1855. BUTLER V. MEREDITH. choose to defend his possession, he is to lose his estate if he cannot give security for costs? That is a monstrous proposition, and one which acted on would render the law a nuisance, for a landlord might be at the extremity of Africa, and possession might be taken of his property in his absence, merely because he had not given security for costs. Here the parties have been admitted to defend, and what right is there to displace them? The 176th section of the statute limits the power of the Court or Judge to strike out a party's name to cases falling within the category of "persons not in possession by themselves or their tenants." For. these two reasons I think the rule should be absolute: first, the order of my Brother Coleridge ought never to have been made; and, secondly, these parties have been admitted to defend-the latter consideration increases the difficulty. MARTIN, B.-I am also of opinion that this rule ought to be absolute, as I consider that the learned Judge had no power to make the order. The question depends on whether a landlord is entitled to appear and defend an ejectment, as a matter of right. I am of opinion that he is. It seems to me that the 15 & 16 Vict. c. 76, gives him that right, and that the Court or a Judge is bound, on being satisfied that he is the landlord of the premises, to allow him to come in and defend, by virtue of the 172nd section. I do not complain of the decision of the Court of King's Bench in Doe d. Hudson v. Jameson, for in the then state of the law it may have been discretionary with the Court to allow a landlord to defend or not; but I think that by the law as it now stands, it is not competent for the Court or a Judge to impose any terms on a landlord, and that he has a right unconditionally to come in and defend. Let us then look at the enactments of this statute which have reference to this question, The 168th section, which is the first of the series connected with ejectments, enacts that "Instead of the present proceeding by ejectment, a writ shall be issued directed to the persons in possession by name and to all persons entitled to defend the possession of the property claimed." Therefore, in the very first section on the subject, the direction is that all persons who are in possession shall be named in the writ, but the statute also contemplates other persons not named who are entitled to defend. The 171st section enacts, that "the persons named as defendants in such writ, or either of them, shall be allowed to appear within the time appointed;" and the 172nd section enacts that " any other person not named in such writ shall, by leave of the Court or a Judge, be allowed to appear and defend on filing an affidavit shewing that he is in possession of the land either by himself or his tenant." Now it seems to me impossible that language could be used more clearly obligatory on the Court or a Judge to admit a person to appear and defend, if he satisfies them by affidavit that he is in possession either by himself or his tenant. The 176th section supports this view, for the Court or a Judge is thereby empowered to strike out or confirm appearances and defences "set up by persons not in possession by themselves or their tenants." So that, if a person is in possession by his tenant, the Court or a Judge has no right to interfere under the 176th section. I apprehend, therefore, that if a landlord has the right, which it seems to me he has, namely, an absolute right to appear and defend, it is not competent for the Court or a Judge to impose any condition upon him. But it was said, that this is a matter of little importance, and that the only consequence would be, that though a person abroad might be turned out of possession, yet he could himself bring an action of ejectment, and so recover back the possession. It seems to me, that a more mistaken view of the law could not possibly be submitted to a Court. A great number of the titles of persons in this kingdom depend upon their being in possession. The rule of law casts upon the plaintiff in ejectment 1855. BUTLER v. MEREDITH. 1855. BUTLER V. MEREDITH. the burden of making out his title, and many persons' titles are perfectly unassailable merely because they are in possession; but, if once out of possession, they might never be able to recover back their property. So far, therefore, from the circumstance of a person being turned out of possession being a matter of little importance, it is of the utmost importance to the security of landed property that persons should not be turned out of possession unless some clear proof is given against them, upon which the person claiming succeeds. Rule absolute. 1855. IN THE EXCHEQUER CHAMBER. (In Error from the Court of Exchequer.) GRAHAM and Another, Assignees of G. ROUGEMONT, a May 3. BILL of Exceptions. The declaration stated, that, by an In November, Act of Parliament passed in the year 1825 (a), and before the said bankruptcy, it was enacted, that, in case the then King should, within three years after the passing of that Act, by charter grant that the persons therein named should be a body politic and corporate, by the name of "The Van Diemen's Land Company," they should have the powers therein named. And it was also enacted, that the shares in the capital stock of the said company, and in the profits and advantages thereof, should be and be deemed personal estate, and as such personal estate should be transmissible accordingly. [The enactment went on to provide, that the 1847, R., being owner of 157 shares of 1007. each, in an in corporated company, became bankrupt Only 251. per share At the time of the bankruptcy, the bankrupt de had been paid. livered the certificates of the shares to signee. At the official as that time the shares were of no value. In June, 1849, notice was given to the official assignee of a call of 11. per share, which he was requested to pay. Nothing further was done by the company or the assignees until February, 1853, when the shares having become valuable, the assignees claimed to be registered in the company's books as the owners of them, and offered to pay whatever was due for calls. In answer to their application, they received a letter from the secretary of the company, stating that there were no shares standing in the registry-book in the name of the bankrupt:-Held, that, assuming it was necessary that the assignees should, within a reasonable time, do some act to signify their acceptance of the shares, the question of reasonable time was one for the jury; but that a reasonable time would not begin to run until some one interested in the matter took some step in respect of it. (a) 6 Geo. 4, c. 39. 1855. GRAHAM v. VAN DIEMEN'S names of the shareholders, and the numbers of the shares should be entered in a book; and that a certificate under the seal of the company and countersigned by the clerk, should be delivered to every proprietor, specifying the share to which he was entitled, and that such certificate should be evidence of title to the shares.] And it was recited (a), that, in cases where the holder or proprietor of any one or more share or shares in the capital stock of the company, should become bankrupt, it might not be in the power of the company to know who was or were the proprietor or proprietors of such share or shares; and it was therefore enacted, that, in such case, where the right and property in one or more share or shares in the capital stock of the company should pass from the original subscriber or subscribers, or any proprietor or proprietors thereof, to any other person or persons, by any other legal means than by transfer or conveyance in the form pointed out in the Act, an affidavit should be made as therein mentioned, stating the manner in which such share or shares had passed to such other person or persons, and that such affidavit should be delivered to the clerk for the time being of the company, to the intent that he might enter and register the name or names of such proprietor or proprietors in the registry book or list of subscribers and proprietors to be kept in the office of the company.—[Averment: that, within three years of the passing of the said Act, and before the said bankruptcy, the company was incorporated by the name of "The Van Diemen's Land Company." -And it was by the said Act further enacted (b), that, if any subscriber or any proprietor or proprietors of any share or shares in the capital stock of the said company, his, her, or their executors, &c., should neglect or refuse to pay his, her, or their part or portion of the money to be called for by the directors, during the space of three calendar months next after the time appointed for payment thereof, together with lawful interest from the appointed time of payment, then (b) Sect. 14. (a) Sect. 12. |