After hearing Mellish, Q. C., and Udall in support of the

*707] rule, the Court pronounced a rule referring it to one of the

Masters "to ascertain, in such manner as he should think fit, whether or not the said Joseph John Wright, in his capacity of attorney or solicitor for the said Mary Ann Thomas, was guilty of any fraud or misconduct in respect of the sum of 22521. referred to in the affidavit of the said Mary Ann Thomas in the rule mentioned, or of any part of the said sum, or in respect of any interest or other moneys arising therefrom or from the estate alleged by the affidavit of Mr. Wright to have been sold to Mr. G. Stuart; and that the Master report thereon to the Court," the rule being in the mean time enlarged.

The Master (Mr. Benett), after a long and careful investigation, and examination of Mr. Wright, on the 7th of May last made his report, in which he found that the charges made against that gentleman were entirely substantiated.

Borill, Q. C., and Clark, on behalf of Mr. Wright, sought to refer to the evidence which was given before the Master, in order to show that that learned gentleman had taken a view against the accused stronger than was fairly and reasonably warranted by the circumstances. [ERLE, C. J.-Where a matter is referred to the Master, his report is the only thing which is properly before the Court. I must protest against the evidence given before him being gone into. You may make your statement; and, if we see fit, we will refer to our officer.(a)] The learned counsel then proceeded *at great *708] length and with much earnestness to endeavour to explain away the more grievous parts of the charges.

Mellish, Q. C., and Udall were heard in support of the Master's report. Cur, adv. vult. ERLE, C. J.-By the practice two courses are open,-first, to issue an attachment, to be followed by interrogatories. This we think an unnecessary delay and expense after the clear and complete examination of the case by the Master. The other is, to order that the attor ney be struck off the roll, as was done in the case against Mr. Sills.

We think the latter course the proper one under the circumstances of this case. But, as the attention of the attorney was not pointed directly to that result by the rule calling on him to answer the matters of the affidavit, we decide to enlarge this rule peremptorily to the sitting of the Court on the first day of next term, when, after hearing Mr. Wright again, if he should require it, the Court will give its final decision.

On the first day of this term, Clark and Garth urged all that could be said in favour of Mr. Wright: but his efforts were unavailing, and the Court ordered, "that the name of the said Joseph John Wright be struck off the roll of this Court, and that the said Joseph John Wright do pay to the said Mary Ann Thomas, or to her attorney, her costs of and occasioned by the said rules respectively, and of the reference directed by the rule of Hilary Term last; and that, in default of such

(a) This is the course usually adopted in the case of applications under the Railway and Canal Traffic Act, 1852 (17 & 18 Vict. c. 31),-In re Oxlade and The North Eastern Railway Company, 1 C. B. N. S. 454, 477, 489 (E. C. L. R. vol. 87). It was departed from in a subse quent case,-In re Nicholson and The Great Western Railway Company, 5 C. B. N. S. 366 (E. C. L. R. vol. 94),-but the departure was found to be extremely inconvenient.

payment, an attachment do issue against the said Joseph John Wright for non-payment of the same, but that such writ do lie in the office for one calendar month after issuing the same."

*THE LONDON AND PROVINCIAL PROVIDENT SO

CIETY v. ASHTON. June 2.

[*709.

Held,-upon the authority of The London Monetary Advance and Life Assurance Company . Smith, 3 Hurlst. & N. 543, t-that an insurance Company (registered under the 7 & 8 Vict. e. 110), which professed to be established for the following purposes,-"1. The granting of policies of insurance upon lives or survivorships,-2. The granting of endowments to children and adults,-3. The granting of annuities, to commence either immediately or prospectively, and to continue either for a definite time or until death,-4. The assurance to persons of both sexes a weekly sum or payment during sickness, and to married women a certain weekly sum during the period of accouchement, either with or without medical attendance and medicine,—5. The granting loans and making advances upon personal or other security, so as the interest made payable upon any such loan or advance shall not exceed 7 per cent.; and the doing of all acts incident thereto,"-was disqualified, by reason of the enactments contained in the 27th and 28th sections of the 20 & 21 Vict. c. 14, from suing either at law or in equity, unless registered under the Joint Stock Companies Acts, 1856, 1857. [Sed vide post, p. 100.]

THIS was an action for money payable by the defendant to the plaintiffs for money received by the defendant for the use of the plaintiffs, and for money paid by the plaintiffs for the defendant at his request, and for money found to be due from the defendant to the plaintiffs on accounts stated between them.

The defendant pleaded, inter alia, that this action was commenced long after the 2d of November, 1857, and not before, and that the said alleged society was and is a Company formed, constituted, and completely registered under the 7 & 8 Vict. c. 110, for the registration, incorporation, and regulation of joint stock companies; that the said society did not on or before the 2d of November, 1857, nor at any time before the commencement of this action, nor at any time since, register, nor become, nor is it registered under the Joint Stock Companies Acts, 1856, 1857, or either of them, pursuant to the last-mentioned Acts or either of them, but has always made default in so doing; that the said society was not nor is a company formed for the purpose of insurance within the meaning of the Joint Stock Companies Act, 1857, that is to say, solely for that purpose, and always was and is a *Company formed in part for the purpose of insurance, and also [*710 for purposes other than the purpose of insurance, and other than the purpose of banking, that is to say, amongst other purposes, for the purpose of granting annuities and lending money.

Second replication to the first plea, that the said society was and is a joint stock Company completely registered as in the first plea mentioned; that the said Company was and is formed and constituted under and by virtue of two deeds of settlement under the hands and seals of certain then shareholders in the said Company and of certain trustees, and not otherwise, and which said deeds of settlement were respectively made, executed, and witnessed as by law in that behalf required, the first of which said deeds was and is a deed bearing date the 23d of July, 1855, between the several persons whose names were or should be mentionel in the schedule of signatures thereto, and

who had sealed and delivered, or from time to time should seal and deliver the same, or a duplicate thereof, of the one part, and Stephen Pott and Edmund Carey Hobson, trustees for the purposes of the said deed, of the other part, by which, after reciting, amongst other things (being the only recitals material to the said first plea and this replication), that the several persons parties thereto of the first part had agreed to form a joint stock Company within the meaning of the 7 & 8 Vict. c. 110, for the purposes of granting life assurances, for payments during sickness, annuities, endowments, and other assurances dependent upon contingencies, as thereinafter defined,—it was witnessed (so far as is material to the said first plea and this replica tion respectively) in the words, letters, and figures following, that is to say, that each of the said several persons parties hereto of the first *7111 part, so far as relates to the acts and defaults of himself, his *executors and administrators, and not otherwise, does hereby, for himself, his heirs, executors, and administrators, covenant with the said Stephen Pott and Edmund Carey Hobson, as trustees on behalf of the said Company, as follows:

"1. That the several persons now being or hereafter becoming parties hereto (and who are designated as 'shareholders'), and all persons who shall hereafter become shareholders, shall, while holding shares in the capital stock hereinafter mentioned, be and constitute a joint stock Company within the meaning of the said Act, under the name of 'The London and Provincial Provident Society,' and that such Company shall be formed from the day of the date of these presents, and continue till dissolved under the provisions in that behalf hereinafter contained:

"2. That the object and business of the Company shall be,1. The granting of policies of insurance upon lives or survivorships,-— 2. The granting of endowments to children and adults,-3. The granting of annuities, to commence either immediately or prospectively, and to continue either for a definite time or until death,-4. The assurance to persons of both sexes a weekly sum or payment during sickness, and to married women a certain weekly sum during the period of accouchement, either with or without medical attendance and medicine,-5. The granting loans and making advances upon personal or other security, so as the interest made payable upon any such loan or advance shall not exceed 7 per cent.; and the doing of

all acts incident thereto :

"4. That the capital stock of the Company shall consist of 10,000 divided into 5000 shares of 27. each, and of such further sum not exceeding 40,0007. in addition as may be determined by the shareholders, as hereinafter mentioned:

5. That, until such time as the capital shall have been in*712] creased under the last preceding article to 50,000l. and the whole

of such 50,000l. shall have been subscribed for, and at least 5s. shall have been paid or be payable upon every share in the capital, it shall not be competent to the Company to grant any assurance, endowment, or other wise to make any sum payable on any contingency, where the principal money payable by them on the happening of such contingency would exceed 5001., or to grant any annuity of more than 507. per annum:

"Direction and management of the affairs of the Company, and election and appointment of directors and other officers:

"39. That the number of directors of the Company shall not be more than fifteen nor less than five:

"56. That the directors shall have full power to carry on, on behalf of the Company, the business of the Company as hereinbefore defined, and to grant all insurances, endowments, and annuities on behalf of the Company, and which are within the scope of their business, and to accept the surrender of any policy or annuity, on such terms as they may think fit, and to effect counter-insurances in any other insurance office against any risk granted by the Company, or any part thereof, and to grant such loans or advances as are within the scope of the Company's business, and to make and execute all deeds and instruments to which it may be necessary to affix the common seal, and to enter into all contracts on their behalf, and to make all proper purchases and assurances, and generally to do all acts which they shall consider necessary or proper for the well ordering of the affairs of the Company, and to execute all powers in relation thereto which are within the scope of the Company's business, subject, *nevertheless, to the control of general meetings of the Com[*713. pany and to these presents: Provided always that every policy, whether upon life, for endowment, or for a fund in sickness, and every grant of an annuity made or granted by the Company, shall be given under the hands of three directors of the Company, and be countersigned by the secretary of the Company, and be sealed with the seal of the Company, and that there be contained therein, and in every other contract of assurance, endowment, annuity, or other provision to be made by the Company, or entered into on their behalf, a proviso limiting the contract thereby created and the liability thereunder, so that the same shall take effect and be satisfied only out of such funds and property of the Company (including unpaid instalments upon shares) as under the provisions herein contained shall at the time when such liability shall accrue be at the disposal of the directors, and negativing an unconditional liability: Provided always that nothing herein contained shall limit the liability of any shareholder as to the performance of such contract, or prejudice the rights of any person or persons against any such shareholder under or by virtue of the aforesaid statute: Provided also, that, whenever any alteration shall be made in the terms of any policy, grant of annuity, or other instrument under the seal of the Company, containing the terms of any contract within the scope of the Company's business, the directors shall cause a memorandum of such alteration to be endorsed on the policy, grant, or other instrument, and to be signed by the secretary, and sealed with the common seal; and every such alteration so signed and sealed shall be binding on all parties: Provided also, that no loan or advance shall be made upon personal security, unless, in addition to the person to whom such loan or advance shall be made, at least two *sufficient sureties, to be approved by the directors, shall also become bound for the repayment of the money lent or advanced, [*714 and for the repayment of all interest thereon:

"93. That there shall be created by the directors in the manner hereinafter mentioned, out of the moneys and property of the Com C. B. N. S., VOL. XII.-27

pany, four separate funds, to be denominated 'The Proprietors' Fund' The Assurance Fund,' The Sickness Fund,' and 'The Endowment Fund,' and that separate and distinct accounts of such respective funds shall be kept in the Company's books:

"94. That all moneys arising from payments made upon the shares in the capital of the Company subscribed for, and all interest paid upon calls in arrear, and all moneys arising to the Company upon the sale of shares which shall have been forfeited to and sold by the Company, and all moneys arising to the Company from interest or discounts, or other profits arising to the Company upon loans or advances as hereinafter mentioned, and all such further sums as by these presents or by any by-laws of the Company, or any resolution of a general meeting or order of a board of directors may be directed to be consolidated with the Proprietors' Fund, and also all moneys arising from the improvement and accumulation of the said fund, shall form The Proprietors' Fund:'

"95. That the produce of premiums and profits arising from and to be received in respect of policies of assurance on lives or survivorships, and all the accumulations and improvements of such fund, shall form a second separate and distinct fund, to be called 'The Assurance Fund:'

"96. That the produce of premiums and profits arising from and to be received in respect of policies of assurance for payment during sickness and accouchement, and all accumulations and improve*715] ments of such funds, shall form and constitute a third separate and distinct fund, to be called 'The Sickness Fund :'

97. That the produce of premiums and profits arising from and to be received in respect of the granting of endowments and annuities, and all the accumulations and improvements of such fund, shall form and constitute a fourth separate and distinct fund, to be called 'The Endowment Fund:'

"98. That each of the three last-mentioned funds shall be primarily liable to bear and pay all losses and claims of and against the Company upon and in respect of the particular business of the Company, from the profits or premiums upon which such fund is constituted:

"99. That the costs and expenses of the outfit, establishment, management, and generally of the carrying on the business of the Company, shall be borne and paid by and out of the 'Assurance Fund,' The Sickness Fund,' and 'The Endowment Fund:' and such costs and expenses shall from time to time as and when they are paid, be divided among and borne by the said three funds in shares as nearly as may be proportionate to their respective amounts for the time being:

"100. That, in case any one of the said funds cannot be made available in time, or it shall be insufficient to pay and satisfy any such loss or claim to be borne or paid by or out of it as above mentioned, or the share to be borne by it of such costs and expenses, then so much as may be required for the purpose of making up the amount of such share shall be borrowed from 'The Proprietors' Fund,' and be applied to meet such exigency or deficiency; or, if that shall be insufficient, then either or both of the other funds, *as the directors shall *716] think fit, and, if both, in such proportions as they shall think