« EelmineJätka »
1848, 1849, did not suspend the operation of the Statute of Limitations; see Re Gloucester, &c. and Central Wales Railway Company, 2 Giff. 47; for no trust is contemplated by those acts as in bankruptcy; Re Royal British Bank of Australia, Ex parte Forest, 2 Giff. 42; 29 L. J., Ch. 383; Ex parte Ross and Hooper, 2 Gl. & J. 46; where the assets are vested in assignees upon trust for an unascertained body of creditors.
(c) As to making calls, see sects. 102, 121, 133, post. As to the liability of members, see sect. 38, ante, p. 45. (d) See sect. 77, post.
76. If any contributory dies either before or after Contribu he has been placed on the list of contributories here- tories in case of death (e). inafter mentioned (f), his personal representatives, heirs and devisees shall be liable in a due course of administration to contribute to the assets of the company in discharge of the liability of such deceased contributory, and such personal representatives, heirs and devisees shall be deemed to be contributories accordingly.
(e) See 19 & 20 Vict. c. 47, s. 68.
tories in case
77. If any contributory becomes bankrupt (h), Contribueither before or after he has been placed on the list of bankof contributories, his assignees shall be deemed to ruptcy (g). represent such bankrupt for all the purposes of the winding-up, and shall be deemed to be contributories accordingly, and may be called upon to admit to proof against the estate of such bankrupt, or otherwise to allow to be paid out of his assets in due course of law, any monies due from such bankrupt in respect of his liability to contribute to the assets of the company being wound up; and for the purposes of this section any person who may have taken the benefit of any act for the relief of insolvent debtors before the eleventh day of October, one thousand eight hundred and sixty-one, shall be deemed to have become bankrupt (¿).
(g) 12 & 13 Vict. c. 108, s. 14. Under that section it was decided that the names of the bankrupt's assignees, describing them in that capacity, were properly placed on the list of contributories. Ex parte Cooper, re Kollman's Locomotive Company, 2 De G. & S. 113.
Member of company not a trader.
Where bankrupt bene
ficially entitled to stock, court may
(h) See sect. 75, post.
(i) This section refers to 1 & 2 Vict. c. 110, ss. 23 to 121, 5 & 6 Vict. c. 116, 7 & 8 Vict. c. 96, which are repealed by 24 & 25 Vict. c. 134, s. 230. See Shelford's Statutes for the Relief of Insolvent Debtors.
A member of or subscriber to any incorporated, commercial or trading company established by charter or act of parliament shall not be deemed as such a trader liable to become bankrupt. 12 & 13 Vict. c. 106, s. 65.
The stat. 6 Geo. 4, c. 16, s. 2, contained a similar provision, although it had been previously held, that holders of stock in public companies were not liable to the bankrupt laws in that character merely. Ex parte Ball, 15 Ves. 357.
The taking shares by a party in a joint stock bank for the express purpose of making himself a trader, and obtaining the benefit of the bankrupt law, and with no bonâ fide intention to follow the business of a banker for profit, is not a sufficient trading. Ex parte Brundrett, 2 Dea. 219; 3 Mont. & A. 50. The holding shares in a joint stock company for a period of six days only, where no dividends or profits appear to have been received by the party during the time that he possessed the shares, was held not to constitute a trading within the bankrupt law. Ex parte Atkinson, 1 Mont. D. & D. 300. But the holding of shares in a joint stock banking company for a period of two years, and the receiving successively two years' dividends on the shares, was held a sufficient trading by the holder as a banker. Ex parte Wyndham, 1 Mont. D. & D. 146; see Smith v. Cannan, 2 Ell. & Bl. 35. It appears that a member of a gas company may be a trader. Ex parte Browne, re Puttock, 2 Mont. D. & D. 758.
As to the bankruptcy of joint stock companies in Ireland, see 20 & 21 Vict. c. 60, ss. 168-177; and as to Scotland, see Kinnear's Law of Bankruptcy, pp. 13, 14.
If any bankrupt shall have any government stock, funds or annuities, or any of the stock of any public company, either in England, Scotland or Ireland, standing in his name in his own right, it shall be lawful for the court of bankruptcy by make order writing, to order all persons whose act or consent is thereto necessary to transfer the same into the name of the assignees, and to pay all dividends upon the same to the official assignee; and all such persons whose act or consent is so necessary are thereby indemnified for all things done or permitted pursuant to such order. 12 & 13 Vict. c. 106, s. 128.
A similar provision was contained in sect. 80, 6 Geo. 4, c. 16. Where a bankrupt had invested money in the purchase of stock, in a fictitious name, for the purpose of defrauding his creditors, the Court of Exchequer, on a bill filed by the assignees against the Bank of England, ordered the bank to erase from their books the fictitious name, and insert that of the bankrupt; Green v. Bank of England, 3 Yo. & C. 722, Under
circumstances of doubt, as to the right to stock standing in the bankrupt's name, an inquiry will be directed. Ex parte Bacon, 3 Madd. 28. Stock standing in the name of the bankrupt in trust for other persons does not pass to the assignees under the 125th section of the act 12 & 13 Vict. c. 106, although it is not entered in the name of the bankrupt as trustee in the bank's books. Ex parte Witham, 1 Mont. D. & D. 624; see Ex parte Watkins, 4 Dea. & C. 99.
As to the transmission of shares in a company subject to the provisions of the Companies Clauses Consolidation Act, 1845, or the special act, see 8 & 9 Vict. c. 16, s. 18; and Shelford's Law of Railways, pp. 101-123, 3rd ed.
When a trader, entitled to shares in a company, becomes Shares in a bankrupt, his interest in the shares passes to his assignees; company. Penny v. Pickwick, 16 Beav. 246; but it by no means follows that they become shareholders in respect of such shares.
In 1819, a party entitled to a share in a coal mining company became bankrupt, dividends upon the share were declared in 1831 and 1838, and subsequently the share was carried over in the company's book to an account of "the proprietors of a share in this concern, heretofore T. A." (the bankrupt), and it so continued down to 1850, the time the assignees first made claim: it was held, that the right of the assignees to the dividends still subsisted, but that they were not entitled to any profits made by the retaining the dividends. Penny v. Pickwick, 16 Beav. 246.
An allottee of shares in a joint stock company completely registered under the 7 & 8 Vict. c. 110, directed his brokers to sell his shares, which they did. Before he had executed the deed of settlement he became bankrupt. Upon the petition of the brokers that the assignees might be directed to transfer: it was held, affirming the decision of the commissioner, that the allottee not having been registered as a shareholder, the sale was absolutely void both at law and in equity under the 20th section of the 7 & 8 Vict. c. 110. Ex parte Neilson, re Edmond, 23 L. J., Bank. 12; 3 De G., M. & G. 556. In order that the assignees may become shareholders, it is necessary for them to comply with the company's regulations in that behalf. The proprietor of shares in a company incorporated, and being registered as such proprietor in the books of the company, became bankrupt in 1847. The certificates of his shares were handed to his assignees and held by them. In June, 1849, an application was made to his assignees to pay a call which had been made upon the shares, but no payment was made nor upon two subsequent calls. By the 14th section of the company's act, 6 Geo. 4, c. 39, all shares were to be forfeited if the calls which were made upon them were not paid within three months after the time appointed, but that no advantage of the forfeiture should be taken unless thirty days' notice was given to the owner or owners thereof, nor unless the same were declared to be for
feited at some general or special general meeting. On the 13th March, 1851, advertisements were issued pursuant to the directions of the charter, for the annual general meeting to be held on the 31st of March, specifying that one of the purposes for holding such meeting was to declare the forfeiture of certain shares. They were so declared forfeited, and the proceedings were confirmed at the meeting of the 12th March, 1852. Notice of the forfeiture was sent to P. & Co., who were the attornies for the bankrupt and also for the assignees. P. & Co. returned answer that bankrupt had no longer any interest in the shares. On the 16th February, 1853, the assignees having made the affidavit appointed by the act, claimed to be registered as the proprietors of the shares. This the company refused to do: it was held, in an action by the assignees for not so registering them as proprietors; first, that the meeting of the 31st March was competent to declare the shares forfeited. Graham v. Van Dieman Land Company, 2 Jur. N. S. 1191; 1 H. & N. 541, Exch. Ch.; 11 Exch. 101; and secondly, that the assignees were not entitled to any notice of the forfeiture of the shares, as the name of the bankrupt was upon the register of proprietors at the time of the forfeiture.
The assignees of a bankrupt can only take his shares subject to the lien of the company upon them. Ex parte Cooper, 2 Mont., D. & D. 1; and if the shares are held by him in trust for other persons, his assignees will have no right to them whatever; Prichett v. Wright, 2 Hare, 120; unless the trust is a secret trust and the shares are in the order and disposition of the bankrupt. Ex parte Burbridge, 1 Dea. 131; 4 Dea. & C. 87. So the assignees of a shareholder who has pledged his shares can only take them subject to what is due upon them, unless they can claim them by virtue of the doctrine of reputed ownership. Ex parte Dobson, re Boult, 2 Mont. D. & D. 685.
A bankrupt shareholder who has obtained his certificate is not a contributory in a company, if no losses or debts have been sustained or incurred by it since the bankruptcy; Chapple's Case, 5 De G. & S. 400; and even if there have been losses he will not be a contributory if the effect of his bankruptcy is to render him no longer a shareholder. Greenshield's Case, 5 De G. & S. 599. But otherwise he will. South Staffordshire Railway Company v. Burnside, 5 Exch. 129; see Lindley on Part., p. 1097.
By the deed of settlement of a joint stock company, the shareholders covenanted to pay in manner thereinafter mentioned the calls on their shares, and by a subsequent clause it was stipulated, that no assignees of bankrupts should be entitled to become shareholders in respect of the shares held by the bankrupt shareholder in the capital of the company, but that such assignee should be entitled to sell the same upon proof of the bankruptcy and of their title as assignees; and
by the next clause, a general power was given to the directors to make calls on the holders of shares other than the bankrupt shareholders: it was held, that the bankruptcy of a sharebolder was an answer to an action for calls made and due after his certificate, although the assignees had not availed themselves of the power of sale, and the bankrupt still remained the nominal holder of the shares. Wylam's Steam Fuel Company v. Street, 10 Exch. 849; 24 L. J., Exch. 208.
If any bankrupt at the time he becomes bankrupt (i. e. at Shares in the time of the act of bankruptcy, Fawcett v. Fawcett, 6 Q. B. reputed ownership of 20), shall by the consent and permission of the true owner bankrupt. thereof have in his possession, order or disposition any goods or chattels whereof he was reputed owner, or whereof he had taken upon him the sale, alteration or disposition as owner, the court of bankruptcy shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy. 12 & 13 Vict. c. 106, s. 125; see Shelford on the Law of Bankruptcy, pp. 242-298, 3rd ed.
Shares in companies come within that clause; Nelson v. London Assurance Company, 2 Sim. & St. 292; Ex parte Nutting, 2 M., D. & D. 302.
Shares remain in the order and disposition of the trans- Transfer of feror, unless the mode of transfer pointed out by the act of shares to prevent reputed parliament is strictly followed. The ordinary mode of transownership. fer will not, in such a case, constitute an equitable mortgage. And this rule holds, notwithstanding the statute expressly relates to transfers between third parties only, in instances where the company are the transferees. Ex parte Lancaster Canal Company, 1 Dea. & C. 411; Mont. & Bl. 94. If the interest in any share in a company incorporated by act of parliament have become transmitted in consequence of the bankruptcy of any shareholder, such transmission must be authenticated by a declaration, or in such other manner as the directors shall require. 8 & 9 Vict. c. 16, s. 18. A deposit had been made by the bankrupt of certain certificates of shares in a gas company, for securing the payment of a debt; but no notice was given to the company, nor any transfer made of the shares in their books. The company was not established under an act of parliament, but under a deed executed between the original shareholders, which declared that all property should be considered as personal estate; although part of the property possessed by the company consisted, in fact, of a copyhold estate it was held, that the shares must be considered as personal property, and in the reputed ownership of the bankrupt, and that they consequently passed to his assignees. Ex parte Vallance, 2 Dea. 354. By the rules of a joint stock company, only principals could become subscribers. The petitioner purchased forty shares in the name of the bankrupt, who verbally declared that he held them as a trustee for the petitioner, and the certificates of the shares were kept in the possession of the peti