and then laid them on his desk; he held the catalogue in his hand and wrote down the name of the purchaser opposite the lots in the catalogue. Lord Ellenborough held that the contract, when made, was, subject to the conditions; and as the contract that was signed did not incorporate the conditions, there was no memorandum of a bargain under the conditions. The catalogue and the conditions were not connected physically, nor had the catalogue any internal reference to the conditions to show they were incorporated. In the present case it was argued by Mr. Herschell that, inasmuch as the sales ledger was dated on the same day as the catalogue and referred to certain "lots" which were identical with the lots in the catalogue, it must have referred to that *particular sale on that day of those particular lots, [216 and that there was a sufficient connection between the sales ledger and the catalogue, so that the lots were necessarily sold subject to the conditions in the catalogue. I am not able to concur in that argument. I am not aware there is any custom known to the law, and I do not believe there is such a custom as to make it necessary that every sale by the auctioneer should be upon the terms of the catalogue; on the contrary, in many instances the terms of the catalogue are departed from, and there is often a verbal notice, although the particulars are so and so, yet this lot will be put up subject to such a condition, and that practice often gives rise to disputes as to whether the party purchasing heard of the alterations in the conditions; and I do not think there is any usage or universal custom from which it follows that every sale is taken to be subject to the conditions as stated in the catalogue; I therefore cannot think that there is sufficient reference in the one to the other.

There is another point. After the sale Maguire wrote a letter to the defendant, in which he says: "I herewith return the gray mare, lot 49, bought at your sale this day, as not being steady in harness as warranted." I think that letter amounts in effect to a statement by Maguire that he bought the mare at the defendant's sale, and I think parol evidence would be admissible to show that he bought it subject to the conditions of the catalogue; and I am inclined to think, though it is not necessary to decide it, the letter is equivalent to Maguire saying: "Ireturn the gray mare which I bought at your sale upon the conditions of the catalogue"; but such a writing would be a defective memorandum under the Statute of Frauds, because it does not state the price at which the mare was bought. But it may be said it sufficiently refers to the price written down by the clerk in the 8 ENG. REP. 41

sales ledger. This point does not seem to have been raised before the County Court judge; but if it had been, I should have been of opinion that, in order to make out that the letter refers to the price written down by the clerk, it is essential to show that the clerk, when he was writing the price in the sales ledger, wrote it down in such a manner that the bidder was aware that he was writing it down as a memorandum for him.

I think that there is no sufficient memorandum in writing 217] *within the Statute of Frauds, and our judgment must be for the plaintiff.

QUAIN, J. I am of the same opinion. The first question that Mr. Herschell raised is that the catalogue, which contained the conditions, and the sales ledger, which contained the price and name of the purchaser, are sufficiently connected, so as to be considered as a memorandum in writing within the Statute of Frauds. I think they do not constitute a contract within the Statute of Frauds, because I cannot see on the face of them anything to connect the one with the other, so as to enable me to read them together. I take the principle to be well laid down in Dobell v. Hutchinson ('), where it is said by Lord Denman, C.J.: "Upon examination it will be found that the cases establish this principle, that where a contract in writing or note exists which binds one party, any subsequent note in writing signed by the other is sufficient to bind him, provided it either contains in itself the terms of the contract, or refers to any writing which contains them." Therefore on the document itself there must be some reference from the one to the other, leaving nothing to be supplied by parol evidence except the identity, as it were, of the document. Now there is in this case a catalogue which contains the number of the lot, 49, the description of the mare, and the conditions; and in the sales ledger, which contains no reference to the catalogue, there is "lot 49," with the description "A gray mare, and there is the name of the purchaser, "Maguire," and the price at which the mare was sold; but the ledger has no reference to the catalogue which contains the conditions of sale; and we cannot, by reading the two documents together, make out a written contract. The same point arises on the letter of Maguire. No doubt in that letter he says, "I bought lot 49 at your sale." If that letter contained any reference to the sales ledger, containing the price and the name of the purchaser,though the name of the purchaser is not wanted because he admits by his letter that he is the purchaser,-that would (1) 3 A. & E., at p. 371.

be sufficient to constitute a good memorandum. But it is manifest, when Maguire uses the expression "lot 49" in the letter, he is referring to the catalogue, and the catalogue only, *which every purchaser or intending purchaser [218 who attends the sale has in his hands, and the only document, as far as we know, in the present case of which the purchaser had any knowledge. The other document, which contained the price, was a document prepared by the auctioneer manifestly for his own use. It contains secret information, such as the reserve price put upon the horses, which was not intended to be communicated to the public. There being no reference in either of these documents to any document that contains the whole contract between the parties, on the authority of Dobell v. Hutchinson (') I am of opinion that the decision of the County Court judge was right, and that the appeal must be dismissed.

ARCHIBALD, J.: I am of the same opinion, and I think the judgment of the County Court judge was right. As regards the first point, whether there is a contract within the Statute of Frauds, apart from the letter of the 28th of March, I think it is quite clear there must be, to satisfy the statute, either a written contract complete in itself, or a contract in writing on different papers, referring to each other in such a manner as to show they are parts of the same contract. No doubt the reference may be made in various ways, but it must be of such a nature as to make it clear that the one does refer to the other; and on that point there seems to me to be a failure here to connect these two documents together. It is impossible to do it except by the intervention of parol evidence. That would be going beyond any purpose for which parol evidence is admissible, which is merely to explain a latent ambiguity, and therefore there is no sufficient connection between the papers to constitute a contract within the Statute of Frauds. Then, with regard to the letter, I was at first impressed with the argument of Mr. Herschell that the letter must be taken to refer to the sales ledger and the catalogue, but his argument goes too far, because it must go to this length, that the letter must be taken to refer to any and every document having reference to this sale. Now I think it is impossible to support the argument to that extent. The letter can only be taken to refer to the catalogue that was in the hands of the auctioneer at the time the *sale [219 was completed, and there is nothing here that can in any way connect it with the entry in the ledger. I think the evidence fails to bring the case within the decision of Bird v. Boul(1) 3 A. & E., 355.

ter ('), in which it was held that there was authority in the auctioneer's clerk to make the entry on behalf of the highest bidder. There is nothing equivalent to that here. There is, therefore, no sufficient contract to satisfy the Statute of Frauds, and I agree that the decision of the County Court judge was right. Judgment for the plaintiff.

Attorney for plaintiff: J. Speechley.

Attorneys for defendant: Chester, Urquhart, Bushby & Mayhew.

241]

(1) 4 B. & Ad., 443.

[Law Reports, 9 Queen's Bench, 241.]
February 3, 1874.

[IN THE EXCHEQUER CHAMBER.]

*KELLOCK V. ENTHOVEN (').

Contract of Indemnity-Liability of Transferee of Shares in respect of future CallsCompanies Act, 1862 (25 & 26 Vict. c. 89), s. 38-Proof of Debt-Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), s. 153-Contingent Liability.

The plaintiff, a holder of certain shares in a limited company, transferred them to the defendant, who transferred them to M. The company was ordered to be wound up, and a call of £40 a share was made on the contributories in Class A., being the existing members, amongst whom M. was placed; these, including M., being unable to pay, the plaintiff and defendant were placed upon the list of contributories in Class B., as past members, under s. 38 of the Companies Act, 1862; and the defendant was ordered in March, 1869, to pay a call of £40 per share. The defendant had executed a deed of inspectorship under s. 192 of the Bankruptcy Act, 1861, which was duly registered in December, 1867. The liquidator of the company proved for the amount of calls against the defendant's estate, but no part was paid; and the plaintiff having paid a sum in compromise of the money remaining due on the shares, sued the defendant for the amount:

Held, affirming the judgment of the Court of Queen's Bench, that the defendant was liable to indemnify the plaintiff against calls made after the defendant had transferred his interest to M.; and that the claim of the plaintiff was not provable under s. 153 of the Bankruptcy Act, 1861, and the defendant's deed therefore afforded no defence.

ERROR from the judgment of the Court of Queen's Bench in favor of the plaintiff on a special case.

The special case is set out at length in the report below(). 242] *The facts sufficiently appear from the judgment of Lord Coleridge, C.J.

Herschell, Q.C. (Beresford with him), for the defendant." The question is whether a mere transfer of shares by the plaintiff to the defendant creates in him an obligation to indemnify the plaintiff in the case that has happened. The nature of the obligation is determined by 25 & 26 Vict. c. 89, s. 38, subs. 3: "No past member shall be liable to contribute () Affirming 7 Eng. Rep., 72. (2) Law Rep., 8 Q, B., 458.

to the assets of the company unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this act." The liability therefore of the past member arises only if the existing member is unable to pay, and the court has to be satisfied of that before the past member can be made liable, so that this is not a liability arising in the ordinary case of principal and surety, but it is a statutory liability cast upon the past member for the benefit of the creditors, if the court is satisfied that the person who ought to pay cannot pay. The liability arises from the court being satisfied that the existing member cannot pay, and it is unreasonable to hold that there is an implied contract by the defendant to pay to the past member a sum which the latter only becomes liable to pay because, in the judgment of the court, the person on whom that obligation is in the first instance cast has been unable to pay. In ordinary cases it is unnecessary to consider the question of ability or inability, because a man undertakes against his own default generally; but the peculiarity of the present case is that this is a statutory liability only created because the court is satisfied of an inability to pay. None of the authorities cited in the court below are in point. Walker v. Bartlett (') decided that, if the vendee of shares did not choose to register himself as the owner, he was bound to indemnify the vendor against all liabilities for calls. That case does not touch the question as to a statutory liability cast upon a transferor after he has transferred his shares. The court distinguished that case from Humble v. Langston ('), and drew a distinction between a claim to indemnify during the time a defendant was beneficially interested and a claim to indemnify after he had ceased to be *interested. In Roberts v. Crowe (3) the question was [243 not raised between two contributories in Class B., but between contributories in Class A. and Class B. respectively. In Nevill's Case () the question was whether a compromise by the liquidator with a contributory in Class A., disentitled him to recover from a contributory in Class B., and no doubt a dictum of James, L.J., is reported there which is against the defendant's contention, but the point now before the court did not arise in that case, and though the dictum of James, L.J., is stated by Willes, J., in Roberts v. Crowe () to be an acccurate view of the law, still it is only a dictum. Hudson's Case (") is an authority in favor of the defendant. (4) Law Rep., 6 Ch., 43. (5) Law Rep., 12 Eq., 1.

(1) 18 C. B., 845; 25 L. J. (C.P.), 263. (2) 7 M. & W., 517.

(3) Law Rep., 7 C. P., 629.