on the register, and liable to the creditors of the company, has filed this bill against the defendants for an indemnity against these liabilities, and this indemnity he has in substance obtained by the decree of the Vice Chancellor. If this were an ordinary case of a purchase and sale of shares, in which the plaintiff was vendor and the defendants purchasers in the usual acceptation of these terms, the right of the plaintiff to relief would be clear. The Vice Chancellor has considered the case to be one of that description, and from that view of the case the defendants appeal. The plaintiff in his bill (paragraph 7.) makes this statement as to the custom:

"According to the regular custom and course of business on the said Stock Exchange, the intervention of a jobber or dealer, or of some member of the Exchange acting in such capacity, is necessary in every transaction either of sale or of purchase of shares in companies, and it would be impossible to carry on such business, if the selling broker were always, or as a rule, to insist that the buying dealer, jobber or member should accept and register a transfer of shares in his own name, and not in the name of his nominee or sub-purchaser; but it is, nevertheless, well understood and universally admitted on the Exchange as part of its custom and law, and it is not denied by the defendants as members thereof, and as jobbers and dealers therein, that any jobber, or dealer, or member who enters into a contract for the purchase of shares, is in all respects bound by such contract, and is thereby bound not only to pay the purchase-money of the shares so bought, but (if required by the vendor so to do) to accept and execute a transfer in the name of the purchaser, and to register or procure the registration of the same in the books of the company."

The same statement is repeated in the 7th paragraph of the plaintiff's affidavit. It is difficult to understand the meaning of the latter part of this statement, namely, that the jobber is bound to accept and execute a transfer in the name of the purchaser, in the name, that is, of another person. But, passing this by, the whole paragraph is of importance, as an admission that in dealings on the Stock Exchange the intervention of a jobber is necessary,

and that the selling broker cannot require the jobber to accept and register a transfer in his own name. This admission goes far, in our opinion, to take the case out of the ordinary class, in which there is no intervening jobber (where the vendor can clearly require the purchaser to accept and register a transfer in his own name), and to fix the position of a jobber as an intermediate or third person who undertakes to bring forward a purchaser who will take the shares from the vendor. The question, however, remains,-what is the exact contract or liability of the jobber? It was at one part of the argument of the counsel for the appellants contended that, the dealings of a jobber in shares for any particular settlingday being very large, it was not to be supposed that the jobber intended for the small remuneration he received to assume the liabilities, it might be, of many hundred thousand pounds; and it was suggested that the only undertaking he came under to the seller was that at the settling-day he would pay the price and give a name for the shares, and that thereupon, whether the name was objectionable or unobjectionable, whether the person denoted did or did not accept the shares, the jobber was released from liability. This argument, in our opinion, puts the case of the jobber much too high. Such a contract would be highly unreasonable, if not illusory. It would or might practically absolve the jobber from any liability whatever beyond the payment of the purchasemoney; and, in ordinary cases, the mere payment of the purchase-money without any substitution of liability upon the shares would effect only a part, and, in cases like the present, the least important part, of the object of the vendor. Such a limitation of the contract as would involve an immunity of this kind, if it could be maintained on the score of usage or custom, would require to be proved by the clearest evidence; and no such evidence is in this case to be found. There are, besides the defendant Mr. Bristowe, five witnesses who are members of the Stock Exchange, and who speak, and are qualified to speak, as to its rules and usages. None of them have been shaken in their evidence by the plaintiff on crossexamination, and, out of the five, four have been put forward by the plaintiff himself to

make affidavits not inconsistent with, but stopping short of, the statements as to custom to which we are about to refer. The accuracy, credibility and knowledge of these witnesses are, therefore, put beyond doubt; and when we add that the only evidence which differs from theirs comes from three persons who are not members of the Stock Exchange, and who do not profess to be acquainted with its course of business, it may be said that there is no conflict of evidence in the case. One of these gentlemen, Mr. Pitman, says: "I say that, within my knowledge, it is strictly in accordance with the practice and usage of the Stock Exchange that whenever, in the course of completion of a bargain for the sale of shares in a public company, originally made between any two members of the Stock Exchange, the name of a proposed transferee or proposed transferees has been passed from the purchaser to the vendor, and such name or names has or have been accepted by the vendor and inserted in the deed or deeds of transfer, and such deed or deeds of transfer has or have been duly executed by the transferor and handed to the broker of the transferee, and payment duly made, then and in that case, when the transactions arrive at that stage, the jobber who has been the original purchaser is considered and treated in all respects as discharged from any further obligation or duty in connexion with the purchase." It appears to us that this evidence describes a course of business consistent with, and almost necessarily arising out of that described by the plaintiff himself in the 7th paragraph of his bill, already referred to. According to this, the contract of the jobber is, that at the settlingday he will either take the shares himself, in which case he would, of course, be bound to accept and register a transfer and to indemnify, or he will give the name of one or more transferees' names to which no reasonable objection can be made, and who will accept and pay for the shares. The jobber may perform either alternative; and if electing to perform the latter alternative, he sends in names which are accepted, and to which transfers are executed, and those transfers are taken and paid for by the transferees or their brokers, the jobber is then, and at that stage, relieved from further liability, and the liability to register and

con

indemnify is shifted to the transferees. Applying these observations to the facts of the case before us, we are of opinion that the usage of the Stock Exchange having been acted upon and acquiesced in by all the parties to the transaction, and the defendants having, on the 15th of May, given to the plaintiff the seventeen names for the 200 shares-names admitted to be unobjectionable and the plaintiff having made no objection to the number or quality of the transferees, but having accepted these names and prepared and executed transfers to them, and these transfers having been accepted and paid for by the tranferees, the defendants thereby duly fulfilled their co tract, and any further liability was that of the transferees. What the measure of that liability was, or how far it was affected by the suspension or winding up of Overend, Gurney & Co., does not fall to be considered in this Court. It may be well to repeat, in order to prevent misapprehension, that in our opinion the liability of the defendants continued entire and unbroken until there was an acceptance by the plaintiff, by the preparation and execution of the transfers, of the names sent in by the defendants as purchasers, and until there was an acceptance of the shares by the purchasers through the delivery to their brokers of, and payment by their brokers for the transfers and certificates of the shares. It is difficult to see how this liability can continue after the transfer, as in the present case, of the shares to other persons. If A. be trustee of shares for B, and if he require B, as the beneficial owner, to indemnify him against calls or other liabilities, B. has clearly the right to say that he will assume the whole liability and ownership, legal as well as equitable, and may require A. to transfer to him the shares in respect of which the liability arises. But if such a requisition were made to the plaintiff in this case, he could not comply with it, for he has transferred the shares and handed over the certificates to other persons as purchasers for value. Lord Cranworth's observations in Shaw v. Fisher (2) apply forcibly to this part of the case: "The plaintiff cannot make a title to these shares to Mr. Fisher, because he has already assigned them to

(2) 5 De Gex, M. & G. 608.

Mr. Carmichael. Then it is said that Mr. Carmichael has not completed. What does that signify? As far as the plaintiff is concerned he has executed the deed, and there is nothing to prevent Mr. Carmichael at any time coming with that deed and registering it. Therefore it is plain that the plaintiff cannot make a title." The evidence of the witnesses to whom I have referred goes on to shew that there are cases on the Stock Exchange more or less numerous, in which a guarantee is given by the jobber that the transferee, after accepting the shares, will register them, and that this is called a guarantee of registration, and that when a jobber gives such a guarantee, the vendor receives less for his shares. This would probably make more emphatic the evidence as to what is the custom in ordinary cases. But even apart from this evidence as to a guarantee, we should have arrived at the conclusion which we have endeavoured to express.

The plaintiff's counsel in their ar gument relied strongly on the case of Grissell v. Bristowe, decided by the Court of Common Pleas, and reported in 37 Law J. Rep. (N.S.) C.P. 89, an authority which appears to have had much weight with the Vice Chancellor. That was a special case for the opinion of the Court, with power to the Court to draw inferences of fact in the same way as a jury. There were in that special case, and in the reasons for the judgment assigned by the Lord Chief Justice of the Common Pleas, some passages to which we had intended to refer for the purpose of shewing that we could not accept that decision, even supposing it to have remained unreversed, as an authority in favour of the plaintiff in the present case. But as we understand that the judgment has within the last few days been reversed by the Court of Exchequer Chamber (3), it is unnecessary to do more than to express our satisfaction that the Courts of Appeal in equity and at law have arrived at the same conclusion on this important question. It is unnecessary to comment in detail on the other cases cited in the argument; they were, most of them, cases in which it was held that when, after a contract by a vendor

(3) 38 Law J. Rep. (N.s.) C.P. 10; s. c. Law Rep. 3 C.P. 36.

with a jobber or intermediate person, a transfer has been executed by the vendor to and accepted and paid for by a third person, the vendor may file a bill against such third person and oblige him to register and indemnify. From what we have said, it will be seen that in the principle of the cases

we concur.

We should, perhaps, notice a statement of the plaintiff in his affidavit, that he told his broker that he insisted on his right to keep the defendants to their contract, and directed him to complete the same with the defendants directly, and to receive the purchase-money from them, and from no other person. Even assuming this statement to be correct, and passing by the observation that no private instructions given to the plaintiff's brokers could limit the general authority which, by employing them as his brokers to sell on the Stock Exchange, he gave them to sell according to the custom of the Exchange, it is clear that these instructions were given after the contract was complete, and could not vary, and indeed did not profess to vary, but to adhere to the contract, whatever that might be. The case of the plaintiff, in our opinion, wholly fails, and a decree ought now to be made dismissing the bill, with costs. There will be no costs of the appeal, and the deposit will be returned.

HART'S CASE.

Eliza Hart, an infant, was placed on the list of contributories of the Alexandra Park Company, which was ordered to be wound up in February, 1865. She attained her majority in August, 1865. A call was made in February, 1868, the order for which was served on her. On the 16th of April she appeared to oppose a balance-order which was then made against her. On the 1st of June, 1868, she took out a summons to remove her name from the list of contributories.

Mr. North, for the applicant, said, that apart from delay, there was no question but that she was entitled to have her name removed, but as no loss had been occasioned to any one by the delay that could not affect her rights

In re the Mexican and South American
Company, ex parte Shewell, 36 Law
J. Rep. (N.s.) Chanc. 353; s. c. Law
Rep. 2 Chanc. 387.

Mr. Baggallay and Mr. Baldwin Smith, for the official liquidator.-An infant must repudiate a contract to take shares within a reasonable time after attaining majority. The applicant had waited a long time, during which it might have turned out that she would have to receive, instead of having to pay, something in respect of her shares in the company. She must, therefore, be considered as having elected to keep the shares

The Dublin and Wicklow Railway Company v. Black, 8 Exch. Rep. 181; s. c. 22 Law J. Rep. (N.s.) Exch. 94.

The MASTER OF THE ROLLS considered Shewell's case was conclusive, and he could not consider the applicant to have waived her right to repudiate the contract. He accordingly ordered her name to be removed from the list of contributories, but without costs.

pany to Delmar, which were transferred to him and registered in his name. On the winding-up of the company notice was given him that his name would be placed on the list of contributories, and on the 24th of July, 1866, a list, including his name, was made out. He attained twentyone on the 26th of August, 1867. In March, 1868, a balance-order was served on him; and in April, 1868, he took out a summons to remove his name and place that of Longden on the list of contributories.

Mr. Bagshawe, in support of the summons, relied on Hart's case.

Mr. Ince, for Longden, said that, considering the position of Delmar, he must be considered to have adopted the shares

The Cork and Bandon Railway Company v. Cazenove, 10 Q.B. Rep. 935. The Dublin and Wicklow Railway Company v. Black, 8 Exch. Rep. 181; s. c. 22 Law J. Rep. (N.s.) Exch. 94. The Birkenhead Railway Company v. Pilcher, 6 Rail. Cas. 622; s. c. 19 Law J. Rep. (N.s.) Exch. 207. In Hart's case there was no attempt to place the name of the transferor on the list; and if any one were placed on the list instead of Delmar, Evans ought to be.

Mr. Kekewich, for the official liquidator.

The MASTER OF THE ROLLS placed Mr. Longden's name on the list of contributories in the place of Delmar's, without prejudice to any steps he might take to have

Evans's name substituted for his own. He refused to give Delmar the costs of the application.

Solicitors in Hart's case-Mr. R. W. Jennings, for applicant; Messrs. Bailey, Shaw & Co., for the official liquidator. Solicitors in Delmar's case-Mr. R. G. Chipperfield, for applicant; Messrs. Edwards, Layton & Jaques, for Longden; Messrs. Freshfields, for the official liquidator.

DELMAR'S CASE.

Delmar was clerk of a stockbroker, and employed by one Evans to purchase shares and hold them for him. A Mr. Longden sold some shares in Barned's Banking Com

After a suit was instituted the plaintiff became bankrupt. His assignees continued the suit, employing a different solicitor. A decree was taken by consent. On drawing up the decree the Registrar required production of certain documents which were referred to in the decree, and which, being in the hands of the solicitor to the original plaintiff, had not been produced at the hearing. The solicitor refused to produce them, claiming a lien for costs:-Held, that he was bound to produce them.

Ross v. Laughton, 1 Ves. & B. 349, was not overruled by Lord v. Wormleighton, Jac. 580.

This was an appeal from an order of Vice Chancellor Giffard, ordering a solicitor to produce certain deeds and documents.

The suit was an ordinary suit by a landowner against the defendants, a railway company, and the solicitor in question was the original plaintiff's solicitor.

After the institution of the suit the plaintiff became bankrupt. His assignee revived the suit, employing a different solicitor. By consent, a decree was made, in which the contract and sundry other documents were referred to, which documents were in the possession of the original plaintiff's solicitor, who refused to produce them, claiming a lien upon them for his unpaid bill of costs. The Registrar having refused to pass the decree without their production to him, a motion was made to the Vice Chancellor for an order compelling the solicitor to produce them; and from His Honour's order thereon, which was in accordance with the motion, the solicitor now appealed.

Mr. W. Barber (Mr. Druce with him), for the appellant.-There is no reason why the solicitor should be interfered with in his rights arising out of lien. The only case which can be brought against this view is

Ross v. Laughton, 1 Ves. & B. 349. But that case was overruled by

Lord v. Wormleighton, Jac. 580, in which the circumstances were similar.

Clifford v. Turrill, 2 De Gex & Sm. 1, is quite different from the present case. There the decree had been properly taken with production of all the documents, and the change of solicitors occurred after the decree had been pronounced.

[LORD JUSTICE SELWYN referred to Bennett v. Baxter, 10 Sim. 417; s. c. 9 Law J. Rep. (N.S.) Chanc. 137.

Mr. Swanston, for the respondent, the assignee.-This case is clearly governed by Ross v. Laughton,

which case was not overruled by

Lord v. Wormleighton.

It has never been considered to have had that effect

Pulling on Solicitors, 580.

Ex parte Underwood, De Gex, 190.

Mr. Perceval appeared for the company. Mr. W. Barber, in reply.

LORD JUSTICE WOOD.-I have a strong opinion that the principle of Clifford v. Turrill would have governed this case if the facts had been somewhat different, that is, if the documents in question, which were referred to in the proposed decree, had been in evidence, as they ought to have been, when the Court heard the case, because then the Court would not allow its own order to be baffled. In Clifford v. Turrill the decree was taken before the change of solicitor, and the document therefore might be considered as in evidence. Here the decree seems to have been taken by consent and somewhat hurriedly, and the documents were not produced upon which the decree is founded. In order to dispose of the case satisfactorily, therefore, we must consider whether Ross v. Laughton was overruled by Lord v. Wormleighton. I am of opinion that it was not. Lord Eldon certainly did not say that he was overruling the former case, which he probably would have said if he thought he was doing so; and, in fact, the cases were distinct, for an executor strictly represents and continues his testator's interest in every respect, whereas an assignee in bankruptcy comes in by a title