateably according to their respective shares ; that there were outstanding liabilities to a large amount, and that the petitioner and other members were liable to be sued by the creditors of the company; and that the company had no offices or place of business, nor any officer or servant. The petition was served on two of the members of the managing committee. The petition was first heard by Knight Bruce, V.C.; who decided that such a company was not within the terms of the Winding-up Act. It was now brought before the Lord Chancellor, by way of appeal. Mr. Bacon and Mr. J. H. Palmer, in support of the petition, contended that, without doubt, the legislature intended to include within the operation of that statute all companies then or at any time thereafter associated together for any commercial or trading purposes, and registered either provisionally or completely; and that if the present company answered that definition, then it must be held to be within the scope of the Winding-up Act. The purpose for which the company was formed, was for making a railway for the purpose of carrying passengers and goods; and therefore was a trading company as carriers; and the 7 & 8 Vict. c. 111. comprised companies, as trading companies, which were only provisionally registered; even though by the Registration Act such companies were precluded from trading until completely registered. An objection taken at the hearing below was, that as the 1st section of the Winding-up Act expressly comprised all companies which were within. Lord Dalhousie's Act, that amounted to an exclusion of all other railway companies; but the effect of the reference was to make the section cumulative and not restrictive. Mr. J. Russell, Mr. Rolt, Mr. Daniel and Mr. Stevens, for the respondents.—If all railways are included in the Windingup Act, the reference to Lord Dalhousie's Act becomes senseless. Liability to bankruptcy is the test of the association being within the act. A company only provisionally registered cannot trade. The object of the association in question was to procure an act of parliament for the purpose of making a railway if they succeeded in obtaining an act, it did not necessarily follow that they would become carriers; or that the Railways Clauses Consolidation Act would be incorporated with their special act. The association therefore cannot be said to be formed for a trading purpose-In re The Herne Bay Company (1). Mr. Bacon, in reply.-Bankruptcy cannot be the sole test of whether the company is within the Winding-up Act, as ceasing to trade or any other just or equitable ground for dissolution, enables the Court to interfere. A fiat may issue against a company only provisionally registered, and such a company may enter into con-ditional contracts. Here the motive which led to the formation of the company was (1) 1 De Gex & S. 588. the expectation of profit to be derived from making a railway, and having it applied either by themselves or others in the conveyance of passengers and goodsM'Kay v. Rutherford, Privy Council, Dec. 1848 (2). - April 18.-The LORD CHANCELLOR.The only question I have now to decide is whether the company is within the meaning of the Winding-up Act. It is said to be an association for the purpose of obtaining an act to make a railway, and that act was in fact never obtained. The company having failed, it was contended that it was not within the operation of the Winding-up Act, on the ground that it was not a commercial company. It was said that the contract was merely to make a railroad, and that was not necessarily a commercial speculation, and was similar to a contract for building a house, and that it might or might not be used for commercial purposes. The affidavit in support of the application, which is not met by any counter affidavit, states that the company was originated for the purpose of constructing a railway for the conveyance of passengers and goods. It was said, for the respondents, that the company might have let out the railway, after it was made, for the purpose of other persons carrying goods upon it in their own carriages, because it was at one time supposed that that was the way in which railroads would be used. do not think this would make any difference. It was a joint adventure for the purpose of making a railroad to be used by themselves or others for their benefit. It was a joint-stock company therefore, formed with a view to advantage and profit either by letting the railway to others or using it themselves as carriers. The question is, whether under this description the company is within the provisions of the Winding-up Act. [His Lordship here referred to the 1st section of that act.] It is clear, therefore, that this company would have been within the Winding-up Act if that act had existed in 1845 before this company was formed. But, as the company was formed before (2) 13 Jurist, 21. I 66 66 the act was passed, it is not included in the latter part of the section; and, if within the act at all, it must be by force of the reference to the 7 & 8 Vict. c. 111. Now, the words there are, "a company associated together for commercial or trading purposes." In the Registration Act, 7 & 8 Vict. c. 110, the words are, "for any commercial purpose or for any purpose of profit." Why these expressions are departed from in c. 111. which are found in c. 110. I am unable to discover, for they both seem to have intended the same purpose and object. I do not see that it makes any difference; for every commercial adventure is an adventure for profit. The question therefore is, whether this association clearly comes within the Registration Act; and whether an association, provisionally registered, for the making of a railway for the purpose of carrying passengers and goods, is or is not within c. 111. as a company or body of persons associated together for commercial or trading purposes." Trading," under the bankrupt laws, has obtained a judicial meaning; but the word "commercial" is a wide term. Whether I should adopt the definition of the word "commercial" as laid down by the members of the Judicial Committee of the Privy Council, it is not necessary for me to decide, because it appears to me that nothing is a more commercial speculation than the manufacturing of machinery by which profit is to be obtained; whether by the sale or letting of what is made or by the using of it profit is obtained, it is equally a commercial speculation; whether the thing manufactured be a railroad or a steam-engine. The word "commercial" has received a judicial definition in the case of M'Kay v. Rutherford; but, without that case, I should have no doubt that the manufacture of a railroad for the purpose of profit by carrying passengers and goods is a commercial speculation; and though the object for which the members associated is abandoned, yet the case is within the act. The order, therefore, must be for winding up the affairs of the company under the act. K. BRUCE, V.C. June 12. Ex parte BASS. Ex parte BARBer. WAY COMPANY. (REM- Company - Winding-up Act - Official Managers - Solicitors - Evidence - Proceedings in the Master's Office-Attendance of the Petitioner-Counsel and Client. In the proceedings for winding up a company under the Joint-Stock Companies Winding-up Act, the Master made an order whereby he appointed A. and B. to be the official managers, and approved of Messrs. G. as the solicitors, and directed Messrs. G. to attend him, and ordered all persons who had any writings relating to the company to leave them at the office of Messrs. G. A motion to discharge this order, so far as it related to Messrs. G, on the ground that B. had not concurred with A. in the appointment of Messrs. G. as solicitors, was granted. The Master has authority, at any time after the commencement of the proceedings in his office, to discharge the petitioner from all further attendance in the matter. At the hearing of a motion M. stated that he appeared as counsel for B, and S. also stated that he appeared as counsel for B. B. being present and being asked by the Court whom he wished to appear as his counsel, and having stated that he wished S. to be his counsel, the Court directed S. alone to appear as B.'s counsel. Mr. Barber presented a petition under the Joint-Stock Companies Winding-up Act, 1848, for winding up "The London and Manchester Direct Independent Railway Company (Remington's line)," and the usual order was made thereon, and proceedings were commenced in the Master's office. By the 22nd section of the act, it is enacted, "that the Master shall, by writing under his hand,, appoint a person or persons to be the official manager or managers of the company;" and by the 33rd section, it is enacted, " that it shall be lawful for the official manager, with the approbation of the Master, to employ, and, from time to time, dismiss an attorney or solicitor." The Master appointed Mr. Turquand and Mr. Lewis to be the official managers, and approved of Messrs. Galsworthy as the solicitors of the official managers. With reference to the appointment of Messrs. Galsworthy as such solicitors there were two entries in the Master's book. In the first entry, dated the 25th of May 1849, the Master stated "that he approved of the appointment of Messrs. Galsworthy as solicitors of the official managers, and directed that, until further order, Messrs. Galsworthy should attend before him in the proceedings to be had in the matter." In the second entry, dated the 28th of May 1849, the Master ordered "that every person in whose custody, possession, or power any of the books of accounts, &c. of or belonging to the company might be, should, on or before the 31st of May, or within three days after service, produce and leave at the office of Messrs. Galsworthy all the particulars so in his possession, custody or power." On the 2nd of June a notice of the first motion made in this matter was served upon the official managers, and on the 5th of June a notice of the second motion made in the matter was served upon them. On the 5th of June a meeting of the official managers and Messrs. Galsworthy took place at the Master's office, for the purpose of discussing these notices of motion. With reference to this matter an entry was made in the Master's book, dated the 5th of June 1849, and signed by him, in the following terms:-"Mr. Lewis, Mr. Turquand, and Mr. Galsworthy attended, and Mr. Galsworthy was instructed by Messrs. Lewis and Turquand, under my directions, to resist the motions of Mr. Barber and Messrs. Bass and Brooks." The first motion before mentioned was a motion by Messrs. Bass and Brooks, two of the provisional directors of the company, that so much of the order of the 25th of May, whereby the Master approved of the appointment of Messrs. Galsworthy as solicitors of the official managers, and directed them to attend before him; and that so much of the order of the 28th of May 1849, whereby the Master ordered that the particulars as to the books of ac |