Superior Courts: V. C. Wood.-Queen's Bench.-Common Pleas. Vice-Chancellor Wood. Patterson v. Murphy. Feb. 25, 1853. DECLARATION OF TRUST.-WHERE SIGNED A testatrix had signed a memorandum drawn 365 Held (dissentiente Coleridge, J.), that the justices for the town in which a defendant, who was applying for a licence for his beer-house, had committed the offence against the 1 W. 4, c. 60, and the 3 & 4 Vict. c. 61, s. 6, of procuring a forged certificate as to the amount at which his house was rated to the poor, had jurisdiction to convict, and not the county magistrates, and a conviction by such county magistrates was accordingly quashed. THIS was a conviction by the justices of Kent, under the 1 W. 4, c. 60, and the 3 & 4 Vict. c. 61, s. 6, against the defendant, who was applying for a licence of his beer-house, for having procured a forged certificate as to the amount at which his house was rated to the poor. A rule had been obtained to quash the conviction on the ground that the conviction should have been before the magistrates of Maidstone, where the defendant resided, and within whose jurisdiction the offence was committed, and not of the division in which the Ir appeared, that upon the testatrix, Mrs. Sheratt, lending the plaintiff, who was her sonin-law, a sum of 400l., a memorandum was drawn up, dated in April, 1847, and signed by herself, that the plaintiff should pay the interest on 2007. to her for life, and that at her death it should be considered as sunk, and he should invest 107. per quarter in consols, in the names of himself, his wife, and two grandchildren of the testatrix, until the whole should amount to 2007., and that it should be paid to the two grandchildren on the younger attaining 21. The testatrix had afterwards requested the plaintiff by a second memorandum to to make the quarterly payments to herself in-house was situate. stead of investing the same, and he had ac- Archbold, for the justices, showed cause cordingly paid her 60l. before her death. The against the rule, which was supported by Master had reported that the plaintiff owed Horn. 1407. to the estate, this petition was presented by the two grandchildren for a declaration, that the memorandum signed by the testatrix was a valid declaration of trust in their favour. Terrell in support, cited M'Fadden v. Jenkyns, 1 Phill. 153; 1 Hare, 458. Cracknall for the plaintiff; Smith for the other parties. The Vice-Chancellor said, as the memorandum had been drawn up by the trustee himself, he had had notice thereof, and it was signed by the author of the trusts, and it was not an objection that it remained in her possession, and it therefore constituted a good declaration of trust. Feb. 23.-Baron du Perat v. Levanier-Interim injunction granted. 23.-Johnson v. Shrewsbury and Birmingham Railway Company-Exparte injunction. Cur. ad. vult. The Court (dissentiente Coleridge, J.) held, that the town, and not the county magistrates, had jurisdiction to convict, and the rule was accordingly made absolute to quash the con viction. Court of Common Pleas. COUNTY COURTS EXTENSION ACT.-STAMP. The Judge of a County Court overruled an THIS was an appeal from the Chelmsford County Court. It appeared that on the trial of the plaint, which was brought to recover for a breach of contract, an objection had been overruled that certain letters which formed the contract were inadmissible without a stamp, and the plaintiff accordingly obtained a verdict. Honyman, in support, referred to the 13 & 14 Vict. c. 61, s. 14, which enacts that "the 366 Superior Courts: Common Pleas.-Analytical Digest of Cases. said Court of Appeal may either order a new may think proper, and such orders shall be trial on such terms as it thinks fit, or may order final." judgment to be entered for either party, as the The Court said, that as the letters were incase may be, and may make such order with admissible without a stamp, a nonsuit must be respect to the costs of such appeal as the Court entered. ANALYTICAL DIGEST OF CASES, RAILWAY CASES. ALLOTTEE. direction was erroneous; for, that the subscription contract,-which must be read by itself, and without reference to the previous parol contract arising upon the letters of application and allotment,-authorised the directors to raise a capital not exceeding 700,000l., but did not require them absolutely to raise that sum before they could take any steps to carry the the deed, the plaintiff authorised the directors to do all that was consistent with its provisions, and, amongst other things, to apply the deposits in furtherance of the scheme. Watts v. Salter, 10 C. B. 477. 1. Scheme proving abortive.-Execution of subscription contract. -An allottee of shares in a railway company, provisionally registered, the prospectus of which stated that its capital was to consist of 700,000l., in 35,000 shares, of 201. each,-paid a deposit of 21. 2s. per undertaking into effect; and that, by executing share, and signed the subscription contract, which stated that a capital not exceeding 700,000l. should be raised, and gave the provisional directors authority to carry on the undertaking, and to apply to parliament for the necessary powers, and out of the which should come to their hands by way of deposit or payment of calls or otherwise, to pay all costs, &c., and generally to apply such moneys towards the fulfilment of any engagements which they might enter into, and in or towards the soliciting, &c., a bill or bills in parliament, and in obtaining the necessary acts for furthering the scheme. moneys The total number of shares taken up by the allottees, and upon which the required deposit had been paid, was 18,969 only, representing a capital of 379,380l. This number not being sufficient to comply with the standing orders of parliament, the provisional directors, in order to make up the requisite amount, procured a number of persons (of whom the defendant was one) to execute the subscription contract, purporting, contrary to the fact, to become subscribers for shares to the number of 5,230, representing a capital of 104,6007., and to have paid the deposit thereon. Of this fact the plaintiff was ignorant. The directors, after incurring considerable expense, failed to comply with the standing orders of parliament, and consequently no bill was brought in, and the scheme was ultimately abandoned. At the trial, the Lord Chief Justice told the jury, that the plaintiff having subscribed for shares, and executed a subscription contract, in an association which was represented to have a capital of 700,000l. in 35,000 shares, upon which a deposit of 21. 2s. each was to be paid, and 18,969 shares only having been bona fide taken up, the project to which the plaintiff subscribed must be considered as determined, and consequently that the committee were not authorised to go to parliament at the plaintiff's expense; and that, under the circumstances, the execution of the subscription contract by the plaintiff had no material effect upon the plaintiff's right to recover: Held, upon a bill of exceptions, that this 66 - 2. Recovery of deposit. ·Abandonment of scheme. Preliminary expenses. — Evidence.— Resolution of committee of management.-Acquiescence on abandonment of scheme.-In July, 1845, a railway company was provisionally registered, and a prospectus issued, headedCapital, 2,500,000l., in 100,000 shares, of 251. each." On the 6th October, 1845, the plaintiff applied for 200 shares by letter, in which he said, "I agree to accept the same or any portion thereof, subject to the provisions of the subscribers' agreement, and I further agree to execute the same and any other agreement or deeds, and to pay the deposit when required." On the 11th of October, a letter of allotment of 100 shares was sent to the plaintiff, containing notice to pay the deposit on or before the 20th October, and adding "I beg also to inform you, that scrip for the shares will be delivered to you in exchange for this letter and receipt, upon your executing the parliamentary contract and subscribers' agreement, which lies here for signature until further notice, and afterwards at such other places as will be hereafter notified." The plaintiff, who resided at Exeter, paid the deposit on the 20th October, and on the 3rd December the subscribers agreement was sent to Exeter, and the plaintiff had an opportunity of executing it, but did not. It did not appear, however, that he was called upon to execute it, nor that any notice was given to him that the deed was at Exeter. The subscribers' agreement, which bore date the 15th of October, authorised the directors to take such measures and incur such preliminary expenses as they might think advisable, to increase or diminish the capital of the company, to extend the railway, or, if they should think fit, to abandon the undertaking. It also specially authorised them to apply the deposits in payment of the expenses, and the deposits were so applied, but the undertaking was abandoned in consequence of the allottees not furnishing sufficient funds to carry it on, Analytical Digest of Cases: Railway Cases. BANKRUPT SHAREHOLDER. 367 and without any fraud or misconduct on the ment. Mackenzie v. Sligo and Shannon Railpart of the managing committee. On the way Company, 9 C. B. 250. winding up of the concern, a committee of inquiry had been appointed, and the defendant, one of the managing committee, handed to them a minute book, containing an entry made by the secretary of the company in the course of his duty, of a certain resolution proposed by the defendant at a meeting of the committee of management. In an action by the plaintiff to recover back his deposit as upon a failure of consideration, the leamed Judge ruled, that this evidence was evidence against the defendant, and he told the jury that, if they thought the project had been abandoned as abortive at the time the action was commenced, they should find for the plaintiff. On a bill of ex-perty, comprising in it the probable value of ceptions to this ruling,—Held, 1st, that the learned Judge was right in admitting the resolution in evidence. 2ndly, that the direction of the learned Judge was correct, since the plaintiff's claim was founded on the failure of the project, and his want of consent or acquiescence in the application of the money, and there was no evidence of consent or acquiescence besides the letters and the subscribers' agreement; and, the latter document not being in existence at the time of the plaintiff's application for shares, he was, by his letter of the 6th October, subjected only to the terms of such an agreement as the directors might properly call on him to execute, and that the agreement in question was not of that description, inasmuch as it purported to give the directors larger powers than the 7 & 8 Vict. c. 110, s. 23, authorised them to assume; and also purported to enable them to expend the deposits in the exercise of such excessive powers. Ashpitel v. Sercombe, 5 Exch. R. 147. ATTACHMENT. For non-payment of instalment under award, where doubt exists.-An action against a railway company was referred to arbitration. The arbitrator made his award on the 28th of April, 1849, directing the company to pay to the plaintiff a certain sum, by four instalments, on the 12th of June and 26th November, 1849, and on the 26th of February and 26th of May, 1850. On the 4th of May, 1849, the ViceChancellor made an absolute order for the dissolution and winding up of the company, under the 11 & 12 Vict. c. 45, and an official manager was duly appointed. On the 1st of August, 1849, the 12 & 13 Vict. c. 108, passed, declaring that the former Act should not apply to railway companies. Under these circumstances, the Court refused to make an order upon the company (upon a service and demand upon the secretary and one of the directors), to pay the instalments which had become payable on the 12th of June and 26th of November, 1849, considering the matter to be too doubtful to be disposed of on a summary application. Acceptance of shares by assignees.--Claim for calls not barred by certificate.-The defendant, a railway shareholder, became bankrupt on the 8th February, 1848. On the 18th of the same month a call was made, and three other calls were subsequently made. On the 24th of April, 1848, the defendant obtained his certificate. The scrip was handed over to the assignees, and some correspondence took place between the trade assignees and the official assignee, in the course of which the former sent the latter a statement of the bankrupt's pro the shares in question, and containing an estimate of the amount forthcoming to work the fiat and pay dividends. The trade assignee subsequently wrote to the official assignee, suggesting the propriety of selling the shares. The shares, however, continued in the possession of the assignees: Held, 1st, that there was no evidence of an acceptance of the shares by the assignees. 2ndly, that the property in the shares continued in the bankrupt, the claim not being barred by his certificate, inasmuch as it was not provable as a debt due in futuro under the 31st section of the 6 Geo. 4, c. 16, or as a debt due on a contingency, within the meaning of the 56th section of that Act. South Staffordshire Railway Company v. Burnside, 5 Exch. R. 129. Cases cited in the judgment: Exparte Barker, 6 CALLS. 1. When made in point of time.—Transfer of share. Under the Companies' Clauses Act, 8 & 9 Vict. c. 16, s. 22, a call of money on shares is made, in point of time, when the resolution to call is passed, not when notice of the call is given to the shareholder. Therefore, by section 16, a shareholder cannot legally transfer his share after the passing of such resolution, without paying the call, though he has executed a deed of transfer before notice of the call was served upon him. Regina v. Londonderry and Coleraine Railway Company, 13 Q. B. 998. 2. Payment by vendor before registration.S. sold railway shares, of which B., after immediate sales and without any privity with B., became purchaser; and S. transferred them to B. by deed. S., at the time of the sale by him, was registered owner, and so remained, B. not having registered. After the purchase by B., a call was made upon S., which S. was obliged to pay, under Stat. 8 & 9 Vict. c. 16, s. 15. Held, that for such payment S. could not maintain an action against B. as for money paid to his use. Sayles v. Blane, 14 Q. B. Quare, whether an attachment, or an order, can be obtained on non-payment of an instal-205. 368 Analytical Digest of Cases: Railway Cases. 3. Registered shareholder. Legality of fancy, at the time of the transfer to him of the agreement.-Debt for calls on railway shares: shares. Plea, that defendant was not shareholder: Is Quære, whether the word "contract" being sue thereon. A special verdict found that, by so construed, the plea was an answer to the agreement of 21st July, 1847, between the di- action. Birkenhead, Lancashire, and Cheshire rectors of the railway company and defendant, Junction Railway Company v. Pilcher, 5 Exch. he agreed to take all the unappropriated shares R. 24. in the company, being 4,935, and to pay 47. per share on the 15th August then next, and, meanwhile, to deposit securities to the amount of 20,000l.; and the company agreed that, so soon as 157. per share shall have been paid on the 4,935 shares, and that the company is in a position legally to do so, they shall deliver to defendant mortgage debentures of the company payable three years after date, and bearing five per cent. interest, for 24,675., being at the rate of 51. per share. At a meeting of the shareholders, on the 10th August, 1847, convened for the purpose, the agreement was confirmed by the shareholders, and the shares were registered to defendant with his consent. The call, on which the action was brought, was made in December, 1847. Held, that the production of the register made a prima facie case that defendant was a shareholder, which case was not rebutted by anything in the other evidence; that, even if the stipulation to deliver mortgage debentures in consideration of the shares taken were illegal, this would be no defence, as the action was not on the agreement, and the agreement had been, in part, executed by the transfer of defendant, at the time of the making of the 5. A declaration for calls, stated that the calls thereinafter mentioned, was and still is the holder of divers shares, to wit, &c., in the company called, &c., and before the commencement of the suit was and still is indebted to the company in a large sum, to wit, &c., in respect duly made by the said company, each of the said of two calls upon the said shares, theretofore calls being, &c.; whereby and by reason of the said sum of, &c., being wholly unpaid to the said company, an action hath accrued to the said company by virtue of the special Acts of Parliament, viz., the Companies' Acts, (incorAct, 8 & 9 Vict. c. 16): Held, on special deporating the Companies' Clauses' Consolidation it sufficiently complied with the form given by murrer, that the declaration was good, and that the 8 & 9 Vict. c. 16, s. 26. East Lancashire Railway Company v. Croxton, 5 Exch. R. 287. Case cited in the judgment: Midland Great 6. Payable by instalments. - A call made the shares, which transfer took effect in pre-payable by instalments, under the 8 Vict. c. 16, senti. But That the stipulation to deliver such deben-is good; but an action of debt will not lie for tures, as soon as the company should be in a position legally to do so, was not illegal. West Cornwall Railway Company v. Mowatt, 15 Q. B. 521. for the payment of all the instalments has arthe recovery of an instalment, before the stime Ambergate, Nottingham, and Boston, and Eastern Junction Railway Company v. Coulthard, 5 Exch. R. 459. rived. And see Companies' Clauses' Consolidation, COMMITTEE. Actions against several persons on a joint by one.-Costs.-B. brought separate actions against M. and H., two members of the committee of mangement of a railway company, for a debt from the company for which M. and H. were jointly liable, though different evidence was requisite to prove the liability of each. B. obtained a verdict against H.; M. had a ver dict in his favour, but a rule for a new trial was in this case granted, after which M. paid the whole debt and the costs of the action against himself, which payment included a farther sum than that to which H. was liable. 4. Infancy at time of purchase of shares."Contract," meaning of.-To a declaration for 2. railway calls, the defendant pleaded, that, at the time when he first became the holder of the shares, and at the time of his making the contracts, by force of which the debts, causes of liability.-Staying_proceedings after payment action, and liabilities in the declaration mentioned, accrued to the plaintiff, and were incurred by the defendant, and at the time of his making and entering into the contracts, by force of which, the plaintiffs claim to be entitled by law to make the call upon the defendant, as in the declaration alleged, the defendant was an infant within the age of 21 years. Replication, that the defendant, at the time when he first became the holder of the shares, and at the time of his making the contracts in the plea mentioned, was of the full age of 21 years. It appeared at the trial, that the defendant was the purchaser of the shares in question whilst he was an infant, and that, after he was of full age, a call was made: Held, that the term contract," meant the contract by which the defendant became a shareholder, and not the obligation to pay the calls, under the 8 & 9 Vict. c. 16, s. 21; and, consequently, the plea was proved by evidence of his in 66 Held, that a Judge's order, staying proceedings in the action of B. against H., before judgment had been signed, without payment of costs, was properly made. Bailey v. Haines, 15 Q. B. 533; Baxter v. Bracebridge, ib. Cases cited in the judgment: Newton v. Blunt, 3 C. B. 675; Turner v. Davies, note ('), 2 Wms. Saund. 148, a., 6th ed. [To be continued.] The Legal DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, MARCH 12, 1853.. REGISTRATION OF ASSURANCES in which the whole matter was discussed BILL. DEBATE ON THE SECOND READING. and in some sense exhausted. Lord Campbell does not endeavour to meet anv of the arguments stated in Sir Edward Sugden's pamphlet, but it pleases him to think its publication a topic for not over refined ridicule. The pamphlet contains no clap-traps," and does not find favour in the sight of the Chief Justice. 66 LORD CAMPBELL imported into the debate upon the second reading of the Lord Chancellor's Bill for the Registration of Assurances, a tone and spirit somewhat foreign to the atmosphere of the House of Lord St Leonards, having adverted to the Lords, and altogether unsuited to the gra- fact, certainly most remarkable, if not convity and importance of the subject under clusive, that the solicitors of Great Britain, discussion. In this respect, the learned although assured that the operation of the Lord Chief Justice's speech contrasts measure would increase the amount of their strikingly with the speeches of the pecuniary remuneration in every future Lord Chancellor and Lord Brougham, both transaction connected with land, were neof whom spoke forcibly in favour of the Bill. vertheless unanimous in disapproving of it, was met by Lord Campbell with the candid The only opposition to the second read- suggestion, that the solicitors, though "a ing came from Lord St. Leonards, who ad- most respectable body of men,' were infludressed the House of Lords, for the first enced on this occasion by an esprit de corps time, upon a subject on which he was emi- and by considerations of professional advannently qualified to form a judgment, and to tage at variance with their generally pawhich he had given as much attention and triotic views; and then some forgotten consideration, possibly, as any man now work of the author of Sylva is referred to, living. Lord St. Leonard's speech was a apropos des bottes, because he speaks of calm appeal to the understandings of those "the lawyers and attorneys who sat in he addressed, which we have good reason Parliament, as locusts who sought for to believe has been very imperfectly re- means by which suits and frauds might be ported in the daily newspapers. It con- brought about." The singular good taste tained no personal allusion. No sinister exhibited in this instance by the Lord motive was imputed to those who held Chief Justice was crowned by what he, faopinions adverse to the speaker, but argu- cetiously termed, "an historical fact," in ment after argument was unfolded with the which the late lamented Sir Robert Peel is earnestness, sincerity, and confidence of a represented in a new character-insulting mind familiar with the question and enter- and disparaging the House of Peers. We taining no doubt as to the accuracy of its copy from the newspaper report the anecown conclusions. The answer of the Chief dote so complimentary to the Hereditary Justice was a lengthened sneer, mingled Branch of the Legislature :-"I once,' with ironical professions of deference and said Lord Campbell, "had the honour of respect. Sir Edward Sugden, when he sitting on a committee on copyhold tenure had no seat in Parliament, devoted a por- with the late Sir Robert Peel, where that tion of his leisure to the publication of a distinguished man had shown himself a pamphlet upon the question of registration, zealous reformer, as he was in every branch VOL XLV. No. 1,305. U |