agreement would be, that the timber, which was the property of Daniel Willis, would, by the operation of the agreement, become the property of Joseph Willis, or his assignee. And what is the consideration for this? That the assignee, who had no right to the timber, should not proceed to cut it until the 1st December. I have no idea that the Court will enforce an agreement of this description, by which a man, not knowing his rights, should give up property for no other consideration than that a person who, in the result, had no right to it, should agree that he should not exercise rights which he assumed that he had for one or two months. I think that the consideration for the agreement was totally inadequate. The case of Bingham v. Bingham bears upon this part of the case; and the hardship of enforcing this agreement against the defendants is such that this Court will not enforce it, but leave the parties to any remedy which they may have at law.

I agree, therefore, with my learned brother, that this appeal must be dismissed, with costs.

ROLLS COURT.

Re THE AGRICULTURIST CATTLE INSURANCE COM-
PANY. STANHOPE'S CASE.-Nov. 4.
Company-Contributory― Arrangement with directors—

Notice-Lapse of time.

celled, the calls in arrear not being paid." On the 3rd September the 1007. was paid by Mr. Stanhope, and a transfer of his shares to the company was registered at the office of the Joint-stock Companies; and Mr. Stanhope was never afterwards regarded by the company as a shareholder. In 1861 an order was made for winding up the company. Mr. Stanhope died in 1864, leaving a will, by which his widow was appointed sole exccutrix.

Selwyn, Q. C., and Bush, for the official liquidator, contended that this case was identical with Spackmo case (12 Weekly Rep. 1133; 10 Jur., N. S., 911. on appeal, ante, p. 207; 13 Weekly Rep. 479). They distinguished it from Lord Belhaven's case (12 Law T., N. S., 324; on appeal, ante, p. 572), for the following reasons:-First, there was in the latter case a substantial dispute between the directors and Lord Belhaven, whether his lordship ever was a contributory; whereas here, it was admitted that Mr. Stanhope was once a shareholder. Secondly, there was a direct communication to the company of the arrangement made with Lord Belhaven; but here, the company had no notice whatever, as the mere registration of transfer was not notice of a transaction of this irregular character.

Hobhouse, Q. C., and Pearson, for the executrix, were not called upon.

Sir J. ROMILLY, M. R.-I have quite made up my mind upon the subject, which I have often had to consider. I am unable to distinguish this case in subIn 1849 a shareholder made arrangements with the distance from Lord Belhaven's case (ubi sup.) I am also rectors of the company, by which he was allowed to have his shares forfeited on more favourable terms than had been allowed to other shareholders under a previous arrangement, which had been authorised by special general meetings of the company. The transfer of the shares was duly registered, but no other notice given:Held, that considering the lapse of time, the arrangement could not now be set aside, and consequently that the executrix of the shareholder could not be made a contributory. tributory.

Lord Belhaven's case (ante, p. 572) followed. Spackman's case (12 Weekly Rep. 1133; 10 Jur., N. S., 911; on appeal, ante, p. 207) disapproved of.

This case arose upon an application which had been adjourned from chambers. The question was, whether or not the widow of the Hon. and Rev. F. Stanhope was, as his executrix, to be placed on the list of the contributories of the company.

unable to distinguish it from Spackman's case (ubi sup.); but at the same time, with all due submission, I approve of the decision of the Lords Justices in Lord Belhaven's case, and I disapprove of Lord Westbury's judgment in Spackman's case. I cannot reconcile the two. In the present case, therefore, I shal follow my own opinion in both these cases, and hold. that the administratrix of Mr. Stanhope is not a con

It is a very desirable thing that the law shoul settled one way or the other, and in order to make it certain that the official manager will appeal, I shal dismiss the summons, with costs.

It seems to me a monstrous thing, that when sharehave been cancelled by the directors, under an arrange ment of this sort, and they have taken money for so doing, after a lapse of fifteen years it should be said to be a fraud which makes no time a bar, though the fact that the person whose shares were cancelled was a longer a member of the company was duly registered, and that was the only notice that could be given the matter.

Notes for reference-Lord Belhaven's case (ante, p. 572;
Spackman's case (ante, p. 207).

Re THE INVENTORS' ASSOCIATION (LIMITED).—
July 28.

It appeared that in 1845 Mr. Stanhope became a shareholder in the company; and in that capacity received a dividend and paid calls. In November, 1818, certain shareholders were anxious to withdraw from the company, and an arrangement, described in the reports of the cases referred to below, was made in pursuance of resolutions of special general meetings of the company, which was shortly to the following effect:-A nominal call of 41. per share was made; and it was agreed that those shareholders who wished to leave the company VICE-CHANCELLOR KINDERSLEY'S COURT. should pay sums varying according to the number of their shares, from 17. to 27. 10s. per share upon such call, and should then have their shares forfeited for non-payment of the residue of the call. Those wishing to remain in the company were to pay 109s. per share only upon the call. Mr. Stanhope, on this occasion, paid the 10s. only, thereby intimating his intention to remain in the company. But in August, 1849, he made an arrangement with the directors, according to which his shares were to be forfeited on payment by him of 1007. This arrangement was carried into effect by a resolution passed by the directors on the 15th of that month, in the following words:-"It was ordered, that on certain arrangements being completed, the shares of the Hon, and Rev. F. Stanhope be can

Joint-stock company—Voluntary winding up—Action fo
debt by creditor-Petition for winding up.
A limited liability company was in the course of voluntary
winding up; one of the debts being disputed by !',
liquidator, the creditor commenced an action to room
it; and upon the liquidator's threat to commence pr
ceedings in Chancery to restrain the action, the croll;
filed his petition for winding up:-Held, that the
tion must be dismissed ultimately, because there was ca
one question between the parties-delt er zo dift, in
if the creditor succeeded in his action, dismiscal skvel

be without costs,

18

Petition. This was a petition by Mr. Chefferiel, alleging himself to be a creditor of the company, and praying the usual winding-up order. The company had for some time past ceased to carry on business, had no registered office, and was in course of voluntary winding up.

Batten, the liquidator, had paid or arranged all claims except that of the petitioner, which he resisted, on the grounds, that it was without authority, and was excessive. Upon an action being brought by the petitioner, the liquidator appeared, and at the same time threatened to file a bill to distrain the action.

This petition was then presented, which, under the circumstances, the Court had on a former occasion ordered to be served on the subscribers to the memorandum of association, who were also directors, and on some of the principal shareholders.

Glasse, Q. C., and Higgins, for the petition, cited Re Rynsham Company (33 Beav. 123); Re The Life Association of England (10 Law T., N. S., 833); Bowes v. Hope Mutual Life Assurance Company (ante, p. 643); and Re The General Rolling Stock Company (12 Law T., N. S., 9).

Jessel, Q. C., and Millar, contra.—The Court has no jurisdiction under the Companies Act, 1862; it is a legal question, debt or no debt. (Re Catholic Publishing Company, 10 Jur., N. S., 301; Re Brighton Club and Norfolk Hotel Company, 12 Law T., N. S., 484). Glasse, Q. C., in reply.

if you do, I shall apply to stop you." Mr. Chefferiel was placed in a difficulty; he knew that if he went on he might be stopped, and he unadvisedly came here. It is said, that if I direct the matter to go on at law, I violate the act, which directs this Court to deal with it; but that is not the proper way to do it. The party has a right to bring his action; that is the proper course. It is a case in which the primary, original, and right course of the petitioner is, to bring an action at law. I shall, therefore, retain the petitioner until I see the result of the action; and if the result is, that Mr. Chefferiel fails, and it turns out that he is not a creditor, I shall dismiss the petition with costs. If he establishes his right, it does not follow that there should be a winding up, and I shall still dismiss the petition, but without costs, because I think the liquidator drove him here.

Note for reference-Lind. Part. 1050.

VICE-CHANCELLOR STUART'S COURT.
LAWES v. GIBSON.-Nov. 7.

Specific performance—“ Outgoings"—Costs.
In conditions of sale of leaseholds it was stated, that the
purchaser should have possession on a certain day; “all
outgoings" up to that day being cleared by the vendors.
The vendors refused to pay half a quarter's rent which
had accrued due between the last quarter day and the
date fired for completion. The purchaser, after several
attempts at accommodation, declined to complete:-Held,
that the vendors were entitled to specific performance,
subject to their paying the half quarter's rent in ques-
tion; but that, as the purchaser had refused to accede
to inexpensive modes which had been proposed for ad-
justing the dispute, there should be no order as to costs.
The plaintiffs (vendors) sold certain leasehold pro-

Sir R. T. KINDERSLEY, V. C.-The question upon this petition is not whether the company, from its position and circumstances, ought or ought not to be wound up, but whether the debt which the petitioner claims ought to be paid or not. And this question loes not in the least degree involve the propriety of winding up the association; though, if the debt is due to the creditors, and there are no other means of getting payment, of course the Court will make an order to wind up. It is, however, impossible to suppose that the state of the law is such, that it is ne-perty by auction. The conditions of sale provided cessary for a person, claiming to be a creditor of a company, to come to this Court with a petition to wind up, for the purpose of proving whether he is a creditor or not. Even when there is an agreement that the company should be wound up voluntarily, and that is being carried into effect, there is nothing to prevent the creditor from bringing an action to recover his debt, if it is a pure legal debt, and there be no equitable question arising. I need not say, that if the debt is recovered, and the company do not pay, there are means to compel them to do so. It has been said that, if the action were proceeded with, the liquidator would come here and ask the Court to stop it, and the Court would say, "Do you admit the debt? if you do, the Court will stop the action, and you will have to pay the debt; but if you dispute it, then the action shall not be stopped." In one case in the House of Lords (Bowse v. Mutual Assurance, &c. Company) there was good debt, that is, judgment was recoverable; but it was impeached on equitable grounds, and the House of Lords said, "Let the matter stand until there is an opportunity of trying whether the debt, which is a good legal debt, is impeachable on equitable grounds."

In these cases the proper course is, not to come to this Court to wind up, because, if even the debt is established, it does not follow that there should be a winding up. It seems, for some reason, the liquidator would not accept service, and said, "If you proceed I shall proceed to the Court of Chancery." It was said that only referred to getting authority from the Court; but I cannot accept that interpretation, because it appears absurd to impute such a meaning to him; he meant, "Go on at your peril; and

that the purchase should be completed on the 14th November, 1864; and that "all outgoings up to that day to be cleared by the vendors." The defendant purchased the property, and, having made no requisitions, was considered by the plaintiffs to have accepted the title. On the 22nd December the vendors' solicitor met the purchaser for the purpose of completing the sale; but the purchaser declined to complete, unless about half a quarter's rent viz. the rent from the last quarter day to the day fixed for completion, were paid by the vendors, or an undertaking given for its payment, as an outgoing, in pursuance of the conditions of sale. The sum was only 187. The vendors refused to pay this sum, or undertake to pay it, but proposed from time to time that the question should be referred to the decision of a commissioner in bankruptcy and of a Queen's counsel. Both these proposals were declined by the purchaser, who ultimately, in January, 1865, positively refused to complete. The vendors, after offering to submit a special case, which was also refused, filed a bill for specific performance of the contract, and also for a declaration that the purchaser was not entitled to any deduction or allowance in respect of the half quarter's rent from the 29th September to the 14th November, 1864.

Bacon, Q. C., and Everitt, for the plaintiffs, argued that the term " outgoings" could not be applied to current rent.

Sir J. STUART, V. C., before hearing the counsel for the defendant, requested them to confine their argument to the conduct of the defendant in refusing the offers made by the plaintiffs for the purpose of avoiding expensive litigation.

Sir J. STUART, V. C., said, that according to his con-ragraph of the affidavit of the defendant, sworn the struction of the contract, the plaintiffs were bound to clear up the portion of the ground rent which had accrued due from the 29th September, 1864, to the 14th November in the same year. The plaintiffs were entitled to a decree for specific performance, subject to a declaration that they must clear off the rent in ques-nefit that damages should be assessed instead of such tion. The plaintiffs having thus failed in their contest with regard to the construction, the ordinary course would be, that they should be ordered to pay the costs of the suit.

But as the defendant had not only resisted all the modes by which the dispute might have been settled inexpensively, but had positively refused to complete, there would be no order as to costs.

On a bill for specific performance of a negative contract or in the alternative for damages, the plaintiff having [Before COCKBURN, C. J., CROMPTON, BLACKBUEN come in time for an injunction as to part, an inquiry as to damages, under the above act, was directed in respect of the rest of the contract, the breach of which was complete at the time of the filing the bill.

The

Horace Lloyd, in support of the rule.-It is admitted that, previous to the passing of the 21 & 22 Vict. c. 20, the law was, that an unstamped instrument, purporting to be a cheque on a banker, but postdated, was not receivable in evidence, nor available for any purpose. Neither in Durnford v. Curlewis nor in Oliver v. Mortimer was the question determined; in the latter case it appears that the counsel for the plaintiff abandoned the count upon the cheque, and went upon the common counts; and Key v. Matthias is in favour of the plaintiff. In Whistler v. Foster, the Court held that a postdated cheque payable to order was not invalid; and the expressions of Willes, J., if in favour of the defendant, amount to nothing more than obiter dictum. question now in cases like the present is simply this— is the instrument stamped? and it is sufficiently stamped, if stamped according to its purport, according to the decision in Williams v. Jarrett, which is conclusive in favour of the plaintiff. [Blackburn, J.Several statutes upon the subject have been passed since the date of that decision; and if the Legislature disapproved of it, one may suppose that some steps would have been taken by way of remedy.] In the course of the argument in Whistler v. Foster, Willes, J., says, "It was held in Williams v. Jarrett, and other cases, that the Court can only look to the date appearing on the face of the instrument. That, no doubt, was the ground of my Brother Bramwell's ruling in Key v. Matthias.”

determined depends upon the construction of several drafts payable to order, which are unaffected by either statutes. The 31 Geo. 3, c. 25, s. 2, provides for the of these enactments. [They also referred to Allen v. raising and collecting of certain rates and duties. Keeves (1 East, 435); Serle v. Norton (9 M. & W. 389); Sect. 4 exempts from the operation of the act any Whitwell v. Bennett (3 B. & P. 559); Peacock v. Murrell draft or order for the payment of money to the bearer (2 Stark. 558); and Upstone v. Marchant (2 B. & Cr. 12).] on demand, bearing date on or before the day on Williams v. Jarrett (5 B. & Ad. 32) will be relied on which the same shall be issued, and at the place from by the other side, but is not in point; inasmuch as which the same shall be drawn and issued, and drawn there the decision turned upon sect. 12 of the 55 Geo. upon any banker or bankers, &c. residing and trans-3, c. 184-here the instrument is void under sect. 13. acting business within ten miles of the place where such draft or order shall be actually drawn and issued. Then, by sect. 19 it is enacted, that all vellum, parchment, and paper liable to any stamp duty by this act, before any of the matters and things charged by the act shall be ingrossed, printed, or written thereon, shall be stamped as the act directs; and that no bill of exchange, draft, or order, &c. shall otherwise be pleadable or admissible in evidence in law or equity. Next comes the General Stamp Act, 55 Geo. 3, c. 184, the schedule to which is made part of the act, and which, after providing, amongst other things, for the amount of stamp duties on inland bills of exchange, exempts from stamp duty drafts or orders upon bankers, &c. for the payment of money to bearer on demand, in terms similar to those employed in sect. 4 of the 31 Geo. 3, c. 25. Sect. 8 of the General Stamp Act reserves all powers, penalties, &c. of former repealed acts. Then follows sect. 13, which enacts, "that if any person shall make or issue any bill, draft, or order for the payment of money to the bearer on demand, upon any banker, &c., which shall be dated on any day subsequent to the day on which it shall be issued &c., unless the same shall be duly stamped as a bill of exchange, shall forfeit 1007." Then, sect. 2 of the 16 & 17 Vict. c. 52, continues the powers, penalties, &c. of the former acts, and amongs them the provisions of sect. 13 of the General Stamp Act; the cheque, the subject of the action, is therefore void. [Blackburn, J.-Why should the cheque of a person who has incurred a penalty in postdating it, be therefore void in the hands of an innocent holder for value?] Such, it is contended, is the effect of the legislation on the subject. Sect. 3 of the 16 & 17 Vict. c. 59, refers to the imposition of a duty of 1d. upon drafts or orders for the payment of money; but the question of exemption still depends upon the provisions of the older acts. Lastly, comes the 21 & 22 Vict. c. 20, which, by sect. 1, imposes upon drafts or orders upon a banker for the payment of any sum of money to the bearer on demand, a stamp duty of 1d. From these various enactments two propositions are deducible; first, that by virtue of the 31 Geo. 3, c. 25, 8. 19, the instrument in question is inadmissible in evidence for want of a sufficient stamp, being in fact a bill of exchange payable at one month after date, and not a draft or order for the payment of money to bearer, within the meaning of the 16 & 17 Vict. c. 59, s. 3; and, secondly, assuming the instrument to be a cheque, that it is postdated, and therefore void by force of the 55 Geo. 3, c. 184, s. 13. [H. Lloyd, contra, admitted that the objection was one to the sufficiency of the stamp, and properly taken.] In Dunsford v. Curlewis (1 Fost. & F. 702), Hill, J., refused to admit a postdated cheque in evidence; and in Oliver V. Mortimer (2 Fost. & F. 127), upon cheques being tendered in evidence for the plaintiff, the defendant was permitted to give evidence of their being postdated. In Key v. Matthias (3 Fost. & F. 258), Bramwell, B., although with much hesitation, held a post-bound by the decisions. dated cheque to be admissible. These cases are cited in Whistler v. Foster (14 C. B., N. S., 248), where Willes, J., in his judgment, distinguishes between drafts payable to bearer, which are void, if postdated under the 55 Geo. 3, c. 184, s. 13, and the 21 & 22 Vict. c. 20, s. 1, and

COCKBURN, C. J.-I am of opinion that this rule should be made absolute. I quite concur in thinking that Williams v. Jarrett and Whistler v. Foster are directly in point. It is unnecessary for us to pronounce any opinion whether the Legislature intended, by the 31 Geo. 3, c. 25, and the 55 Geo. 3, c. 184, to make a postdated instrument void to all intents and purposes, the moment it appears that the date appearing on the face of it is not contemporaneous with the date of issue; but I, nevertheless, incline to the opinion that such was the intention of the Legislature, and am not altogether satisfied with the reasons given for the decisions in the cases to which we have been referred. They have, however, been long acquiesced in, and as we are not a court of error, I consider them binding upon us. The rule will, therefore, be made absolute-a conclusion at which I have much satisfaction in arriving, inasmuch as the defence set up is a most unworthy one, being an attempt on the part of the defendant to take a base advantage of an irregularity of which he was himself the perpetrator.

CROMPTON, J.-We are bound by the cases in the Common Pleas, which were relied upon in this case by the counsel for the plaintiff, and certainly establish the principle, that in construing the early statutes upon the subject we must look to the purport of the instrument. But I am not prepared to say that, had the case been one of first impression, I should have come to the same conclusion; we are, nevertheless,

BLACKBURN, J.-I am of the same opinion. Whatever may be the proper construction to be placed on the Stamp Acts, Williams v. Jarrett is a clear authority that the objection to the reception in evidence of such an instrument as the one we are dealing with

must be founded upon the fact of its not bearing the
stamp it purports on its face to require. The rule
should, therefore, be made absolute.
SHEE, J., concurred.-Rule absolute.

COURT OF COMMON PLEAS.
SITTINGS AFTER TRINITY TERM.

[Before WILLES, BYLES, and KEATING, JJ.] HUGHES . PALMER.-June 19. Bankruptcy Act, 1861-Composition deed-Condition"Void"-" Voidable."

Hughes (the plaintiff) as aforesaid, the said T. H. Palmer should be adjudicated bankrupt, or make an attempt to make any assignment of his estate for the benefit of his creditors, or any arrangements with his creditors different to this present arrangement, then and in any of such cases these presents, and the release, and every other clause and provision therein contained, should be henceforth at an end and void (without prejudice to any act which might have been done by the trustee), and the creditors should be at liberty to sue or prove for the amount of their debts still unpaid, and that the deed was intended to be within the 192nd section of the Bankruptcy Act, 1861. The said indenture was duly registered, and the first instalment duly paid. Afterwards, and before the

action was brought to recover the second instalment. was adjudicated bankrupt on his own petition. Tils None of the creditors had elected to treat the deed as

A composition deed, under the 192nd section of the Bank-second instalment became due, the said T. H. Falmer ruptcy Act, 1861, made between the debtor of the first part, the defendants, as sureties, of the second part, the plaintiff, as trustee, of the third part, and the creditors of the debtor of the fourth part, contained a covenant by the debtor and the defendants, as sureties, to pay the sum of 78. 6. in the pound, by three instalments. The deed provided, that, as between the defendants and the creditors, the defendants should be considered principal debtors, and that in case the debtor should be adjudicated bankrupt before all the instalments were paid,

then the said deed and all its clauses to be at an end and void-Held, that by the word "void" was meant voidable," at the election of the parties not in default. This was a case stated, without pleadings, for the opinion of the Court.

One T. H. Palmer, being in difficulties, an indenture was made between him of the first part, the defendants of the second, the plaintiff of the third, and T. H. Palmer's creditors of the fourth part, and was exccuted by T. H. Palmer, the defendants, the plaintiff, and the requisite number of creditors. This indenture, after reciting that T. H. Palmer was unable to pay in full, and had proposed a composition of 78. 6d. in the pound, to be paid to the plaintiff as trustee, in three equal instalments, at four, eight, and twelve months after registration of the indenture, under sect. 192 of the Bankruptcy Act, 1861, the defendants to bo securities for the payment, witnessed that the parties of the first and second parts, jointly and severally covenanted with the plaintiff that they would pay him 2s. 6d. in the pound on T. II. Palmer's debts at or before the expiration of four months from the said registration, a like sum at or before eight months, and a like sum at or before twelve months after the same; that such money was to be applied in payment of the said debts; that the creditors released and discharged the said T. H. Palmer from their debts, &c.; provided always, that though, as between the said T. H. Palmer and the parties of the second part, the latter were sureties only for repayment of the composition, nevertheless, as between them and the creditors, they, the parties of the second part, should be deemed and taken to be principal debtors, so that they should nat be discharged from liability by reason of time being given to, or any arrangement made with, T. H. Palmer without their consent, or by reason of any other circumstance which might have the effect of discharging them if only sureties; provided always, that the indenture should not prejudice the rights of the creditors against the sureties, or on any securities, but nevertheless so that on any security being realised by a creditor, the composition was to be paid only in respect of the remainder of his debt; provided always, that in case default should be made in payment of any or either of the said instalments of the said composition, or any part thereof, or in case, before the said composition should be fully paid to the said W.

void, nor had any of them proved under the bankruptcy; and after the adjudication they met, and re solved that they would not treat the deed as vol against the sureties, but would hold them jointly and The question for the opinion of the Court was, wheseverally liable to pay the balance of the composition. ther the defendants were discharged from liability es their covenant.

Anstie, for the plaintiff, contended that the decl was not void, but voidable only at the election of the parties not in default, and cited Hyde v. Watts (12 M. & W. 254); Bryant v. Bancks (4 B. & Al, 401); Roberts V. Davey (4 B. & Ad. 664); Arnsby v Woodward (6 B. & Cr. 519); and Pennington v. Cardale (3 H. & Norm. 655).

Brown, Q. C., for the defendants.-The deed became void on the debtor's bankruptcy. The bankruptcy would operate to distribute the estate in a different

manner.

Anstie, in reply.

WILLES, J.-I am of opinion that the plaintiff is entitled to judgment. The action was brought to recover the second instalment under the deed of ar rangment entered into between the insolvent, his creditors, and the defendants, who as parties to the deed and as sureties covenant with the plaintiff, who is a trustee, to pay the sum, as agreed, by three instalments; and it is provided, that, as b tween the defendants and the creditors, the defendants shall be deemed principal debtors, and the creditors release their debts. The deed, however, farther provided, "that in case default should be made in payment of any or either of the said instalments of the said composition, or any part thereof, or in case, before the said composition should be fully paid to the said W. Hughes (the plaintiff) as aforesaid, the sail T. H. Palmer should be adjudicated bankrupt, or make or attempt to make any assignment of his estat for the benefit of his creditors, or any arrangement with his creditors different to this present arrange, ment, then and in any of such cases these presents, ar the release and every other clause and provision there's contained, should be henceforth at an end, and vold Now the case states, that after one instalment had been paid, the defendant became bankrupt on his own petition, and that when the next instalment becamDE payable, the defendants refused to pay it on the greeni that on the debtor's bankruptcy the deed became ab solutely void, and that they then became discharge from their obligation; and we have to determin whether the bankruptcy of the debtor had this cffect. And in order to determine the question, we must try and see what was the intention of the p ties; whether it was intended that the deed shoul be void, on any of the acts being committed con