principle. Then came the Joint Stock Companies Act, 1857 (20 & 21 Vict. c. 14), which by s. 2, is to be construed with the Act of the previous session as one Act. The 3d section repeals the 4th section of the Act of 1856, (a) and substitutes for it the following *enact

*726] ment,—“If after the passing of this Act more than twenty persons carry on, in partnership, any trade or business having for its object the procurement of gain to the partnership, then, unless such persons are included within one of the classes following, that is to say,-1. Are registered as a Company under the principal Act (1856), 2. Are a Company incorporated or otherwise legally constituted by or in pursuance of some Act of Parliament, Royal charter, or letters patent, or,-3. Are engaged in working mines within and subject to the jurisdiction of the stannaries, each of the persons so carrying on business in partnership together contrary to this provision shall be severally liable for the payment of the whole debts of the partnership, and may be sued for the same without the joinder in the action or suit of any other member of the partnership." This was not intended to apply to banking and insurance companies. That is made quite clear by an Act of the same session, c. 80, which enacted that "the Joint Stock Companies Acts, 1856, 1857, should not, nor should either of them, be deemed to have repealed, as respects Companies already formed for the purpose of carrying on the business of insurance under the 7 & 8 Vict. c. 110, or as respects Companies thereafter to be formed for the said purpose, the said Act 7 & 8 Vict. c. 110, or any other Act amending the same, or relating to such Companies." [BLACKBURN, J. -You say that this Company was registered as far as it was necessary or lawful for them to be registered?] Precisely so. The words of the 27th section of the 20 & 21 Vict. c. 14, "any Company formed for the purpose of insurance," must mean the same as the words "persons associated together for the purpose of insurance," in the 2d section of the 19 & 20 Vict. c. 47. What was the object of the insertion of those words in the Act of 1856? Was it to save *them from disa*727] bilities? Or, was it not rather to put them under a disability? If the object or one of the objects of the exclusion of banking and insurance Companies from the Act of 1856 was to prevent them from being formed with limited liability, the exclusion must equally apply to Companies formed partly for banking or insurance and partly for some other purpose; otherwise, by adding brewing or brick-making or any other trade, a Company really established for carrying on the business of banking or insurance might always be formed with limited liability. [BRAMWELL, B.-We are asked to construe an Act of Parliament with reference to a state of circumstances which the legislature never contemplated. Should we not construe it so as to give it a rational effect,-holding it to mean the substantial purpose for which the Company is established, and not that which is merely ancil(a) Which provided that "not more than twenty persons should, after the 3d of November, 1856, carry on in partnership any trade or business having gain for its object, unless they were registered as a Company under that Act, or were authorized so to carry on business by some private Act of Parliament or by Royal charter or letters patent, or were engaged in working mines within and subject to the jurisdiction of the stannaries; and if any persons carried on business in partnership contrary to that provision, every person so acting should be severally liable for the payment of the whole debts of the partnership, and might be sued for the same without the joinder in the action or suit of any other members of the partnership."

lary to the principal purpose? That which the plaintiffs are doing here is nothing more than carrying on their business in the way in which the business of an insurance office is usually carried on.] In The London Monetary Advance and Life Assurance Company v. Smith, 3 Hurlst. & N. 543,† the deed is not set out. Here, the purpose of the Company is fully disclosed upon the record, and is clearly that which in popular language and understanding would constitute it an insurance Company and nothing else. [WIGHTMAN, J.-A Company like this clearly could not have been registered under The Limited. Liability Act, 1855, 18 & 19 Vict. c. 133. BLACKBURN, J.-The terms of the deed are wide enough to enable the Company to carry on business other than that of insurance.]

Wordsworth, Q. C., contrà.-The question is what is the meaning of "insurance company," in the 27th section of the Joint Stock Companies Act, 1856? Does it extend to a Company which, besides the legitimate business of insurance, is so formed as to [*728 allow it to carry on any trade, that of brewing or brick-making, for instance? It was never intended that a trading Company should be permitted to acquire the privilege of limited liability by merely tacking banking or insurance to its other business. What the Company has done is immaterial; the question is, what does its deed of settlement authorize and empower it to do? The object of the 27th section of the Act of 1856 was, to compel all Companies to register, other than mere insurance Companies,-to provide for, uniformity of action. A Company formed for that and any other purpose is clearly within it. Here, the Company profess to lend money, to grant annuities, to provide allowances for cases of sickness and accouchement, &c. These are clearly quite beside the legitimate purpose of an insurance company. The case of the London Monetary Advance and Life Assurance Company . Smith is precisely in point; and the statute of the last session, which consolidates the law upon the subject of joint stock Companies winding up,-25 & 26 Vict. c. 89,--which by s. 3 enacts, that "for the purposes of that Act, a Company that carries on the business of insurance in common with any other business or businesses shall be deemed to be an insurance Company,"-amounts to a legislative declaration that that case was well decided, inasmuch as the legislature have thought fit to alter that state of things. [BLACKBURN, J.-The utmost that can be said, is that the legislature thought that state of things inexpedient.]

POLLOCK, C. B.--We are all of opinion that this is an insurance. Company, and therefore not required to register under the Joint Stock Companies Acts, 1856, 1857; and that the judgment in the case of The London Monetary Advance and Life Assurance Com[*729 pany v. Smith, 3 Hurlst. & N. 543,† is not to be approved of, and, in short, was wrongly decided. The expression of my Brother Martin in that case is, that "a Company carrying on the business of insurance and also of lending money, is not a Company formed for the purpose of insurance within the meaning of the 27th section of the Joint Stock Companies Act, 1857." Now, there is no insurance Company in existence that does not lend money: that is, in truth, the only way in which it can deal profitably with its funds. That being the necessary consequence is that we agree with the argument of

So,

Mr. Mellish, and think our judgment should be in his favour. The argument which has been urged before us by Mr. Wordsworth, that The Companies Act, 1862, contains a legislative recognition of the propriety of the decision in the case referred to, is, we think, one which finds no place with persons who are familiar with the construction of statutes. As my Brother Blackburn observed during the argument, all the effects of the 3d section of the 25 & 26 Vict. c. 89, is, that whereas there has been a decision of the Court of Exchequer holding that a Company carrying on the business of insurance and also that of money-lending was incapacitated from suing at law or in equity unless registered under the Joint Stock Companies Act, 1857, --to set the matter right, and to remove all doubt for the future, the 3d section of the recent statute enacts that "a Company that carries on the business of insurance in common with any other business or businesses shall be deemed to be an insurance Company." Upon the whole, we think the judgment of the Court of Common Pleas ought to be reversed.

BRAMWELL, B.--I am content to concur in the *judgment

*730] that this is an insurance Company. I feel extreme difficulty in saying, that, if the Joint Stock Companies Act, 1857, had stood alone, the consequences mentioned in s. 28 would not have attached to a Company established for another purpose besides that of insurance, unless registered pursuant to s. 27. I cannot say I think the decision of the Exchequer wrong.. Judgment reversed.

THE LONDON AND WESTMINSTER LOAN AND DISCOUNT COMPANY v. CHASE and Another. May 30.

The description of the residence and occupation of the person making or giving a bill of sale, required by the statute 17 & 18 Vict. c. 36 to be contained in the affidavit filed with the bill of sale, must be that which fits the party at the time of giving the security, and not at the time of filing it.

An uncertificated bankrupt, following no occupation at the time of granting the bill of sale, may properly be described in the affidavit as a "gentleman," although at the time of filing the affidavit he carries on the business of a commission agent.

THIS was an interpleader issue to try the right to certain goods which had been seized by the sheriff of Surrey under a writ of fi. fa. issued upon a judgment recovered by the defendants in an action against one John Dickinson.

The trial took place before Williams, J., at the first sitting at Westminster in Easter Term last. The question was as to the validity of a bill of sale executed by Dickinson on the 29th of June, 1861, whereby he assigned, for what was admitted to be a good consideration, certain household furniture, being the goods seized under the fi. fa.

In the bill of sale, the grantor was described as "John Dickinson, of Montague Lodge, Merton, in the county of Surrey, gentleman." A copy of the bill of sale was filed at the proper office on the 16th of July, together with an affidavit *by the attesting witness, the secretary of the Company, wherein he deposed" that the

*731]

said bill of sale was made and given on the day it bears date, being the 29th day of June, 1861, and that I was present and did see John Dickinson in the said bill of sale mentioned, and whose name is signed thereto, sign and execute the same on the said 29th day of June, in the year aforesaid, and that the said John Dickinson resides at Montague Lodge, Merton, in the county of Surrey, and is a gentleman."

It appeared from the evidence, that, prior to November, 1860, Dickinson had, in copartnership with another person, carried on the business of a shirtmaker, at Hastings and in Southwark, but had become bankrupt, and was uncertificated; that, for about five weeks in April and May, 1861, he had assisted a bookseller, receiving no remuneration for his services, but only a guinea a week for personal expenses thereby incurred; that, at the date of the bill of sale he followed no occupation; and that, on the 2d of July, he took offices in the Adelphi, where he commenced carrying on the business of a house and general agent.

Upon this evidence, the jury found that Dickinson was following no occupation at the time he executed the bill of sale, but that he was following the occupation of a house and general agent at the time when the bill of sale and affidavit were filed.

The learned Judge thereupon directed a verdict to be entered for the defendants, reserving leave to the plaintiffs to move to enter the verdict for them if the Court should be of opinion that the addition and description of the grantor in the bill of sale (a) and affidavit were a sufficient compliance with the statute 17 & 18 Vict. c. 36, s. 1. *Parry, Serjt., in Easter Term, obtained a rule nisi accordingly.

66

[*732 Petersdorff, Serjt., and Raymond now showed cause. The only material facts are, that Dickinson had no occupation when he made the bill of sale, but that, at the time of filing the affidavit, he carried. on the business of a house and general agent, and the affidavit states that he is a gentleman." That relates to the state and condition of the party at the time of filing the affidavit. The affidavit, therefore, clearly contained an incorrect and untrue description. The 17 & 18 Vict. c. 36 recites that "frauds are frequently committed upon creditors, by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons to the exclusion of the rest of their creditors:" and s. 1 enacts that "every bill of sale of personal chattels, &c., or a true copy thereof and of every attestation of the execution thereof, shall, together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, or, in case the same shall be made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process shall have issued, and of every attesting witness to such bill of sale, be filed with the officer acting as clerk of the dockets and judgments in the Court of Queen's Bench, within twenty-one days after the (a) See Hatton v. English, 7 Ellis & B. 94 (E. C. L. R. vol. 90), cited post, p. 734.

*

making or giving of such bill of sale," otherwise such bill of sale shall be null and void to all intents and purposes whatsoever. There are *733] many cases both in the Queen's Bench and in the Exchequer in which it has been held that the occupation of the grantor must be mentioned.(a) In Tuton v. Sanona, 3 Hurlst. & N. 280,† it was held not to be a sufficient compliance with the statute to describe as a "gentleman" a witness who, though formerly an attorney, was at the time of the attestation acting as an attorney's clerk.(b) So of one who was a clerk in the audit office,-Allen v. Thompson, 1 Hurlst. & N. 15. [WILLES, J.-The question is whether the exigency of the statute as to the affidavit has reference to the date of the bill of sale or to the time of the filing of the affidavit.] According to the ordinary rules of construction, the description of the party's occupation can only relate to the time when the affidavit is made; otherwise, parties searching may be deceived. [ERLE, C. J.-The searching party would have both documents before him.] What he would see would be simply the bill of sale and the index or register.(c) [BYLES, J.-The word "same" refers to the bill of sale. Suppose the person giving the bill of sale went abroad the next day, how would you describe him when you came to make the affidavit? Could you say "residence unknown?"] That is a difficulty which could not arise if the description has reference to the time of giving the bill of sale. [WILLES, J.-Suppose the affidavit were made on the same day as the *734] bill of sale, but not filed until twenty days *afterwards, and the grantor had in the mean time changed his residence or his occupation?] Those cases might present difficulties which do not press here. In Hatton v. English, 7 Ellis & B. 94 (E. C. L. R. vol. 90), it was held that it is not sufficient that the bill of sale which is filed itself contains a description of the residence and occupation. And Wightman, J., says: "The terms of the statute do not require that

(a) In Sutton v. Bath, 3 Hurlst. & N. 382,† it was held, that, where the occupation of a party to, or the witness of, a bill of sale is not stated, the onus of proving that such party or witness has an occupation lies on the person seeking to impeach the bill of sale on that ground. (b) And see Beales v. Tennant, 29 Law J., Q. B. 188, 6 Jurist, N. S. 628.

(c) See section 3, which enacts that "the said officer of the Court of Queen's Bench shall cause every bill of sale, and every such schedule and inventory as aforesaid, and every such copy filed in his said office under the provisions of this Act, to be numbered, and shall keep a book or books in his said office, in which he shall cause to be fairly entered an alphabetical list of every such bill of sale, containing therein the name, addition, and description of the person making or giving the same, or, in case the same shall be made or given by any person under or in the execution of process as aforesaid, then the name, addition, and description of the person against whom such process shall have issued, and also of the person to whom or in whose favour the same shall have been given, together with the number, and the dates of the execution and filing of the same, and the sum for which the same has been given, and the time or times (if any) when the same is thereby made payable, according to the form contained in the schedule to this act; which said book or books, and every bill of sale or copy thereof filed in the said office, may be searched and viewed by all persons, at all reasonable times, paying to the officer for every search against one person the sum of 6d., and no more and that, in addition to the last-mentioned book, the said officer of the said Court of Queen's Bench shall keep another book or index, in which he shall cause to be fairly inserted, as and when such bills of sale are filed in manner aforesaid, the name, addition, and description of the person making or giving the same, or of the person against whom such process shall have issued, as the case may be, and also of the persons to whom or in whose favour the same shall have been given, but containing no further particulars thereof; which last-mentioned book or index all persons shall be permitted to search for themselves, paying to the officer for such last-mentioned search the sum of 18."