purchased, and to take down and rebuild, or to repair, any existing houses or buildings on the land or ground so taken or purchased, and to make and sell bricks, and to purchase and sell all kinds of building materials, and to contract for and perform all kinds of work in the building business, and in relation thereto." It will be contended on the part of the defendant, that the introduction of these latter words in the fifth clause makes this a company established for "a commercial purpose" or "a purpose of profit." But that is subsidiary only to the objects mentioned in s. 2, not for the purpose of making profits in the ordinary sense of *commercial profits. [CROWDER, J.-There was no provision at

*309] all like this fifth clause in the deed of settlement in The Queen v. Whitmarsh.] There was not. The directors might have made more bricks or bought more materials than were required for the legitimate purposes of the company: they have power to get rid of the superfluous materials. So, the provisions in the 34th, 35th, 36th, and 38th clauses, to enable the trustees to make and buy bricks, &c., to contract for the purchase or leasing of land, &c., to contract for the erection of buildings and the supply of materials, &c., and to sell houses or land not immediately wanted,-are all subservient to the special purpose for which the company is established. [WILLES, J.-The 50th and subsequent clause would seem, according to Hickman v. Cox, 3 C. B. (N. S.) 523 (E. C. L. R. vol. 91), to constitute a partnership.] That would not alter the effect of the deed, so far as regards its liability to enrolment. The 63d clause provides for the dissolution of the company when every member shall have obtained a house or houses answerable to the share or shares subscribed for by him or her, or shall have obtained other satisfaetion in respect of such share or shares, and all subscriptions, rents, fines, and payments shall have been made good on the part of all the members. The profits to the members here are limited to profits in the shape of houses and land: they are not the usual and ordinary commercial profits. [COCKBURN, Č. J.—In the cases you refer to, the business of the company was expressly limited to the erection of houses and fitting them for habitation for its members. But here the company are, in addition, to carry on a business out of which profits may be made. As regards those with whom they deal, they are as much a commercial association as any other company established for the mere purposes of trade. They are (by clause 5) to make and sell bricks, and to purchase and sell all kinds of building *310] *materials, and to contract for and perform all kinds of work in the building business, and (clause 34) generally to do all such acts, matters, and things as are usually done by builders,-and (clause 38) they are to sell and dispose of any houses or land which may not be immediately wanted for the purposes of the company, and to apply the proceeds of such sales to the general purposes of the company. Instead of dividing in money the profits thus made, the directors are to invest them in houses and land, and the members are to receive them in another form.] Notwithstanding all these provisions, there is nothing to differ this case from that of The Queen v. Whitmarsh. The object of the association is, the acquisition of freehold houses and land by the several members: all beyond that is merely subsidiary to the general scope of the undertaking.

The second point relied on by the defendant is, that he ceased to be a member of the company when he allowed his subscriptions to be six

months in arrear: and for this he founds himself upon the 45th clause, which provides, "that, if any member shall, from any cause whatever, permit any monthly subscription on any share or shares held by him or her to be in arrear for the period of six calendar months after the same shall have become due, such share or shares, and all moneys paid in respect thereof, shall, at the expiration of such six calendar months, become absolutely forfeited to the company for the benefit of the other members thereof; and, upon any such forfeiture of all the shares held by any member, the person so making default shall cease to be a member of the company and to have any interest therein or in the property belonging thereto." [BYLES, J.-That is, the non-payment of the subscriptions for six months shall be a forfeiture at the election of the directors.] Like a policy of insurance, which is void for non-payment of premiums, at *the election of the directors; or a lease, which

is to be null and void on failure of the lessee to perform the [*311

covenants, at the election of the lessor,-Rede v. Farr, 6 M. & Selw. 121; Doe d. Bryan v. Bancks, 4 B. & Ald. 401; Armsby v. Woodward, 6 B. & C. 519 (E. C. L. R. vol. 13), 9 D. & R. 536 (E. C. L. R. vol. 22). The fact of the defendant having executed the indenture of the 25th of September, 1852, is an answer to the objection that he has not executed the deed of settlement.

Lush, Q. C. (with whom was Aspland), for the defendant. (a) The main question is, whether this is not a joint stock company established "for a commercial purpose" or "a purpose of profit," within the 7 & 8. Vict. c. 110, s. 2. These words "for any purpose of profit" have been interpreted to mean, to obtain profits for the company, not profits for the members inter se. In The Queen v. Whitmarsh, 15 Q. B. 600 (E. C. L. R. vol. 69), the sole object of the scheme was, to purchase land and erect houses thereon for the members: there was no intention to get profits by dealing or contracting with the public, as there is here. [WILLES, J.-The company, to carry out its object by means of the subscriptions, would require 75,000., and they would be [*812 fifty years getting it.] The second clause states the object of the association to be, to enable each member to become the possessor of a freehold, copyhold, or leasehold house of the estimated value of 150l., or thereabouts, in respect of each share which he may subscribe for: not a word is said as to its being by subscriptions only. The 4th clause provides "that the sum of money necessary for carrying the object of the company into effect shall be raised by means of the monthly subscriptions of the members, and of the rents to be paid by the members for the houses which shall be allotted to them, and by the sale of superfluous houses and land, and of houses and land which may not be immediately wanted for the purposes of the company, and by such other ways

(a) The points marked for argument on the part of the defendant were as follows:"That, on the facts stated, he is not liable to any part of the sum claimed, and is entitled to the judgment of the court,—that the company, not being enrolled, certified, or registered, was an illegal company,-that the deed of settlement was illegal,-that, if not illegal, at all events the covenants in the deed of settiement and deed of transfer were not binding on the defendant, -that such was especially the case, as the defendant, who never executed the deed of settlement, executed the deed of transfer after an assurance that the company was duly registered,— and that, if the deeds were ever binding on the defendant, his membership and liability ceased before any of the subscriptions or fines now claimed became due, and he has paid all subscriptions and fines that became due when he was a member."

and means as are hereinafter provided." That clearly is not confined to business between the members. Then comes the 5th clause, which provides that the business of the company, amongst other things, shall be, "to make and sell bricks, and to purchase and sell all kinds of building materials, and to contract for and perform all kinds of work in the building business, and in relation thereto." By clause 8, the affairs of the company are to be conducted by a board of fifteen directors, who by clause 32 are empowered "to employ as many servants and workmen as the business of the company may require." The 34th clause contains nothing to limit the power of the directors: it provides "that the directors may authorize the trustees to make and buy bricks and tiles, and purchase all kinds of building materials, and erect, finish, and repair houses and other buildings, and generally to do all such acts, matters and things as are usually done by builders.' By the 36th clause it is provided that "the directors may from time to time authorize the trustees to enter into, make, and sign such *contracts and agreements with any person or persons, whether *313] members or otherwise (but only according to the respective trades,

occupations, or businesses of such person or persons), for erecting, completing, or carrying on all or any erections and buildings and other works, or for the supply of any articles or materials necessary for the purpose of carrying the object of the company into effect, as they may think expedient," that object manifestly being to carry on a trade for the purpose of raising money to enable each member to become the possessor of a freehold house. By clause 37, the directors are empowered to authorize the trustees to borrow 60,000l. The 65th clause provides that "all moneys which shall be received from subscriptions, or from any other source whatever, shall from time to time, within two days after the receipt thereof, be paid in to the bankers, to the credit of the trustees. Thus, the deed provides all the powers which the directors want and which are usually vested in the directors of a trading company. It goes, therefore, far beyond those in the cases cited, of The Queen v. Whitmarsh, 15 Q. B. 600 (E. C. L. R. vol. 69), and Bear v. Bromley, 18 Q. B. 271 (E. C. L. R. vol. 83). [COCKBURN, C. J.-I agree with you, that the undertaking would come within the 7 & 8 Vict. c. 110, if the primary object were the buying and selling of houses and land, and the making and selling of bricks, and the buying and selling of materials. But this power is only thrown in incidentally in the 4th and 5th clauses. What the company primarily had in view was, the erection of houses for the members, the rest was subsidiary and in subordination to the main object and purpose. BYLES, J.-All these provisions in the deed were to eventuate in the division of the purchased land, with the houses erected upon it, among the members. There is to be no division of profits until the whole affairs of the company are wound up.] There is nothing to limit the general words of the 32d clause to the *314] ulterior objects of the company. The deed contemplates that the directors shall carry on a building trade, the profits of which were to assist them in the ulterior objects of the company. It cannot be successfully contended that the forfeiture for non-payment of the subscriptions for six months is absolute. The 7th section of the 7 & 8 Vict. c. 110, makes the deed illegal. [WILLES, J.-If this is a company within the 2d section, the deed no doubt is illegal and void for want of

enrolment. That was decided in The Agricultural Cattle Insurance Company v. Fitzgerald, 16 Q. B. 432 (E. C. L. R. vol. 71).]

Keane, in reply.-Looking at the clauses 34, 35, and 36, it is clear that the directors have no power to do anything except for the purposes mentioned in the 2d clause. [COCKBURN, C. J.-How is the fact?] If the company had carried on business in the way suggested, the fact would doubtless have appeared in the case. Could it be doubted that any member of the company might have had recourse to a court of equity to restrain the directors from acting otherwise than according to the purpose and object indicated by the 2d clause of the deed? The question is, whether the company, as such, are to make profits. In Re The Stanton Iron Company, 21 Beavan 164, the Master of the Rolls held the company not to be within the winding-up acts. Now, a company which is not within the winding-up acts, is not within the 7 & 8 Vict. c. 110,-In re The London and Manchester Direct Independent Railway Company, Ex parte Barber, 1 M'N. & G. 176. [WILLES,

J.-That is inconsistent with the decision of this court and of the majority of the Exchequer Chamber in Hickman v. Cox, 18 C. B. 617 (E. C. L. R. vol. 86), 3 C. B. (N. S.) 523 (E. C. L. R. vol. 91).] This court held that the deed constituted the parties partners as against third persons.

*COCKBURN, C. J.-Our judgment in this case must be for the plaintiffs. [*315 If, indeed, it were clear from the deed of settlement of this company that it was competent to the directors under the powers contained in the clauses, 2, 3, 4, and 5, to carry on the business of making and selling bricks, and purchasing and selling building materials, and contracting for and performing all kinds of work in the building business, and so working for other people, independently of the main purpose for which they are constituted, viz., the enabling each member to become the possessor of a freehold, copyhold, or leasehold house,-I should have been of opinion that it was a company within the 7 & 8 Vict. c. 110, and that registration was necessary to enable them to enforce contracts entered into with them; for, although the ultimate object of the association is the erection of buildings for its members only, yet, if the means or part of the means to that end were that the company should carry on business, that immediate and primary purpose would bring it within the act, and it would be immaterial by what means the profits were eventually to be realized for the company. If, for instance, the profits of the business so carried on were to be invested in land upon which houses were to be erected for the members or subscribers, that arrangement for the ultimate disposition of the profits would not take the case out of the operation of the statute. If the 5th clause was intended to enable the company so to carry on business for profit, then I should say that this case was clearly distinguishable from The Queen v. Whitmarsh, 15 Q. B. 600 (E. C. L. R. vol. 69), and that the deed of settlement was void and incapable of being enforced. The whole question, therefore, turns upon the construction of the 5th clause. I am strongly inclined to think, that, under that clause, it was part of the intention of the promoters of the company that they should make *and sell bricks, and purchase and sell all kinds of building materials, and should contract for and perform work in the [*316 building business generally, and not merely as subsidiary to the main

object and purpose of the company. At the same time, it must be confessed that the matter is open to considerable difficulty. I cannot say that my doubts are altogether removed; but, as my learned Brothers all think that it would not be competent to the directors under this deed so to carry on business, I do not entertain so strong an opinion as to induce me to differ from them. All that I desire to be understood as laying down, is, that, if it were clear from the language of the deed that the company were to carry on business for profit dehors the main object for which they are associated, that would have brought them within the 7 & 8 Vict. c. 110.

CROWDER, J.-I am of opinion that this is not a company established for the purpose of profit, within the 2d section of the 7 & 8 Vict. c. 110. Looking at the deed of settlement, it seems to me that this case is entirely governed by The Queen v. Whitmarsh, 15 Q. B. 600 (E. C. L. R. vol. 69). The main purpose of the deed in both cases was precisely the same, that each member should become entitled to a freehold, copyhold, or leasehold house, by paying certain monthly subscriptions. It is said, on the part of the defendant, that The Queen v. Whitmarsh does not govern the present case, because by the 4th and 5th clauses of this deed of settlement power is given to the directors to enter into the regular trade of builders, and to contract for that purpose with third persons. Looking at those clauses, in conjunction with other clauses in the deed, I am unable to bring myself to that conclusion. The 4th clause provides that the sum of money necessary for carrying the object of the company into effect shall be raised by *317] *means of the monthly subscriptions of the members, and of the rents to be paid by the members for the houses which shall be allotted to them, and by the sale of superfluous houses and land and of houses and land which may not be immediately wanted for the purposes of the company, and by such other ways and means as are thereinafter provided. The "other ways and means," it is said, are pointed out by the 5th clause, which is as follows,-"That the business of the company shall be, to take on lease, or to purchase, either for years or in fee, land or ground, &c., of freehold, copyhold or customary, and leasehold tenure, and to erect houses thereon, and to finish and complete any houses which may have been begun to be erected on the land so taken or purchased, and to take down and rebuild or to repair any existing houses or buildings on the land or ground so taken or purchased; and to make and sell bricks, and to purchase and sell all kinds of building materials, and to contract for and perform all kinds of work in the building business, and in relation thereto." It is urged on the part of the defendant, that, although the earlier part of this clause is strictly confined to the object of the company, as described in clause 2, yet, when you come to the latter part, that gives the trustees anthority to carry on the general business of brick-makers and builders, and that is one of the ways and means of raising money referred to in the 4th clause. These latter words of the 4th clause, I incline to think, refer to the 37th clause, which enables the directors to authorize the trustees to borrow money on mortgage. These moneys when raised are to be applied to the building, &c., of houses for the purpose and object of the association: and that, I think, satisfies the words of the 4th clause. The 5th clause is certainly not free from ambiguity: but still I think it may fairly be con