exchange of shares from the Bristol Marine Insurance Company, Limited, to the United Ports and General Insurance Company, in accordance with the agreement for amalgamation, entered into between the two companies duly approved at shareholders' meetings. "To the directors of the United Ports and General Insurance Company. 'Gentlemen,-I request you will allot me 66 shares in the above named company of 11. each, fully paid up, and I agree to accept the same, and I hereby authorise and empower you to insert my name in the register of shareholders of the company, for the number of shares allotted to me, and I accept the same pursuant to the agreement with the Bristol Marine Insurance Company, Limited;' and I hereby further declare, that I accept the same in full discharge of all claims and demands, subject, nevertheless, to the cash payment as per agreement of 108. per share, returnable on the shares held in the Bristol Marine Insurance Company, Limited." This form of application was accompanied by a letter from the manager of the Ports Company, which, so far material, was as follows as March 10, 1869. "Dear Sir, I have the pleasure to announce that the agreement for amalgamation between the Bristol Marine Insurance Company, Limited, and this Company, has been duly ratified by the shareholders of both companies, whereby the Bristol Marine Insurance Company, Limited, with the whole of its business, assets and liabilities, have been merged into the United Ports and General Insurance Company, which company will henceforth assume the engagements that have been contracted by the Bristol Marine Insurance Company, Limited. In carrying out this amalgamation, this company requests you to sign the annexed form of appplication for shares of 11. fully paid up, being share for share held by you in the Bristol Marine, and return the same immediately in the accompanying envelope. By the terms and conditions of the said amalgamation, each shareholder in the Bristol Marine Insurance Company, Limited, is entitled to receive one share of 11. in the United Ports and General Insurance Company, for every share, with 21. paid thereon, held in the Bristol Marine, with a further payment of 108. per share in cash." BROWN'S CASE. C. R. Brown, who was a holder of 250 shares in the Bristol Company, filled up, signed and returned to the Ports Company one of the forms of application for 250 shares in the Ports Company. On the 22nd of April, 1869, the 250 shares were allotted to him. On the 29th of April this allotment was confirmed by the board of directors of the Ports Company. On the 20th of May, notice of the allotment was sent to Brown, and at the same time he was informed that the certificates of the shares in the Ports Company so allotted to him, were ready to be exchanged for the certificates of his shares in the Bristol Company. He took up the certificates of the shares in the Ports Company, and on the 20th of May, 1869, his name was returned to the registrar of Joint Stock Companies as one of the shareholders in the Ports Company. On the 6th of November, 1869, the Ports Company was ordered to be wound up. On the 8th of November there was a meeting of the shareholders in that company to take into consideration a proposition for the transfer of that company's business to another company. Brown personally attended and voted at that meeting. On the 24th of May, 1870, notice was sent to Brown that his name would be settled on the list of contributories of the Ports Company. Thereupon he for the first time repudiated his shares in that company. It was not disputed that debts had been incurred by the Ports Company between the months of April and May, 1869, and the winding up of the company. It appeared that one of the shareholders in the Bristol. Company, who had not accepted the shares in the Ports Company, had filed a bill to set aside the agreement between the two companies on the ground that it was ultra vires of the Bristol Company, and consequently invalid. TUCKER'S CASE. The facts in this case were identical with those in Brown's case, excepting that Tucker stated in his affidavit that he never received any notice of the allotment of the shares for which he had signed the form of application, and that he had never taken up his share certificates, or personally attended any meeting of the Ports Company. Mr. Amphlett and Mr. Brooksbank appeared on behalf of the official liquidator, in support of the application. Brown alleged that the amalgamation of the two companies was ultra vires of the Bristol Company, and was obtained by fraud. But that would not free him from his liabilities as a shareholder in the Ports Company In re London and County General Brown had retained his share certificates and acted as a shareholder in the Ports Company, therefore he was a contributory to that company In re Empire Assurance Corporation; A company having no special power to transfer its business to another, might do so under the winding up provisions of the Companies Act, 1862, secs. 151, 161 Southall v. British Mutual Life Assur- Mr. Fry and Mr. Lindley, for Mr. Brown, contended that the agreement between the two companies was absolutely void, and not merely voidable. Where such an agreement was voidable only it was open to a person acting under it to confirm it. But where the agreement was absolutely void the question was whether the contract to take shares was part of the void agreement or was independent of it. In the former case the contract for shares could not stand, in the latter case it might stard. Here the Bristol Company was limited, and its business was confined to marine insurance; the Ports Company was unlimited in liability, and it carried on every sort of insurance. An amalgamation between two companies so differently constituted, and whereby liabilities were imposed on the shareholders of the limited company, could not be supported— Clinch v. Financial Corporation, 37 450, and 4 Chanc. 117. The agreement for the transfer of the business being void there was no consideration for taking shares in the transferee company In re London and Northern Assurance Corporation; Stace and Worth's case, Law Rep. 4 Chanc. 682, which was decided by the Lords Justices very shortly after In Hare's case (ubi supra); The Bank of Hindustan, &c. v. Alison, 40 Law J. Rep. (N.S.) C.P. 1, and in Exch. Ch. 117; s. c. Law Rep. 6 C.P. 54, and in Exch. Ch. 222. Hare's case (ubi supra), the amalgamation was objected to on the ground of fraud, which would make the agreement between the companies voidable only, and not altogether void. They also cited In re Oriental Commercial Bank; Mr. Fry and Mr. Cracknall, for Tucker. -Mr. Tucker had never received notice of the allotment of the shares in the Ports Company to him, and he was not bound by the agreement entered into by the company. They cited In re The Richmond Hill Hotel Com- In re Universal Banking Corporation; In re Anglo-Danish and Baltic Steam Navigation Company; Sahlgreen's Mr. Amphlett replied. BACON, V.C.-In order to constitute a man a shareholder, all that was required by the provisions of the Companies Act, 1862, was that he should agree to take shares, and that his name should be duly placed upon the share register. These provisions had been made for the benefit of creditors of the company, therefore in questions as between shareholders and creditors, persons who had complied with the requirements of the Act could not be heard to say that they were not shareholders. It had been said that the agreement between the two companies was invalid and void, but his Honour had heard nothing to make him think so. The Ports Company had full power to enter into the agreement, and the Bristol Company not having the power to do so had applied to the Court undera voluntary winding up and obtained its formal sanction to the agreement. That, however, was not the question at present to be decided. The question to be decided was whether a contract had been entered into by Messrs. Brown and Tucker, whereby they had agreed to become members of the Ports Company, and whether their names appeared on the register. As far as Mr. Brown was concerned the evidence was quite satisfactory. There was the letter from the manager of the Ports Company announcing the agreement between that company and the Bristol Company, and requesting Mr. Brown to sign a form of application for shares which he enclosed, and informing him that by the terms and conditions of the arrange ment for amalgamation he was entitled to receive in the Ports Company the same number of shares as he had held in the Bristol Company. By this letter the company bound themselves to allot to Mr. Brown that number of shares. Mr. Brown filled up the form of application and returned it to the company, and received notice of allotment and share certificates, and his name was placed on the register of the shareholders in the NEW SERIES, 41.-CHANC. company. As regarded Mr. Tucker the evidence was not quite so satisfactory. He had, however, received a letter and form of application, similar to those sent to Mr. Brown, which form he had filled up and returned to the company, and thereupon the company was bound to allot to him, and he was bound to take the shares for which he had so applied. There was, therefore, a binding contract between Mr. Tucker and the company, of which either party might have enforced the specific performance. Mr. Tucker's affidavit stating that he had no recollec tion of ever having received, and that he did not believe he ever had received any notice of allotment was not sufficient, but it was immaterial whether or not he had received notice of allotment, for the contract with the company was complete immediately on his filling up and returning to the company the form of applica tion for shares. Messrs. Brown and Tucker must, therefore, be placed on the list of contributories. No order as to costs. Note. The above case is under appeal. under the following circumstances. The suit being one against Paul Moore and Eli Morris, executors of a testator, for the administration of the testator's estate, the decree had directed the usual accounts and inquiries, and on further consideration it was ordered that the accounts should be continued. In pursuance of this the chief clerk had, on or before the 26th of May, 1871, and in the presence of all parties, settled the draft of his certificate, except in so far as that blanks were left for the amounts of interest which were to be calculated up to the date of signing. By this certificate considerable sums were found to be due from the executors; but after the 26th of May, and before the certificate was signed, Paul Moore died, leaving, as was alleged, an insolvent estate. On the 28th of June, 1871, the plaintiff, on the authority of Band v. Randle, 2 W. R. 331, obtained an order under 15 & 16 Vict. c. 86. s. 44, allowing the suit to proceed without bringing a representative of Paul Moore before the Court. On the cause coming on for further consideration, an objection was taken on behalf of Eli Morris to this last order, on the ground that if the cause proceeded in the absence of such a representative, Eli Morris would not be able to recover over from Paul Moore's estate what he himself would be obliged to pay, and would have had a right to recover from Paul Moore, if alive; and the cause was therefore ordered to stand over till such a representative should be brought before the Court, with liberty to the plaintiff to apply to have it restored to the paper. Sir R. Baggallay and Mr. Shebbeare now moved to have the cause restored to the paper, on the ground that the order of the 28th of June was right, and that the plaintiff was entitled to go on in the absence of Paul Moore's representative. Mr. W. Pearson, for Eli Morris, submitted that when there was a joint and several liability, a plaintiff, who had taken proceedings against both those jointly liable, must go on to the end against both. Here also one of the plaintiffs was the person first entitled to take out representation to Paul Moore, and the latter was one of the re siduary legatees of the testator whose estate was not insolvent. The certificate ascertaining the joint liability, which was hostile to Paul Moore, was made after his death and in the absence of any one to represent him; if Morris has to pay he cannot recover from Moore's estate. THE MASTER Of THE ROLLS (after considering till December 4), held, that the statutory power was given exactly to meet such a case as this, that the order following Band v. Randle was right, and that the suit ought to be allowed to proceed without a representative of the deceased executor; if no one else did, Morris might if he chose take out administration to Moore; but as he was insolvent, it would do no good and only create expense to delay the cause till a representative should be made a party. Note. In the course of the argument, his Lordship stated, that in considering the Act, he had noted down three cases in which he thought the order could not be made, viz. : 1. Where it was necessary to administer the estate of the deceased party. 2. Where the interest of the deceased was adverse to that of the plaintiff. 3. Where the representative of the deceased would have active duties to perform. toria, for the purpose of having the accrued and future dividends of a sum of 1,4007. consols, now in Court, belonging to Sarah Salmon, paid to him for her past and future maintenance, she having been a pauper lunatic at Melbourne for fourteen years. A legacy, now represented by the 1,4007. consols, had been bequeathed by Samuel Baker to Sarah Salmon, to be paid to her on the death of his widow (which took place in 1864), and was settled on her for life, for her separate use, without power of anticipating the income, with gifts over to her children or in substitution to her brothers and sisters. Sarah Salmon's husband was living, but was unable to maintain his wife. The accrued dividends on the consols amounted to about 2601. Mr. A. C. Bruce, for the petitioner, cited 236; where orders for the maintenance of lunatics out of their property had been made. He also cited the Lunacy Acts of the Colony of Victoria of 1867 and 1869, to shew that the Master in Lunacy of Victoria was authorised to take possession and care of, recover, collect, and administer the property and estates of all lunatic patients; and relied on Peters v. Grote, 7 Sim. 238, to shew that the dividends might be applied as asked, though they were settled without power of anticipation, and though the expense of a lunatic married woman's maintenance, who is placed in an asylum by the husband, is prima facie the debt of the husband. He also cited on this point Fry's Lunacy Acts, 545, 6; Re Evans, cited in Shelford on Lunacy, p. 204. Mr. Renshaw, for the surviving executor of the testator's will. WICKENS, V.C., said that the Colonial Lunacy Acts appeared to give the peti tioner the powers of a committee of a lunatic's estate, and as the placing of Mrs. Salmon in the asylum was the act of the State, and not of her husband, he thought the husband could not be prima facie liable for her maintenance as his debt, and he made an order directing the costs to be paid out of the accrued dividends, and the residue of the accrued dividends to be paid to the petitioner, and future dividends to be paid to him during the life of Sarah Salmon or until further order. Marriage Settlement-Trust for "Next of Kin" of Settlor-Voluntary-Inoperative. In a marriage settlement (the intended wife being an infant) the husband covenanted that one half of the wife's personal, and of the proceeds of her real property when sold, should be settled upon trust for himself for life, then for her for her life, and then, in default of issue, upon trust for her next of kin. The property was duly vested in the trustees. The husband died, and there was no issue of the marriage :· Held, that the trust for the next of kin was not binding against the wife, and that she had absolute power to deal with the trust funds. By a marriage settlement made in 1815, the wife being then an infant, the husband covenanted that one moiety of her personal, and of the proceeds of sale of her real property (the sale to be made on her coming of age), should be vested in trustees upon trust for himself for life, then for her for her life, and after the death of both upon trust for issue of the marriage, and in default of such issue upon trust for the wife's next of kin. real property was sold after the wife came of age, and the moiety of the proceeds and of her personal property was trans The |