money, and consequently could have no right to call upon the defendant. Now, the 23d section of the 7 & 8 Vict. c. 113, which authorizes the transfer of shares, requires that such transfer shall be made “subject to the provisions of the deed of settlement;" and the 10th clause of the deed of settlement expressly requires it to be done "with the consent of the court of directors." Without such consent, therefore, a transfer would be inoperative: the pretended transferror would still *remain a shareholder: Bosanquet v. Shortridge, 4 Exch. *189] 699,†-the decision of the Court of Exchequer in which, so far as this question is concerned, not being at all affected by the judgment of the House of Lords in Bargate v. Shortridge, 5 House of Lords Cases, 297. The principle upon which alone this action is maintainable, is thus stated by Tindal, C. J., in Bowlby v. Bell, 3 C. B. 284, 293 (E. C. L. R. vol. 54),- In order to maintain this action for money paid to the use of the defendant, at his request, it was necessary that the plaintiff should prove either an actual request on the part of the defendant, or that the money was paid in discharge of some liability which the plaintiff had taken upon himself by the defendant's authority." Wilkinson v. Lloyd, 7 Q. B. 27, is very much in point. There, the plaintiff agreed to purchase of the defendant shares in a mining company established under a deed of settlement, and sent a form of transfer to the defendant for his execution. The deed required, that, on transfer of shares, the intended proprietor should be approved of by the directors. The defendant executed and returned the transfer, and sent also a certificate (according to the provisions of the deed) verifying the defendant's title to the shares. The plaintiff, on receiving the transfer, paid for the shares; but, before such payment, the directors passed a resolution (unknown to the plaintiff till after the payment) stating that the defendant had commenced an action against the company, and that no transfer of shares standing in his name should be allowed while such action was pending. The directors never objected to the plaintiff as a proprietor; and the defendant denied their power to stay a transfer on the ground above stated. While the transfer was suspended, the shares fell in the market, and the plaintiff brought assumpsit for money had and received, to recover back the purchase*190] money and it was held that the action lay; for *that the defendant, as vendor, was bound to obtain the assent of the directors, and to do all that was necessary to vest the shares in the plaintiff. That case shows that the plaintiffs may recover back the money they have paid to Russell. The case of Sleigh v. Sleigh, 5 Exch. 514,† is also very analogous. It was there held that the drawer of an accommodation bill cannot sue the acceptor for money paid to his use to the holder of the bill, unless not only the money paid pro tanto discharged the liability of the acceptor, but also the payment was made at his request, either express or implied. Therefore, where the plaintiff drew

and endorsed for the accommodation of the defendant, the acceptor, a bill of exchange, which, when due, was dishonoured, and the plaintiff, without having received notice of dishonour, and without any request from the plaintiff, paid a part of the bill to the holder,—it was held that he could not recover the amount from the defendant in an action for money paid to his use,-there being no implied undertaking to indemnify against a payment which the drawer voluntarily made, with full knowledge that he was not bound to pay. [CROWDER, J.-Here, the plaintiffs enter into a contract at the request of the defendant: you are, in effect, seeking to imply an agency different from the ordinary course of the business which the parties are engaged in.] There was no evidence of a course of business applicable to a case like this,— where a tender of shares was made after the failure of the bank. Besides, the course of business on the Stock Exchange is not binding on the court: Child v. Morley, 8 T. R. 610. The consent of the directors to the transfer was clearly necessary: Parnther v. Gaitskell, 13 East, 432: and it was the seller's duty to procure it. This is like the case of a covenant in a lease, not to assign without the consent of the lessor; in which case it is the vendor's duty to procure such consent: Lloyd v. *Crisp, 5 Taunt. 249 (E. C. L. R. vol. 1); [*191 Mason v. Corder, 7 Taunt. 9 (E. C. L. R. vol. 2). As to the resolution of the Stock Exchange committee, of the 11th of September, 1856, that clearly had no binding force upon persons not members of that body: Westropp v. Solomon, 8 C. B. 345 (E. C. L. R. vol. 65.) [CROWDER, J.-All that that resolution amounts to, is, that the committee declined to interfere in the matter.] This contract was in writing, it was a contract for twenty shares bought of Russell. [CRESSWELL, J.-They are not stated to be Russell's shares. WILLES, J. Besides, the note sent to the defendant was not the contract.] It must be conceded that it cannot be put higher than a statement of the contract sent by the plaintiffs to the defendant.

CRESSWELL, J.(a)—I am of opinion that the rule for a new trial for this case must be discharged. This is an action for money paid by the plaintiffs to the use of the defendant; and the question is whether the plaintiffs had any authority, express or implied, to pay the money on his behalf. It appears that the plaintiffs were employed to purchase for the defendant on the Stock Exchange shares in a chartered joint stock bank, and that, according to the usage of the Stock Exchange, he bought the required number of shares of another broker there and it was proved, that, by the rules of that establishment, it is incumbent on the buying broker to pay the amount of the purchase-money on the day specified to the selling broker upon the transfers being tendered to him, and that the plaintiffs did pay the money accordingly. It was further proved that the plaintiffs had on former occasions been employed by the

(a) Cockburn, C. J., was absent, on account of indisposition.

defendant to buy shares for him in that market. He must, therefore, be taken to have given them authority when he employed them to deal according to the course and practice of the *market. Having at *192] the defendant's request purchased the shares for a future day, the plaintiffs did all that was requisite to entitle them by the usage of the Stock Exchange to complete the transaction; and therefore they had an implied authority from the defendant to pay the money for him on that day. I do not think it necessary to deal with the resolution of the committee of the Stock Exchange, because, if we find the plaintiffs buying shares according to the course of business of the market to which the defendant sends them, and advancing their money in pursuance of that course of business, although the transaction ultimately fails otherwise than through any default on their part, they clearly are entitled to recover from their principal the money so paid. If the principal fails to obtain the consideration for which the money was paid, he must resort to the party from whom the purchase was made, and not to his own brokers. Suppose, instead of impliedly authorizing his brokers to pay the money for him, the defendant had drawn a check for the amount, could he afterwards have brought an action against his brokers because the transaction turned out a failure? I think that is very like this case. It is said that the deed of settlement requires notice of an intended transfer to be given to the directors. But that notice may be given by either party, and it is not of necessity part of the transaction. The directors may waive it. But, before there can be a perfect transfer, there must be a deed executed by both parties, the seller professing to convey the shares upon certain terms and conditions to the buyer, and the latter under his hand and seal accepting the shares subject to those conditions: and, when the directors by their officer accept the transfer and enter a memorial thereof on the register, the transferree is bound to observe all the conditions to which the shares are subject. Now, the seller could not get the transfer accepted by the directors until the *purchaser had given the name to be filled in. That the defend*193] ant in this case refused to do. He therefore failed to do that which it was necessary and incumbent on him to do to enable Russell to do anything more than he did. The only question upon which I have entertained any serious doubt, is, whether Russell could be said on the 15th of September to have tendered the things he contracted to sell, the bank having stopped payment. He had contracted to sell and deliver shares in an existing bank; and the shares he delivered were shares in a bank which had suspended payment. Upon consideration, however, I think that objection cannot prevail. The Royal British Bank is a chartered bank; and, though it had at this time stopped payment, there was nothing to prevent its going on again. I think, for the purpose now in question, the bank must now be assumed to be still existing, and that the shares tendered, though greatly reduced in value,

were the things contracted for. It seems to me, therefore, that there has been no failure on the part of the plaintiffs to do that which they were employed to do; and that, having paid the money in pursuance of a liability which they had incurred through the defendant's instructions, they are entitled to recover it back. Another point was made, as to the names of the transferrors, founded upon the supposed authority of Hibblewhite v. M'Morine. But the foundation for that objection fails, inasmuch as the contract was not for the transfer of shares standing in Russell's name. I therefore think the rule must be discharged.

CROWDER, J.-I also am of opinion that this rule should be discharged. The question is whether the plaintiffs are entitled to recover the sum paid by them as the purchase-money of the shares and their commission. It appears that the defendant employed the plaintiffs to go upon the Stock Exchange and buy for *him twenty shares in [*194 a joint stock bank. It must be taken, therefore, that he authorized them to deal according to the usual course of brokers in that market. Being so authorized, it seems the plaintiffs entered into a contract to purchase the required number of shares of one Russell, also a member of the Stock Exchange. On the day on which by the ordinary course of business on the Stock Exchange the transfer deed was to be delivered, such deed was tendered by Russell to the plaintiffs, and they, according to the usage, paid him the agreed price. The conduct of the plaintiffs was in strict accordance with the authority given to them by the defendant, provided the thing tendered was that contracted for and hence arises the only question about which there could be any doubt, viz. whether, the bank having stopped payment before the shares were tendered, the payment was made in respect of that which the plaintiffs were authorized by the defendant to purchase for him. It appears to me that it was. It was contended, that the bank having stopped payment on the 3d of September, the shares tendered on the 15th were not what the defendant had authorized the plaintiffs to purchase for him, viz. shares in an existing bank. But non constat that the bank might not have gone on again. Assume that the shares are now utterly valueless, they were not so then: and, if they were, it matters not; they were that which the plaintiffs were instructed to buy. As to the consent of the directors to the transfer of shares, it was no part of the plaintiffs' duty to obtain that. Besides, the time for obtaining such consent never arrived, the defendant having declined to take the shares or to give a name. The objection that the contract could only be performed by a transfer of shares from Russell, was not very much pressed. There was no contract between the defendant and Russell: the only contract was that which appeared in the respective brokers' *books: and the memorandum sent to the defendant did not represent a contract for the purchase of shares belonging to

[*195

Russell, but for the purchase of twenty shares from Russell, which would be performed by the delivery of any shares.

WILLES, J.-I am of the same opinion. The practice of the Stock Exchange appears to be this,-that the broker who buys shares should pay the price to the selling broker upon a transfer being tendered to him with the shares on the settling day. It further appears not to be the duty of the broker to get the transfer registered. All he has to do, is, to accept the transfer and pay the money. If it should afterwards turn out that the transfer cannot, in consequence of the directors not having given their consent, or for any other reason, without any default on the part of the buyer, be completed by registration, it may be that an action would accrue to the buyer to recover back his money, but not from the brokers who paid it in accordance with the terms of the contract, the practice of the Stock Exchange, like that of any other market, being imported into and forming part of the bargain. This differs from the ordinary case of a sale, inasmuch as the seller gets the money before the arrival of the period when the thing sold is effectually conveyed to the purchaser. But that does not follow from the application of any different rule of law to this case from that which governs others, but from the peculiar nature of the brokers' engagements upon the Stock Exchange. It might as well be said, that, if the two principals had themselves met, and had agreed that the shares should be paid for on the day preceding that upon which the transfer was to be handed over, that circumstance would require the application to this case of a different rule of law from that which applies to contracts of sale generally. The rule applicable to this case is the rule which pervades the whole law of principal and agent, *viz. that *1961 the principal is bound to indemnify the agent against the consequences of all acts done by him in pursuance of the authority conferred upon him. It appears, that, for some reason which at first I did not understand, but of which I now perfectly well see the drift, the directors had refused to consent to a transfer of the shares in question to the defendant. If there had been an absolute refusal on the part of the directors to recognise a transfer, and that had been known to the plaintiffs at the time they paid the money, whatever the reason for that refusal might have been, the subsequent payment might have been a payment by the plaintiffs in their own wrong. But, when the evidence is looked at, it appears that all the refusal of the directors amounted to, was, a refusal to prepare a transfer. It seems, that, after the 3d of September, the day on which the bank stopped payment, the directors, except in one or two instances, did not allow any new name to be placed upon the register. No doubt, the directors found the shareholders anxious to evade responsibility, and they naturally would refuse to receive transfers to men of straw. When the payment in this case was made, nothing appeared to show that the transfer was neces