policies of insurance against loss at sea by the introduction into the policy of the words "lost or not lost."

Upon the whole, in any way I look upon this case, it appears to me that this is a contract without consideration, entered into under a mistake, which, as the circumstances now appear, this Court will not give either party any assistance to enforce.

The plaintiff contends that this is not an agreement, but an actual conveyance of the timber; if so, the plaintiff must enforce his right at law, and not come here for assist

ance.

So, also, my refusal to give relief will not preclude the plaintiff from bringing any action at law that he may be advised; and if it be a good agreement for a valid consideration, he may obtain at law such damages as he has sustained by the refusal of the defendants to perform it.

In my opinion it is equally nugatory both at law and in equity, and I must dismiss the bill, with costs.

The plaintiff appealed against his Honour's decision; and the appeal was heard on the 6th and 7th of November.

Mr. Baggallay and Mr. Swanston supported the appeal.

Mr. Selwyn, Mr. Hobhouse and Mr. Laurance appeared for the defendants.

The arguments and the authorities referred to were the same as at the hearing in the Court below.

LORD JUSTICE KNIGHT BRUCE (Nov. 7).. -It is obvious the question of the continuing life of Mr. J.Willis at the date of the agreement in question, of the 30th of October, 1863, was a most material fact. It is plain if the defendants entered into that agreememt with the understanding and in the beli ef, whether prudently or imprudently entertained, that Mr. J. Willis was alive at the time, and if they had a right to alle ge that understanding against Mr. Cochrane, there is no agreement; for there has been a misapprehension and mistake as to what, I repeat, is a most material fact, a fact agreed on each side to be of the greatest importance. The mere circumstance that Mr. J. Willis was absent and far away, and that it could not be certainly NEW SERIES, 35.-CHANC.

known at the moment of signing the agreement whether he was alive or dead, and therefore a degree of uncertainty must have been inherent in the nature of the case, is not decisive. The parties to the agreement may prudently or imprudently have entered into it, upon speculation, upon the notion that the life was continuing.

It is said that that was not done. It is said that the terms of the agreement, especially the words "present or future," and the collateral evidence shew that it was the intention of the defendants that the agreement should take effect, and that this timber should be paid for, whether in point of fact the estate was, at the moment, the estate of the defendants or not, whatever was the true condition of the case in that respect. But it appears to me that that is not the effect of the words " "present or future," and that that is not the effect of the evidence, and that, as both the contents of the documents and the accompanying evidence stand, it was, and must be taken to have been, prudently or imprudently, assumed upon the part of both Messrs. Graham & Lyde and the defendants, that he was alive at the time. That Mr. Cochrane knew the fact of his being dead at the time, I assume not to be material, though I am not sure that that is not so, inasmuch as his agents in this country were acting only on his behalf. But I place that out of consideration. The effect of the agreement, I repeat, and of the evidence, is such as to convince my mind that, whether wisely or unwisely, it was assumed and believed on the part of all the persons who were actual parties to the agreement in this country, that at the time Mr. J. Willis was alive. That is the impression, I repeat, made upon my mind by the contents of the documents and by the evidence. Whether it was prudent or imprudent to assume this, is entirely a different question.

Well, that being the assumption, as in my opinion it was, upon a most material fact, it appears that the fact was in a different state, that Mr. J. Willis had been at the time of the signature of the agreement, on the 30th of October, 1863, dead more than a month. There was therefore, substantially, an absence of consideration, substantially a mistake; and I think it would be contrary to all the rules and

G

LORD JUSTICE TURNER. I entirely agree with the opinion which the Master of the Rolls has formed upon this case, and I also agree entirely with everything which has fallen from my learned Brother upon the subject of what was really intended by the parties in entering into this agreement, viz., that the agreement was in fact entered into upon the assumption that Mr. J. Willis was in truth alive, and that it was not an agreement which was entered into between the parties to take effect if Mr. J. Willis were dead.

Mr. Baggallay has laid great stress upon the fact of the 15th of August being mentioned in the agreement; and he asks what reason was there for inserting the 15th of August, except the fact that Mr. J. Willis was known to have been alive at that time. Now, it is impossible to say what the reason may have been for writing in the agreement the date of the 15th of August. The evidence upon the subject is this, that it was put into the agreement because it was considered that the nine days which would elapse between the 6th and 15th of August, would have been sufficient to enable Daniel Willis to have given the information that would have been required of him as to the state of the property; and the time may possibly, and not unreasonably, be supposed, in the absence of evidence, to have been named for the purpose of fixing some time at which the state of the property should be ascertained, on the understanding that the property should be dealt with according to the state in which it stood at that time, quite independently of the question whether J. Willis were living or dead.

Now, I have said I entirely agree with the opinion which my learned Brother and the Master of the Rolls have formed; and I think that this bill was properly dismissed.

I think there is a further reason also. Observe what the effect of this agreement is. At the date of this agreement, J. Willis having died on the 24th of September, beyond all doubt the right to the timber upon this property belonged to D. Willis, as tenant for life, without impeachment of waste. It was the property of D. Willis. It was not known to be so, because it was not known whether J. Willis, the prior tenant for life, was dead. But what is the effect of this agreement? That that which at the time was the property of D. Willis, though not known to be so, shall, by the operation of the agreement, become the property of J. Willis, or of Cochrane, his assignee. And what is the consideration for that? Why, that the assignee, who had no right to cut the timber at all, because the tenant for life, whom he represented, was dead, would not proceed to cut the timber until the 1st of December. I can see no other consideration whatever on the face of this agreement for the stipulations which are contained in it; and I have no idea that this Court would enforce an agreement of that description by which a man, not knowing his rights, has given up property of that description and of that value, which this property may be supposed to have been, without any other consideration than that the person, whom the result proves to have had no right, had agreed with him that he would not exercise the right, which it was assumed that he had, for a period of one or two months. I think the consideration for that agreement is totally inadequate. The case which was referred to in the course of the argument, Bingham v. Bingham, appears to me to bear very strongly upon the present; and the hardship of enforcing this agreement against the defendants is such that this Court will not enforce the agreement, but will leave the parties to any remedy which they may have at law. I therefore agree with my learned Brother that this bill was properly dismissed; and I think that this appeal must be dismissed with costs.

Joint-Stock Company- ContributoryShares held by a Trustee Liability of Cestui que Trust.

Shares in a joint-stock bank were purchased by a solicitor in the names of his brother and his clerk, who held the shares as trustees for him; but there was no fraudulent object in thus concealing the name of the real purchaser. By the company's deed it was provided that no trusts should be recognized; and no transfer of shares should be made without the consent of two directors. Upon the winding-up of the company, the official liquidators placed only the names of the two holders of the shares upon the list of contributories:-Held, that the beneficial owner was not liable to be placed upon the list.

A question in this case was raised, upon adjourned summons, whether the name of Mr. Isaac Bugg should be placed upon the list of contributories in the winding-up of the East of England Banking Company.

The bank was instituted, on the 22nd of December 1835, as a joint-stock bank, under a deed of settlement, dated the 12th of May 1836, and it carried on business until July 1864, when it suspended payment, and was wound up voluntarily, under the Companies Act of 1862; and by an order of this Court, dated the 3rd of November 1864, the name of John Bugg appeared on the register as the holder of eighty-five new shares, and George Stevens of fifty old shares. John Bugg was the brother and George Stevens was the clerk of Isaac Bugg; but it was admitted that the shares were held by them respectively as trustees for Isaac Bugg, who was the purchaser, and had paid for them. The dividends had also been handed over to him. the shares so purchased had belonged to directors of the bank, and it appeared that the affairs of the company had been for a considerable time in an embarrassed state.

All

The liquidators had placed the names of

John Bugg and George Stevens on the list of contributories; but a summons was taken out by certain shareholders for the purpose of placing Isaac Bugg's name on the list instead of John Bugg and George Stevens, or in conjunction with their names respectively.

The following were the clauses in the deed of settlement which affected this question:

Clause 8. provided "that the person in whose name any share of the company should be held or stand should, to all intents, effects and purposes whatsoever, within the meaning of these presents, be deemed at law and in equity the absolute, sole and beneficial holder and proprietor thereof, and should as such be the only person known to or recognized by the company in all votes, transfers, notices, payments, receipts and other matters relating to the same shares. And the company should not, in any case, be bound to notice or be affected by or with express notice of any trust or equitable charge or lien imposed or intended or expressed to be imposed, on any such shares, or by or with any gift thereof by way of legacy, unless and until the legatee should have become a proprietor, as thereinafter mentioned." By the 11th clause it was also provided "that no proprietor should be allowed to sell or dispose of any share or shares in the capital of the company without the consent of some two of the general directors of the company for the time being present at a weekly board; and every person who should be desirous of transferring all or any of the shares held by him or her in the capital of the company, should give at least seven days' notice in writing previously to and exclusive of a board day of such his or her desire, and should describe in such notice the share or number of shares, and the name and place of abode of the person desirous of accepting the transfer, and of becoming a proprietor or proprietors of such shares in the capital of the company."

Mr. Baily and Mr. Swanston, in support of the summons, contended that the list of contributories ought to be rectified by adding the name of Isaac Bugg either in addition to or in substitution for the names of the two people who had evidently nothing

Dodgson v. Bell, 5 Exch. Rep. 967; s. c. 20 Law J. Rep. (N.S.) Exch. 137. Ness v. Armstrong, 4 Exch. Rep. 21; s. c. 18 Law J. Rep. (N.S.) Exch. 473.

Luard's case, 1 De Gex, F. & J. 533;

s. c. 29 Law J. Rep. (N.s.) Chanc. 185, 269.

Straffon's Executors' case, 1 De Gex, M. & G. 576; s. c. 22 Law J. Rep. (N.S.) Chanc. 184.

Clement v. Todd, 1 Exch. Rep. 268;

s. c. 17 Law J. Rep. (N.S.) Exch. 31. The Cheltenham, &c. Railway Company v. Daniel, 2 Q.B. Rep. 281. Chinnock's case, Johns. 714. Cox's case, 9 Jur. N.S. 1184. Ex parte Barrett, 10 Jur. N.S. 711. Costello's case, 2 De Gex, F. & J. 302; s. c. 30 Law J. Rep. (N.s.) Chanc. 113.

The Attorney General, Mr. Jessel and Mr. Cutler, appeared for Isaac Bugg, and submitted that there was no improper concealment in this case on the part of Mr. Isaac Bugg. As he was connected in business as a solicitor with other private banks, he did not like his name to appear publicly as a holder of shares in a jointstock bank, which might be considered in some respects an opposition. It was a bona fide purchase for investment, and it came expressly within the words of the 8th clause in the deed of settlement, which provided for cases of trustee and cestui que trust, the company not being bound to notice any trust or equitable lien. Nor was it like some of the cases cited, in which there was a dealing with persons who concealed the fact of their being agents for others.

They cited

The Newry, &c. Railway Company v. Moss, 14 Beav. 64; s. c. 20 Law J. Rep. (N.S.) Chanc. 633. Walters v. the Northern Coal Mining Company, 5 De Gex, M. & G. 629; s. c. 25 Law J. Rep. (N.s.) Chanc. 633.

Steward v. Greaves, 10 Mee. & W. 711; s. c. 12 Law J. Rep. (N.s.) Exch. 109.

Cox v. Hickman, 8 H.L. Cas. 268; s. c. 30 Law J. Rep. (N.S.) C.P. 125. Fenwick's case, 1 De Gex & Sm. 557; s. c. 18 Law J. Rep. (N.s.) Chanc.

112.

KINDERSLEY, V.C. (June 24).—The 8th section of the deed of settlement contemplates instances in which shares held by A. are not for his benefit, but for that of another person. It is now becoming, I regret to say, a common practice to make shares in a joint-stock company, the subject of a marriage settlement, though a worse investment could not be found for a future family. It is also common to have shares standing in the name of one person, while the beneficial interest is in another; and it was with a view to this that the company inserted a clause in their deed of settlement, the intention being to do that which an individual would do in dealing with another man, and say, "You are the man we are dealing with, and no other man shall have any right against the company, and the company shall have no right against any other individual than the registered owner." That is expressed in terms as full, effective and stringent as possible; it is besides for the protection of the company against insolvent parties, it being objectionable to have names on the books of persons who are not the true proprietors. Then comes the 11th clause, which has a particular bearing upon this case. They could not say that there should be no dealing without the consent of the company, and they delegate its protection to two directors, and this may therefore be taken as a stipulation that the company have the power of rejection, in order that they may never have any person on the books, except such as the company by two directors have approved of, and they say, in effect, "We look to these persons alone and these persons alone shall look to us." In that state of things Mr. Isaac Bugg purchased the shares in the names of his brother and of his clerk, for the sole reason that he was employed by two banking firms and did not wish it known that he had taken shares in what was in fact a rival bank. That pro

ceeding was perfectly bond fide. It was suggested that there was a want of bona fides in not communicating to the company at the time that John Bugg and George Stevens were trustees for Isaac Bugg. It appears to me however, that there was no want of good faith, for if on that occasion Mr. John Bugg had said to the company (or the board of directors), "I wish you to understand our names are used as trustees for Isaac Bugg," the directors would have said, "What is that to us? you think to put upon us the obligation to regard you as trustees, but we have nothing to do with that." They would have suspected that they were wanted to receive notice of a trust in order that the parties might possibly obtain some advantage out of it. There is no mala fides in not communicating a fact which the company ignore by their articles. The Court has established two principles: First, that a person who has contracted liabilities by reason of holding shares in a company, may, if he can, although he knows the company is going to ruin, and because it is going to ruin, transfer them to any one else; of course where there is a stipulation similar to the one in the 11th section, he cannot do so without the consent of two directors; but if there is no such stipulation, he can effect a transfer merely to get rid of his liability, though in such case it must be an out-andout and bond fide transfer, for if the transfer be to an insolvent person with a view not to make an out-and-out transfer, so as to cease to have any benefit in the shares, but so that the transferee shall be liable if loss ensues, but retain the right to benefit if there is a gain, in that case the Court has said that such a transaction shall not stand, because it is not bona fide, but only nominal, and the transferor still remains liable, as between himself and the other shareholders; that is well established. Secondly, a person may stand as a shareholder and yet not have one farthing of benefit, being merely a trustee. Now, does the present case come within one or the other of these principles? Is it the case of a man making a nominal transfer and retaining benefit if there is a benefit, but escaping a loss if there is a loss, or the bona fide case of a trustee and cestui que trust? It appears to me that it comes within the

latter, and that an honest reason has been shewn for appointing a real trustee, and I think that this is a bona fide case of trustee and cestui que trust. But it is said, this is the case of an agent--an agent for what and with whom? And the case was suggested of a merchant selling goods, and a person buying as if he was principal, but really acting only as an agent for another; and it is said if the goods are delivered by the vendor to the purchaser and the vendor afterwards finds out that the purchaser was merely an agent, the vendor may come against the principal to recover the amount. That case does not apply here, for this reason: there was no dealing with the company; the shares were not purchased from the company, but from individuals who held them. Those persons might have been directors, but that has nothing to do with the matter; and this is a case in which the shares could not have been parted with without the consent of the company, and therefore in these respects there is no analogy. It is not a case in which John Bugg and George Stevens could have been considered as dealing in the light of principals and concealing the fact that they were only agents, and when upon the fact being discovered the company could proceed against the principals. In that respect there is no analogy. It appears to me that this case is not like the cases cited of a fraudulent attempt to make an ostensible transfer and not a real transfer, and create a nominal and not a real trustee, although in those cases it was held that the transfer operated nothing so as to divest the liability from the party contracting. This case does not come within that principle, but within the class of cases where there is a bona fide purchase of shares in the name of a bona fide not a sham purchaser, and there is no ground for saying that Mr. Isaac Bugg ought to be put upon the list in the place of Mr. John Bugg and Mr. Stevens. The application therefore must be refused, with costs.