1860. repealed was not duly held; that at the time of the transfer the defendant was indebted to the Company in the amount of an instalment, which was due on the 21st of December, 1858: that F. Webbe was in indigent circum- FRENCH PORstances, and that the transfer was not bonâ fide. John Simon and Chandos Leigh now shewed cause, and argued, first, that the defendant was a shareholder, subject to the provisions of the article No. 4, and upon the 4th of April, when the transfer bore date, was indebted to the Company for one or more instalments upon his shares: that the substituted article applied only to shareholders who should become such after its date: that the resolution which purported to enact it was inoperative and void, and that the transfer to Webbe was collusive and void. H. T. Cole, in support of the rule, argued that the 4th article, having been repealed, must be treated as if it had never existed, referring to Regina v. Mawgan (a), Barrow v. Arnaud (b): that the facts shewed that the meeting at which the resolution repealing it had passed was regularly called: that therefore no call was due when the transfer was tendered for registration, and that the poverty of the transferee was immaterial, if it appeared that the party transferring meant to transfer and get rid of his shares absolutely; citing In re The Mexican and South American Company, De Pass's Case (c). [Channell, B.— Though the register is made evidence by the 26th section of the 19 & 20 Vict. c. 47, it is not conclusive evidence.] POLLOCK, C. B.-This is an application to the Court under the 25th section of the Joint Stock Companies Act, (b) 8 Q. B. 595. (a) 8 A. & E. 496. (c) 4 De Gex & J. EX PARTE HARRIS, RE ANGLO CELAIN CO. 1860. EX PARTE 1856 (19 & 20 Vict. c. 47), to order that the register be rectified by entering the name of F. Webbe. If we make the rule absolute there is no appeal from our decision. We FRENCH POR- think that we ought not to interfere in a case like the present, and therefore the rule will be discharged. RE ANGLO CELAIN CO. BRAMWELL, B.-If the register were made conclusive on the point in dispute, it might be necessary to decide the questions brought before us. But I think it is not conclusive, and, that being so, that we ought not to interfere. The materials before us are not sufficient to enable us to decide the question as to the operation of the substituted article. It does not appear whether or not the whole capital was subscribed when that article passed. If not, it may apply to future shareholders only; otherwise it must have a different construction. CHANNELL, B.-I am of the same opinion. This is an application on the part of the defendant for an order to strike his name out of the register of shareholders and substitute that of another person. By the 26th section of the 19 & 20 Vict. c. 47, the register is made evidence, but not conclusive evidence. If we strike out the name of the defendant, there would be great difficulties in the way of the plaintiffs proceeding against him; while, if his name is retained on the register, he may by plea and evidence shew that it ought not to be there. Rule discharged. 1860. LUSH, MALTBY U. MURRELLS. SH, on behalf of Patrick Johnson, the official assignee of the defendant, a bankrupt, had obtained a rule calling on the plaintiff to shew cause why the writ of summons issued in this cause, and all subsequent proceedings thereon, as well as the judgment and execution, should not be set aside as void and irregular and why the amount levied under the execution herein should not be repaid by the plaintiff to the said official assignee. The affidavits in support of the application stated, that in the month of December, 1858, the defendant purchased of the plaintiff his stock and business of a stationer, and for part of the purchase money the defendant gave the plaintiff his note of hand, dated the 13th January, 1859, for 12407., payable on demand. On the 15th March, 1860, the note remaining unpaid, the defendant was served with a writ of summons, issued and bearing date that day, in the form provided by "The Summary Procedure on Bills of Exchange Act, 1855," with a copy of the promissory note, including the date, indorsed thereon. On the 27th of the same month judgment was signed and execution issued, of which the defendant had notice from the plaintiff, and on the 28th the sheriff seized. In addition to the note of hand the defendant assigned to the plaintiff, by way of mortgage, the defendant's contingent interest in certain stock and a policy of assurance for 10007., and the defend May 22 & 23. A promissory note payable on demand is within "The Summary on Bills of Exchange Act, 1855," Procedure (18 & 19 Vict. six months 2. 67), and the within which, after the note is due, a writ may be issued Act, run from the date of under that the note. that period, and the irre gularity may be waived by the conduct of the defendant. Therefore, where the plaintiff having served the defendant with a writ under than six months that Act, more after the date of a promissory note payable on demand, and hav signed judgment and issued execution, the de fendant requested him to instruct the sheriff to withdraw, after a levy of part of the judgment debt, (the plaintiff also holding a mortgage security), and authorized the sheriff to re-enter at any time and levy the remainder of the debt:-Held, that the defendant had precluded himself from applying to set aside the writ, judgment, and execution; and that the official assignce under his bankruptcy was in the same situation. 1860. MALTBY v. MURRELLS. ant having pointed out that it would therefore be unjust to sell to the full amount of the judgment, the plaintiff consented to reduce the levy to 9007., upon the defendant signing the following paper :— "In the Exchequer of Pleas. "Between John Maltby, plaintiff, "and "Thomas Murrells, defendant. "I hereby request you to instruct the sheriff not to levy under the writ of fieri facias issued on the judgment in this action to the full amount indorsed thereon; but inasmuch as the judgment debt in this action is secured to a certain extent by the assignment, by way of mortgage, of the 13th of January, 1859; and inasmuch as it will be greatly to the benefit of my other creditors that the ornamental fixtures and shop fittings should not be now sold under your execution, I hereby request you to instruct the sheriff to withdraw under such execution when he shall have realized so much of the said judgment debt as you may consider not covered by the above mentioned security, and this shall be your authority for the same, so far as any authority on my part can be requisite: and I hereby authorize the sheriff to re-enter at any time under the said writ of fieri facias, or under any other writ of fieri facias, upon the judgment in this action, and to levy so much of the said judgment debt as may not be satisfied by the levy now made. "Dated the 30th day of March, 1860. "To the above named plaintiff. "Yours, &c. "Thomas Murrells." The defendant also stated that, before signing the said paper, he endeavoured to see his solicitor for advice, but could not meet with him, and he then returned home and signed the paper without having had an opportunity of advising with his solicitor, and in order that the whole of his effects might not be swept away by the plaintiff, but that at least a portion thereof should be left for his other creditors, and without intending in any way to admit the plaintiff's right to issue execution in the action, or the legality or regularity of the proceedings; that he was wholly unaware that any legal objection existed to the writ or proceedings in the action, and he had not then shewn the copy of the writ so served upon him to any attorney or any other person, or consulted anyone about it, but had acted up to that time solely under the guidance of the plaintiff's attorney; that had he been aware that the writ or proceedings were a nullity or irregular, he would never have signed the said paper. On the 30th of March the sheriff sold and assigned to the plaintiff a portion of the defendant's stock and goods to the value of 8307., the defendant himself assisting in making out the inventory. On the 2nd of April the defendant was adjudicated bankrupt. On the 3rd of April a summons was taken out at Chambers to set aside the proceedings as void or irregular, the same having been taken under "The Summary Procedure on Bills of Exchange Act, 1855," although the Act did not apply to the circumstances of the case, and the action was not brought within six months after the note became due and payable. Martin, B., before whom the summons was heard, referred the parties to the Court. Lush having obtained a rule to set aside the proceedings, Bovill and Honyman now shewed cause.-First, the writ issued in proper time, and was regular. A promissory note payable on demand is within the provisions of "The Summary Procedure on Bills of Exchange Act, 1855" (18 & 19 Vict. c. 67). Though such a note is for many purposes considered due and payable from the time of its 1860. MALTBY v. MURRELLS. |