fit; but, whenever 'The Proprietors' Fund' or any of the other funds shall be resorted to in aid of or for any of the other funds above mentioned, the sum so borrowed from 'The Proprietors' Fund,' shall be in the nature of a debt owing to 'The Proprietors' Fund,' or to such other fund, from the fund in aid of or for which it shall have been borrowed, and shall as soon as practicable be replaced thereout, with interest at the rate of 51. per centum per annum:

"101. That, on the 1st day of July, 1860, and on the same day in the year 1865, and so on from five years to five years, or so soon as conveniently may be after those days respectively, the directors shall cause accounts to be taken of the clear profits which (after deducting such expenses and charges as aforesaid) have theretofore, and (as respects the second and every subsequent account) since the last preceding account, have accrued upon and in respect of 'The Assurance Fund,' 'The Sickness Fund,' and 'The Endowment Fund,' respectively, and which may in the judgment of the actuary and the directors be safely set apart out of such funds respectively; and such accounts shall be submitted to the ensuing ordinary general meeting for confirmation; and, if such accounts or any of them shall not be confirmed at such general meeting, the said accounts, or such of them as shall not have been confirmed, shall be referred back to the directors to revise the same; and the same, when revised by the directors, shall be submitted to an extraordinary general meeting to be summoned for the purpose of examining them; and so toties quoties until the same shall have been confirmed by some general meeting:

"102. That, when such report and accounts shall have been [*717 confirmed as aforesaid, the directors shall appropriate to and consolidate with "The Proprietors' Fund' the amount so set apart: "113. That, as to such of the funds of the Company as shall not be required to satisfy and provide for the immediate claims upon the Company, and the expenses thereof, the directors shall from time to time, so far as conveniently may be, lay out and invest the same, in the names of the trustees of the Company, in the parliamentary stocks or funds of Great Britain and Ireland, or in Bank or East India Stock, or in Navy or Exchequer Bills or Bonds, or in or upon the security of the bonds, mortgages, or debentures of any railway or other Company in Great Britain, or (with the necessary license) any real securities in Great Britain or Ireland, or loans or advances upon securities within the scope of the Company's business as defined in Article 2, or on such other securities as the directors shall from time to time think proper; subject, nevertheless, to such restrictions as may from time to time be imposed by any general meeting.

"Interpretation.

"164. That, in the interpretation of these presents, the following words and expressions shall be considered to have or include the meanings hereby assigned to them respectively, so far as such meanings are not inconsistent with the context, or excluded by the nature of the subject-matter, that is to say, the expression 'the Company' shall mean the Company; the expression 'these presents' shall also include any and every supplementary deed of settlement, any by-laws and regulations for the time being binding upon the Company; and all words and expressions which are by the Act 7 & 8 Vict. c. 110

declared to have or include or be applicable to any particular meanings *respectively in that Act, shall have and include the *718] same respective meanings in these presents."

And the said deed contains a schedule, as follows:

'Part 1. The name, business, and places of business of the Company.

That the second of the said deeds was and is a certain new and supplementary deed of settlement, bearing date the 10th day of March, 1859, and made between the several persons whose names were or should be mentioned in the schedule of signatures thereto, and who had sealed and delivered, or from time to time should seal and deliver the same, of the one part, and the said Stephen Pott and Edmund Carey Hobson, trustees for the purposes of the said deed, of the other part; whereby, after reciting (being the only recitals material to the said first plea and this replication, amongst other things) the firstmentioned deed of settlement, and that the same was duly registered in pursuance of the Act 7 & 8 Vict. c. 110, and that the said society was formed for the purposes mentioned in the said first-mentioned deed, and which were repeated in the said recital to the said last-mentioned deed; and further reciting that the said Company had since its formation carried on its business in conformity *with the terms *719] and conditions of the said first-mentioned deed, the several clauses of the said deed of settlement were (so far as is material to the said first plea and this replication) amended, altered, or repealed in the words, letters, and figures following, that is to say,-That clause 5 shall be altered, to give the Company power with its present shares, capital, and funds, to grant any assurance, endowment, or otherwise, or to make any sum of money payable on any contingency, where the principal money payable by them on the happening of such contingency shall not exceed the sum of 5000., and also to grant any annuity not exceeding 500l. per annum,-That clause 56 shall be altered, by adding thereto, after the words 'endowments and annuities,' the following words, and also the purchase and sale of reversionary interests,'-That clause 93 shall be expunged, (a)-That clause 94 to 102, both inclusive, shall be expunged, and in lieu thereof it shall be provided that all the said funds therein mentioned shall be brought into and form one common fund:"

Averment, that all things were duly done and happened necessary to the validity of the said respective deeds, and that all things were (a) Creating the four several funds.

done and happened necessary to entitle the said Company to have, and the said Company duly obtained, a certificate of complete registration, and the said deeds respectively were duly registered under the said statute 7 & 8 Vict. c. 110; and that the plaintiffs had always carried on business under and in accordance with the said first-mentioned or original deed of settlement, and not otherwise, until the execution of the said new and supplementary deed of settlement, and afterwards under and by virtue of the said first deed of settlement as modified and altered by the said new and *supplementary deed of settle[*720 ment, and not otherwise; and that the said Company was not nor is formed for the purpose of granting annuities or lending money, or for any other than the purpose of insurance, further or otherwise than in this replication appears.

Third replication to the first plea,-That the said society was and is a Company constituted and registered as in the second replication to the first plea mentioned, and not otherwise; that they the plaintiffs have always carried on the business of insurance as the main and principal purpose and object of their said society, and that, as part and parcel of the said business of insurance, and subsidiary thereto, the said society have also carried on their business by granting annuities and lending money; that they have never carried on any business other than that of insurance as the principal or main object or purpose of the said society; and that the causes of action in the declaration mentioned arose wholly out of their said business of insurance, and not otherwise, and had no reference to or connection to or with any other business whatever.

To these replications the defendant demurred, the only grounds of demurrer stated in the margin being "That the case is governed by The London Monetary Advance and Life Assurance Company v. Smith, 3 Hurlst. & N. 543,† and that the Court of Common Pleas is bound by the decision of the Exchequer, and should not reopen the question, and that the decision is right." Joinder.

Wordsworth, Q. C., in support of the demurrer.(a)—*The [*721 question in this case turns upon the construction to be put upon the 27th and 28th sections of the Joint Stock Companies Act, 1857, 20 & 21 Vict. c. 14. The 27th section enacts that " every Company completely registered under the 7 & 8 Vict. c. 110, including any Company that has obtained a certificate of complete registration under The Limited Liability Act, 1855 (18 & 19 Vict. c. 133), but excluding any Company formed for the purpos of insurance, shall, if it has not already registered under the principal Act (The Joint Stock Companies Act, 1856, 19 & 20 Vict. c. 47), register under the Joint Stock Companies Acts, 1856, 1857, on or before the 2d day of November, 1857, or incur such penalty as is hereinafter mentioned. And the 28th

(a) The points marked for argument on the part of the defendant were as follows :-"That the court is bound by the judgment of the Court of Exchequer in The London Monetary Advance and Life Assurance Company v. Smith, 3 Hurlst. & N. 543†: "That the words of s. 27 of the 20 & 21 Vict. c. 14, fully bear out that judgment:

"That the legislature should amend the Act, if that judgment leads to what was not intended :

"That several sessions have passed since that judgment was given, and that, as so many persons are interested in having the law set right if it has been wrongly interpreted, it must now be considered that the judgment is in accordance with what the legislature intended."

section enacts, that, "if any Company hereby required to register under the Joint Stock Companies Acts makes default in registering on or before the said 2d day of November, 1857, then, from and after such day, until the day on which such Company is registered under the Joint Stock Companies Acts, 1856, 1857, the following consequences shall ensue, that is to say, (amongst others), the Company shall be incapable of suing either at common law or in equity, but shall not be incapable of being made a defendant to a suit either at law or in equity." The Court of Exchequer, in The London Monetary Advance and Life Assurance Company v. Smith, 3 Hurlst. & N. 543,† has put a construction upon the statute which must govern this Court; holding that the 27th section *only exempts from such registra

*722] tion Companies formed solely for the purpose of carrying on

the business of insurance; and therefore, that, where a Company completely registered under the 7 & 8 Vict. c. 110, formed for the purpose and carrying on the business of insurance and also the lending of money, made default in registering under the Acts of 1856 and 1857, the 28th section rendered it incapable of suing either at law or in equity.

Mellish, Q. C. (with whom was Hannen), contrà.(a)—In the case referred to, it was admitted on the record that the Company was formed for a purpose beside the business of insurance: here the deed is set out, leaving it to the Court to judge whether the Company is not substantially formed for the purpose of carrying on the business of insurance, the other being something merely accessory to the main business. No doubt, the plaintiffs propose to lend money and make certain investments: but all that is a mere mode of making profitable use of the funds derived from granting policies. [WILLIAMS, J.The Company might drive a thriving trade and yet never grant a single policy.] That could hardly be, consistently with the terms of

the deed. The legislature evidently considered the 7 & 8 *723] Vict. c. 110 to be more appropriate to insurance and banking Companies than the Joint Stock Companies Acts, 1856, 1857. The third replication, which alleges "that the plaintiffs have never carried on any business other than that of insurance as the principal or main object or purpose of the said society," at all events affords a good answer to the action. It is penalty enough to say that the Company shall not maintain an action in respect of anything done by them dehors the business of insurance.

Wordsworth, in reply, was stopped by the Court.

Per CURIAM. We feel bound by the decision of the Court of Exchequer in The London Monetary Advance and Life Assurance Company v. Smith, 3 Hurlst. & N. 543,† and are unable to distinguish it from the present case on the ground urged by Mr. Mellish.

Judgment for the plaintiffs.

(a) The points marked for argument on the part of the plaintiffs were as follows:"1. That the plaintiffs' Company is not such a Company as required to be registered under the Joint Stock Companies Acts, 1856, 1857, or either of them:

"2. That the case of The London Monetary Advance and Life Assurance Company . Smith, 3 Hurlst & N. 543,† is not applicable to the present case, the primary object of the plaintiffs' company being for the business of insurance, and the causes of action arising solely out of such business:

"3. That the case of The London Monetary Advance and Life Assurance Company r. Smith is not right."

The defendant brought a writ of eror, which came on for argument in the Exchequer Chamber, at the sitting after Michaelmas Term, 1862, before Pollock, C. B., Wightman, J., Bramwell, B., Channell, B., and Blackburn, J.

Mellish, Q. C. (with whom was Hannen), for the plaintiffs. This is in effect an appeal against the decision of the Court of Exchequer in The London Monetary Advance and Life Assurance Company v. Smith, 3 Hurlst. & N. 543. The decision of the Court of Exchequer amounts to this, that, although insurance Companies were not compellable to register under the *Joint Stock Companies Act, [*724 1857, yet, if it carries on any other business besides insurance business, it must be registered. The attention of the Court was not called to the previous statutes, which show that it was illegal for an insurance Company to register. By the 7 & 8 Vict. c. 110, s. 2, it was enacted that that Act should apply to every joint stock Company, as thereinafter defined, established "for any commercial purpose, or for any purpose of profit, or for the purpose of insurance:" and it was declared that the term "joint stock Company" should comprehend "every assurance Company or association for the purpose of assurance on lives, or against any contingency involving the duration of human life, or against the risk of loss or damage by fire, or by storm or other casualty, or against the risk of loss or damage to ships at sea or on voyage, or to their cargoes, or for granting or purchasing annuities on lives, and also every institution enrolled under any of the Acts of Parliament relating to friendly societies, which institutions shall make assurances on lives, or against any contingency involving the duration of human life to an extent upon one life or for any one person to an amount exceeding 2007, whether such Companies, societies, or institutions shall be joint stock Companies or mutual assurance societies, or both." This is no doubt an insurance Company; and it is registered under that statute. The 66th section gives an execution by sci. fa. against the individual shareholders in default of satisfaction being obtained against the property of the Company. The intention of the legislature was that insurance Companies should not be relieved from that liability. Then came the Joint-Stock Companies Act, 1856, 19 & 20 Vict. c. 47, which begins with a recital that "it is expedient that the law relating to the incorporation and regulation of joint stock Companies *and other associations, should be consolidated and amended." [*725 And the 2d section, which does not appear to have been noticed in the case in the Exchequer, expressly enacts that "this Act shall not apply to persons associated together for the purpose of banking and insurance." That clearly embraces tnis Company, which is formed for the purpose of insurance, though an incidental part of its business consists of lending money and granting annuities. Could his Company register under that Act? [WIGHTMAN, J.-If the registration took place, it would be simply void, and could do no harm.] It would be the duty of the registrar to refuse to register it. [WIGHTMAN, J.-According to your argument, a Company really intended for other purposes, may avoid registration by putting in insurance. BLACKBURN, J.-The third replication, whether good or bad, was framed to meet that.] The policy of the Acts was, not to bring banking and insurance companies within the limited liability