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usual clauses may be inserted, transferring the liabilities of the old company to the new; and even in the absence of such clauses, the law itself will effect the transfer.
On the other hand, if the more convenient course be adopted, of leaving the company incorporated under the Act of 1862, and of conferring only, by the special Act, powers of taking land, or such other powers as require the authority of a special Act, all contracts will necessarily remain undisturbed, as the company itself will not be affected by the special Act, but will be governed by its memorandum and articles of association, instead of by the Companies Clauses Act.
MEMBERSHIP IN A COMPANY.
MEMBERSHIP in an ordinary joint-stock company is con- Membership tituted by the possession of one or more of the shares into which the capital of the company is divided (a). Shares are not an interest in land within the 4th Shares.
(a) In Greenshield's case, 5 De G. & S. 599, the court said that “shares in an incorporated company are property in a strict sense of the term, and are distinguishable from shares in an unincorporated company, which merely convey a certain right to participate in the partnership property, and in the absence of any express provision to the contrary, are determined by the death or bankruptcy of the holder." This description of shares in an unincorporated company would seem to be scarcely accurate, unless the expression "unincorporated company" is confined to a mere private partnership, in which the death or bankruptcy of any one member puts an end to the firm altogether. In a company-whether unincorporate or corporate--that has transferable shares, the personal connection between a member and his company is of necessity dissolved by death, and may be dissolved by bankruptcy; but in neither case can his shares be said to be determined, as the company subsists as heretofore, and until the shares are transferred into some other name, the estate of the deceased or bankrupt is entitled to receive the profits, and must discharge the obligations arising therefrom.
Probably the observations of the court in the above case were intended only to meet the argument urged by counsel on the
Specific performance of
section of the Statute of Frauds, nor goods within the 17th section, and certificates of shares are not goods within the meaning of the Factors Act, 5 & 6 Vict. c. 39 (a); and consequently a parol contract respecting them will be binding (b). Shares are declared by statute to be personal estate in the case of companies regulated by the Companies Clauses Consolidation Act 1845, and the Companies Act 1862, and even in the absence of any provision will be personal estate, except in certain special cases, where the shareholders take a direct interest in the land (c).
The expected benefit to be derived from becoming contract to a member of a company is a sufficient consideration to
authority of the South Staff. Rail. Co. v. Burnside, 5 Exch. 129, that a bankrupt shareholder ought to be a contributory.
In that case an action for calls was sustained against a certificated bankrupt, on the ground that, according to the existing law his assignees had a right to disclaim the shares, and that, having in fact disclaimed them, the shares continued in the bankrupt. To this the court might well reply by drawing a distinction between shares in a corporate company, which, according to the provisions of the existing Acts of Parliament continued in the bankrupt, and shares in an unincorporate company, the holder of which on bankruptcy ceased to be a member of the company. As to the effect of bankruptcy under the Com. panies Act, 1862, see ss. 75 and 77 and notes.
(a) Freeman v. Appleyard, 7 L. T., N. S. 282.
(b) Duncuft v. Albrecht, 12 Sim. 189; Knight v. Barber, 16 M. & W. 66; Humble v. Mitchell, 11 Ad. & Ell. 205; Cookney's case, 3 De G. & J. 170.
(c) New River shares are real estate, Townsend v. Ash, 3 Atk. $36. As to Statute of Mortmain, see Meyers v. Perigal, 2 De G. M. & G. 599; Edwards v. Hall, 6 De G. M. & G. 74; Morris v. Glyn, 27 Beav. 218.
support a contract to take shares, and such contract may be enforced in equity by a suit for specific performance, or damages may be recovered at law for its Lon-performance (a).
If a bill is filed by a vendor for the specific performance of a contract to take shares, a reference will be directed as to title (); but, on the title being proved, which is almost a matter of course, a decree will be made against the purchaser, compelling him to take the shares, to repay to the vendor any calls that have been paid since the date of the contract, and to give an indemnity against any future calls that may be made before the transfer is complete (c).
If the approval of the directors be required to a transfer, a contract to sell shares will be construed as conditional on that approval being given (d).
A shareholder is of course liable to pay all calls Calls.
(a) Bill by Company, New Brunswick, &c., Co. v. Muggeridge, 4 Dr. 686, 1 Dr. & Sm. 363; Oriental Steam Co. v. Briggs, 2 Joh. & H. 625, 4 D. G. F. & J. 191, showing how Sheffield Gas Consumers Co. v. Harrison, 17 Beav. 294, may stand with the first case. Proceedings by vendors of shares, Duncuft v. Albrecht, 12 Sim. 189; Cheale v. Kenward, 3 De G. & J. 27, Humble v. Langston, 7 M. & W. 517; Josephs v. Pebrer, 3 B. & C. 639. As to title to shares in cost-book mining company, Curling v. Flight, 6 Hare 41, 12 Jur. 91.
(b) Shaw v. Fisher, 2 De G. & Sm. 11, 5 De G. M. & G. 596. (e) Wynne v. Price, 3 De G. & Sm. 310; infra, p. 62. (d) Bermingham v. Sheridan, 33 Beav. 660; but see Evans v Wood, 5 Eq. 14; Paine v. Hutchinson, 3 Ch. 393. In Poole v. Middleton, 29 Beav. 646, the deed of settlement required approval only to the mode of transfer.
duly made on his shares, but he may plead to a action for calls, that, though his name is on the regi ter, he is not rightly a shareholder, or that the call made by persons who have no power to make it, or f a purpose not warranted by the constitution of th company. Indeed, any of the reasons hereinafter mer tioned as defences to be made by a contributory in th event of the company being wound up, would appea on principle to be available in support of his ple though practically it is found that a court of law has great repugnance to entertain matters of purely equi table jurisdiction (a).
A call is constituted by a circular letter, informin the shareholders that the directors have made a call (b) but it dates from the passing of the resolution autho rising the call, and not from the time at which notice is given to the shareholders (c).
(a) Shropshire Rail. Co. v. Anderson, 3 Exch. In Howbeach Coal Co. v. Teague, 6 Jur. N. S. 275, an opinion is expressed by Martin, B., that a call may be resisted on the ground that a company, though registered under the Joint-Stock Companies Acts, 1856, 1857, is abortive, and incapable of exercising its functions until the whole or a reasonable portion of its nominal capital has been subscribed for. This opinion is overruled by the 18th section of the Companies Act 1862, and Macdougall v. Jersey Hotel Co., 2 Hem. and M. 528; and see N. Stafford Steel Co. v. Ward, L. R. 3 Ex. 172.
A plea of fraud and prompt repudiation of the shares is good. Bwlch-y-Plwm Lead Mining Co. v. Baynes, L. R. 2 Ex. 324.
(b) Shawv. Rowley, 16 M. & W. 810; Cornwall Great Mining Co. v. Bennett, 5 H. & N. 423, as to mode of making call; Moseley Gold Mining Co. v. Garnett, 11 W. R. 167, as to set off against call.
(c) R. v. Londonderry, &c., Rail. Co., 13 Q. B. 998. As to