1849. In re THE ST. GEORGE'S Co. arily to Mr. Harvey, or not at all. If the official manager wishes to make an endeavour to bring Mr. Harvey on the list, this application may stand over for the purpose. I STEAM PACKET do not give any opinion whether he can do that; but I am of opinion, that, as between the Company and this gentleman to which state of things I cautiously confine myself—it would be the height of injustice to make Mr. Joshua Pim liable alone; and therefore I refuse this motion, with costs. PIM'S CASE. After this decision was given, the official manager claimed, before the Master, to have the name of Mr. Joshua Pim placed upon the list as executor of Jonathan Pim in respect of the forty cancelled shares. The Master decided against this claim, and gave the following reasons for his decision:: "The testator Jonathan Pim, having a sum of 2000l. in his hands as trustee for Miss Goff, determined to invest it in shares of this Company, and accordingly paid that sum to J. R. Pim, a director, who thereupon transferred forty new shares' into the names of Thomas Harvey and Joshua Pim as trustees. These forty shares were called 'new shares,' because they had been issued under a resolution of the directors, bearing date the 28th August, 1840, by which the issue of the new 100l. shares, on payment of a call of 50l., as set out in the books of the Company, was authorised. The forty shares had their distinctive numbers from 2378 to 2417; but of these 'new shares' only 301 were in fact issued; and, under the apprehension that they had been illegally issued, they were all called in by the Company, except these forty, and debentures of the Company were given to the holders in exchange. On the death of the testator, his executor Joshua found these forty 'new shares' amongst his papers. "If he had continued in possession of them a serious question as to their validity might have been raised, and might have been tried, upon a call being made in respect of them; but, upon the application of J. R. Pim, they were delivered up by Joshua Pim, and, being entered by their numbers in the books of the Company, were cancelled, and have now no existence. It is now sought to make the estate of the testator liable to calls in respect of these shares. This is a very different treatment from that which the holders of the rest of the 301 'new shares' experienced; they received and hold debentures of the Company, being converted into creditors instead of holders of shares liable to calls. As to the twenty-seven shares, the estate of the testator can have nothing to do with them; they are old shares, not new. Joshua Pim did not agree to accept them; but that is not the claim raised by the official manager: he seeks to include him in the list in respect of forty shares, and that claim can be referred only to the forty 'new shares' which were in the testator's possession at the time of his death, but which, as above mentioned, have been cancelled. Independently of these circumstances, I do not see upon what ground the testator could have been, or his executor can be, included in the list. He had no interest in the shares, either as trustee or cestui que trust. It appears to me that their transactions relative to these forty shares are in such a state of confusion as to render it impossible to include any person in the list in respect of them. I must exclude Joshua Pim in his representative character. "J. W. F., June 20th, 1849." Mr. Bacon and Mr. J. V. Prior, for the official managers, in support of a motion by way of appeal from this decision, contended, that, inasmuch as the Court on the former motion held that the acceptance of the "new shares" did not bind the respondent, it followed that the original liability of the testator's estate remained, and that the respondent VOL. III. C D. G. S. 1849. In re PIM'S CASE. ought to be placed upon the list in his representative cha racter. Mr. Roundell Palmer and Mr. Pearson, for the respondent, were not called upon. The VICE-CHANCELLOR: The question, to what extent (if any) the estate of Jonathan Pim is liable to the creditors of the Company, is not before me. The question before me is between his estate and the partnership. I am of opinion that the effect of the evidence is to establish that the partnership, by its authorised agents, intended to discharge and did discharge the estate of Jonathan Pim from such liability (if any) as it was subject to upon the forty shares. I have not now to decide, nor do I mean to touch or affect any question respecting the twenty-seven substituted shares. The respondent's costs must come out of the estate. June 20th. A female share stock bank married, and her husband re In the Matter of THE NORTH OF ENGLAND JOINT-STOCK AND In the Matter of THE JOINT-STOCK COMPANIES WINIDNG-UP ACT, 1848. BURLINSON'S CASE. THIS was a motion by way of appeal from the decision holder in a joint of the Master. On 16th December, 1834, Ann Wetherell, spinster, was the holder of twenty shares in the above ceived dividends Company, by transfer from one Thomas Wood, and she signing the divi- was duly registered and received dividends up to her mardend warrants riage with the appellant, Frederick Thomas Burlinson, which took place on the 26th September, 1837. No set on her shares, per procuration of his wife:Held, that he was not entitled to be removed from the list of contributories under the Joint-stock Companies Winding-up Act, 1848, although he had not fulfilled the conditions prescribed by the deed of settlement for the purpose of entitling the husband of a female shareholder to become a member of the Company. ་ tlement was made on the marriage, and from the time of its solemnization all the dividends on the shares were received by the husband, who had signed six dividend warrants in the following form: Capital Stock Account. Dividend Warrant, 8l. 58. "The North of England Joint Stock Banking Company. "F. T. BURLINSON. "Newcastle-upon-Tyne, 14th March, 1843." Another dividend warrant was signed by him in the following form:— "For ANN BURLINSON, F. T. BURLINSON." The material clauses in the deed of settlement are set out in Armstrong's case (a). Mr. Swanston and Mr. Elderton, in support of the motion. -According to the 29th clause of the deed of settlement, the husband of any female shareholder who was desirous of becoming a member of the Company in respect of the shares vested in him in that capacity, must give notice in writing at the Compay's banking-house of such his desire, and must comply with the provisions of the deed of settlement. And by the 30th clause, if he does not in this manner elect to become a member, he is not entitled to receive any dividend. By the 31st clause, if he neglects executing the deed of settlement, the directors have power to declare the shares forfeited. The remedy of the Com (a) 1 De G. & S. 566. 1849. In re THE NORTH OF ENGLAND JOINT-STOCK BANKING CO. BURLINSON'S 1849. In re THE NORTH OF ENGLAND JOINT-STOCK BANKING Co. BURLINSON'S pany for non-payment of calls is, therefore, forfeiture. The respondent does not come within any of the definitions of a contributory contained in the Act. The shares did not become the property of the husband absolutely upon the marriage. They were merely choses in action, which he had a possibility of acquiring by reducing them into possession. The receipt of the dividends upon them was not a reduction into possession, for that receipt was in the character of agent of his wife. This was so decided in the case of Hart v. Stephens (a), where the Court of Queen's Bench held, that the receipt of interest by a husband, on a promissory note given to his wife, was not a reduction into possession, nor even any evidence of such reduction into possession, but must be considered as a receipt by him, not in his own right, but as agent for his wife. Moreover, the Company, by taking the dividend warrants in the form in which he had signed them, by procuration of his wife, accepted her as a shareholder, without participation on the part of her husband, according to the principle on which your Honor decided Angas's case (b). [They also cited Harwood v. Fisher (c).] Mr. Bacon and Mr. Headlam, for the official manager, were not called upon. The VICE-CHANCELLOR: This case is not in the least degree affected, in my opinion, either by the clauses referred to in the deed of settlement, or by Angas's case, or by the question, if it is a question, whether the shares have been reduced into possession by the husband. The husband appears to me most clearly liable. In Angas's case the Company had never contracted with Mrs. Angas otherwise than as a married woman having separate estate. The only question is, whe(b) 1 De G. & S. 560. (c) 1 Y. & C., Exch., 110. (a) 6 Q. B. 937. |