transferred to me one share, or twenty, or fifty, or indeed any particular number. If the shares had been subsequently sold by Mr. Budd, I should have considered the proceeds Mr. Budd's money, not mine; and if I, at Mr. Budd's request, had sold the shares, I should have accounted to him for the money. I should not have sold them or dealt with them in any way without Mr. Budd's instruction. It never occurred to me to sell the shares, or to meddle with them, the certificates not being in my possession. When the transfer was signed by me, Mr. Budd observed to me, 'I have a transfer to make over to you,' I said 'Very well, sir.' Mr. Budd then assured me I should never harm by it, and that I should never hear anything more about it. He proposed the transfer as a matter of course to me, I being a servant, and having known his family for many years." The question came before the Master of the Rolls on a summons adjourned into Court, and his Honour decided that the transfer was not made bonâ fide, and that Mr. *Budd's name ought to be placed on the list of contributories (1). Mr. Budd now appealed from his Honour's order. Mr. Jessel for the appellant: Taking Crocker's evidence as true, it shows a transfer into the name of Crocker as a trustee, and he must be the contributory, not Budd. It is not alleged that Mr. Budd made an out-and-out sale, and parted with all his interest in the shares. A partner may be only a trustee for other persons, and yet, as between him and the other partners, he is the only person responsible: Fenwick's case (2). I contend that under the Companies Clauses Consolidation Act, 8 & 9 Vict. c. 16, not only may a man transfer his shares to a trustee for himself, but transfer them to a pauper as a trustee. By section 14, an unlimited power of transfer is given, "subject to the regulations herein or in the special Act contained," the only limitation imposed being, in fact, that the calls then due have been paid. Under this section, if a shareholder, whose calls had been duly paid, required the Company to register a transfer of his shares to a beggar they must comply, and a mandamus would lie if they refused. In Hyam's case (3), the shares were transferable by delivery; but a delivery to have any effect must be a delivery made with an intention of changing the ownership. A mere delivery of such shares into the hands of another person without any intention of changing the beneficial ownership is no delivery at all for the present purpose, it is like giving them to somebody for safe custody. Here there was a (1) 30 Beav. 143. (3) 125 R. R. 356 (1 D. F. & J. (2) 75 R. R. 193 (1 De G. & Sm. 75). BUDD'S CASE. [ *301 ] BUDD'S [ *302 ] Nov. 20. [ *303] complete legal transfer, so that the case is completely distinguished from Hyam's case. The principles laid down in De Pass's case (1) are in our favour. *Ex parte Costello (2) stands on the same ground as Hyam's case. The legal owner of the shares is clearly a contributory; a mortgagee who takes the shares in his own name is the person liable to the Company, and not the mortgagor. The Company cannot treat both the trustee. and the cestui que trust as the owners, nor can it elect, the legal title governs the case. Hyam's case was, I submit, incorrectly applied to Chinnock's case (3). The Company in that case was one formed under the Joint-stock Companies Acts; the right of transfer was not absolute, but subject to the provisions of the deed of settlement, so that the question turned on the construction of that deed. Quite different considerations are applicable to a statutory Company. Railway shares would become almost valueless if the Company could refuse to register a transfer of them on the ground that they suspected the solvency of the transferee. The case here comes to this, that the transferee, at the request of the transferor, accepted a voluntary transfer, thus becoming a trustee for the transferor. Mr. Selwyn and Mr. Hamilton Humphreys appeared for the official manager, and Mr. Baggallay for the creditors' representative, but their Lordships adjourned the case at the close of the argument for the appellant on the 4th of November, and the counsel for the respondents were not called upon. THE LORD JUSTICE KNIGHT BRUCE: In this case, considering the respective stations in life of the appellant Mr. Budd and Mr. Crocker, the former a solicitor, the latter a farm bailiff, and the fact *especially that he was the farm bailiff of Mr. Budd,-considering the gratitude for kindness shown or services rendered at some earlier period or periods to Mr. Crocker by Mr. Budd, or some member or members of his family, which Mr. Crocker probably or certainly felt,—considering the utmost amount of information as to the nature and possible effect or consequences of the transaction of assigning the shares in question to him, which before or at the time of accepting the assignment, he can, upon the testimony before us, be taken to have had, and considering that in the transaction or with respect to it he had, if any protector or adviser, none but Mr. Budd alone, I am, upon the evidence, satisfied that Mr. Crocker had originally, nor ever ceased to have, a perfectly good title as between himself (1) 124 R. R. 382 (4 De G. & J. 544). (2) 129 R. R. 101 (2 D. F. & J. 302) (3) 123 R. R. 397 (Johns. 714). and Mr. Budd. to be relieved in equity against the assignment, and placed so far as possible in the same position as if it had not existed. For every substantial purpose therefore, as between them, there has, I conceive, been continually since the assignment a clear right in equity on the part of Mr. Crocker to reject the transfer. The case accordingly, as between them, appears to me one neither of vendor and purchaser nor of trustee and cestui que trust, but of a very different kind. Mr. Crocker having at one time, by reason and on account of the shares in question, not, however, as I must suppose, with his assent or concurrence, been placed on the list of contributories, has been removed from it; nor is, I must also suppose, desirous or willing to be replaced there; and whether the official manager and the creditors' representative, or either of them, might have insisted or might insist on Mr. Crocker's name being retained on the list or restored to it, or not, neither of them does so insist or has so insisted. Each has been and is willing and desirous that the name of Mr. Budd alone should be placed and remain on the list with reference to the shares in question. By Mr. Budd alone is it contended that he shall not, and that Mr. Crocker shall be subjected to the liabilities of a contributory on account of the shares, whether, in that event, to be or not to be entitled to claim indemnity from Mr. Budd. This contention upon his part against the united opposition (for so, whether Mr. Crocker is a party or not a party before us, I hold it in effect to be) of the official manager, the creditors' representative, and Mr. Crocker, I think altogether unsustainable, and I am of opinion that the appeal should be dismissed, and, at least so far as the official manager is concerned, and, if Mr. Crocker appears, Mr. Crocker also, with costs. THE LORD JUSTICE TURNER: I am of the same opinion. I think it clear that, as between the appellant and Crocker, the transfer of the shares by the appellant into the name of Crocker was a mere colourable transaction. The evidence satisfies me that Crocker was the mere instrument of the appellant, intended and attempted to be made use of by him as a shield against the Company's claims upon him. The appellant's subsequent conduct with respect to the 6007. seems to me to prove that this was the case. He says that he was willing to make this payment in order to avoid the original transaction being called in question, but he assumed to act with reference to this payment as the attorney and agent of Crocker, and he did so without Crocker's authority, and indeed without any communication with him. By assuming to offer this payment BUDD'S CASE. [ *304 ] BUDD'S [305] [ *306 ] in respect of these shares, he seems to me to have admitted that the shares were not Crocker's, but his. It was said, however, on the part of the appellant, that whatever Crocker's right might be to complain of the transfer of these shares, the Company have no right to complain of *it; that the appellant was entitled, as between him and the Company, to transfer the shares to whomsoever he pleased, and the Company was compellable to register the transfer; and further, that, assuming Crocker to be the appellant's trustee, he, and not the appellant, ought to be put upon the list: but these arguments appear to me to be more specious than sound. These shares stood in the name of the appellant up to the 30th of April, 1855. Up to that time he was the undoubted owner of them, and he is still the owner of them unless the transaction with Crocker was valid, and to say that the Company cannot complain would be to say that they cannot inquire into the circumstances under which the transfer was made, a position which of course cannot be maintained. As to the right of the appellant to make the transfer, it may well be that he could transfer to whomsoever he pleased, even to a beggar, but his right to do so could not give validity to a transfer which was fraudulent, and it is going much too far to say that a mandamus would have been granted to compel the registry of the transfer. The granting a mandamus in such cases is in the discretion of the Court, and I feel no doubt that if the facts which are before us were before a court of law upon an application for a mandamus, the mandamus would not be granted. The transfer is upon the face of it untrue, purporting to be made for a consideration which was neither paid nor agreed to be paid, and the true nature of the transaction was such that it could not be supported. That a court of law would compel a Company to put such an instrument upon its register seems to me to be out of the question. Then as to retaining Crocker upon the list as trustee. It is true that he is a trustee by reason of the shares being vested in him, but he is in truth merely the nominee and instrument of the appellant, and under such circumstances I have no doubt *the appellant ought to be put upon the list. I agree that this application should be refused, with costs. [After argument the COURT ordered that the creditors' representative should have his costs of the appeal out of the estate (1).] (1) See Aston's case, 124 R. R. 279 (4 De G. & J. p. 324). Although the office of creditors' representative is abolished, the Court may still appoint representatives of creditors or contributories under the Companies (Winding-up) Rules, 1909, r. 152.-0. A. S. HUGHES v. JONES. (3 D. F. & J. 307-317; S. C. 31 L. J. Ch. 83; 8 Jur. N. S. 399; 5 L. T. N. S. 408; 10 W. R. 139.) An estate was put up for sale by a particular describing it as now or late in the several occupations of H. R. and others," and by one of the conditions, it was provided that, on completion, the purchaser should be "let into the receipt of the rents and profits." Some parts of the property were subject to leases for lives at a low rent: Held, that a purchaser, who entered into the contract without knowing of the existence of such leases, could not be compelled to take the title without compensation (1). A claim for specific performance raising no question of notice or waiver having been filed by the vendor, and a reference as to title in the common form having been made, the order directing which was not appealed from: Held, by the Lord Justice KNIGHT BRUCE, that proof of notice to the purchaser of the existence of the leases for lives when he entered into his contract, and proof of subsequent conduct from which a waiver of the objection might be inferred, would not take away his right to compensation. Under a reference as to title, questions of waiver of compensation, and of waiver of objections to title are not necessarily subject to the same rules. THIS was an appeal by the defendant from two orders of the MASTER OF THE ROLLS made in a vendor's suit for specific performance, by one of which orders his Honour refused a motion. by the defendant to vary the chief clerk's certificate, and by the other, being an order on further consideration, decreed a specific performance with costs against the purchaser. The property in question was purchased for 1,500l. in September, 1855, under a particular and conditions of sale, in which it was described as "A freehold estate to be sold by auction (by order of the executors of the late Stephen Roose, Esq.) at the Dinorben Arms,' &c., on Tuesday, September 18, 1855, subject to the under-mentioned conditions. Two tenements called Penbryn and Tymaur containing thirty-one acres, more or less, together *with several dwelling-houses and gardens attached, now or late in the several occupations of Hugh Roberts and others, situate at Moelfra, in the county of Anglesea. Also two extensive lime quarries, well situate for shipping.' The conditions provided, that on completion of the purchase the purchaser should be let "into the receipt of the rents and profits" of the property, not mentioning "possession.' At the time of the contract four tenements, forming part of the property, were subject to leases for lives, granted respectively in 1803, 1810 and 1814, at low rents. There was a conflict of evidence as to the time at which the purchaser first became aware of the existence of these leases. The conclusion drawn by the Lord Justice TURNER from the evidence was, that there (1) Phillips v. Miller (1875) L. R. 10 C. P. 420, 43 L. J. C. P. 74, 30 L. T. 61; Royal Bristol Permanent R.R.-VOL. CXXX. Building Society (1887) 35 Ch. D. 10 1861. Nov. 9, 11, 12, 25. KNIGHT TURNER, L.JJ. [ 307 ] [ *308 ] |