LINDLEY L.J. It is not disputed that the instruments in question were duly stamped. They were sent to the secretary for the purpose of being used at a particular meeting, and the secretary had implied authority to supply the accidental omission of the day and hour of that meeting before they were lodged. There is nothing in the Act to render void the votes given under them. We will consider the other point. A. L. SMITH L.J. concurred. 1896. Nov. 10. LINDLEY L.J. delivered the judgment of the Court (Lindley and A. L. Smith L.JJ.) upon the point reserved. This is an appeal from a decision of Chitty J. (1) The question raised by the appeal is how absent members of a registered company are to vote at a meeting called under s. 51 of the Companies Act, 1862, when no poll is demanded. The question is important, because different views have been taken by different judges of the High Court. Before referring to the decisions it is necessary to read s. 51, on the construction of which the question really turns. [His Lordship read the section.] It will be observed that this section contemplates cases in which a poll is demanded, and cases in which no poll is demanded. A valid resolution may be carried without a poll as well as with a poll. The section does not say how votes are to be given or counted when a poll is not demanded. The section is framed upon the assumption that the mode of voting in such a case is well known, as in truth it was and is namely, by show of hands-i.e., by counting the persons present who are entitled to vote and who choose to vote by holding up their hands. We can find nothing in the section to alter or to exclude this well-known mode of conducting business, nor so far is there any controversy. The controversy arises in this way. Absent members who have appointed proxies vote by those proxies; but unless a poll is demanded the person present is only counted once, however numerous may be the persons whom he represents. Such is admitted to (1) [1896] 2 Ch. 572. C. A. 1896 ERNEST v. MINES, LIMITED. be the common practice. But it is contended that the practice in this respect is inconsistent with s. 51, and that when that section applies, as it does in this case, each absentee whose proxy is present and votes is entitled to be treated as present LOMA GOLD himself and as holding up his hand, so that on a show of hands each person present and entitled to vote and voting ought to be counted not once only, but once for every person whom he represents. It is not contended that the number of votes which each absentee could give on a poll is to be counted: the contention is that each absentee who has given a proxy to a person who is present and votes is to be counted as a member present and holding up his hand. This contention is based on the words, " present in person or by proxy." Absentees, it is contended, are present by their proxies, and must, therefore, be counted as persons present if those proxies vote. This ingenious argument, however, fails to give sufficient effect to the words, "entitled according to the regulations of the company to vote." The regulations of each company must therefore be regarded. The regulations of every company are, however, themselves framed with reference to ordinary business habits, and are based upon the assumption that business will be conducted in the ordinary way. Sect. 51 of the Act is intended to be worked with the regulations contained in Table A in the case of companies having no other regulations, and Table A impliedly authorizes voting by show of hands in the ordinary way if no poll is demanded (see art. 42); and it also authorizes voting by proxy (art. 48); but proxies must be members of the company (art. 49). The articles of association of the present company exclude Table A, but contain similar provisions as regards voting, and also an express provision (60) that “at any general meeting every motion made and submitted shall be decided, in the first instance, by a majority in number of the members to be ascertained by a show of hands." This express provision is not in Table A; but, in our opinion, it is implied although not expressed. Sect. 51 of the Act does not render this article inapplicable to general meetings called to pass special resolutions. The section and the article must be read together; and so read the argument of the appellant renders it C. A. 1896 ERNEST v. LOMA GOLD necessary to say that the effect of s. 51 is to introduce a mode decided in this last case was that on a show of hands shares (3) [1893] 1 Ch. 603. a conclusion makes it necessary to examine the grounds on which it is based with great care and some suspicion; and for the reasons above stated we have come to the conclusion that the decision in In re Bidwell Brothers (1) is erroneous and ought not to be followed. The appeal must be dismissed with costs. Solicitors: W. T. Hart; Powell & Burt. C. A. 1896 ERNEST v. LOMA GOLD H. C. J. In re COSH'S CONTRACT. [1896 C. 362.] Covenant against Assignment without Licence-Licence to Assign-" Fine or A building lease, which had been granted under a building contract relating also to other property, contained an absolute covenant not to assign without licence. The lessors on being applied to for a licence to assign refused to grant it unless the lessee would deposit with them 20007. as a further security for the performance by him of the unperformed part of the building contract : Held (affirming the decision of Stirling J.), that the deposit with the lessors of a sum of money which, if the lessee performed the building contract, would revert to him, was not payment of a "fine or sum of money in the nature of a fine" within the meaning of the Conveyancing and Law of Property Act, 1892, s. 3, and that the lessors might lawfully require such a deposit as a condition for granting the licence. IN 1893 the trustees of St. Giles and St. Luke's Joint Parochial Charities offered to accept tenders for the pulling down and rebuilding certain houses in the City of London known as Nos. 1 to 23, New Union Street, and Nos. 19 and 21, Moorfields. No. 21, Moorfields, was a public-house known as The Five Bells. The conditions on which the offer was made provided for the erection of new buildings, and included the following stipulations: No. 8. "The contractor is to give such security for due performance of these conditions as the said trustees shall require and approve of, and within such limited time as (1) [1893] 1 Ch. 603. C. A. 1896 Nov. 13. C. A. 1896 In re COSH'S CONTRACT. they shall appoint, in default whereof or of the due performance of these conditions or any of them it shall be in the power of the said trustees, by an order in writing made for that purpose and signed by their clerk, to annul and make void everything herein contained and to resume the possession of the said ground and premises, and to let the same to any other person or persons if they shall think fit." Clause 9 provided that when the buildings were completed, or so soon after they were covered in as the trustees should approve, a lease should be granted to the contractor for eighty years from Michaelmas, 1893, at the rent of 10007. for the first three years, and for the residue of the term at the tendered rent. The lease was to contain such covenants and conditions as were contained in a draft form of lease deposited at the office of the trustees' solicitors. The draft form of lease contained an unqualified covenant by the lessee that he would not assign, underlet, or otherwise dispose of the premises or any part thereof, except by way of mortgage or by will only, without the previous consent in writing of the lessors. In May, 1893, Cosh offered to take the premises on the above terms at a rent of 1000l. for the first three years and 20751. for the residue of the term, and this offer was accepted. On September 27, 1893, the solicitors of the trustees by letter informed Cosh that the security required would be the immediate deposit of 1000l. with the trustees, and the deposit of a further sum of 1000l. before pulling down 19, Moorfields, and The Five Bells. On December 8, 1893, the trustees apportioned the groundrent as follows: on The Five Bells, 300l. a year; on 19, Moorfields, 150l. a year; and on the property in New Union Street pro ratâ, an amount sufficient to make the whole ground-rent up to 20751. In January, 1895, after much disputing between the parties, an arrangement was made by which a Mr. Finch undertook to guarantee the rebuilding of The Five Bells, and the performance of the contract as to that house and 19, Moorfields, and to take up the leases of those two properties at the ground-rents |