1857. NIXON v. BROWNLOW. undertaking with a reduced capital and amount of shares. The Act clearly contemplates future subscribers. In The Midland Great Western Railway Company of Ireland v. Leech(a) all the Judges considered that the act of parliament did not amalgamate the two Companies, although it was founded on the subscription contract; and that it was discretionary with the directors whether they would admit the subscribers as shareholders or not. In The Cork and Youghal Railway Company v. Paterson (b), there was no sum named in the deeds as the capital of one of the original undertakings; and it was left to the directors to determine what were the interests of the subscribers to each Company; and what was their interest in the capital stock of the amalgamated Company. There, the directors allotted to the defendant shares of corresponding value in the new Company; here the directors have not registered the defendant for an amount equivalent to that for which he subscribed. Moreover, the defendant is not a "shareholder" within the meaning of the 36th section of "The Companies Clauses Consolidation Act, 1845;" for by the 37th section, if he paid under the execution more than was due from him for calls, he would have a right to be reimbursed out of the funds of the Company; but by the 26th section of the Company's Act, the power to make the railway has ceased, it not having been exercised within the time prescribed: Kinnersly v. The North Staffordshire Railway Company (c).— They also referred to Smith v. Goldsworthy (d), Regina v. The Registrar of Joint Stock Companies (e). Cur. adv. vult. MARTIN, B., now said.-This was a rule to enter a verdict for the defendant on a plea to a declaration in scire (a) 3 H. L. Cas. 872. (d) 4 Q. B. 430. (b) 18 C. B. 414. (e) 10 Q. B. 839. (c) 6 Railway Cases, 662. facias that the defendant was not a shareholder. The scire facias issued on a judgment obtained by the plaintiff against The Kilkenny and Great Southern and Western Railway Company, in respect of services done by him for the Company after the passing of the act of parliament which incorporated it. For the purpose of proving the defendant to be a shareholder, the plaintiff gave in evidence the subscribers' agreement and the register of shareholders. The subscribers' agreement contained an authority for the directors to abandon the undertaking, or such part thereof as they should think fit, and proceed to obtain an act of parliament in respect of any portion of the proposed line. It also appeared that in the year 1846 the directors applied to parliament, and the original line being intended to connect Kilkenny and Galway, they obtained an Act for making a portion of that line, viz., from Kilkenny to a station on the Great Southern and Western Railway at a place called Cuddagh in the Queen's County. As proof that the defendant was a shareholder, the plaintiff relied on the authority given by the subscription contract and this act of parliament, and the subseqnent placing of the name of the defendant upon the register of shareholders. It was alleged on the part of the defendant that the register of shareholders was improperly made up, and that the defendant's name had not been fairly inserted in it. I thought that there was no evidence of that (a), and (a) On concluding the judg ment his Lordship observed, with reference to the statement that the name of the defendant had been improperly placed on the register of shareholders, that the matter was fully investigated in a subsequent trial before him in an action against another shareholder of the same Company, when it appeared from the testimony of several witnesses that there was 1857. NIXON v. BROWNLOW. 1857. NIXON v. BROWNLOW. I directed the jury that, in point of law, the defendant was a shareholder if he executed the subscription contract, and his name had been subsequently inserted in the register of shareholders. An application was made for a new trial, on the ground that the defendant's name was improperly placed on the register of shareholders, but the Court were of opinion that there was no evidence of fraud, and they refused the rule on that ground, and granted it simply on the question whether or no the defendant was a shareholder. The point has been argued before us, and two cases were relied on for the purpose of establishing that the defendant was a shareholder, viz., The Midland Great Western Company of Ireland v. Gordon (a) and The Cork and Youghal Railway Company v. Paterson (b). It seems to us, that these cases are directly in point, and if the doctrine laid down in them be wrong, it must be set right by a Court of Two other cases were cited: one was The Midland Great Western Railway Company of Ireland v. Leech (c) That case has no bearing on the subject, but relates to an entirely different matter. The other case was Kinnersly v. The North Staffordshire Railway Company (d), which is also beside the question now under discussion, for it related to a point not made at the trial, as to the time having expired for carrying into execution the powers confered by the Company's Act. The only question before us was whether the defendant was a shareholder in this Company, and the cases of The Midland Great Western Railway Company of Ireland v. Gordon and The Cork and Youghal Railway Company v. Paterson seem to us authorities directly in point. The rule must therefore be discharged. error. (a) 16 M. & W. 854. Rule discharged. (c) 3 H. L. Cas. 872. 1857. THE ATTORNey General v. FITZJOHN and Another. THIS was an information by the Attorney General for duty payable by the defendant under "The Succession Duty Act, 1853." The question for the opinion of the Court was raised by a special verdict (in substance) as follows: After the passing of an act of parliament, made and passed A.D. 1796, intituled, &c., (36 Geo. 3, c. 52), and before the passing of another act of parliament, made and passed A.D. 1805, and intituled &c. (45 Geo. 3, c. 28), that is to say, on the 7th July, A.D. 1803, Dennis Herbert duly made and published his last will and testament in writing, and thereby gave and bequeathed to his sons George Herbert and Cornelius Herbert, their executors, &c., 50007, upon trust to place out at interest that sum upon government securities, and to pay the interest, dividends and annual income thereof to his daughter, Ann Herbert, during her life; and upon further trust, after her death, for real or amongst them. The testator died in 1803, at which time no duty was payable on legacies to grandchildren. tion of that all and every her child, or children if more than one, equally Act, "every to be divided amongst them, share and share alike; and if past or future only one such child, then for such one child, to be a vested interest or interests in such child or children as should be a son or sons at his or their age or ages of twenty should be one years; and in such child or children as disposition of property by reason whereof any person has or shall become beneficially entitled to any property upon the death of any person dying after the commencement of that Act, shall be deemed to have conferred, or to confer, on the person entitled by reason of such disposition a 'succession."" By section 18, no duty shall be payable" by any person in case of a succession, who, if the same were a legacy would be exempted from the payment thereof under the legacy duty Acts."-Held, first, that the interest of the testator's grandchildren in the property bequeathed to them was a "succession" within the meaning of that Act: Secondly, that it was not within the exemption of the 18th section, since that applied only to express exemptions by former Acts, and consequently that succession duty was chargeable. 1857. ATTORNEY GENERAL v. or their respective days of marriage, whichever should first happen; but not to be payable until after the decease of his the said testator's said daughter Ann Herbert: And FITZJOHN. Upon further trust, immediately after the decease of his said daughter, and in the meantime until the share or respective shares of her child or children of and in the said trust money should become vested and payable, to pay, apply, and dispose of the interest, dividends and annual income of each such child's share therein for or towards his or their maintenance and education. (Then followed a power, after the death of Ann Herbert, or in her life time if she should so direct in writing, to apply one third of the expectant share of any child for his or her advancement.) And further, in case there should not be any child of his said daughter who should live to attain a vested interest in the said sum of 50007., then that the said trustees should hold the same upon certain other trusts in the said will mentioned. And the testator appointed the said George Herbert sole executor of his will. The testator, on the 1st November, A.D. 1803, died, without having in anywise altered or revoked his will, and the same was, on the 1st December, A.D. 1803, in the Prerogative Court of the Archbishop of Canterbury, duly proved by the said George Herbert as such executor, who then and there took upon himself the burthen of the execution thereof, and who, as such executor, assented to the said legacy and bequest of 5000%. On the 1st April, A.D., 1804, the said George Herbert departed this life, and after his death, that is to say, on the 1st May, A.D., 1804, the said sum of 5000Z. was, by the said Cornelius Herbert, who was possessed thereof as such surviving trustee, duly invested, in compliance with the trusts of the said will, in the purchase of 52407. 17s. 10d. New 3 per cent Bank Annuities. Cornelius Herbert, on the 1st of January, A.D., 1850, duly made and published |