On the 25th of January, 1856, Mr. Lane, at Sheridan's request, attended at the office of the company, and the latter then undertook to dispose of the shares on the following terms:-Mr. Lane was to lay out 4007. in to purchasing from the company two life annuities, one Joint-Stock Company-Transfer of shares Company - Acquiescence Presumption in favour of validity-7 & 8 Vict. c. 110, s. 29. The deed of settlement of the B company, registered under the 7 & 8 Vict. c. 110, authorised the directors to purchase shares on behalf of the company, provided the assent of a general meeting were previously obtained :Held, that "previously" must be taken to mean before the transaction became legally binding," not "before any treaty for a purchase was commenced." for himself, the other for his wife, and the company was to take the 300 shares at the rate of 11. a share. Sheridan also stipulated for a gratuity to himself of 301. Lane accordingly delivered up the scrip certificates of his shares, and handed to Sheridan a cheque for 130, and thereupon, received a memorandum acknowledging the receipt of 4007. as purchase-money of the two annuities. It was not disputed, on the one hand, that the transaction was bona fide on Lane's part, nor, on the other, that Lane was aware that the sale and surrender was made to the company. Sheridan made entries in various books, and informed Lane that the matter was now settled. Formal policies for the two annuities were soon afterwards sent, and the moneys due under them were, either voluntarily or in consequence of legal proceedings, paid by the company down to the year 1861. L, a shareholder in the B company, sold his shares to the company, and the transfer was duly returned to the public registry of Joint-Stock Companies. Some months after the transfer and return, a general meeting was held, and a balance sheet submitted, containing items relating to this transaction. It was proved that this balance sheet was adopted, although, through the default The directors omitted to keep the register of shareof the chairman, there was no legal record of the pro-holders required by the 49th section of 8 & 9 Vict. ceedings of the meeting. The transfer was afterwards, in various ways, acknowledged and acted upon by the company, and remained unquestioned for five years: Held, that it was to be presumed, that the assent of a general meeting had been obtained to the transfer. The treaty between L and the directors was carried on through the medium of S, the managing director. S stipulated for, and received a bonus from L:— Held, that, notwithstanding the 29th section of the 7 & 8 Vict. c. 110, the transaction was binding as between L and the company. The British Provident Life and Fire Assurance Society was a company formed, and duly registered, under the 7 & 8 Vict. c. 110, and at the date of the hearing of this appeal was in course of winding up in the Chambers of Vice-Chancellor Kindersley, under an order made in March, 1861. In the beginning of the year 1855, George Lane acquired 300 shares in this company, and, in March, 1855, was elected a director. In November of the same year he became desirous of relinquishing his connection with the society. Accordingly he resigned the office of director, and made a proposal to sell and surrender his shares to the company. This offer was made known to the board of directors, and referred to Mr. Sheridan, the managing director, to carry into effect, if practicable. c. 110, but the transfer of Lane's shares was returned to the public registry in accordance with the 11th section, and the company was named as the new shareholder: 200 of those shares were transferred by the company to a Mr. Goosey, and a call of 1007. made upon him in respect of them: the remaining 100 were divided amongst five other persons. From the time of the surrender Lane ceased to be him, and the notices, circulars, &c., sent to sharetreated as a shareholder, no dividends were paid to holders, were not sent to him. The 156th clause of the deed of settlement empowered the directors to purchase shares for the benefit of the company. The 157th clause provided that, "notwithstanding anything thereinbefore contained, it should not be lawful for the board of directors, under the powers thereinbefore contained. . . . to purchase any share or shares without the authority and sanction of a general meeting of the proprietors and members of the society previously in that behalf obtained.” The 182nd clause made the reports of the directors, when approved by a general meeting and signed by the chairman, binding and conclusive on all persons, except as to manifest errors discovered within three months. On the 10th of April, 1856, the annual general meeting of the society was held. A balance sheet was then produced, of a portion of which the following is a copy: Cr.-Expenditure. £ s. d. Shortridge v. Bosanquet, 16 Beav. 84; and in Dom. Proc. sub. nom. Bargate v. Shortridge, 5 H. of L. Ca. 297. That a corporation or company might be bound by Deposits returned. 1881 0 11 acquiescence; see Deposits returned on shares 300 0 0 The minute-book of the society was produced, but the minutes of this meeting were not completed by the signature of the chairman. From other evidence, however, it appeared that this balance sheet was approved and adopted. On these facts the official manager contended that Mr. Lane remained liable as a contributory, inasmuch as the transfer of his shares to the company was never authorised in the manner required by the 157th article of the deed of settlement. An affidavit of Mr. Knight, who had been one of the chief clerks of the company from 1854 to 1859, was adduced in proof of this assertion. The deponent stated that he was acquainted with the affairs of the society, and with the business transacted at the general meetings, at which he was usually in personal attendance. The fifth paragraph of the affidavit stated, that neither prior nor subsequent to the transfer of the 300 shares by Lane to the society was there any general or other meeting of the society held at which such transfer was mentioned, or at which the directors were authorised and empowered to purchase such 300 shares, as required by the 157th clause of the society's deed of settlement, and that if such transfer had been properly submitted to any such general or other meeting for approval, in the deponent's belief, it would not have been sanctioned or authorised. The case was heard in Court by Kindersley, V.-C. : and his Honour's judgment proceeded mainly on the ground that Mr. Lane could not rid himself of his shares in the company and his liability to contribute in case of a winding up, except by some one of the modes provided by the deed of settlement; that of the mode of so ridding himself by a transfer to the company, the previous assent of a general meeting was an essential part; and that Mr. Lane having failed to prove such previous assent, his name must be put on the list of contributories. From this decision Mr. Lane now appealed. Glasse, Q.C., and H. F. Shebbeare, for the appellant. 1st. More than five years having elapsed between the date of the transaction, now sought to be impeached, and the commencement of the winding up, every presumption should be made in favour of validity. The company was not incapable of purchasing-it might do so provided the assent of a general meeting was obtained. It ought to be presumed, that this formality was complied with, especially when the inability to give positive evidence of the fact arose from neglect of duty by the directors, Grady's Case, 1 N. R. 407, 9 Jur. (N. s.) 631; Doe d. Pennington v. Taniere, 12 Q. B. 998; (per 2nd. The Court would not undo a transaction at the instance of a person, who had enjoyed the benefit of it, unless both parties could be remitted to their former condition. Here a restitutio in integrum was impossible, inasmuch as Mr. Lane could have disposed of his shares, had the company refused to take them; and the company had received the 1007., and the chance of the annuities dropping, Re Saxon Life Assurance Company, 2 J. & H. 408. Baily, Q.C., and E. K. Karslake, for the official manager. The previous assent of a general meeting was not a matter of form, it was an essential part of the transaction. Without it, an attempted transfer was absolutely nothing. It was, therefore, incumbent on a party who set up such assent to prove it, and this had not been done. The transaction, being thus wholly void, could not by acquiescence or lapse of time acquire validity, Lawes' Case, 1 De G. M. & G. 421; Morgan's Case, 1 Mac. & G. 225; 1 Ha. & Tw. 320; 1 De G. & S. 750. Shebbeare, for the creditors' representative. The transaction was bad, in consequence of Sheridan having received a bonus, 7 & 8 Vict. c. 110, s. 29. THE LORD CHANCELLOR said, that he agreed with the Vice-Chancellor in holding that Mr. Lane could not be held to have legally denuded himself of his shares in the company, unless he had in effecting that object complied with the requirements of the deed of settlement. But the question was, whether it was shown, or ought to be presumed, that all necessary conditions were fulfilled, and, if not, whether the company was not estopped from saying the contrary? In deciding that question, the course of dealing pursued by the company, and its transactions subsequent to Mr. Lane's delivering up the certificates, was important. His Lordship then stated the origin and termination of Mr. Lane's connection with the company, and the negotiations and interview with Sheridan, and proceeded to say,-that the intended transfer was completed in January, 1856. In April of the same year, the annual general meeting of the society was held. By the 156th clause of the deed of settlement, the board of directors were empowered, in certain cases, to purchase shares for the benefit of the company. Then the 157th clause declared, that "notwithstanding anything therein before contained, it should not be lawful for the board of directors, under the powers thereinbefore contained. . . . to purchase any share or shares without the authority and sanction of a general meeting of the proprietors and members of the society previously in that behalf obtained." Now it was impossible to contend that the clause meant, that the directors were to obtain the authority and sanction before treating for the purchase of shares. So far from it, it was manifestly intended that the shareholders should know the terms of the proposed surrender, and the treaty must therefore be matured before it was submitted to them. Consequently, it was competent to the directors to proceed by treaty or conditional contract, which treaty or contract would obtain legal validity, if, and as soon as, it was approved and ratified by a general meeting. "Previously" must be taken to mean, "before becoming valid and binding." That being so, the question now was, Was this contract—concluded, as far as possible, between Mr. Lane and the directors in January, 1856-subsequently sanctioned by the company in the manner and form which the case required? In determining this, all uch inferences must be drawn from the conduct of the company as would be warranted by similar conduct on the part of an individual. transaction ought to have been brought before the meeting. Was there anything to strengthen the presumption thus arising that it was? A balance sheet was made out for the inspection of the meeting, and it must be assumed that it was explained and understood before it was approved and adopted by the meeting. In this balance sheet, under the head "Receipts," there was this entry-"Annuity purchase-money, 4507."; and on the opposite side, under the head "Expenditure," there were these two entries "Deposits returned, 1,8817. Os. 11d.; Deposits returned on shares, 3007.:" that is, on shares that had been issued. This could refer to no other transaction. It had been said that the entry unexplained was not intelligible. But it was not the duty of Mr. Lane to make the entries-it was the duty of the directors, and it must be presumed that the entry, which they did make, was explained to, and understood by, the shareholders. Was this presumption in any way weakened or rebutted? The minute book was produced; but the minutes of the meeting were imperfect and not signed, so that they furnished no rebuttal. Mr. Knight's evidence was of no value; he could not know that to which he had sworn in the fifth paragraph of his affidavit. His Lordship added, that he adhered to the doctrine laid down by him in Grady's Case (loc. cit.), that "if a company had no power to do a particular thing, undoubtedly that power could not be added to the company, by the agreement of the shareholders; nor could it be inferred to have been done legally, merely from acquiescence or from subsequent delay in questioning the transaction. But if a com requisite a particular formality, such as the consent of a general meeting, in order to warrant the exercise of that power, then, if he found the company deal What, then, were the subsequent acts of the company? On this point, the company itself had adduced but scanty evidence. It was, however, the duty of the company to keep exact minutes of the proceedings of general meetings, and if no minutes or no complete minutes were forthcoming, it was to be presumed as against the company that whatever ought to have been 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 the meeting, 200 of the shares originally held by Mr. Lane were transferred to a Mr. Goosey for 2007. This dealing, 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 than that, the company, treating the transfer as valid, made a call upon the assignee for 1001. But further, the company, on the 22nd of February, 1856, made a return in the public register, which of course was open to the shareholders, stating that 300 shares had been transferred by George Lane to the company. 200 of these shares were subsequently transferred to Mr. Goosey, and the remaining 100 to five other persons. case could the evidence be stronger, that the company had become rightly possessed of Mr. Lane's shares. But this was not all. The annuities were paid voluntarily during the years 1857 and 1858, and in consequence of legal proceedings, in 1859. The transaction was thus recognised for many years. In no It was now necessary to consider the evidence of what took place at the meeting of April, 1856. The foundation of all just conclusions in reference to the proceedings at that meeting was, that what ought to have been done, should be taken to have been done, unless there was evidence to the contrary. Now, the transfer of shares, duly completing that transfer, entering the transfer, and entering the transaction in books, so that he was warranted and justified in imputing a knowledge of it to every shareholder, he was fully borne out, not only by the reason of the thing, but by the express authority of the case which he had referred (Bargate v. Shortridge, loc. cit.), in inferring, as against the company, that the formality which alone was wanting to the exercise of the power had been either antecedently supplied or had been subsequently added to the transaction." In adhering to that case, he satisfied the rule of law, that the requirements of the deed must be abided by, and the rules of natural justice by holding that the transaction must have been rightly completed. His Lordship added, that possibly the word "formality," as applied* to the assent of the general meeting, might be misunderstood. Without such assent there was no transfer. As to the point of law, therefore, he and the Vice-Chancellor were agreed; but His * 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, unless the substitution had been made under contract and with the privity of the plaintiff, or unless there was a trust impressed upon the substituted property, which, in the present case, they submitted there His Lordship added, with reference to Mr. Shebbeare's argument, that, in his opinion, the 29th section of the 7 & 8 Vict. c. 110, applied only to cases where a director contracted to furnish goods, labour, or other such things to the company. As between the company and Sheridan, the retention of the 301. was probably illegal; but it had no effect upon the transaction as between Mr. Lane and the company. Mr. Lane's name would, for these reasons, be struck off the list. He should not in future regard with favour attempts made to rip up transactions which had occurred so long before the winding-up commenced, and had remained so long unquestioned. Decree made by the Master of the Rolls (reported, 1 N. R. 345) varied. This was an appeal from that part of the decree in the Court below (see 1 N. R. 345,) which declared that the plaintiff was not entitled to the 1, 2007. policy. Selvryn, Q. C., and Birkbeck, for the plaintiffs, the appellants, contended that their right to the policy was subsidiary to their right to have the transaction set aside, to which the Master of the Rolls had held them to be entitled. The 1,2007. policy was substituted for the two prior policies for 7007. and 2007. respectively, and was subject to the provisions affecting the same. The premiums on the 1,2007. policy had, in fact, been paid out of the income arising from Nesbitt's property; Miss Jackson had entered into receipt of the dividends of the Consols; she was mortgagee in possession, and therefore a trustee for Nesbitt, the person entitled to the equity of redemption; the policies for 7001. and 2007. were part of her security, they were impressed with the same trust as the rest of the mortgaged property in favour of the owner of the equity of redemption; and where property impressed with a trust was converted, the trust attached upon the substituted property. It was true that Nesbitt was not a party to the arrangement between Miss Jackson and Bunyard, whereby the 1,2007. policy was substituted for the other two; but the plaintiff's right to the policy depended, not upon contract or obligation on the part of Miss Jackson to keep up the original policies, but upon the fact that the trust affecting the latter attached upon the property which was substituted for them. Hobhouse, Q.C., and Dickinson, for the defendants, the Berridges, contended that Miss Jackson was under no obligation to keep up the original policies; that the arrangement between Miss Jackson and Bunyard for the substitution of the new policy for the other two did not bind Nesbitt; that the jurisdiction of the Court extended only to setting aside the transaction, was not. Birkbeck, in reply. THE LORD CHANCELLOR said, that if the case had simply been to set aside, for inadequacy of consideration, the sale for a single sum of a reversionary interest coupled with a present interest, there would have been great difficulty in applying the ordinary equity as to the sale of a reversion, owing to the impossibility of determining how much of the purchase-money was to be attributed to the interest in possession, and how much to that in reversion. In the case before the Court, however, the purchase-money, even if the whole were attributed to the reversionary portion of the property, was shown to be clearly inadequate, and the defendants' counsel had acted prudently in not seeking to disturb the decree by which the Master of the Rolls had set the transaction aside. The question, however, raised by the plaintiff's appeal was, as to the right to the proceeds of the 1,2007. policy effected on the life of Nesbitt. It appeared that the mortgages to Miss Jackson contained covenants by Nesbitt to pay the premiums Nesbitt should neglect so to do, and Miss Jackson on the 7007. and 2007. policies, and provided that if should enter into possession or receipt of the income of the mortgaged property, it should be lawful for her to pay the premiums, and retain the amounts so paid out of the income of the property, or out of the moneys which, at Nesbitt's death, should be payable on the policies. Bunyard, being the assignee of Nesbitt's life for 1,2007., and applied to Miss Jackson to accept equity of redemption, effected a new policy on Nesbitt's this in substitution for the two original policies. She consented, and by the indenture of the 21st of January, 1857, the 1,2007. policy was assigned to Miss Jackson, as a further security for her mortgage debt, in substitution for the two original policies, but subject to the provisions of the two mortgage deeds relating to those policies. the assignee of the equity of redemption; but, in fact, Bunyard, throughout this transaction, had acted as nothing had passed to Bunyard by the assignment to him. Whatever was done by him, as such assignee, must be taken as done for and on behalf of the real owner of the equity of redemption, who had a right to adopt the acts of Bunyard; and the new policy, in the hands of Bunyard and those claiming under him, was impressed with a trust in favour of such real owner. The Master of the Rolls, starting from the principle that rights and obligations were correlative, had deduced the conclusion, that as Miss Jackson was under no obligation to keep up the original policies, Nesbitt had no right to redeem the substituted policy. But Nesbitt's property in the substituted policy arose from the right which he had, as the true owner of the equity of redemption, to adopt the acts which had been done in respect of that equity of redemption. Nesbitt, in his lifetime, and Butler now, as his legal personal representative, had a right to claim the benefit of whatever had been done in respect of the equity of redemption, and was entitled to redeem the substituted policy in the same way as he could have redeemed the two original policies. His Lordship would, therefore, reverse the portion of the decree appealed from, and declare that the 1,2001. policy was to be regarded as part of the equity of redemption, and belonged to Nesbitt's representative, by reason of the assignment of the equity of redemption having having been set aside. Consequent upon this, that portion of the decree which dismissed the supplemental bill with costs must also be reversed; and his Lordship, having regard to the fact that Kisch, Bunyard, and Cave had been improperly made parties, and that improper charges had been introduced into the bill, would further vary the order below by omitting the special directions as to costs. The result, therefore, was, that the plaintiff obtained the relief he sought; but without costs. Lord Chancellor. } 16 Nov. 1863. SCHNEIDER v. SHRUBSOLE. Practice-Jury-Appeal. There is no appeal from the order of a Judge, directing a cause to be tried 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 entered into by Shrubsole with Schneider, and intended to compromise and settle certain disputes as to their respective rights and shares in a lottery-prize of 8,8007. drawn at Frankfort in favour of a ticket to the purchase money of which they had respectively contributed. On the cause coming on to be heard before Kindersley, V.-C., his Honour directed that a trial should take place before himself and a jury. Neither party asked that this course should be adopted, and many of Shrubsole's witnesses were foreigners, or others whose attendance (as he alleged) he had no means of procuring. The Vice-Chancellor, however, intimated that, if a proper case were made out, he should allow the affidavit or deposition of an absent witness to be read. Shrubsole now appealed against the order of the Vice-Chancellor. Glasse, Q.C. (C. T. Swanston with him), for the appellant, urged the inconvenience of the course adopted by his Honour. B. This strip of land was likewise copyhold, was four yards in breadth and about ninety in length. Each plot was sold, and surrendered to the several purchasers with “a right of road, as now set out from said close, four yards wide, for the " purchaser, “his Cooper's Lane, on the top or north-west side of the heirs and assigns, tenants, servants, and workmen, with horses, cattle, carts, and carriages, at all times hereafter, and on all occasions to and from the said piece or parcel of land, or ground, and premises, which said way or road is now set out, for the use of the several purchasers of the said close, subject as hereafter mentioned," viz., "to a right of road and privilege of William Dickinson, his heirs, and assigns, and for his and their tenants, servants, and workmen, with horses, cattle, carts and carriages, at all times hereafter, and on all occasions, into through and over the said way or road as now set out, through the top or |