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Re THE BRITISH PROVI- | On the 25th of January, 1856, Mr. Lane, at Sheri. Lord Chancellor. DENT LIFE AND FIRE | dan's request, attended at the office of the company, and 11, 13 Nov. 1863.
ASSURANCE SOCIETY, the latter then undertook to dispose of the shares on the
following terms :- Mr. Lane was to lay out 4001. in
purchasing from the company two life annuities, one Joint-Stock Company-Transfer of shares to
for himself, the other for his wife, and the company Company — Acquiescence — Presumption in was to take the 300 shares at the rate of 11. a share. favour of validity—7 & 8 Vict. c. 110, s. 29. Sheridan also stipulated for a gratuity to himself of The deed of settlement of the B company, registered 301. Lane accordingly delivered up the scrip certif
cates of his shares, and handed to Sheridan a cheque under the 7 & 8 Vict. c. 110, authorised the directors to purchase shares on behalf of the company, provided the for 1301., and thereupon, received a memorandum
acknowledging the receipt of 4001. as purchase-money assent of a general meeting were previously obtained :
of the two annuities. It was not disputed, on the Held, that “previously” must be taken to mean
one hand, that the transaction was bona fide on Lane's before the transaction became legally binding,” not “before any treaty for a purchase was commenced.”
part, nor, on the other, that Lane was aware that the
sale and surrender was made to the company. Sheridan 1, a shareholder in the B company, sold his shares to the company, and the transfer was duly returned to the made entries in various books, and informed Lane that
the matter was now settled. Formal policies for the public registry of Joint-Stock Companies. Some months
two annuities were soon afterwards sent, and the after the transfer and return, a general meeting was held, and a balance sheet submitted, containing items moneys due under them were, either voluntarily or in relating to this transaction. It was proved that this consequence of legal proceedings, paid by the combalance sheet was adopted, although, through the default
down to the year 1861.
pany of the chairman, there was no legal record of the pro- holders required by the 49th section of 8 & 9 Vict,
The directors omitted to keep the register of shareceedings of the meeting. The transfer was afterwards,
c. 110, but the transfer of Lane's shares was returned in various ways, acknowledged and acted upon by
to the public registry in accordance with the 11th the company, and remained unquestioned for five
section, and the company was named as the new shareyears :
holder: 200 of those shares were transferred by the Held, that it was to be presumed, that the assent of a general meeting had been obtained to the transfer.
company to a Mr. Goosey, and a call of 1001. made
upon him in respect of them : the remaining 100 were The treaty between L and the directors was carried on
divided amongst five other persons. through the medium of S, the managing director. S sti
From the time of the surrender Lane ceased to be pulated for, and received a bonus from L:Held, that, notwithstanding the 29th section of the him, and the notices, circulars, &c., sent to share
treated as a shareholder, no dividends were paid to 7 & 8 Vict. c. 110, the transaction was binding as between L and the company.
holders, were not sent to him.
The 156th clause of the deed of settlement em. The British Provident Life and Fire Assurance powered the directors to purchase shares for the benefit Society was a company formed, and duly registered, of the company. under the 7 & 8 Vict. c. 110, and at the date of the The 157th clause provided that, "notwithstanding hearing of this appeal was in course of winding up in anything thereinbefore contained, it should not be the Chambers of Vice-Chancellor Kindersley, under an lawful for the board of directors, under the powers order made in March, 1861.
thereinbefore contained .... to purchase any share In the beginning of the year 1855, George Lane or shares without the authority and sanction of a acquired 300 shares in this company, and, in March, general meeting of the proprietors and members of the 1855, was elected a director. In November of the society previously in that behalf obtained.” same year he became desirous of relinquishing his The 182nd clause made the reports of the directors, connection with the society. Accordingly he resigned when approved by a general meeting and signed by the office of director, and made a proposal to sell and the chairman, binding and conclusive on all persons, surrender his shares to the company. This offer was except as to manifest errors discovered within three made known to the board of directors, and referred to months. Mr. Sheridan, the managing director, to carry into On the 10th of April, 1856, the annual general effect, if practicable.
meeting of the society was held. A balance sheet was
then produced, of a portion of which the following is Shortridge v. Bosanquet, 16 Beav. 84; and in a copy :
Dom. Proc. sub. nom. Bargate v. Shortridge,
5 H. of L. Ca. 297.
That a corporation or company might be bound by Amount received as
Deposits returned. 1881
on acquiescence; see annuity purchase Deposits returned
Doe d. Pennington v. Taniere, 12 Q. B. 998 ; (per money. 450 0 0 or shares
Denman, C. J. p. 1013). The minute-book of the society was produced, but 2nd. The Court would not undo a transaction at the the minutes of this meeting were not completed by instance of a person, who had enjoyed the benefit of it, the signature of the chairman. From other evidence, unless both parties could be remitted to their former however, it appeared that this balance sheet was condition. Here a restitutio in integrum was imposapproved and adopted.
sible, inasmuch as Mr. Lane could have disposed of his On these facts the official manager contended that I shares, had the company refused to take them; and Mr. Lane reinained liable as a contributory, inasmuch the company had received the 1001., and the chance, as the transfer of his shares to the company was never of the annuities dropping, authorised in the manner required by the 157th Re Saxon Life Assurance Company, 2 J. & H. 408. article of the deed of settlement.
Baily, Q.C., and E. K. Karslake, for the official An affidavit of Mr. Knight, who had been one of manager. the chief clerks of the company from 1854 to 1859, The previous assent of a general meeting was not a was adduced in proof of this assertion. The deponent matter of form, it was an essential part of the transstated that he was acquainted with the affairs of the action. Without it, an attempted transfer was absosociety, and with the business transacted at the general lutely nothing. It was, therefore, incumbent on a meetings, at which he was usually in personal attend party who set up such assent to prove it, and this had ance. The fifth paragraph of the affidavit stated, that not been done. Deither prior nor subsequent to the transfer of the 300 The transaction, being thus wholly void, could not shares by Lane to the society was there any general or by acquiescence or lapse of time acquire validity, other meeting of the society held at which such transfer Lawes' Case, 1 De G. M. & G. 421; was mentioned, or at which the directors were authorised Morgan's Case, 1 Mac. & G. 225; 1 Ha. & Tw. and empowered to purchase such 300 shares, as required 320; 1 De G. & S. 750. by the 157th clause of the society's deed of settlement, and that if such transfer had been properly submitted
Shebbeare, for the creditors' representative. to any such general or other meeting for approval, in
The transaction was bad, in consequence of Sheridan the deponent's belief, it would not have been sanctioned having received a bonus, or authorised.
7 & 8 Vict. c. 110, s. 29. The case was heard in Court by Kindersley, V.-C. :
THE LORD CHANCELLOR said, that he agreed with and his Honour's judgment proceeded mainly on the ground that Mr. Lane could not rid himself of his the Vice-Chancellor in holding that Mr. Lane coull shares in the company and his liability to contribute shares in the company, unless he had in effecting that
not be held to have legally deuuded himself of his in case of a winding up, except by some one of the muodes provided by the deed of settlement ; that of the object complied with the requirements of the deed of
settlement. But the question was, whether it was mode of so ridding himself by a transfer to the com
shown, or ought to be presumed, that all necessary jany, the previous assent of a general meeting was an "ssential part ; and that Mr. Lane having failed to conditions were fulfilled, and, if not, whether the pipore such previous assent, his name must be put on company was not estopped from saying the contrary? the list of contributories.
In deciding that question, the course of dealing From this decision Mr. Lane now appealed.
pursued by the company, and its transactions subse
quent to Mr. Lane's delivering up the certificates, was Glasse, Q.C., and H. F. Shebbeare, for the appellant. important.
1st. More than five years having elapsed between His Lordship then stated the origin and termination the date of the transaction, now sought to be impeached, of Mr. Lane's connection with the company, and the and the commencement of the winding up, every negotiations and interview with Sheridan, and propresumption should be made in favour of validity. The ceeded to say,—that the intended transfer was comcompany was not incapable of purchasing-it might do pleted in January, 1856. In April of the same year, the so provided the assent of a general meeting was ob- annual general meeting of the society was held. tained. It ought to be presumed, that this formality By the 156th clause of the deed of settlement, the was complied with, especially when the inability to board of directors were empowered, in certain cases, to give positive evidence of the fact arose from neglect purchase shares for the benefit of the company. Then of duty by the directors,
the 157th clause declared, that “notwithstanding anyGrady's Case, 1 N. R. 407, 9 Jur. (N. s.) 631 ; thing thereinbefore contained, should not be lawful
for the board of directors, under the powers therein- transaction ought to have been brought before the meetbefore contained .... to purchase any share or ing. Was there anything to strengthen the presumption shares without the authority and sanction of a general thus arising that it was ? A balance sheet was made meeting of the proprietors and members of the society out for the inspection of the meeting, and it must be previously in that behalf obtained.” Now it was im- assumed that it was explained and understood before it possible to contend that the clause meant, that the was approved and adopted by the meeting. In this directors were to obtain the authority and sanction balance sheet, under the head “Receipts,” there was before treating for the purchase of shares. So far from this entry—“Annuity purchase-money, 450l."; and on it, it was manifestly intended that the shareholders the opposite side, under the head “Expenditure,” should know the terms of the proposed surrender, and there were these two entries – “Deposits returned, the treaty must therefore be matured before it was sub-1,8811
. Os. 11d.; Deposits returned on shares, 3001. :" mitted to them. ('onsequently, it was competent to the that is, on shares that had been issued. This could directors to proceed by treaty or conditional contract, refer to no other transaction. It had been said that the which treaty or contract would obtain legal validity, entry unexplained was not intelligible. But it was not if, and as soon as, it was approved and ratified by a the duty of Mr. Lane to make the entries-it was the general meeting. “Previously” must be taken to duty of the directors, and it must be presumed that the mean, “before becoming valid and binding."
entry, which they did make, was explained to, and underThat being so, the question now was, was this con- stood by, the shareholders. Was this presumption in tract-concluded, as far as possible, between Mr. Lane any way weakened or rebutted? The minute book was and the directors in January, 1856 — subsequently produced ; but the minutes of the meeting were imsanctioned by the company in the manner and form perfect and not signed, so that they furnished no which the case required? In determining this, all rebuttal
. Mr. Knight's evidence was of no value ; he uch inferences must be drawn from the conduct of the could not know that to which he had sworn in the fifth company as would be warranted by similar conduct on paragraph of his affidavit. the part of an individual.
His Lordship added, that he adhered to the docWhat, then, were the subsequent acts of the com- trine laid down by him in Grady's Case (loc. cit.), pany? On this point, the company itself had adduced that “if a company had no power to do a particular but scanty evidence. It was, however, the duty of the thing, undoubtedly that power could not be added company to keep exact minutes of the proceedings of to the company, by the agreement of the sharegeneral meetings, and if no minutes or no complete holders ; nor could it be inferred to have been done minutes were forthcoming, it was to be presumed | legally, merely from acquiescence or from subsequent as against the company that whatever ought to have delay in questioning the transaction. But if a combeen submitted at any general meeting, was so sub- pany had power to do a thing, and if there was only mitted in fact. It appeared, then, that previously to requisite a particular formality, such as the consent the meeting, 200 of the shares originally held by Mr. of a general meeting, in order to warrant the exercise Lane were transferred to a Mr. Goosey for 2001. This of that power, then, if he found the company dealdealing, implying a due acquisition, this act of owner-ing with an individual at arm's length, and taking a ship, was entered in the company's books. And more transfer of shares, duly completing that transfer, enterthan that, the company, treating the transfer as valid, ing the transfer, and entering the transaction in books, made a call upon the assignee for 1001. But further, so that he was warranted and justified in imputing a the company, on the 22nd of February, 1856, made a knowledge of it to every shareholder, he was fully return in the public register, which of course was open borne out, not only by the reason of the thing, but by to the shareholders, stating that 300 shares had been the express authority of the case which he had referred transferred by George Lane to the company. 200 of (Bargate v. Shortridge, loc. cit.), in inferring, as these shares were subsequently transferred to Mr. against the company, that the formality which alone Goosey, and the remaining 100 to five other persons. was wanting to the exercise of the power bad been
case could the evidence be stronger, that either antecedently supplied or had been subsequently the company had become rightly possessed of Mr. added to the transaction.” In adhering to that case, Lane's shares. But this was not all. The annui- he satisfied the rule of law, that the requirements of ties were paid voluntarily during the years 1857 the deed must be abided by, and the rules of natural and 1858, and in consequence of legal proceedings, in justice by holding that the transaction must have been 1859. The transaction was thus recognised for many rightly completed. years.
His Lordship added, that possibly the word "forIt was now necessary to consider the evidence of mality,” as applied* to the assent of the general meetwhat took place at the meeting of April, 1856. The ing, might be misunderstood. Without such assent foundation of all just conclusions in reference to the there was no transfer. As to the point of law, thereproceedings at that meeting was, that what ought to fore, he and the Vice-Chancellor were agreed ; but His have been done, should be taken to have been done, unless there was cyidence to the contrary. Now, the
* Grady's Case (loc. cit.)
Honour did not draw that conclusion from the facts and restoring to the plaintiff the property that was which he felt himself bound to draw.
his; and did not extend to any substituted property, His Lordship added, with reference to Mr. Sheb- unless the substitution had been made under contract beare's argument, that, in his opinion, the 29th section and with the privity of the plaintiff, or unless there of the 7 & 8 Vict. c. 110, applied only to cases where was a trust impressed upon the substituted property, a director contracted to furnish goods, labour, or other which, in the present case, they submitted there such things to the company. As between the com- was not. pany and Sheridan, the retention of the 301. was
Birkbeck, in reply. probably illegal ; but it had no effect upon the transaction as between Mr. Lane and the company.
THE LORD CHANCELLOR said, that if the case had Mr. Lane's name would, for these reasons, be struck simply been to set aside, for inadequacy of consideraoff the list. He should not in future regard with favour tion, the sale for a single sum of a reversionary inteattempts made to rip up transactions which had oc- rest coupled with a present interest, there would have curred so long before the winding-up commenced, and been great difficulty in applying the ordinary equity as had remained so long unquestioned.
to the sale of a reversion, owing to the impossibility
of determining how much of the purchase-money was Lord Chancellor.
to be attributed to the interest in possession, and how } NESBITT v. BERRIDGE.
much to that in reversion. In the case before the 14, 16 Nov. 1863.
Court, however, the purchase-money, even if the whole Decree made by the Master of the Rolls (reported,
were attributed to the reversionary portion of the 1 N. R. 315) varied.
property, was shown to be clearly inadequate, and the This was an appeal from that part of the decree in the defendants' counsel had acted prudently in not seeking Court below (see 1 N. R. 345,) which declared that the to disturb the decree by which the Master of the plaintiff was not entitled to the 1,2001. policy.
Rolls had set the transaction aside. Selcym, Q.C., and Birkbeck, for the plaintiffs, the
The question, however, raised by the plaintiff's appellants, contended that their right to the policy appeal was, as to the right to the proceeds of the was subsidiary to their right to have the transaction 1,2001. policy effected on the life of Nesbitt.
It appeared that the mortgages to Miss Jackson set aside, to which the Master of the Rolls had held them to be entitled. The 1, 2001. policy was substituted contained covenants by Nesbitt to pay the premiums for the two prior policies for 7001. and 2001. respec- Nesbitt should neglect so to do, and Miss Jackson
on the 7001. and 2001. policies, and provided that if tively, and was subject to the provisions affecting the same. The premiums on the 1,2001. policy had, in should enter into possession or receipt of the income of fact, been paid out of the income arising from Nesbitt's the mortgaged property, it should be lawful for her to property; Miss Jackson had entered into receipt of pay the premiums, and retain the amounts so paid the dividends of the Consols ; she was mortgagee in
out of the income of the property, or out of the moneys [possession, and therefore a trustee for Nesbitt, the which, at Nesbitt's death, should be payable on the person entitled to the equity of redemption ; the policies. Bunyard, being the assignee of Nesbitt's policies for 7001. and 2001. were part of her security, life for 1, 2001., and applied to Miss Jackson to accept
equity of redemption, effected a new policy on Nesbitt's they were impressed with the same trust as the rest of this in substitution for the two original policies. She the mortgaged property in favour of the owner of the equity of redemption ; and where property impressed consented, and by the indenture of the 21st of January, with a trust was converted, the trust attached upon
1857, the 1,2001. policy was assigned to Miss Jackson,
as a further security for her mortgage debt, in substituthe substituted property. It was true that Nesbitt was not a party to the arrangement between Miss tion for the two original policies, but subject to the Jarkson and Bunyard, whereby the 1,2001. policy was
provisions of the two mortgage deeds relating to those substituted for the other two ; but the plaintiff's right
policies. to the policy depended, not upon contract or obligation the assignee of the equity of redemption ; but, in fact,
Bunyard, throughout this transaction, had acted as on the part of Miss Jackson to keep up the original nothing had passed to Bunyard by the assignment to palicies, but upon the fact that the trust affecting the him. Whatever was done by him, as such assignee, latter attached upon the property which was substituted
must be taken as done for and on behalf of the real
owner of the equity of redemption, who had a right to Hobhouse, Q.C., and Dickinson, for the defendants, adopt the acts of Bunyard ; and the new policy, in the the Berridges, contended that Miss Jackson was under hands of Bunyard and those claiming under him, was no obligation to keep up the original policies ; that impressed with a trust in favour of such real owner. the arrangement between Miss Jackson and Bunyard The Master of the Rolls, starting from the principle for the substitution of the new policy for the other that rights and obligations were correlative, had detwo did not bind Nesbitt ; that the jurisdiction of the duced the conclusion, that as Miss Jackson was under ('ourt extenåled only to setting aside the transaction, no obligation to keep up the original policies, Nesbitt
had no right to redeem the substituted policy. But Baily, Q.C., and Renshaw, for the respondent, were Nesbitt's property in the substituted policy arose from not called upon. the right which he had, as the true owner of the
THE LORD CHANCELLOR said, that the order comcquity of redemption, to adopt the acts which had plained of related to a matter resting wholly in the been done in respect of that equity of redemption, discretion of the Judge, and that it could not be the Nesbitt, in his lifetime, and Butler now, as his legal subject of an appeal. personal representative, had a right to claim the benefit of whatever had been done in respect of the
Note. --See the proviso at the end of section 3 of equity of redemption, and was entitled to redeem the the Chancery Amendment Act, 21 & 22 Vict. c. 27. substituted policy in the same way as he could have redeemed the two original policies.
CHARLESWORTII V. GARTSED, of the decree appealed from, and declare that the 4, 12 Nov. 1863. 1, 2001. policy was to be regarded as part of the equity Partition Suit-Right of Way-Suspension of of redemption, and belonged to Nesbitt's representative, by reason of the assignment of the equity of
Right-Revival. redemption having having been set aside. Consequent
A right merely dependent on ownership cannot be upon this, that portion of the decree which dismissed rescrved over the entirety after partition. the supplemental bill with costs must also be reversed ;
One entilled to a right of way over a strip of land, inand his Lordship, having regard to the fact that dependently of the ownership thereof, purchased the strip Kisch, Bunyard, and Cave had been improperly made
of land:parties, and that improper charges had been introduced
Held, that, during ownership, his right of way over into the bill, would further vary the order below by the land was suspended, but would revive on his ceasing omitting the special directions as to costs.
to be owner. The result, therefore, was, that the plaintiff obtained This was a suit for partition of a road. The position the relief he sought; but without costs.
of the road and adjoining property is shown by the
subjoined plan. Lord Chancellor. SCHNEIDER V. SHRUBSOLE. 16 Nov. 1863. SHRU B'SOLE 0. SCHNEIDER.
Practice-Jury- Appeal. There is no appeal from the order of a Judge, directing a cause to be tricd before himself and a jury.
These were a cause and a cross-cause. The object of the former was to enforce specifically, and of the latter to set aside on the ground of fraud, an agreement hold close of land, divided the close into six plots,
In 1826, William Dickinson, the owner of a copyentered into by Shrubsole with Schneider, and intended to compromise and settle certain disputes as to their C, D, E, F, G, and H, for building purposes, and to afford respective rights and shares in a lottery-prize of 8,8001. Cooper's Lane, along the north side of the close a to
access thereto, laid out a private road, entering from drawn at Frankfort in favour of a ticket to the pur
This strip of land was likewise copyhold, was chase money of which they had respectively con
four yards in breadth and about ninety in length. tributed.
On the cause coming on to be heard before Each plot was sold, and surrendered to the several Kindersley, V.-C., his Honour directed that a
purchasers with “a right of road, as now set out from trial should take place before himself and a jury. said close, four yards wide, for the " purchaser, “his
Cooper's Lane, on the top or north-west side of the Neither party asked that this course should be heirs and assigns, tenants, servants, and workmen, with adopted, and many of Shrubsole's witnesses were foreigners, or others whose attendance (as he alleged) after, and on all occasions to and from the said piece
horses, cattle, carts, and carriages, at all times herehe had no means of procuring. The Vice-Chancellor,
or parcel of land, or ground, and premises, which said however, intimated that, if a proper case were made out, he should allow the affidavit or deposition of an way or road is now set out, for the use of the several
purchasers of the said close, subject as hereafter absent witness to be read. Shrubsole now appealed against the order of the mentioned,” viz., “to a right of road and privilege
of William Dickinson, his heirs, and assigns, and for Vice-Chancellor.
his and their tenants, servants, and workmen, with Glasse, Q.C. (C. T. Swanston with him), for the horses, cattle, carts and carriages, at all times hereappellant, urged the inconvenience of the course after, and on all occasions, into through and over the adopted by his Honour.
said way or road as now set out, through the top or