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Amending

of share

holders.

tained (b); the court may in any proceeding under this section decide on any question relating to the title of any person who is a party to such proceeding to have his name entered in or omitted from the register, whether such question arises between two or more members or alleged members, or between any members or alleged members and the company, and generally the court may in any such proceeding decide any question that it may be necessary or expedient to decide for the rectification of the register; provided that the court, if a court of common law, may direct an issue to be tried, in which any question of law may be raised, and a writ of error or appeal, in the manner directed by "The Common Law Procedure Act, 1854," shall lie (c).

(a) This will supersede the necessity of an application for a mandamus so far as regards the objects herein mentioned. See sect. 17, ante, p. 23, n. (b).

(b) This part of the section differs from 19 & 20 Vict. c. 47, s. 25, under which power was subsequently given, by 20 & 21 Vict. c. 14, s. 9, to the court to decide disputed questions, in consequence of the decision of Wood, V. C., in British Sugar Refining Company, 3 Kay & J. 408.

A shareholder in a mining company, on the cost-book printhe register ciple, retired from it under a provision in the cost-book enabling a shareholder to surrender his shares. A few weeks afterwards the company was registered under the 19 & 20 Vict. c. 47, and the shareholder's name was entered in the register and returned in the list of shareholders. An order having been subsequently made for winding up the company, the commissioner placed the shareholder's name on the list of contributories: it was held, that the shareholder's name ought never to have been on the register of shareholders, and ought to be removed from it under the power given by the corresponding section 25 of the 19 & 20 Vict. c. 47, of amending the register, and that it ought also to be removed from the list of contributories. It was questioned whether the name of a registered shareholder can be removed from the list of contributories without an amendment of the register. Birch's Case, 2 De G. & J. 10. Upon that section it was said that if there was a serious question as to whether a person ought to be registered or not, the court would not decide such question in a summary way by petition. But, on the other hand, if a court of equity had before it the materials for deciding such question, it would, if possible, avail itself of the power conferred upon it by the legislature, and order it to be rec

tified, so that substantial justice might not be obstructed by the actual state of the register. Birch's Case, 2 De G. & J. 10.

A company being in the course of formation under 19 & 20 Vict. c. 47, a person applied for shares by a note in writing, by which he agreed to accept them and pay the deposit on them. Shares were allotted to him accordingly, and he paid the deposit, but no certificates were given to him. His name was not entered in the register of shareholders, but only in a book in which the names of persons to whom shares had been allotted were inscribed, the shares to which they were entitled not being distinguished therein by numbers. An order having been made for winding up the company: it was held, that the register ought to be amended by inserting the applicant's name, and that he ought to be on the list of contributories. Re West Ham Distillery Company, Ex parte Whittet, 2 De G. & J. 577.

The court has no jurisdiction to interfere with the registrar's certificate of registration of a banking company, which was registered under the Joint Stock Companies Acts, 1856 and 1857, after it had suspended payments, except in the case of fraud. Re Northumberland and Durham District Banking Company, 27 L. J., Ch. 354.

The 25th section of the 19 & 20 Vict. c. 47, enabling a shareholder, whose name was without sufficient cause omitted to be entered in the company's register, to apply by motion for an order that the register might be rectified, was not meant to give every shareholder ex debito justitia that summary remedy. The object of that section was to enable the court to avoid the inconvenience and injustice which occasionally arose from capricious or frivolous objections on the part of companies to complete the registration of their shareholders. It was not intended that, in the event of there being a serious question to be tried, the matter should be disposed of summarily. Re British Sugar Refining Company, Ex parte Faris, 3 Kay & J. 408; 26 L. J., Ch. 369. But afterwards, by sect. 9 of the 20 & 21 Vict. c. 14, the court might, in any proceeding under the 25th section of the 19 & 20 Vict. c. 47, decide on any question relating to the title of any person who was party to such proceeding to have his name entered in or erased from the register, whether such question arose between two or more holders or alleged holders of shares or stock, or between any holders or alleged holders of shares or stock and the company; and generally, the court may in such proceeding decide any question that it may be necessary or expedient to decide for the rectification of the register.

A holder of shares in a company, by entrusting his broker Transfers with blank transfers signed by him, and affording him an signed by opportunity of obtaining access to a box containing the certi.. vendors with ficates for the shares, enabled him by forgery and fraud to induce the company to register the transfers of the shares in

blanks.

the names of bonâ fide purchasers. A motion under the 19 & 20 Vict. c. 47, s. 25, and 20 & 21 Vict. c. 14, ss. 8, 9, to rectify the register by replacing thereon the name of the original shareholder, failed, the court being equally divided; Erle, C. J., and Keating, J., holding that the applicant had precluded himself by his negligence from availing himself of the equitable jurisdiction of the court; Willes, J., and Byles, J., holding that the property in the shares had not been changed by the forged transfers, and that he was entitled to have his name restored to the register. Ex parte Swan, Re North British Australian Company, 7 C. B., N. S. 400; 30 L. J., C. P. 113.

As to liability to owner of shares transferable by deed only in respect of a transfer effected by an agent by means of forms of transfer executed in blank, see Swan v. North British Australian Company (Limited), 31 L. J., Exch. 425.

Certain stock of a railway company was standing in the books of the company in the names of two persons, one of whom, by a transfer executed by himself, and to which he forged the name of the other party, transferred the stock to a third person, whose name was substituted for the two original names. The party whose name was forged died soon afterwards: it was held by the House of Lords, affirming the decision of the Master of the Rolls, 6 Jur. N. S. 595; 29 L. J., Ch. 731; 28 Beav. 287, that the personal representative of such person had a legal right to call on the company to replace the stock, though the right of action was gone. Midland Railway Company v. Taylor, 31 L. J., Ch. 336.

A., being a holder of shares in a company upon which 201. had been paid, and of other shares upon which 21. had been paid, instructed his broker to sell the latter. A. subsequently, on the application of his broker, executed deeds of transfer in which blanks were left for the name of the transferee, the number of shares and their numbers. The transfers bore stamps of a sufficient amount to cover a transfer of A.'s 201. shares. After A. had executed the transfers, his broker fraudulently inserted therein the numbers of A.'s 201. shares, and sold such 201. shares on the Stock Exchange to a bonâ fide purchaser, who, being a jobber, took the transfer deeds with the transferee's name still in blank, with the intention, on reselling the shares, to insert in such transfer deeds the name of the purchaser from him. Upon a bill by A., it was held (affirming the decision of Wood, V. C., 5 Jur. N. S. 331; 28 L. J., Ch. 285), that the deeds of transfer which had been executed by A. were void against him, and that he was entitled to the shares expressed to be thereby transferred, and to have his name restored to the register of shareholders of the company. Taylor v. Great Indian Peninsula Railway Company, 5 Jur. N. S. 1087; 28 L. J., Ch. 709; 4 De G. & J. 559. See Hibblewhite v. M'Morine, 6 M. & W. 200; Morris v. Cannan, 6 L. T., N. S. 17.

Courts of law and equity must adopt the same course of ascertaining who has the title, and of making and refusing an order accordingly, but with this obvious consequence, that in the case of an application to a court of law such court must regard the legal as well as the equitable title. The court will not make an order to rectify where it appears that, at the time of the application, an action by the company is pending against the appellant for calls upon the shares, alleged to have been due before and at the time of the transfer. Ex parte Harris, Re Anglo-French Porcelain Company, 5 H. & N. 809; L. J., Exch. 1860, p. 364.

(c) By the Common Law Procedure Act, 1854, 17 & 18 Vict. Error may be c. 125, s. 32, error may be brought upon a judgment upon a brought on a special case in the same manner as upon a judgment upon a special case. special verdict, unless the parties agree to the contrary; and the proceedings for bringing a special case before the court of error shall, as nearly as may be, be the same as in the case of a special verdict, and the court of error shall either affirm the judgment or give the same judgment as ought to have been given in the court in which it was originally decided, the said court of error being required to draw any inferences of fact from the facts stated in such special case which the court where it was originally decided ought to have drawn.

Sect. 33. In every rule nisi for a new trial, or to enter a Grounds to verdict or nonsuit, the grounds upon which such rule shall be stated in have been granted shall be shortly stated therein.

rule nisi for new trial.

Sect 34. In all cases of rules to enter a verdict or nonsuit If rule nisi upon a point reserved at the trial, if the rule to show cause refused party be refused, or granted and then discharged or made absolute, may appeal. the party decided against may appeal.

Sect. 35. In all cases of motions for a new trial upon the Appeal upon ground that the judge has not ruled according to law, if the rule discharged or rule to show cause be refused, or if granted be then discharged absolute. or made absolute, the party decided against may appeal, provided any one of the judges dissent from the rule being refused, or when granted being discharged or made absolute, as the case may be, or provided the court in its discretion think fit that an appeal should be allowed; provided, that where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no such appeal shall be allowed.

Sect. 36. The Court of Error, the Exchequer Chamber and Courts of the House of Lords shall be courts of appeal for the pur. error to be poses of this act.

courts of appeal. Notice of

Sect. 37. No appeal shall be allowed unless notice thereof be given in writing to the opposite party or his attorney, and appeal. to one of the masters of the court, within four days after the decision complained of, or such further time as may be allowed by the court or a judge.

Sect. 38. Notice of appeal shall be a stay of execution, Bail.

Form of appeal.

Rule nisi

granted on appeal how

provided bail to pay the sum recovered and costs, or to pay costs where the appellant was plaintiff below, be given in like manner and to the same amount as bail in error, within eight days after the decision complained of or before execution delivered to the sheriff.

Sect. 39. The appeal hereinbefore mentioned shall be upon a case to be stated by the parties, and in case of difference to be settled by the court or a judge of the court appealed from, in which case shall be set forth so much of the pleadings, evidence and the ruling or judgment objected to as may be necessary to raise the question for the decision of the court of appeal.

Sect. 40. When the appeal is from the refusal of the court below to grant a rule to show cause, and the court of appeal disposed of. grant such rule, such rule shall be argued and disposed of in the court of appeal.

Judgment of

court of appeal.

Powers of court of

peal as to

costs and

ap

otherwise.

Error upon

de novo.

Sect. 41. The court of appeal shall give such judgment as ought to have been given in the court below, and all such further proceedings may be taken thereupon as if the judgment had been given by the court in which the record originated.

Sect. 42. The court of appeal shall have power to adjudge of costs and to order restitution, and they shall have payment the same powers as the court of error in respect of awarding process and otherwise.

Sect. 43. Upon an award of a trial de novo by any one of award of trial the superior courts, or by the court of error, upon matter appearing upon the record, error may at once be brought, and if the judgment in such or any other case be affirmed in error, it shall be lawful for the court of error to adjudge costs to the defendant in error.

Payment of costs upon new trial on matter of

fact.

Sect. 44. When a new trial is granted on the ground that the verdict was against evidence, the costs of the first trial shall abide the event, unless the court shall otherwise order. Sect. 45. Upon motions founded upon affidavits it shall be Affidavits on lawful for either party, with leave of the court or a judge, to new matter. make affidavits in answer to the affidavits of the opposite party upon any new matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits.

Court of It is to be observed, that by the Chancery Regulation Act, Chancery to 1862, 25 & 26 Vict. c. 42, s. 1, in all cases in which relief or determine legal rights. remedy, within the jurisdiction of the Courts of Chancery (which includes the Court of Chancery of the county palatine of Lancaster) respectively, is or shall be sought in any cause or matter instituted or pending in either of the said courts, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, every question of law or fact cognizable in a court of common law, on the determination of which the title to such relief or remedy

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