174, 1886 Cowanp Guesony, Nov. 14. COURT OF COMMON PLEAS. LL. R. have expected some precedent to be shewn for such a plea in equity. None has been cited. Kearma, J. Tam of the ‘seme opinion, I felt much pressed by the argument of Mr. Mellish on the ninth plea. But, for the reasons given by my Lord and my Brother Willes, I:am satisticd that the argument is answered. Judgment for the defenidant on the fifth ani sith ‘pleas ; for the plaintiffs as to the rest. -Attoney for plaintiffs: W. Hunt, for Hulton, Sadler, & Lister, Salford. Attorneys for defendant: Stuart & Massey, for J..H. Bullock, Manchester. (WELNER v, BAXTER axp Ornens. Principal anid Agent—Contract by one professing to contract as Agent, but who has mo existing Prineipal—Oral Evidence to contradict—Ratification— Appeal under 8, 87 of the Common Law Procedure Act, 1854 (17 & 18 Vict. ¢, 125)—Enlarging Time for giving Notice. ‘Where a contract is signed by one who professes to be signing “as agent,” but who has no principal existing at the time, and the contract would be wholly inoperative unless binding upon the person who signed it, he is personally liable on it: and a.stranger cannot by a subsequent ratification rolieve him from that liability, ‘A company being projected for carrying on the business of an hotel, and pur= chasing the premises and stock of the plaintiff, the following agreement was entered into—“ Jan. 27, 1866, To A.,B, and C., on behalf of the proposed. Gravesond Royal Alexandra Hotel Company. I horeby propose to sell the extra stock, as per schedule hereto; for the sum of 9002, payable on tho 28th of Feb~ ruaty, 1866” (signed by the plaintiff), “ We have received your offer to sell tho oxtra stock as above, and wo hereby agree to accept the terms proposed.” (Signed) “A,, B., and C,, on bebalf of the Gravesond Royal Alexandra Hotel Company.” ‘The goods were handed over to the representatives of the proposed company, and were consumed in the business. ‘The company obtained a certificate of incorpo- rafion under the Companies Act, 1862, on the 20th of February, ‘but collapsed ‘before the money was paid ‘Held, that A., B,, and Q. were personally liable on their agreement, as for goods sold and delivered; that no subsequent ratification by the company could relieve fhem from that liability without the assent of the plaintiff; and that parol evidence was not.admissible to shew that personal liability was not intended.VOL, IL] ‘MICH. TERM, XXX VICT. ‘Where a-party has through inadvertence allowed the time for giving notice of appeal under the 87th section of the Common Law Procedure Act, 1854, to elapse, the Court may in its discretion allow an appeal, but will be guided in tho exercise of that disoretion by the partioular ciroumstanees of each ease. ‘Tom dedlaration was for goods sold and delivered, goods bar- gained and sold, interest, and upon accounts stated. The defendants pleaded,—first, never ‘indebted,—secondly, pay- ment,—thirdly, as to the claim for goods sold and delivered, and goods bargained und sold, that, by agreement in that behalf made by and between ‘the plaintiff and the defendants on ‘behalf of a joint stock company then proposed to be formed under the Joint Stock Companies Act, 1862, and to be called ‘he Gravesend Royal Alexandra Hotel Company, Limited, the goods wero sold to and bought and received by the defendants upon the terms that if the company, when registered, should adopt the said contract, and agree with the plaintiff to pay the agreed price of the said goods, tho goods should become the property of the company, and the defendants should be exonerated and discharged from all further lisbility in respect thereof, and that such agreement of the com- pany should be accepted by the plaintiff in full satisfaction and discharge of all such lisbility ; ‘that the company was registered by the name of The Gravesend Alexandra Hotel Company, Limited, and, when so registered, by agreement ‘in that. behalf made with the plaintiff, adopted the first-mentioned contract ; and thereupon, and by and with the consent of the defendants, tho goods became tho property of the company, and the plaintiff’ and the company eventually agreed with each other to be bound by the first-mentioned contract, and the company agreed with the plaintiff to pay to the plaintiff’ the agreed price of the goods, and the plaintiff then before the action accepted the agreement so made with the company in full satisfaction and discharge of the claims therein pleaded to. Fourth plea, to the claim for goods sold and delivered, and goods bargained and sold, that, by agreement in that behalf made by and between the plaintiff and the defendants on behalf of a joint stock company then proposed to be formed under the Joint Stock Companies Act, 1862, and to be called ‘The Gravesend Royal Aloxandra Hotel Company, Limited, the said goods were sold to 175 1868 ‘Kenxen 2 -Baxtzn,176 w Baxven, COURT OF COMMON PLEAS. LR and bought and received by the defendants on behalf of the said intended company ; that the soid company was formed and rogis- tered under the said act by the name of The Gravesend Hotel Company, Limited; and that afterwards and before this suit, by agreement in that behalf made by and between the plaintiff, the defendants, and the said company, the goods were transferred to and became the property of the company, and the.company agreed with the plaintiff to pay the price thereof, and tho plaintiff ac- cepted and received such agreement on the part of the company in full satisfaction and discharge of the claims therein pleaded to. Issue thereon. At the trial before Exle, C.J., at the sittings in London after last Trinity Term, the following facts appeared in evidence :~The plaintiff was a wine merchant, and the proprietor of the Assembly Rooms at Gravesend. In August, 1865, it was proposed that a company should be formed for establishing a joint-stock hotel company at Gravesend, to be called ‘The Gravesend Royal Alex- andra Hotel Company, Limited, of which the following gentlemen were to be the directors, viz, Mr. L. Calisher, Mr. 'f, H. Edmands, Mr. M. Davis, Mr. Macdonald, Mr. Hulse, Mr. N. J. Calisher (one of the defendants), and the plaintiff. The plaintiff was to be the manager of the proposed company, and Mr. Dales (another of the defendants) was to be the permanent architect. One part of the scheme was that the company should purchase the premises of the plaintiff for a sum of 50002, of which 80002. was to be paid in cash, and 20007, in paid up shares, the stock, &c, to be taken at a valuation ; and this was carried into effect and completed, the other defendant (Baxter) being the nominal purchaser on bebalf of the company. In December a prospectus was settled. On the 9th of January, 1866, a memorandum of association was executed by the plaintiff and the defendants and others. Pending the negotiations the business had been carried on by the plaintiff, and for that purpose additional stock had been pur- chased by him ; and on the 27th of January, 1866, an agreement was entered into for the transfer of this additional stock to the company, in the following terms:—VOL. IL) MICH. TERM, XXX VIOT. “January 27th, 1866, “To John Dacier Baxter, Nathan Jacob Calisher, and John Dales, on behalf of the proposed Gravesend Royal Alexandra Hotel Company, Limited. “Gentlemen,—I hereby propose to sell the extra stock now at the Assombly Rooms, Gravesend, as per schedule hereto, for the sum of 9001, payable on the 28th of February, 1866. (Signed) “John Kelner.” Then followed a schedule of the stock of wines, &c., to be pur- chased, and at the end was written as follows :— “To Mr. John Kelner. “Sir,—We have received your offer to sell the extra stock as above, and hereby agree to and accept the terms proposed. (Signed) “J.D. Baxter, «N. J. Calisher, «J. Dales, “On behalf of the Gravesend Royal Alexandra Hotel Company, Limited.” In parsuance of this agreement the goods in question were handed over to the company, and consumed by them in the busi- ness of the hotel; and on the 1st of February a meeting of the directors took place, at which the following resolution was passed : «That the arrangement entered into by Messrs, Calisher, Dales, and Baxter, on behalf of the company, for the purchase of the additional stock on the premises, as per list taken by Mr. Bright, the secretary, and pointed out by Mr. Kelner, amounting to 9002, be, and the same is hereby ratified.” ‘There was also a subsequent ratification by the company, viz. on the 11th of April, but this was after the commencement of the action. The articles of association of the company were duly stamped on the 18th of February, and on the 20th the company obtained a certificate of incorporation under the 25 & 26 Vict. ¢. $9. The company having collapsed, the present action was brought against the defendants upon the agreement of the 27th of January. On the part of the defendants oral evidence was tendered for the purpose of shewing that it never was intended that they should be personally liable; but his Lordship rejected it. Tt was then sub- Vou, II. 2 177 1866178 1866 ‘Reuven Baxren, COURT OF COMMON PLEAS, [L. R. mitted that, inasmuch as the agreement was not entered into by the defendants personally, but only as agents for the hotel com- pany, they thereby incurred no personal obligation to the plaintiff, who was himself one of the promoters. For the plaintiff it was insisted that, there being no company in existence at the time of the agreement, the parties thereto had rendered themselves personally liable; and that there could be no ratification of tho contract by a subsequently created company. A verdict was taken for the plaintiff for 900%, subject to leave reserved to the defendants (upon giving security) to move to enter ‘a nonsuit, on the ground that the agreement of the 27th of Tamuary did not make them personally liable. Nov. 6, 1866. Seymour, Q.C, obtained a rule nisi accordingly, and also for a new trial on the ground of misdirection on the part of the learned judge, “in not allowing witnesses to be called to contradict the plaintiff as to the defendants’ personal liability.” Nov. 13,14. J. Brown, Q.C., and Thesiger, shewed cause. The ruling of the learned judge was clearly right The agreement of the 27th of January, 1866, must receive the same construction as it would have received the day after it was entered into. The com- pony was not then formed. Suppose it never was formed at all, could it for a moment have been contended that the defendants were not personally liable? ‘The obvious intention of the parties was that the company when formed shotild have the benefit of the contract; but that, if the company failed to come into existence by that time, the plaintiff should at all events be paid on the 28th of February. The agreement would be a mere nullity unless it be construed as the personal undertaking of those who signed it. There is therefore strong reason for so construing it ut res magis valeat quam pereat. Although evidence may be given of the surrounding circumstances which existed at the time a contract was entered into, no evidence can be received to contradict a written agreement. In Higgins v. Senior (1), it was held that it was not competent to the defendant in an action on an agreement in writing purporting on the face of it to be made by him, and signed by him, to shew that the agree- (1) 8M. & W. 834.VOL. II) MICH. TERM, XXX VICT. ment was really made by him by the authority of and as agent for a third person, and that the plaintiff knew those facts at the time when the agreement was made and signed. In Furnivall y. ‘Coombes (1), 2 proviso to exclude personal responsibility of the contracting parties was held to be repugnant and void, the parishioners, for whom they professed to be contracting, not being ‘chargeable as such. Upon the same principle it was held in Doubleday v. Muskelt (2), where the defendants had agreed to ‘become directors of a voluntary projected water company for which an act of parliament was to be obtained, and, though no act was obtained, the directors had published an advertisement for pro- -posals for excavating and remoying the earth and chalk for reser- yoirs, and the proposals of the plaintiff had been accepted, and the plaintiff had performed the labour and services upon a reservoir accordingly, and the schemé afterwards proved abortive,—that the defendants were personally liable. ({Wattzs, J. Does the ratification of the contract by the com- pany after their formation transfer the obligation to them ?] There can be no ratification by a person or a corporation not -existing at the time the contract was entered into, And, even if there could, the ratification by the company was after the com- mencement of the action, If the company adopted it, it could only be by way of a new agreement; for, they could not be bound by a contract made by the promoters before the company was registered: Hutchison v. Surrey Consumers Gas-Light Associa- tion (8); Payne v. New South Wales Coal and Intercolonial Steam Navigation Company. (4) [Wires, J. Gunn v. London and Lancashire Fire Inswrance Company (5) seems to be quite in point to shew that the company could not have been made liable upon this contract, even though they affected to ratify it. Byzes, J. If the company, when formed, had taken to the wines and spirits in question, and had allowed them to bo con- sumed by their customers, might they not have been liable as for goods sold and delivered 7] () 5M. & G. 736; 6 Scott NVR. (3) 116. B. 689; ALJ. (CP) 1. 522, (4) 10 Ex. 283; 241. J. (Ex,) 117. (2) 7 Bing. 110, (6) 12.6. B. (NS.) 694, R2 2 179 Ketes e Baxter,180 1866 Keuwen *. Baxren, COURT OF COMMON PLEAS, {L. RB. Doubtless they might. There are numerous cases where the defendant has been held liable as the acceptor of a bill of exchange, though he has professed to accept “ per procuration,” or on account or on behalf of a company : amongst others are the cases of Nicholls v. Diamond (1), and Owen v. Van Uster (2): and that rule is recog- nised in Penrose v. Martyr (8), where, however, the decision turned mainly upon the 3ist section of the Joint Stock Companies Act, 1856 (19 & 20 Vict. c. 47). Every intendment must be made against the person who signs the contract, where there is no responsible principal at the time to whom recourse can be had: Story on Agency, ss. 280—282. In Lewis v. Nicholson (4), Lord Campbell, referring to Hall v. Ashurst (5), where the undertaking was “on behalf of the London creditors,” and to Watson v. Murrell (6), where it was “on behalf of the parish,” says: “It could not reasonably be intended that the plaintiff should con- tract with such bodies; and therefore it was apparent on the face of the instrument that the contract must be intended to be personal.” [Benes, J. The only difficulty I feel is, that the words “on behalf of the proposed Gravesend Royal Alexandra Hotel Com- pany, Limited,” are the words of the plaintiff, which are adopted by the defendants] In Bx parte Hartop (7), Lord Exskine, ©., says: “No rule of law is better ascertained, or stands upon a stronger foundation than this, that, where an agent names his principal, the principal is responsible, not the agent; but, for the application of that rule, the agent must name his principal as the person to be responsible.” ‘The mere fact of a person professing to sign a contract for or on behalf or as agent for another will not per se prevent responsibility as a contracting party attaching upon the former. ‘This is suffi- ciently exemplified by the cases of Lanner v. Christian (8) and Lennard y. Robinson. (9) No evidence which could have been recoived was rejected; and none was admissible to contradict the (1) 9 Ex, 154; 23 L. J. (Bx.) 1. (5) 16. & M. 714, (2) 10 C.B.318; 20L.J.(C.P.) 61. (6) 10. & P. 307. (8) E.B.& E499; 28L.5.(QB.) (7) 12 Ves. 849, 352. 28, (8) 4B. &B.591; 24L.J.(Q.B.)91, (4) 18 Q B, 508, 510; 21 L. J. (9) 5 E.& B.125; 24 1.0. (QB) (Q.B) 811. 275,VOL. IL] MICH, TERM, XXX VICT. written agreement, or to explain that which was on’ the face of it free from ambiguity. i Seymour, Q.C.,in support of the rule. ‘The surrounding circum- stances shewed an evident intention to exclude personal liability in those who signed the agreement. ‘The arrangement had refer- ence exclusively to the formation of a company in which the plaintiff himself had a deep interest. The day for payment was inserted because all parties were satisfied that the business of the ‘company would then have commenced. [Wrutes, J. There can be no doubt that all parties contem- plated that the goods would be paid for out of the funds of the company. In Lindus v. Melrose (1), the following promissory note was signed by three persons describing themselves as “directors” of a joint stock company incorporated, with limited liability, under the 19 & 20 Vict. e. 47, and was countersigned by one Guess, who described himself as “secretary” of the company :—“London, Dec. 31, 1856, ‘Three months after date we jointly promise to ‘pay Mr. F. Shaw or order six hundred pounds for value received in stock on account of the London and Birmingham Iron and Hard- ware Company, Limited,” and it was held by a majority of judges in the Exchequer Chamber, affirming the judgment of the Court of Exchequer (2), that the directors who signed the note were not personally liable. ‘The difficulty in the present case is that there ‘was no company formed.] ‘The agreement was made on behalf of the company, which was known to be in the course of formation; and the company ratified it when formed, In Aggs v. Nicholson (3), a note signed by two directors of a completely registered joint stock company, expressed to be made “by and on behalf of the company,” was held to be binding on the company, and not on the persons who signed it. And Bramwell, B,, refers to an American case of Bradlee v. Boston Glass Manufactory (4), where the Court considered that if the words “for the Boston Glass Manufactory” had stood alone the note would have bound the company. ‘There was abundant evi- dence here that the defendants had the authority they professed to Q) 8H. & N17; TLE.) (8) LH & N. 105; 25 L. J. (x,) 326, 828, 348, (2) 2H.& N,203;27L,J.(Bx,) 826, (4) 16 Pick, 347. 18] 1866 KEISER % Baxrer,182 1866 Kenner os Baxter. COURT OF COMMON PLEAS. (Ere have. Both parties to the agreement had equal knowledge of the circumstances; and the’ subsequent recognition of the authority was sufficient: per Holroyd, J., in Saunderson v. Grifiths. (1) And see the dictum of Alderson, B, in Taylor v. Crowland Gas Com- pany. (2) If the defendants had no principals at the timo of entering into the contract, or had no authority to contract for them, that ought to have been the subject of a special count: Jenkins v. Hutchinson. (8) ‘The defendants were prepared with overwhelming evidence to shew that it was never the intention of the parties that those who did the mere formal act of signing the agreement should be personally liable. [Byuzs, J. No evidence could exclude personal liability in the defendants, if the written document itself makes them liable] ‘The surrounding facts may always be looked at to shew the intention of the contracting parties. * Erte, C.J. I am of opinion that thisrule should be discharged. The action is for the price of goods sold and delivered: and the question is whether the goods were delivered to the defendants ‘under a contract of sale. The’ alleged contract is in writing, and commences with a proposal addressed to the defendants, in these words :—“I hereby propose to sell the extra stock now at the Assembly Rooms, Gravesend, as per schedule hereto, for the sum of 9002, payable on the 28th of February, 1866.” Nothing can be more distinct than this as a vendor proposing to sell. It is signed by the plaintiff, and is followed by a schedule of the stock to be- purchased. ‘Then comes the other part of the agreement, signed by the defendants, in these words,—“ Sir, We have received your: offer to sell the extra stock as above, and hereby agree to and. accept the terms proposed.” If it had rested there, no one could doubt that there was a distinct proposal by the vendor to sell, accepted by the purchasers. A difficulty has arisen because the- plaintiff has at the head of the paper addressed it to the plaintiffs, “on behalf of the proposed Gravesend Royal Alexandra Hotel Company, Limited,” and the defendants have repeated those words after their signatures to the document; and the question is, (1) 5B & C909, 914, (2) 10 Ex, 288, n, (8) 18 Q.B. 744; 18 L. J. (QB) 274,VOL. II.) MICH. TERM, XXX VIOT. whether this constitutes any ambiguity on the face of the agree- ment, or prevents the defendants from being bound by it. I agree that if the Gravesend Royal Alexandra Hotel Company had been an existing company at this time, the persons who signed the agreement would have signed as agents of the company. But, as there was no company in existence at tho time, the agreement would be wholly inoperative unless it were held to be binding on the defendants personally. The cases referred to in the course of the argument fully bear out the proposition that, where a contract is signed by one who professes to be signing “as agent,” but who has no principal existing at the time, and the contract would be altogether inoperative unless binding upon the person who signed it, he is bound thereby: and o stranger cannot by a subsequent ratification relieve him from that responsibility. When the company came afterwards into existence it was a totally new creature, having rights and obligations from that time, but no rights or obligations by reason of anything which might have been done before. It was once, indeed, thought that an inchoate liability might be incurred on behalf of a proposed company, which would become binding on it when subsequently formed: but that notion was manifestly contrary to the principles upon which the law of contract is founded. There must be two parties to a contract; and the rights and obligations which it creates cannot be transferred by one of them to a third person who was not in a condition to be bound by it at the time it was made. ‘The history of this company makes this construction to my mind perfectly clear. It was no doubt the notion of all the parties that success was certain: but the plaintiff parted with his stock upon the faith of the defendants’ engagement that the price agreed on should be paid on the day named. It cannot be supposed that he for a moment contemplated that the payment was to be con- tingent on the formation of the company by the 28th of February. ‘The paper expresses in terms a contract to buy. And it is a car- dinal rule that no oral evidence shall be admitted to shew an inten- tion different from that which appears on the face of the writing. I come, therefore, to the conclusion that the defendants, having no principal who was bound originally, or who could become so by a subsequent ratification, were themselves bound, and that 183 1866 ‘Kener e Baxrer,2 Baxrer. COURT OF COMMON PLEAS. {L. R. the oral evidence offered is not admissible to contradict the written contract. Wut:s, J. Iam of the same opinion. Evidence was clearly inadmissible to shew that the parties contemplated that the lia~ bility on this contract should rest upon the company and not upon the persons contracting on behalf of the proposed company. ‘The utmost it could amount to is, that both parties were satisfied at the time that all would go smoothly, and consequently that no liability would ensue to the defendants. The contract is, in substance, this—«I, the plaintiff, agree to sell to you, the defendants, on behalf of the Gravesend Royal Alexandra Hotel Company, my stock of wines ;” and, “We, the defendants, have received your offer, and agree to and accept the terms proposed ; and you shall be paid on the 28th of February next.” Who is to pay? ‘The company, if it should be formed. But, if the company should not be formed, who is to pay? That is tested by the fact of the immediate delivery of the subject of sale, If payment was not made by the company, it must, if by anybody, be by the defendants. ‘That brings one to consider whether the company could be legally liable, I apprehend the company could only become liable upon anew contract. It would require the assent of the plaintiff to discharge the defendants. Could the company become liable by a mere ratification? Clearly not. Ratification can only be by a person ascertained at the time of the act done,—by a person in existence either actually or in contemplation of law; as in the case of assignees of bankrupts and administrators, whose title, for the protection of the estate, vests by relation. The case of an executor requires no such ratification, inasmuch as he takes from the will. It is unnecessary, however, to pursue this further. In addition to the cases cited at the bar, I would refer to Gunn v. London and Lancashire Fire Insurance Company (1), where this Court, upon the authority of Payne v. New South Wales Coal and International Steam Navigation Company (2), held that a contract made between the projector and the directors of a joint-stock company provisionally registered, but not in terms made condi- tional on the completion of the company, was not binding upon (2) 12.6, B. (N.S, 694. (2) 10 Bx, 288; 24L. J, (Ex.) 17.VOL. IL] MICH, TERM, XXX VIOT. the subsequent completely registered company, although ratified and confirmed by the deed of settloment: and Williams, J., said, that, “to make a contract valid, there must. be parties existing at the time who are capable of contracting.” ‘That is an authority of extreme importance upon this point; and, if ever there could be a ratification, it was in that case. Both upon principle and upon authority, therefore, it seems to me that the company never could be liable upon this contract: and, as was put by my Lord, construing this document ut res magis valeat quam pereat, we must assume that the parties contemplated that the persons sign- ing it would be personally liable. Putting in the words “on behalf of the Gravesend Royal Alexandra Hotel Company,” would operate no more than if a person should contract for a quantity of corn “on behalf of my horses.” As to the suggestion that there should have been a special count, that is quite a mistake, ‘There need not be a special count unless there was a person existing at the time the contract was made who might have been principal. The common count perfectly well represents the character of the liability which these defendants incurred. It is quite out of the question to suppose that there was any mistake, The document represents the real transaction between the parties. I think that the course taken at the trial was perfectly correct, and that the tule should be discharged. Byes, J. Iam of the same opinion. At first, I must confess, Tentertained some doubt, the contract appearing on the face of it to have been entered into by the defendants on behalf of the company. ‘The true rule, however, is that-stated by Mx. Thesiger, viz. that persons who contract as agents are generally personally responsible where there is no other person who is responsible as principal. Suppose this company never came into existence at all, could it be doubted that these defendants must be held to have bound themselves personally? ‘Then, was it contemplated that the liability was conditional only until the company should be formed ? It is said that the contract was ratified by the company after it came into existence. There could, however, be no ratification, Omnis tatihabitio retrotrahitur, et mandato priori equiparatur: but the ratification must be by an existing person, on whose behalf the con- 185 1866 Keener 2%186 1scc Kener v Baxzen. COURT OF COMMON PLEAS. (LR tract might havo been made at the time. ‘That could not be so hpre: a subsequent ratification by the company could only be with the assent of the plaintiff; and then it would be a new contract. Mz. Seymour contended that the contract might amount to a per- sonal undertaking on the part of the defendants that the company shall pay. ‘That would make them equally liable. Any objection on the score of the Statute of Frauds would be cured by the Mer- cantile Law Amendment Act, 19 & 20 Vict.c.97. In no way, there~ foro, in which it can be put, could the company become responsible. Kearina, J. Iam of the same opinion. At the time the con- tract was made there was no company in existence. It is true that the defendants profess to contract “on behalf of the Graves- end Royal Alexandra Hotel Company.” But, notwithstanding the introduction of those words, the defendants must, in order to give the contract any operation at all, be personally responsible. The length to which the Courts have gone upon this subject is strongly illustrated by the case of Purnivall y. Coombes. (1) ‘here, by indenture the plaintiff covenanted to do certain repairs to the parish church of St. Botolph, and the defendants, the church- wardens and overseers, “for themselves and for their successors, churchwardens and overseers of the parish,” covenanted with the plaintiff to pay the sum agreed by certain instalments: and the indenture contained a proviso “that nothing in these presents con- tained should extend, or be deemed, adjudged, construed, or taken to extend to any personal covenant of or obligation upon tho several persons parties thereto of the third part (the church- wardens, &e.), or in any way personally affect them, any or either: of them, their or any or either of their executors, administrators, goods, effects, or estates, in their private capacity, but should be and was intended to be binding and obligatory upon the churchwardens and overscers of the poor of the said parish of St. Botolph and their successors for the time being, as such churchwardens, &c.,. but not further or otherwise:” and it was held. that the original covenant was a personal covenant by the defendants to. pay the money, and that the proviso was repugnant thereto and incon~ sistent therewith, and therefore void. (2) 6 Scott, 522; 5 M. & G, 736.VOL. If) MICH. TERM, XXX VICT. Byres, J,, afterwards referred to Meriel v. Wymondsold (1), 1868 187 where “upon a bill in equity the case was thus, viz. The plaintiff ~ icesen had agreed with two of the defendants to pave their streets in p,% Putney, and they on behalf of the parish agreed to pay him for them, which agreement was put into writing, and remains in the hands of the defendant Wymondsold. ‘The work was done accord- ing to the agreement, and it came to 3601, and for satisfaction the plaintiff preferred his bill against them with whom he had agreed and against others of the parish who had agreed with the under- takers for the parish to pay their shares, And, per Curiam: “The plaintiff must have relief against the undertakers, especially in this case, because the written agreement, which is his evidence, is in the hands of one of the defendants: and the undertakers must take their remedy against the rest of the parish.” He also referredl to Oullen v. Duke of Queensbury (2), where it was held in the Court of Chancery, and afterwards in the House of Lords (3), that, where A, B., and C., on behalf of themselves and other mem- bers of a club, enter into articles with D. to provide necessaries for the uso and accommodation of the club, they are personally bound by such articles, and D. is not obliged to resort to any of the other members for satisfaction of his demand. . Bule discharged. (4) - Nov. 22. Seymour, Q.C., moved to enlarge the time for giving notice of appeal, the defendants’ attorneys having inadvertently omitted to give notice within the four days limited for that pur- pose by the 87th section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c, 125. He submitted that the plaintiff could not be prejudiced, inasmuch as the time for perfecting bail bad not elapsed. Ho referred to Ward v. Lumley (5), where a similar application had been granted by the Court of Exchequer. [Enuy, OJ. That was a case fall of doubts and difficulties. This was an ordinary action for goods sold and delivered. ‘The Jury had no doubt, and I had no doubt at the trial; and neither my learned Brethren nor myself entertained any when the rule was argued.] (1) Hardr, 205. (A) See Scott v. Lord Ebury, post, Hilary (2) 1 Bro. C. 0, 101, ‘Term, 1867. (3) 1 Bro. P. G, 398. (6) 5HL&N, at p, 659; 29 L. J.(Ex.) 872,188 1866 ‘KELyER a Baxrar. COURT OF COMMON PLEAS. (.B. In Ward v. Lumley, it was put by the Court, not upon the merits of the ease, but upon the right to appeal, which the defen dants had lost by inadvertence. Per Contam (Erle, 0.J., Willes and Keating, JJ.) Rule refused. Attorneys for plaintiff: Linklaters, Hackwood, &: Addison. Attorneys for defendants: Hdmands & Mayhew. FOTHERBY v. METROPOLITAN RAILWAY COMPANY Mandamus—Common Law Procedure Act, 1854 (17 & 18 Vict. ¢, 125), 5. 68— Compulsory taking of Land—Lands Clauses Consolidation Act (8 & 9 Viet. ¢, 18), 8. 39. ‘An action fora mandamus may lio even when no setual damage has been sustained, ‘Dhe neglect by railway company to issue a warrant to the sheriff to summon a jury to assess the value of land which they have given notice that they will require for the purposes of their act, within a reasonable time after such notice, isan actionable wrong, and tho issue of such warrant may be enforced by an action for a mandamus under the Common Law Procedure Act, 1854 (17 & 18 Vict, 0. 125), s 68. Dectaratioy, that the defendants were a railway company, incorporated by a certain act of parliament, and the promoters of the undertaking mentioned in the Metropolitan Railway (Tower Hill Extension) Act, 1864; and that in the exercise of the powers conferred on them by the said act, and the acts incorporated therewith, the defendants did on the 22nd day of February, 1866, give to the plaintiff notice that for the purposes of their undex- taking they required to purchase and take certain Jands and premises therein mentioned belonging to the plaintiff; that the plaintiff had a greater interest in the lands and premises than as tenant for a year, or from year to year; that the compensation claimed by him exceeded 502; and no agreement having been come to by and between the plaintiff and defendants, as to the amount of compensation to be paid to the plaintiff by tho defendants for his interest in the lands and premises, and for the