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1869

PRIDEAUX

V.

CRIDDLE.

cluded by authority. Hare v. Henty (1), shews that both present-
ment and notice of dishonour of the cheque were in time.
THE COURT then called upon

Sir George Honyman, Q.C., for the defendant. The plaintiffs received the cheque on the 5th of June, and they ought to have sent it to Falmouth on the 6th, for when they received the cheque from the defendant, they became his agents to receive its amount as early as possible: Kilsby v. Williams. (2) Had they done so, the cheque would have been paid. According to Bailey v. Bodenham (3), sending the cheque to Hawkey & Co. constituted them the agents of the plaintiffs; the cheque was practically dishonoured on the 7th of June, and therefore the defendant ought to have received notice of dishonour on the 8th. Moreover, the plaintiffs, by the manner in which they have dealt with the cheque, have made it theirs: Hawkey & Co. must be treated as their agents, they debited the drawer in account, and the defendant is therefore exempted from liability. At all events, at the time when the notice of dishonour was given to the defendant, the cheque ought to have been handed to him to enable him to sue the drawer. The usage of bankers, set out in paragraphs 15 and 16, is not binding on the defendant, because it was not the universal usage of bankers in Cornwall; nor had he any notice of it: Hudson v. Ede (4); Sweeting v. Pearce. (5)

LUSH, J. I am of opinion that the plaintiffs are entitled to judgment. I do not think that there has been any laches either in the presentment of the cheque, or in giving notice of dishonour. According to Hare v. Henty (1), the cheque was presented in due time. The plaintiffs received it on the 5th; they might have sent it on the 6th to an agent at Falmouth, and the agent might have presented it on the next day to the drawees, which presentment would have been in time. According to the authorities, it is immaterial through whose hands the cheque is sent, provided it reaches the drawees in due time. The next question is whether a valid notice of dishonour was given to the defendant. According (3) 16 C. B. (N.S.) 288; 33 L. J. (C.P.) 252.

(1) 10 C. B. (N.S.) 65; 30 L. J.

(C.P.) 302.

(2) 5 B. & A. 815, 819.

(4) Law Rep. 3 Q. B. 412.

(5) 9 C. B. (N.S.) 534; 30 L. J. (C.P.) 109.

1869

บ.

CRIDDLE.

to the opinion of Erle, C.J., in the cases cited (1), a presentment
through the post office is a reasonable mode of presentment; it is PRIDEAUX
a very common mode, and having regard to the commercial busi-
ness of this country it may be said to be a proper mode of pre-
sentment. If the drawee dishonours the cheque, and the holder
sends a notice of dishonour to the person from whom he received
the cheque on the day following that on which the cheque was dis-
honoured, each previous transferror has one day in which to give
notice of dishonour. Here the drawees received the cheque on the
7th; on the 8th they notified to Barclay & Co., the agents of the
plaintiffs, that the cheque was dishonoured, and on the 9th the
defendant receives notice of dishonour from the plaintiffs; there-
fore the notice was received by him in due time. It was further
objected that, although due notice of dishonour was given, the
cheque itself was not handed over. I think that makes no differ-
ence in the liability of the defendant in the present action, nor does
it affect any rights he may have against the drawer of the cheque.
It is sufficient that the defendant received notice of the dishonour
of the cheque in time to enable him to give a valid notice to the
drawer. If the defendant did give such a notice in time, he will
have his remedy; but if for any reason the defendant's notice to
the drawer was too late, that is no fault of the plaintiffs, who have
done all that the law requires, and are therefore entitled to main-
tain this action.

HANNEN and HAYES, JJ., concurred.

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Judgment for the plaintiffs.

Attorney for plaintiffs: Prideaux.

Attorneys for defendant: Hooke & Street.

(1) Hare v. Henty, 10 C. B. (N.S) Bodenham, 16 C. B. (N.S.) 288; 33

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1869 May 4.

DE ROSAZ v. THE ANGLO-ITALIAN BANK, LIMITED. Companies Act, 1862 (25 & 26 Vict. c. 89), ss. 161 & 162-Arbitration—, -Appointment of Umpire by Judge's Order-Companies Clauses Consolidation Act, 1845 (8 Vict. c. 16, ss. 128-134)-Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 12—Action upon Award-Shareholder, Purchase of Interest of-Joint Stock Company, Voluntary Winding-up of— Equitable Plea.

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Declaration, that the defendants were a banking company incorporated under the Companies Act, 1862; that a resolution was passed for the winding up of the company and the transfer of the business to another company; that plaintiff was a shareholder in the first company, and expressed a dissent in writing as required by s. 161 of the statute, and required the liquidators either to abstain from carrying the resolution into effect, or to purchase his interest; that by the articles of association, in the event of any difference arising between the company and any of the shareholders, such difference was to be referred to two arbitrators, one of the arbitrators to be named by each party; the arbitrators to appoint an umpire; and if they did not do so within fourteen days, an umpire might be appointed by a judge under the Common Law Procedure Act, 1854; that the dispute relating to the settling of the price of the plaintiff's shares was referred to two arbitrators; that they did not appoint an umpire; that an umpire was appointed by a judge; that the arbitrators did not agree; that the umpire duly made his award adjudging the price to be paid for the purchase of the plaintiff's interest at 21007., which sum he directed to be paid to the plaintiff, and further directed that the defendants should pay to the plaintiff his costs of the reference and award, and that the defendants did not pay the money. On demurrer :

Held, 1. That an action would lie against the company on the award as in ordinary cases, as there was nothing in s. 161 of the statute which took away the right of action. 2. That the judge had power to appoint an umpire under the articles of association, or under the Companies Clauses Consolidation Act, 1845, supplemented by the Common Law Procedure Act, 1854, on the authority of Re Anglo-Italian Bank and De Rosaz (Law Rep. 2 Q. B. 452).

Plea to the declaration, on equitable grounds, that before the passing of the resolution the plaintiff was indebted to the defendants in respect of a call upon his shares, and the shares were liable to forfeiture, and that the defendants were proposing to reconstitute their bank, and that it was agreed that, in consideration that the defendants would forbear from pressing for payment of the money due to them, and would give the plaintiff time for payment, and would abstain from forfeiting the shares, the plaintiff promised to consent to the winding up of the company, if authorized by a general meeting, and that he would vote for the resolution, and exchange his shares for shares in the reconstituted bank; that the defendants performed their part of this agreement; that the proposal was authorized by a general meeting, and that the resolution was passed. On de

murrer :

Held, that the plea only shewed grounds for a cross action by the defendants, and was no defence to the present action.

DECLARATION, that the defendants were a banking company formed and incorporated under the Companies Act, 1862 (25 & 26 Vict. c. 89), and a special resolution was passed at a meeting of the company on the 26th of September, 1866, and confirmed at a meeting of the company on the 24th of October, 1866, for the voluntary winding up of the company, the appointment of liquidators, and the transfer of the business of the company to another company. And the plaintiff, at the respective times of the making and confirmation of the resolution, was a member of and shareholder in the first-mentioned company, who did not vote in favour of the resolution at either of the meetings, and who duly and within seven days after the date of the meeting at which such resolution was passed expressed his dissent therefrom in writing addressed to the liquidators of the company, and left at the registered office of the company, pursuant to the provisions of s. 161 (1) of the statute,

(1) 25 & 26 Vict. c. 89, s. 161 :"Where any company is proposed to be or is in the course of being wound up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidators of the first-mentioned company may, with the sanction of a special resolution of the company by whom they were appointed, conferring either a general authority on the liquidators or an authority in respect of any particular arrangement, receive in compensation or part compensation for such transfer or sale, shares, policies, or other like interests in such other company, for the purpose of distribution amongst the members of the company being wound up, or may enter into any other arrangement whereby the members of the company being wound up may, in lieu of receiving cash, shares, policies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the pur

chasing company; and any sale made
or arrangement entered into by the
liquidators in pursuance of this section
shall be binding on the members of the
company being wound up; subject to
this proviso, that if any member of the
company being wound up, who has not
voted in favour of the special resolution
passed by the company of which he is
a member at either of the meetings
held for passing the same, expresses his
dissent from any such special resolution
in writing addressed to the liquidators
or one of them, and left at the registered
office of the company not later than
seven days after the meeting at which
such special resolution was passed, such
dissentient member may require the
liquidators to do one of the following
things as the liquidators may prefer,
that is to say, either to abstain from
carrying such resolution into effect, or
to purchase the interest held by such
dissentient member at a price to be
determined in manner hereinafter men-
tioned, such purchase money to be paid

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1

1869

DE ROSAZ

V.

ANGLO

ITALIAN
BANK.

and thereby required the liquidators to abstain from carrying the resolution into effect, or to purchase the interest held by the plaintiff in the company, at a price to be determined, as in the statute provided. And it was and is provided in and by the articles of association of the company as follows:-By Article 1, “That in the interpretation of the articles, the words and expression 'the statutes,' shall, unless excluded by the subject-matter or context, mean and include the Companies Act, 1862, and any and every other Act from time to time in force concerning joint stock companies, and necessarily affecting the company. By Article 196, "That whenever any difference shall arise between the banking company on the one hand, and any of the shareholders, their heirs, executors, administrators, or assigns, on the other hand, touching the true intent or construction, or the incidents or consequences of these presents, or of the statutes, or touching anything then or to be thereafter done, executed, omitted, or suffered, in pursuance of these presents, or of the statutes or touching any breach or alleged breach of these presents, or any claim or account of any such breach or alleged breach, or otherwise relating to the premises or to these presents, or to the statutes or to any of the affairs of the company, every such difference shall be referred to the arbitration of two persons." By Article 197, "That one of the arbitrators shall be named by each of the parties to the difference, and as regards any such party, whether consisting of one person or more persons than one;" and by Article 200, "That the arbitrators, before entering on the business of the reference shall by writing under their hands

before the company is dissolved, and to
be raised by the liquidators in such
manner as may be determined by special
resolution."

s. 162:-"The price to be paid for
the purchase of the interest of any dis-
sentient member may be determined
by agreement; but if the parties dis-
pute about the same, such dispute shall
be settled by arbitration, and for the
purposes of such arbitration, the pro-
visions of The Companies Clauses
Consolidation Act, 1845,' with respect
to the settlement of disputes by arbi-

tration, shall be incorporated with this Act; and in the construction of such provisions this Act shall be deemed to be the special Act, and the company' shall mean the company that is being wound up, and any appointment by the said incorporated provisions directed to be made under the band of the secretary, or any two of the directors, may be made under the hand of the liquidator, if only one, or any two or more of the liquidators if more than one."

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