Page images


[BLACKBURN, J.-You read the statute that will, would not have had that as if it were “ money directed to be applied character. by will." Would not the clause equally He takes from the person last seised as affect a settlement by deed? And if so, her heir. Where in such a case a person

any bequest" could only mean “any takes money directed to be laid out in imaginary bequest."]

real estate, but not so in fact laid out, the The testator was the last purchaser. legislature meant that that person should Neither Charles, James, Susan, be taxed as if he had taken the property having done anything to alter its charac- by bequest from a person who could have ter, the property came under the will as bequeathed it to him, and as if it had money-land to the suppliant, who took it been personalty. Susan was that person not as Susan's personal representative, who could have bequeathed it to the supbut as heir to the testator, and in no pliant, and she must be considered as other capacity. If Charles, James, or having made an imaginary bequest to Susan, had elected to take it as money,

him. or if Susan had bequeathed it, the sup- In other words, the statute may be read pliant would not have been entitled un- as Grove, J., has suggested, thus: “Any less he were legatee. It is therefore by person who shall become entitled to an virtue of the will alone that he takes; the estate of inheritance in possession in real trusts of the will still operate; but for estate to be purchased with money dithose trusts, and the rule of equity which rected to be so applied, shall pay

the same regards as land money bequeathed to be duty which ought to be paid by him if laid out in land, the property would have entitled thereto as personal estate by gone

elsewhere than to the suppliant. The bequest." Exchequer Chamber held that Susan took WILLES, J.; BLACKBURN, J.; MELLOR, J.; by virtue of the will, though not named BRETT, J.; and Grove, J., concurred. therein ; then why not also the suppliant?

Judgment affirmed. The point taken as to the set-off in the Court below is not insisted on here.

The Solicitor General (Sir G. Jessel), (C. Hutton with him), was not heard.

Attorneys—Townsend, Lee, & Houseman, for the

suppliant; Solicitor of Inland Revenue, for the COCKBURN, C.J.-I think the true con- Crown, struction of this section is that put on it by the Court of Exchequer. The intention of the legislature seems very plain, and the proviso in question seems host to have contemplated this very case.

The testator leaves money to be laid out in land, and creates estates tail, and [IN THE EXCHEQUER CHAMBER.] failing these, gives the remainder to his

(Error from the Court of Exchequer.) own right heirs. The two sons, tenants in tail, die without leaving issue, and the 1872. 2 absolute interest in the property goes to Susan. Now the suppliant is heir-at-law of Susan, and when the property reached

Bankruptcy Act, 1869, ss. 11, 12, 13, 15,

95, sub-sec. 3Execution under 501.-Seiher, the devise under the testator's will had already been exhausted, and the

zure by Sheriff Sale after Avljudication

Creditor holding a Security. property was m her absolutely, in the character of a fee simple. The suppli- Section 184 of the repealed Bankrupt ant cannot be said to take under the Law Consolidation Act, 1819, is not retestator's will, though he takes by virtue enacted directly or indirectly in the Bankof that will in this sense ; that he takes ruptcy Act, 1869. Therefore under the because that will has stamped the charac- latter Act, when the sheriff has, under an tur of land on a property which, but for excecution for less than 501., seized a debtor's



goods before any act of bankruptcy, the general manager of a bank without the execution creditor's claim to be paid out of knowledge or authority of the bank directors, the goods is not defeated by the debtor's concerted for their own purposes the followsubsequent bankruptcy, though the sheriff ing scheme, which the Court held to be endo not sell till after the adjudicatim. Such tirely void for fraud, and not binding on B. an execution does not require the protection Two accounts were opened with the bank in of section 95, sub-section 3, which applies the respective names of the agent and the only where an act of bankruptcy has been principal. The agent, on behalf of his committed prior to the seizure.

principal, requested the bank to honour the

agent's cheques, and guaranteed the repayThe SPECIAL Case and the judgment of ment thereof, all moneys standing to the the Exchequer in favour of the defendant, credit of the principal to be charged with the execution creditor, are reported 40 such repayment. The agent paid to his Law J. Rep. (N.s.) Exch. 146. The plain principals account 1,5001. belonging to the tiff

, the trustee in bankruptcy, having principal, and drew on his own account for brought error

a like sum, which he spent in promoting Prentice (E. Thomas with him), for the scheme. He drew other cheques on his the plaintiff

, admitted that the decision own account, and paid the proceeds to his of the Lord Chancellor and the Lords principal's account as moneys belonging to Justices in Ex parte Rocke; In re Hall the principal. Thus in the bank books the (1) was against him, but contended that agent's account stood with a large debit, and that decision was wrong. He was there- the principal's account stood with an equal upon stopped by Cockburn, C.J., who said credit charged with the guarantie. The that this Court (2) would not overrule principal having brought an action against that case, and further, that he agreed with the bank to recover the whole amount stand. the judgment of Martin, B., in the Court ing to his credit :-Held, that he could re. below.

cover 1,5001. thereof, his own money; but Cohen, for the defendant, was not heard. not the residue, which never had been his Judgment affirmed. money.

This was an action brought by the

official liquidator of the plaintiff company Attorneys -L. Barnett, for plaintiff; Ingle,

by order of the Court of Chancery, dated Cooper & Holmes, for defendant,

the 7th April, 1869, in the name of the company against the defendants, to recover the sum of 25,0451. 68., principal and interest, received by the defendants for the use of the plaintiff's between the 23rd June and 12th September, 1867.

The defendants paid 6001. into Court, 1871.

and pleaded as to the residue never inJune 21.

debted, payment, and a set-off of the sum 1872.

TELEGRAPH COMPANY, LIMITED, of 24,5061. 8s. 4d. and interest for moneys


paid at the plaintiffs' request, of which

the plaintiffs guaranteed the repayment. Principal and Agent-Company-Direc

Issue having been joined on the pleas, tors contracting ultra vires-Contract void an arbitrator by consent stated a special for Fraud.

case for the opinion of the Court, who A, as agent, but without the knowledge

were to draw inferences of fact as a jury. or authority of his principal, B, and the

The question for the Court was whether the plaintiffs could recover any and what

part of the sum claimed in addition to the (1) 40 Law J. Rep. (p.s.) Chanc. 70.

6001. (2) Cockburn, C.J.; Willes, J.; Blackburn, J.; The facts are sufficiently stated in the Mellor, J.; Brett, J.; and Grore, J.

judgment and notes.



J. Brow (Holl with him), for the plain- enough to enable it to procure a settling day tiffs. - The whole transaction between for its shares on the Stock Exchange. This Stafford and the defendants was illegal, and being thought desirable in order to make ultra vires, and cannot bind the plaintiffs the public apply for or purchase shares, as a company They are entitled to take the following plan was resolved on (8). advantage of the fact that the guarantie The directors of the plaintiff company, was a fraud, and can recover the whole or some of them, Stafford, a promoter of amount_Gray v. Lewis (1). The plain- the company, and Challis, the general tiff's' shareholders, including Stafford's manager of the defendants, agreed that an allottees, are contributories under 25 & 26 account should be opened in Stafford's Vict. c. 89. ss. 23, 38, and must have a name with the defendants; that another remedy against some one. They cannot account should be opened with the defendsue Stafford who is not a contributory. ants in the name of the plaintiffs ; that The defendants are estopped by their acts the plaintiff's should guarantee to the defrom denying that the money is the plain- fendants the repayment of any money tills'-Durry v. Croskey (2). The know- with interest drawn by Stafford on the ledge of the defendants' manager is the account in his name, and charge with such knowledge of the defendants-Dresser repayment any balance in their favour on v. Noruood (3); In re Carew's Estate Act the account in their name; that the de(4); Barwick v. English Joint Stock Bank fendants should have a bonus of 6001. for (6).

this; that Stafford should then get persons Pollock (R. G. IVilliams with him), for to apply for shares, which the directors the defendants.— The transaction is entire of the plaintiffs should allot to them; that and cannot be severed, and none of the Stafford should draw on the account in money can be recovered -- Brownrigg v. his name with the defendants, and with Rae (6). The bank directors are not the money thereby obtained pay into the bound by their manager's fraud.

plaintiff's' account with the defendants Broun replied.

the requisite deposits on the allotments, Cur. adv. vult. taking blank transfers from the allottees

or pretended allottees. Cha lis was to BRAMWELL, B. (on Jan. 20), delivered have a bribe of 1,0001., and there were to the judgment of himself, Channell, B., be various other persons rewarded. The and Pigott, B.

object of this was that the defendant It will be convenient to state the facts bank might certify to the committee of of this case to shew how we appreciate the Stock Exchange that the requisite them. The plaintiff company is now in amount of shares to get a settling day had liquidation under a winding up order. It been applied for and paid on. was formed, probably bonâ fiile, for the This plan was carried into execution. purpose indicated by its name. It invited The accounts were opened : that in the applications for shares, received some in plaintiffs' name with a payment in of the usual way, and allotted some shares 1,5007. of the plaintiff's' money; that in on which deposits were paid (7), but not Stafford's name with a loan or advance of the account in his name, and with the the plaintiffs' account with the defendants proceeds of such drawings paid into the stood with a credit of 24,5051. 18s. 6d., account in the plaintiffs' name the requi- made up of the real 1,5001. paid in, and the site deposits. Sometimes he paid in the deposits or pretended deposits so paid in identical notes he received, sometimes in by Stafford, less a trifle for stamps. change he had procured for them at the Stafford's account on the other hand stood Bank, and sometimes it was managed with a debit of 24,5061. 8s. 4d., made up otherwise. But he never kept for twenty- of the sums he had drawn or purported four hours any of the money he drew, to draw to pay the deposits, and of the and when it was thought desirable that 1,5001. which he drew out, partly to pay he should go to Paris and seek share- the 6001. bonus to the defendants who holders, and that 6,0001. should be sent have received it, partly for himself, partly there to pretend to pay their deposits, a for some of his confederates, and partly for clerk of the defendants was sent with the purposes of the scheme. The defenthe money for that purpose; Challis pro- dants have debited the plaintiffs' account bably not being willing to trust Stafford with this amount, and say nothing is due with so large a sum. The bona fide real to them (10). They have, however, paid bankers of the plaintiffs were Dimsdale & into Court the 6001. they have received Co., and the London & County Bank. for themselves, and the question now is The allottees, or pretended allottees, so whether the plaintiffs are entitled to reprocured, were real persons, but as we cover the whole or any part of the balance, were informed wholly incapable of paying 23,9051. 188. 6d. the amounts of the shares allotted to them, and without any intention of really At the same time the pass-book of the company being shareholders. They immediately with the defendant bank, shewing a balance in handed their letters of allotment and blank

1,5001. from the defendants. Persons

were procured by Stafford and one of (1) Law Rep. 8 Eq. 526.

plaintiffs' directors to apply, or pretend (2) 2 Jo. & H. 21.

to apply, and to sign letters of applica(3) 34 Law J. Rep. (n.s.) C.P. 43.

tion for shares. Shares were allotted by (4) 31 Beav. 39.

the directors of the plaintiffs, or some (5) 36 Law J. Rep. (N.s.) Exch. 147.

of them, thereon. Stafford drew on (6) 5 Exch. Rep. 489.

(7) The shares were 207. each. The de;osits of long before June 1867, and were now subject to 21. on each share had been paid only upon 2,324 an uncalled liability of 181. per share, amounting shares, amounting to 4,6481. These were bonâ fide to 41,8321. held by 75 persons, who all became shareholders (8) In June 1867.

favour of the company of 24,5051. 188. 6d., was protransfers to Stafford (9). In the result

duced to the committee. The committee refused

to appoint a settling day. In November 1867, the (9) The letters of allotment were made out in Court of Chancery ordered the company to be the names of the allottees, who thereupon executed wound up by the Court, under the Companies Act blank transfers and delivered them, with the letters 1862, and afterwards appointed an official liquiof allotment, to Stafford. Stafford presented to

dator. the defendant bank the letters of allotment, and in (10) The accounts stood thus in the defenexchange for his cheques or notes received from the dants' books, on October 9th, 1867, and the defendant bank deposit receipts. The company company's pass-book, when made up by the defenhaving applied to the committee of the Stock Ex- dants and sent by them to the official liquidator, change for the appointment of a “settling day,” corresponded with the company's account as with a view to assisting in obtaining such settling entered in the defendants' books. The shareday the following cortificate was given by Challis holders of the company had no knowledge of the without the knowledge of the directors of the arrangement for placing shares, or of the bank, for the purpose of being produced before the guarantie. The gu: rantie was dated the 21st of Committee.

June, 1867, souled with the common seal of the “Certificate of the Albion Bank, Limited. company, and signed by two of the directors, who

“11th of September, 1867. thereby requested the bank to honour Stafford's "We hereby certify that 11,513 shares have cheques, or advance him cash on demand up to been applied for in the British and American 30,0001., and on behalf of the company guaranteed Telegraph Company, Limited, and that deposits of the repayment of such payments and advances, 21. per share, amounting to 23,0061, have been paid with interest, and charged such payments and thereon.

advances, and interest on all moneys, from time to "Signed, P. P. Albion Bank, Limited, time standing to the credit of the company in the T. C. Challis, Gen. Manager."

bank books until repayment.

[ocr errors]

Now it is necessary for the purposes of for the plaintiffs, except the 1,5001. Treatour judgment, and right that it may not ing the contract as valid, if the plaintiffs be supposed our opinion is otherwise, that had demanded any of the money nomiwe should say that the scheme we have nally standing to their credit, the defenmentioned was fraudulent and illegal, and dants would have said, “That sum is brought the parties to it within the crimi- charged with your guarantie, you have nal law; and we must equally regret and no right to it;” and that would have wonder that gentlemen of character and been an answer. Treating it as invalid, position could have been parties to it, a the plaintiffs in effect say, “ We opened thing we can only account for by sup. no account with you, we gave you no au. posing some extraordinary self-deception. thority to receive money on account;"

This being the case, of course the plain and if they add, " but you have done so, tiffs are not bound by what was agreed to and we elect to take it," the answer would on their behalf. The act of the directors be and would truly be, “No money has who were parties to it was void, and been paid to us or received by us to be bound the plaintiff company as little as paid by us to you absolutely; but only thongh it had been entered into by the conditionally and subject to our lien for plaintiffs' secretary or messenger; and as Stafford's balance." Let us suppose that the facts were known to their man ger instead of the directors being parties to Challis, the defendants have notice of the this scheme, it had been done by the secillegality and invalidity of the trans- retary or manager, or by Stafford alone. action. On the other hand the defendants How, then, could the plaintiffs have are bound to refund any money they have claimed this money, except subject to the received, because although Challis had conditions and on the terms on which no authority to bind them to any such Stafford paid it in, and the defendants contract as he entered into, yet if the de- received it? But the case is the same, fendants received the plaintiff's' money though some or all the plaintiffs' directors under it, the plaintiffs (though not their are parties to the scheme. If the defendirectors) being innocent parties, the dants are liable to pay to the plaintiffs any defendants must refund it. If A, the of this money, it must be because they have clerk of B, without B's authority, pays made a contract with them or some one money into the bank of C, having pre- else that they, the defendants, would pay viously made an arrangement with D, them, the plaintiffs, this money, but they the clerk of C, for some application of have made no such contract. If, therethat money, which neither A nor D had fore, the realities only are looked at, it authority from their masters to make, seems to us the plaintiffs could not recover C must refund to B. It seems to us

this sum. clear, therefore, that the plaintiff's must But the case was put in another way. It recover the 9001, balance of the 1,5001. was put as an estoppel. It was said, “We, of the plaintiffs' real money, paid into the the plaintiffs, have allotted 11,503 shares, defendants' bank. The defendants have and you, the defendants, have signed received that money-what right have certain deposit receipts to the amount they to retain it ? None, unless under of 23,0061., therefore there are sharethe guarantie. But that guarantie is holders who are entitled to say as against not binding on the plaintiff's. For this us that they are shareholders entitled to all reason, then, our judgment must be for rights and benefits as such ; that they the plaintiffs for that sum at least. It have paid 23,0061., which our agents, the remains to consider the other amount. bank, acknowledge they have received ;

Now, as to that, the defendants nerer therefore we, the plaintiffs, say, you, the received any money which they were to pay defendants, are estopped from saying you to the plaintiffs. We are not referring to have not received that amount." But it any special pleading matter of money had seems to us that this is not so. We think and received or money lent, but in sub- no allottee under the scheme could have stance and reality the defendants never claimed to be a shareholder. In all the had any of the plaintiffs' money, or money cases Stafford was the allottee's agent in

« EelmineJätka »