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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Company - From: 1849 To: 1899

This page lists 143 cases, and was prepared on 14 July 2015.

 
In The Matter Of The Liverpool And Manchester Saw Mills And Timber Joint Stock Company And In The Matter Of The Joint Stock Companies Winding-Up Act, 1848 Holt's Case [1849] EngR 904 (A); (1849) 3 De G & Sm 99
4 Aug 1849


Company

[ Commonlii ]
 
Ex Parte Inderwick In The Matter Of The Great Munster Railway Company And In The Matter Of The Joint Stock Companies Winding-Up Acts, 1848 And 1849 [1850] EngR 609; (1850) 3 De G & Sm 231; (1850) 64 ER 457
1 Jun 1850


Company

[ Commonlii ]
 
The West Cornwall Railway Company -v- Mowatt [1850] EngR 623; (1850) 15 QB 521; (1850) 117 ER 556
4 Jun 1850


Company
Debt for calls on railway shares : plea, that defendant was not shareholder : issue thereon. A special verdict found that, by agreement of 21st July 1847, between the directors of the railway company and defendant, he agreed to take all the unappropriated shares in the compariy, being 4935, and to pay 4l. per share on 15th August then next, and, meanwhile, to deposit securities to the amount of 20,000l. ; and the company agreed that, "so soon as 15l. per share shall have been paid on the 4935 shares, and that the company is in a position legally to do so, they shall deliver” to defendant mortgage debentures of the company payable three years after date, and bearing 5 per cent. interest, for 24,675l, being at the rate of 5l. per share. At a meeting of the shareholders, on 10th August 1847, convened for the purpose, the agreement was confirmed by the shareholders, and the shares were registered to defendant with his consent. The call, on which the action was brought, was made in December 1847. Held, that the production of the register made a prima facie case that defendant was a shareholder, which case was not rebutted by any thing in the other evidence; that, even if the stipulation to deliver mortgage debentures in consideration of the shares taken were illegal, this would be no defence, as the action was not on the agreement, and the agreement had been, in part, executed by the transfer of the shares, which transfer took effect in praesenti. But that the stipulation to deliver such debentures, as soon as the company should be in a position legally to do so, was not illegal.
[ Commonlii ]
 
The Sunderland Marine Insurance Company -v- Matthew Kearney And Robert Noonan [1851] EngR 411; (1851) 16 QB 925; (1851) 117 ER 1136
2 May 1851


Company

[ Commonlii ]
 
The Attorney-General, At The Relation Of Freer, Thompson, Flower, Lucy, Ford, Greaves, and The Mayor, Aldermen, And Burgesses of The Borough of Stratford-Upon-Avon County of Warwick, [1851] EngR 722; (1851) 3 Mac & G 453; (1851) 42 ER 335
17 Jul 1851


Company, Administrative
A railway company was constituted in 1846 for the purpose of making a railway from A. to B., with a diverging line to C. In June 1851 the line of railway from A. to B. was nearly completed, but no steps had been taken to construct the diverging line, An information was then filed by the Attorney-General, at the relation of certain parties claiming to be interested in the diverging line, to restrain the company from opening the line from A. to B, except with the intention of oompleting also the diverging line. Held, upon demurrer, that the neglect by the company to complete the whole line could not be regarded in the light of a public injury so as to warrant the interference of the Attorney General.
[ Commonlii ]
 
Smith -v- Mules [1852] EngR 271; (1851-1852) 9 Hare 556; (1852) 68 ER 633
17 Feb 1852


Company, Legal Professions
A and B and the son of B entered into partnership as solicitors, and by articles agreed that the partners were diligently and faithfully to employ themselves in carrying on and managing all the professional business in which they or either of them might be employed or concerned; that B should use his best endeavours to obtain the appointment of the partnership firm to three offices or clerkships, which were then held by B, and such offices should be partnership appointments; that all other compatible offices should be obtained, if possible, in the name of the firm, and the emoluments treated as part of the profits of the partnership; that, if B or his son should retire, or A or B or his son should die, the share of the deceased partner should accrue to the surviving partners : that if B or his son retired they were to use their best endeavours to secure the practice to the continuing partners, and such retiring partner shouId not practise within 30 miles ; that, if either partner should not diligently and faithfully employ himself in carrying on the said partnership practice, and should, on receiving monies, bills, notes, &c., knowingly or wilfully omit immediately to make entries thereof, or if A. or the son of B should absent himself more than two months in one year, the others or other of the partners, if they or he should think fit, should be at liberty to dissolve the partnership, by giving to the offending partner a notice to that effect, and the partnership should from that time, or the time specified in the notice, be dissolved in the same manner and with the same consequences as if it had determined by the voluntary retirement of the offending partner. B. and his son subsequently prooured their own appointment, or the appointment of one of them, to the offices or clerkships, and did not endeavour to procure the appointment of A. It was afterwards discovered that B. was greatly involved in debt, and he absconded in January 1849, and did not return to the business, In May 1849 A, served a notice, in the manner pointed out by the articles, on B. and his son to dissolve the partnership from that date ; and he then filed his bill against B. and his son to have the dissolution declared by the Court, an injunction to restrain them from practising within 30 miles, and a decree that they should resign the several offices or clerkships. Held, that the Plaintiff was entitled to dissolve the partnership as to B., but not as against the other partner (the son of B.), and that he was not entitled to dissolve it by notice under the 16th clause without the concurrence of his co-partner (the son).
That B., not having procured or endeavoured to procure for the partnership firm the appointments to the several offices or clerkships, so as to give the Plaintiff at the dissolution either a share of the profits of the offices or the chance of competing for them, but such appointments having been procured for B. and his son to the exclusion of the Plaintiff, B. and his son were not to be allowed to retain the offices for their exclusive benefit.
That,inasmuch as, from the nature of the offices, they could not be sold, nor could any manager or receiver be appointed to carry them on, the Defendants ought to be charged with the value of the offices in the partnership accounts.
That, the Plaintiff having given a notice of dissolution (acting under the 16th clause), and his co-partner having adopted it, the partnership should be treated as dissolved from the time of the notice, although not with the consequences attaching to a dissolution under the 15th clause.
That, the consequences of a dissolution uncler the 15th clause not having attached, the Plaintiff, therefore, was not entitled to the injunction to restrain the Defendants from practising within 30 miles.
An agreement that, if any of several partners should not diligently and faithfully employ himself in carrying on the partnership practice, the others might give notice of dissolution, construed to refer to the diligent and faithful discharge by each partner of the portion of business carried on by him.
1 Citers

[ Commonlii ]
 
Blisset -v- Daniel (1853) 10 Hare 493
1853

Page-Wood V-C
Company
The court considered the limits on a power of expulsion from a partnership. Held: (Page-Wood V-C) Construing the articles, two-thirds of the partners could expel a partner by serving a notice upon him without holding any meeting or giving any reason. But the power must be exercised in good faith: "the literal construction of these articles cannot be enforced" and, after citing from the title "De Societate" in Justinian's Institutes, went on: "It must be plain that you can neither exercise a power of this description by dissolving the partnership nor do any other act for purposes contrary to the plain general meaning of the deed, which must be this, that the power is inserted, not for the benefit of any particular parties holding two-thirds of the shares but for the benefit of the whole society and partnership . . ." In the Australian case of In re Wondoflex Textiles Pty. Ltd. [1951] V.L.R. 458, 467, Smith J. also contrasted the literal meaning of the articles with the true intentions of the parties: "It is also true, I think, that, generally speaking, a petition for winding up, based upon the partnership analogy, cannot succeed if what is complained of is merely a valid exercise of powers conferred in terms by the articles. . . . To hold otherwise would enable a member to be relieved from the consequences of a bargain knowingly entered into by him. . . . But this, I think, is subject to an important qualification. Acts which, in law, are a valid exercise of powers conferred by the articles may nevertheless be entirely outside what can fairly be regarded as having been in the contemplation of the parties when they became members of the company; and in such cases the fact that what has been done is not in excess of power will not necessarily be an answer to a claim for winding up. Indeed, it may be said that one purpose of [the just and equitable provision] is to enable the court to relieve a party from his bargain in such cases."
1 Citers


 
In re The Midland Union, Burton-Upon-Trent, Ashby-De La-Zouch And Leicester Railway Company; And In The Matter Of The Joint Stock Companies Winding-Up Acts Sir Wm Pearson's Executors' Case [1853] EngR 96; (1852, 1853) 3 De G M & G 241; (1853) B)
15 Jan 1853


Company

[ Commonlii ]
 
In The Matter Of The Dover And Deal Railway, Cinque Ports, Thanet, And Coast Junction Company, And Of The Joint-Stock Companies Winding-Up Acts, 1848 And 1849 Mowatt And Elliott's Case [1853] EngR 226; (1853) 3 De G M & G 254; (1853) 43 ER 100
8 Feb 1853


Company

[ Commonlii ]
 
Aberdeen Railway Co -v- Blaikie Brothers (1854) 1 Macq 461; (1854) 17 D (HL) 20
1854
HL
Lord Cranworth LC
Company, Scotland
The plaintiff needed a large quantity of iron chairs (rail sockets) and contracted for their supply over an 18-month period with Blaikie Bros a partnership. Thomas Blaikie was the managing partner of Blaikie Bros and a director and the chairman of the Aberdeen Railway Company. The contract was partly performed but, having taken delivery of about two-thirds of the iron chairs, the Aberdeen Railway Company refused to accept any more. The defendant sought to enforce the contract or for damages for breach. Held: The railway company's defence succeeded on the grounds that Mr Blaikie's self-dealing rendered the contract voidable at its suit.
The equitable rule as to the accountability of directors is not limited to cases in which there is a maturing business opportunity but extends to cases in which the director either has or can have a personal interest conflicting, or which possibly may conflict, with the interests of whose whom he is bound to protect. "This, therefore, brings us to the general question, whether a Director of a Railway Company is or is not precluded from dealing on behalf of the Company with himself, or with a firm in which he is a partner. The Directors are a body to whom is delegated the duty of managing the general affairs of the Company. A corporate body can only act by agents, and it is of course the duty of those agents so to act as best to promote the interests of the corporation whose affairs they are conducting. Such agents have duties to discharge of a fiduciary nature towards their principal. And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to, that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into."
and "Mr Blaikie was not only a Director, but (if that was necessary) the Chairman of the Directors. In that character it was his bounden duty to make the best bargains he could for the benefit of the Company. While he filled that character, namely, on the 6th of February, 1846, he entered into a contract on behalf of the Company with his own firm, for the purchase of a large quantity of iron chairs at a certain stipulated price. His duty to the Company imposed on him the obligation of obtaining these chairs at the lowest possible price. His personal interest would lead him in an entirely opposite direction, would induce him to fix the price as high as possible. This is the very evil against which the rule in question is directed, and I here see nothing whatever to prevent its application. I observe that Lord Fullerton seemed to doubt whether the rule would apply where the party whose act or contract is called in question is only one of a body of Directors, not a sole trustee or manager. But, with all deference, this appears to me to make no difference. It was Mr Blaikie’s duty to give his co-Directors, and through them to the Company, the full benefit of all the knowledge and skill which he could bring to bear on the subject. He was bound to assist them in getting the articles contracted for at the cheapest possible rate. As far as related to the advice he should give them, he put his interest in conflict with his duty, and whether he was the sole Director or only one of many, can make no difference in principle. The same observation applies to the fact that he was not the sole person contracting with the Company; he was one of the firm of Blaikie Brothers, with whom the contract was made, and so interested in driving as hard a bargain with the Company as he could induce them to make."
1 Citers


 
Aberdeen Rly Co -v- Blackie Bros (1854) 1 Macq 461
1854


Company
In the absence of any provision otherwise in the articles aof association, a contract made by the company in which a director holds a contrary interest will be voidable at the instance of the company.


 
 Robert Hull Terrell -v- James Button; 16-Mar-1854 - [1854] EngR 361; (1854) 4 HLC 1091; (1854) 10 ER 790

 
 The German Mining Company The Case Of Samuel Ball, William Haigh, Francis Ramsbotham, William Rothert; 23-Jun-1854 - [1854] EngR 664; (1854) 4 De G M & G 19; (1854) 43 ER 415

 
 Regina -v- The Registrar of The Pharmaceutical Society of Great Britain; 1855 - [1855] EngR 39; (1855) 5 El & Bl 138; (1855) 119 ER 433
 
The Royal British Bank -v- Turquand [1855] EngR 531; (1855) 5 El & Bl 248; (1855) 119 ER 474
2 Jun 1855


Company

1 Citers

[ Commonlii ]

 
 The Carron Iron Company Proprietors -v- Maclaren, Dawson, Stainton; PC 23-Jul-1855 - [1855] EngR 700; (1855) 5 HLC 416; (1855) 10 ER 961; (1855) HL Cas 416; [1855] UKPC 1

 
 Prole -v- Masterman; 24-Jul-1855 - [1855] EngR 704; (1855) 21 Beav 61; (1855) 52 ER 781

 
 Royal British Bank -v- Turquand; CEC 1856 - (1856) 6 E & B 327; [1856] EngR 470; (1856) 6 El & Bl 327; (1856) 119 ER 886
 
In The Matter Of The Saint Marylebone Joint Stock Banking Company, And In The Matter Of 'The Joint Stock Companies Winding-Up Acts, 1848 And 1849' Dr Walker's Case [1856] EngR 885; (1856) 8 De G M & G 607; (1856) 44 ER 524
11 Nov 1856


Company

[ Commonlii ]
 
Brown -v- Oakshot (1857) 24 Beav 254
1857


Company, Equity
A father devised his estate to trustees for a term, for them to pay a residue of rents from that estate to his sons as tenants in common; but the reversion of the estate he devised to his sons as joint tenants. The question was whether the joint tenancy of the reversion had been severed because the sons, during the term, had used the estate in their partnership trade as brewers. Held: They had not, and so the surviving son took the whole of the reversion, subject to the term.
1 Citers


 
In The Matter Of The British Sugar Refining Company And In The Matter Of The Joint Stock Companies Act, 1856 [1857] EngR 280; (1857) 3 K & J 408; (1857) 69 ER 1168
18 Feb 1857


Company
The 25th section of the Joint Stock Companies Act, 1856 (19 & 20 Vict, c. 47), enabling a shareholder whose name is without sufficient cause omitted to be entered in the company's register to apply by motion for an order that the register may be rectified was not meant to give to every shareholder ex debito justiciae this summary remedy. The object of that section was to enable the Court to avoid the inconvenience and injustice which occasionally arise from capricious or frivolous objections on the part of companies to complete the registration of their shareholders. It was not intended by the Act that, in the event of there being a serious question to be tried, the matter should be disposed of summarily.
A resolution for a call may be good, though resolutions for calls for smaller sums had been previously negatived at the same meeting.
Whether, provided shareholders have had notice by means of circulars of a meeting for the purpose of making calls, a shareholder who has attended such meeting can object to calls made thereat, on the mere ground that the company omitted to advertise the meeting in any newspaper, as required by their deed of settlement - quaere.
But where a shareholder, having so attended at such meeting, had allowed others to pay their calls, and after lying by for six months assigned his shares : Held, that his assignee could not, by motion under the 25th section of the Act, apply to have his name entered on the register, so long as the calls remained unpaid; and his motion was dismissed with costs.
Joint Stock Companies Act 1856 25
[ Commonlii ]
 
Reid's Case In Re The Electric Telegraph Company Of Ireland [1857] EngR 801; (1857) 24 Beav 318; (1857) 53 ER 381
25 Jul 1857


Company
A father voluntarily transferred shares in an incorporated company to his infant son. The company was afterwards wound up (the son being still an infant). Held, that the father was a contributory.
[ Commonlii ]
 
Maxwell's Case Re The Electric Telegraph Company Of Ireland [1857] EngR 800 (A); (1857) 24 Beav 321
25 Jul 1857


Company
A father applied for shares in a company in the name of his son, and he paid the deposit ; the company, however, refused to allow him to execute the deed on behalf of the son. Having done no further act, Held, that the father was not a contributory.
[ Commonlii ]
 
The Electric Telegraph Company Of Ireland Cookney's Case [1858] EngR 1000; (1858) 26 Beav 6; (1858) 53 ER 798
19 Jul 1858


Company
A. gave to B. a cheque for £50 to obtain fifty shares in a company. B applied for fifty shares, and they were allotted to A, and his name was entered in the books, &c., as a shareholder. It did not appear that anything had been done further than that A. had refused to sign the deed. Held, that not having repudiated the shares, he was a contributory Held, also, that a change iri the company's books in the the number of the shares first allotted to B. did not relieve him from his liability.
[ Commonlii ]
 
In The Matter Of The Electric Telegraph Company Of Ireland, And In The Matter Of The Joint Stock Companies Winding-Up Acts, 1848 And 1849 Cookney's Case [1858] EngR 1072; (1858) 3 De G & J 170; (1858) 44 ER 1233
3 Nov 1858


Company
Shares in a company which was in the course of formation were allotted to an applicant whose application was merely a verbal request to a director to obtain the shares, but who subsequently paid the deposit. On being requested to execute the deed af settlement the allottee refused to do so. The company afterwards obtained an Act of Parliament, and in the register of shareholders made under the Act the name of the allottee, omitting however his first Christian name, was inserted in the register as a shareholder in respect of the same number of shares as had been allotted to him, but which were differently numbered, numbers corresponding to those on the allotment being ascribed in the new register to another shareholder. Held, that no written agreement to take shares was necessary, but that the Appellant had become liable as a contributory, and was not relieved from his liability either by his refusal to execute the deed, by the change in the numbers of the shares ascribed to him, or by the mistake in his name.
[ Commonlii ]
 
The Metropolitan Saloon Omnibus Company -v- Hawkins [1859] EngR 234; (1859) 4 H & N 146; (1859) 157 ER 792; [1859] EngR 252; (1859) 4 H & N 87; (1859) 157 ER 769; [1858] EngR 1210 (B); (1858) 1 F & F 413
2 Dec 1858
CEC
Pollock CB
Company, Defamation
The plaintiff, a company incorporated under the Joint Stock Companies Act 1856 sued in respect of a libel imputing to it insolvency, mismanagement and dishonest carrying on of its affairs. Held: The action was maintainable. Pollock CB said: "That a corporation at common law can sue in respect of a libel there is no doubt. It would be monstrous if a corporation could maintain no action for slander of title through which they lost a great deal of money. It could not sue in respect of an imputation of murder, or incest, or adultery, because it could not commit those crimes. Nor could it sue in respect of a charge of corruption, for a corporation cannot be guilty of corruption, although the individuals composing it may. But it would be very odd if a corporation had no means of protecting itself against wrong; and if its property is injured by slander it has no means of redress except by action. Therefore it appears to me clear that a corporation at common law may maintain an action for a libel by which its property is injured."
1 Citers

[ Commonlii ] - [ Commonlii ] - [ Commonlii ]
 
Attorney-General -v- Great Northern Railway Co (1860) 1 Drew & Som 154; (1860) 29 LJ Ch 794; (1860) 2 LT 653
1860


Company
A company incorporated by statute may only exercise those powers given to it by the statute. An Act creating a company is a contract between the company and the public, and there remains a public interest in its enforcement. A stranger to the company could therefore request the Attorney General to seek to enforce that contract against the company.

 
Ashworth -v- Stanwix (1860) 3 E & E 701
1860
QBD

Vicarious Liability, Company
Innocent partners are vicariously liable for the torts of their co-partner.
1 Citers


 
In Ex Parte Harris, Re The Anglo-French Porcelain Company (Limited), And The Anglo-French Porcelain Company (Limited) -v- Harris [1860] EngR 759; (1860) 5 H & N 809; (1860) 157 ER 1404
22 May 1860


Company

[ Commonlii ]
 
Cooper -v- Hubbuck [1860] EngR 1297; (1860) 30 Beav 160; (1860) B)
19 Dec 1860


Company, Legal Professions
A partnership between two solicitors for their joint lives may be dissolved instanter, if one of the parties fraudulently sells out trust funds and applies the produce to his own use.
[ Commonlii ]
 
Andrewes -v- Garstin (1861) 10 CB (NS) 444
1861

Erle CJ
Company
The plaintiff sued for breach of an agreement to enter into a partnership with the defendant, who pleaded that previously the plaintiff had carried on trade in partnership with another person, and that the defendant made the agreement on the faith and under the belief that the plaintiff had up to that time acted with honesty towards his previous partner. But after the making of the agreement the defendant discovered that the plaintiff had before the time of making the agreement acted with fraud and dishonesty towards his partner, and did not disclose it. Held: The plea was no answer to the action. The defendants arguments would have been addressed with more plausibility if the plea had been a little more specific. There was no suggestion of fraud on the defendant and as to the rest it was much too vague and uncertain.
1 Citers


 
Re The Winding-Up Acts Re The Hereford And Merthyr Tydvil Junction Railway Company Mailtland's Case [1861] EngR 385; (1861) 3 Giff 28; (1861) 66 ER 309
8 Mar 1861


Company, Insolvency

[ Commonlii ]
 
Thomas -v- Hobler [1861] EngR 1074; (1861) 4 De G F & J 199; (1861) 45 ER 1160
18 Dec 1861


Company

[ Commonlii ]
 
In Re The Risca Coal And Iron Company [1861] EngR 1076; (1861) 30 Beav 528; (1861) 54 ER 994
21 Dec 1861


Company

[ Commonlii ]

 
 Milroy -v- Lord; CA 26-Jul-1862 - (1862) 4 De GF & J 264; [1862] EWHC Ch J78; [1862] EngR 951; (1862) 4 De G F & J 264; (1862) 45 ER 1185
 
Coventry -v- Barclay (1863) 3 De G J & Sm 320; (1863) 3 New Rep 224; (1863) 9 LT 496
1863


Company
Partners had conducted their practice over many years in a manner inconsistent with the spirit if not the exact letter of their partnership articles. Stock was to be taken every year, and the value entered into the books to be signed off by each partner. On the last occasion a partner being ill did not sign the accounts, and later died. He had not expressed any dissatisfaction with the accounts. Held: His estate was bound by the accounts as if he had signed them. The firm had each year set aside a certain sum against contingencies. The deceased partner's estate was entitled to the return of his share in the fund.
1 Citers


 
Re Maxwell's Trusts [1863] EngR 381; (1863) 1 H & M 610; (1863) 71 ER 267
23 Mar 1863


Company, Trusts

[ Commonlii ]
 
In Re The Maryport, & Railway Act Ex Parte The Earl Of Lonsdale [1863] EngR 387; (1863) 32 Beav 397; (1863) 55 ER 155
28 Mar 1863


Company

[ Commonlii ]
 
James Bennett -v- Thomas Goad Blain [1863] EngR 985; (1863) 15 CB NS 518; (1863) 143 ER 887
21 Nov 1863


Company

[ Commonlii ]
 
In re Exhall Coal Mining Co Ltd (1864) 4 De G J & S 377
1864
CA
Turner LJ
Company, Insolvency
Section 163 provided "any . . distress or execution put in force against the estate or effects of the company after the commencement of the winding up shall be void to all intents." After the presentation of a petition, the commencement of a compulsory winding up, but before the winding up order, the lessor of land of which the company was the beneficial tenant levied a distress upon the company's goods for arrears of rent. The liquidator claimed that the distress was void under the statute. Held: It had a discretionary power to validate the distress. It derived this power from section 87, which provided that after a winding up order, no "suit action or other proceeding" should be proceeded with or commenced against the company without the leave of the court. Turner LJ: "I also concur in the decision of the Master of the Rolls. I think the 163rd section of the Act must be construed as only avoiding attachments, sequestrations, distresses or executions when leave to put them in force has not been given under the 87th section."
Companies Act 1862 87 163
1 Citers


 
In The Matter Of The Companies Act, 1862; And In The Matter Of The Llanharry Hematite Iron Ore Company, Limited Roney's Case Stock's Case [1864] EngR 602; (1864) 4 De G J & S 426; (1864) 46 ER 983
23 Jun 1864


Company

[ Commonlii ]
 
Johnson -v- Helleley [1864] EngR 878 (B); (1864) 2 De G J & S 446
21 Dec 1864


Company

[ Commonlii ]

 
 Bows -v- Hope Life Insurance and Guarantee Co; HL 1865 - [1865] 11 HL Cas 389
 
In re Moseley-Green Coal and Coke Co Ltd, Ex parte Barrett (1865) 12 LT (NS) 193
1865

Lord Westbury LC
Insolvency, Company
Mr Barrett owed the company money on his partly-paid shares for which calls were made after it went into insolvent liquidation. He had also guaranteed the company's liability for the purchase price of a coal mine, for which the vendor held security in the form of a mortgage and the company's promissory note. After the winding up Mr Barrett's sister paid off the vendor and took over the mortgage and promissory note. Mr Barrett then entered into an arrangement which was treated as a payment of the company's debt and he took over the promissory note. Held: He was entitled to set off the debt on the promissory note against his liability to pay calls on his shares.
1 Citers


 
Humber Iron Company -v- Jones [1865] EngR 25; (1865) 4 F & F 1047; (1865) A)
1865


Company

[ Commonlii ]
 
Jones -v- Lock (1865) LR 1 Ch App Cas 25
1865

Lord Cranworth LJ
Company, Equity
A father put a cheque into the hands of his baby son of nine months saying ‘I give this to baby for himself’ and he then took back the cheque and put it away. The donor died and the cheque was found among his effects. Held: There had been no valid gift. There was no declaration of trust and no gift.
1 Citers


 
Pilling -v- Pilling (1865) 3 De G J & Sm 162
1865


Company

1 Citers


 
Bonville -v- Bonville [1865] EngR 777; (1865) 35 Beav 129; (1865) A)
14 Dec 1865


Company

[ Commonlii ]
 
Griffiths -v- Bracewell, Bracewell -v- Griffiths [1865] EngR 788; (1865) 35 Beav 43; (1865) 55 ER 810
19 Dec 1865


Company

[ Commonlii ]
 
Henry Wickham Wickham And Others, On Behalf Of Themselves And The Debenture-Holders In The New Brunswick And Canada Railway And Land Company -v- The New Brunswick And Canada Railway Company And Others [1865] EngR 793; (1865) 3 Moo PC NS 416; (1865) 16 ER 158
22 Dec 1865
PC

Company

[ Commonlii ]
 
In re Overend Gurney & Co (Grissell's case) (1866) LR 1 Ch App 528
1866

Lord Chelmsford LC
Company, Insolvency
On the insolvency of a company, no cross claim may be set off against the company member's liability for unpaid capital, for debt. Lord Cheldmsford LC said: "If the amount of an unpaid call cannot be satisfied by a set-off of an equivalent portion of a debt due to the member of a company upon whom it is made, it necessarily follows in the last place, that the amount of such call must be paid before there can be any right to receive a dividend with the other creditors. The amount of the call being paid, the member of the company stands exactly on the footing of the other creditors with respect to a dividend upon the debt due to him from the company. The dividend will be of course upon the whole debt, and the member of the company will from time to time, when dividends are declared, receive them in like manner when either no call has been made, or having been made, when he has paid the amount of it."
1 Citers


 
The Glamotgansgire Iron And Coal Companu -v- Irvine [1866] EngR 45; (1866) 4 F & F 947; (1866) 176 ER 861
1866


Company, Torts - Other

[ Commonlii ]
 
George Rolfe And Edward Bailey, And The Bank Of Australasia -v- Flower, Salting And Company [1866] EngR 75; (1866) 3 Moo PC NS 365; (1866) 16 ER 139
1 Feb 1866
PC

Company, Insolvency

[ Commonlii ]
 
Re The Hop And Malt Exchange And Warehouse Company Brigg's Case (Limited) [1866] EngR 84; (1866) 35 Beav 273; (1866) 55 ER 900
8 Feb 1866


Company

[ Commonlii ]
 
Re Hafod Lead Mining Company Slater's Case [1866] EngR 97; (1866) 35 Beav 391; (1866) 55 ER 947
13 Feb 1866


Company

[ Commonlii ]
 
Prince -v- Prince [1866] EngR 102; (1866) 35 Beav 386; (1866) 55 ER 945
15 Feb 1866


Company

[ Commonlii ]
 
In Re The Anglo-Greek Steam Navigation And Trading Company, Limited [1866] EngR 120; (1866) 35 Beav 399; (1866) 55 ER 950
8 Mar 1866


Company

[ Commonlii ]
 
Re The Constantinople And Alexandra Hotel Company [1866] EngR 124; (1866) 35 Beav 349; (1866) 55 ER 930
12 Mar 1866


Insolvency, Company

[ Commonlii ]
 
Lyde, On Behalf, &Amp;C, -v- The Eastern Bengal Railway Company [1866] EngR 132; (1866) 36 Beav 10; (1866) 55 ER 1059
15 Apr 1866


Company

[ Commonlii ]
 
Re The English, and Co, Rolling Stock Company Lyon's Case [1866] EngR 147; (1866) 35 Beav 646; (1866) 55 ER 1048
2 May 1866


Company

[ Commonlii ]
 
In Re London, Hamburg, and Co Bank Emmerson's Case Toombs' Case [1866] EngR 146; (1866) 35 Beav 518; (1866) 55 ER 997
2 May 1866


Company, Insolvency

[ Commonlii ]
 
The Alexandra Hall Company Roebuck's Case [1866] EngR 152; (1866) 35 Beav 467; (1866) 55 ER 977
8 May 1866


Company

[ Commonlii ]
 
Re The Railway Finance Company (Limited) [1866] EngR 154; (1866) 35 Beav 473; (1866) 55 ER 979
24 May 1866


Company

[ Commonlii ]
 
Denton -v- Macneil [1866] EngR 159; (1866) 35 Beav 652; (1866) 55 ER 1050
1 Jun 1866


Company

[ Commonlii ]
 
Re The Bahia and San Francisco Railway Co Ltd -v- Trittin and others (1868) LR 3 QB 584
1868
CA
Lord Cockburn CJ, Blackburn J, Lush J, Mellor J
Company, Estoppel
Miss Trittin left her share certificates with a broker. A forged transfer together with the certificates, was lodged with and with registered by the company. The new certificates certified that the named person as registered holder. He then sold them to innocent purchasers who in turn lodged transfers and certificates and obtained certificates in their own names. The company had become obliged to restore Miss Trittin's name to the register but refused to recognise the innocent purchasers as shareholders. A special case was stated for the opinion of the Court between the innocent purchasers as claimants and the company for the purpose of determining the amount of damages (if any) which the company was liable to pay them respectively. Held: The claimant succeeded.
Lord Cockburn CJ: "This power of granting certificates is to give the shareholders the opportunity of more easily dealing with their shares in the market, and to afford facilities to them of selling their shares by at once showing a marketable title, and the effect of this facility is to make the shares of greater value. The power of giving certificates is, therefore, for the benefit of the company in general; and it is a declaration by the company to all the world that the person in whose name the certificate is made out, and to whom it is given, is a shareholder in the company, and it is given by the company with the intention that it shall be so used by the person to whom it is given, and acted upon in the sale and transfer of shares. It is stated in this case that the claimants acted bona fide, and did all that is required of purchasers of shares; they paid the value of the shares in money on having a transfer of the shares executed to them, and on the production of the certificates which were handed to them. It turned out that the transferors had in fact no shares, and that the company ought not to have registered them as shareholders or given them certificates, the transfer to them being a forgery. That brings the case within the principle of the decision in Pickard –v- Sears [6 AD & E 469] as explained by the case of Freeman –v- Cooke [2 Ex 654] that if you make a representation with the intention that it shall be acted upon by another, and he does so, you are estopped from denying the truth of what you represent to be the fact."
Blackburn J referred to the Companies Act and said:- "The statute further provides that the company may give certificates specifying the shares held by the member; and the object of this provision is expressly stated to be that this certificate should be prima facie evidence of the title of the person named to the shares specified; and the company, therefore, by granting the certificate, do make a statement that they have transferred the shares specified to the person to whom it is given, and that he is the holder of the shares. If they have been deceived and the statement is not perfectly true, they may not be guilty of negligence, but the company and no-one else have power to enquire into the matter; and it was the intention of the legislature that these certificates should be documents on which buyers might safely act," and "…. it is quite clear that a statement of a fact was made by the company, on which the company, at the very least, knew that persons wanting to purchase shares might act."
Lush J referred to the certificate given by the company to the fraudsters:- "And the claimants having acted on this statement by the company, there arises an estoppel as against the company, prohibiting them from denying that what it states is true. And the question then is, what does the certificate mean? Does it mean merely, that [the fraudsters' names] are on the register, and the company have done their best to ascertain that they are entitled to the shares, but cannot say whether they are so entitled? Or does it amount to a statement that the company take upon themselves the responsibility of asserting that they are the registered shareholders entitled to the specific shares? I think the certificate must amount to the latter assertion. It is the company who are to keep and look after the register, and they are the only persons who have control over it, and they can refuse to register a person until he shews that he is legally entitled. Having, therefore, put the names of [the fraudsters] upon the register, and granted them a certificate, the company are estopped after that statement has been acted upon and cannot deny that those persons were the legal holders of the particular shares which have been transferred to the claimants. The claimants, therefore, are entitled to recover from the company the value of the shares at the time when they were deprived of them."
1 Citers


 
Reese River Silver Mining Co Ltd -v- Smith (1869) LR 4 HL 64
1869
HL
Lord Hatherley LC
Contract, Company
Rescission for misrepresentation is always the act of the party (representee) himself.
The fact that a person's name continues to remain on a company's register as member does not mean that it should have done so under the provisions of the Articles.
An election or decision to rescind, in order to be effective, must be exercised unequivocally, "in the plainest and most open manner competent".
1 Citers



 
 In re Humber Ironworks and Shipbuilding Co; 1869 - (1869) LR 4 Ch App 643

 
 In Re European Life Assurance Society; 1869 - (1869) LR 9 Eq 122

 
 In re Trent & Humber Shipbuilding Co; Bailey & Leetham's Case; 1869 - (1869) LR 8 Eq 94

 
 In re Richards & Co; 1869 - [1869] 11 Ch D 676

 
 Re County Marine Insurance Co (Rance's Case); 1870 - (1870) LR 6 Ch App 104; (1870) 40 LJ Fh 277; (1870) LT 828; (1870) WR 291 LJ
 
In re Progress Assurance Co Ex parte Liverpool Exchange Co (1870) LR 9 Eq 370
1870

Lord Romilly MR
Company, Insolvency, Landlord and Tenant
The lessors of a company in liquidation levied a distress for unpaid rent upon its office furniture three months after the winding up order. A distress after the winding up order would be allowed to proceed only where the company "has retained not merely formal but actual possession of the property for the purpose of carrying on the business of the liquidation . ."
1 Citers


 
In re Panama New Zealand and Australian Royal Mail Co (1870) 5 Ch App 318
1870

Gifford LJ
Company
The company had charged its "undertaking and all sums of money arising therefrom". Held: "undertaking" meant "… all the property of the company, not only which existed at the date of the debenture, but which might afterwards become the property of the company." and the word "undertaking" "… necessarily infers that the company will go on, and that the debenture holder could not interfere until either the interest which was due was unpaid, or until the period had arrived for the payment of his principal, and that principal was unpaid".
1 Citers


 
Henry Bulkeley And Robert Fleming -v- Henry Gerard Schutz And Another [1871] EngR 37; (1871) 8 Moo PC NS 170; (1871) 17 ER 276
17 Jul 1871
PC

Company
A Railway Company and partnership complete and existing in a Foreign Country is not within the purview of the English Joint Stock Companies Acts, 1856, 1857, so as to enable H. B. Majesty's Consular Court in Egypt to issue a sequestration against such of the members of the Company as were resident within the jurisdiction of that Court, for not complying With an Order of that Court to register the Compamy as one of limited liability under the English Acts.
[ Commonlii ]
 
Ambler -v- Bolton (1872) LR 14 Eq 427
1872
CA
Lord Romilly MR
Equity, Company
An inalienable government contract held by one of the partners constituted a partnership asset. On the dissolution of the partnership, a value had to be given to it (since it could not be sold) and the partner who held it debited with that amount in the partnership accounts.
Partnership Act 1890 20
1 Citers



 
 Pickering -v- Stephenson; 1872 - (1872) LR 14 Eq 322
 
Mollwo, March and Co -v- The Court of Wards [1872] EngR 30; (1872) 9 Moo PC NS 214; (1872) 17 ER 495
6 Jul 1872
PC

Company
Although a right to participate in the profits of a Trade is a strong test of partnership, and there may be cases where, from such perception alone, it may as a presumption, not of law, but of fact, be enforced, yet, whether that relation does or does not exist, must depend on the real intention and contract of the parties
[ Commonlii ]
 
Peek -v- Gurney (1873) LR 6 HL 377
1873
HL
Lord Cairns
Company
A prospectus for an intended company was issued by promoters who were aware of the disastrous liabilities of the business of Overend & Gurney which the company was to purchase. The prospectus made no mention of a deed of arrangement under which those liabilities were, in effect, to be transferred to the company. The appellant bought shares in the company and, when it was wound up, he was declared liable as a contributory and had to pay almost £100,000. He sought an indemnity against the directors, alleging misrepresentation and concealment of facts by the directors in the prospectus. Held: The action failed because he had not in fact relied on the prospectus but had purchased the shares in the market. Lord Cairns expressed his agreement with the observations of Lord Chelmsford and Lord Colonsay that mere silence could not be a sufficient foundation for the proceedings: "Mere non-disclosure of material facts, however morally censurable, however that non-disclosure might be a ground in a proper proceeding at a proper time for setting aside an allotment or a purchase of share, would in my opinion form no ground for an action in the nature of an action for misrepresentation. There must, in my opinion, be some active misstatement of fact, or, at all events, such a partial and fragmentary statement of fact, as that the withholding of that which is not stated makes that which is stated absolutely false."
1 Citers


 
Waterer -v- Waterer [1873] LR 15 Eq 402
1873


Company, Wills and Probate

1 Citers


 
Imperial Mercantile Credit Association -v- Coleman (1873) LR 6 HL 189
1873
HL

Company, Trusts
Where a company director puts the benefit of a company contract into a partnership, he is fully accountable even if his partners are entitled to part of the profit and are ignorant of his breach of fiduciary duty.
1 Citers


 
Parker -v- McKenna (1874) LR 10 Ch 124
1874
CA
James LJ, Lord Cairns LC
Agency, Company
The directors of a bank acquired for themselves, and made a profit on, certain shares the subject of a new issue that were not taken up by the bank's shareholders. Held: James LJ said: "I do not think it is necessary, but it appears to me very important, that we should concur in laying down again and again the general principle that in this court no agent in the course of his agency, in the matter of his agency, can be allowed to make any profit without the knowledge and consent of his principal; that that rule is an inflexible rule, and must be applied inexorably by this court, which is not entitled, in my judgment, to receive evidence, or suggestion, or argument as to whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent; for the safety of mankind requires that no agent shall be able to put his principal in the danger of such an inquiry as that."
Lord Cairns LC said: 'The Court will not inquire, and is not in a position to ascertain, whether the bank has or has not lost by the acts of the directors. All that the Court has to do is to examine whether a profit has been made by an agent, without the knowledge of his principal, in the course and execution of his agency, and the Court finds, in my opinion, that these agents in the course of their agency have made a profit, and for that profit they must, in my opinion, account to their principal.'
1 Citers


 
In re Regents Canal Ironworks Co (1875) 3 Ch D 411
1875

James LJ
Company
Costs incurred by liquidators in realising charged assets are payable ahead of the debenture holder's claims. As the debenture-holder is entitled to the proceeds, it is right that he should pay the cost of realisation.
1 Citers



 
 Russell -v- Wakefield Waterworks Co; 1875 - (1875) LR 20 Eq 474

 
 Ashbury Railway Carriage and Iron Co -v- Riche; HL 1875 - (1875) LR 7 App Cas 653
 
Syers -v- Syers (1876) 1 App Cas 174
1876
HL

Company
The court has power to ascertain the value of a former partner's interest without a sale if it can be done by valuation, and will do so where that interest is relatively small.
1 Citers



 
 Calcutta Jute Mills Co Ltd -v- Nicholson; 1876 - [1876] 1 TC 83
 
In re David Lloyd & Co (1877) 6 Ch D 339
1877

James LJ
Company, Insolvency
The secured claims of debenture holders are pursued, not in the winding up, but by enforcement of the debenture holders' proprietary rights as chargees of the assets in question. A creditor is a person who "is to be considered as entirely outside the company, who is merely seeking to enforce a claim, not against the company, but to his own property"
1 Citers



 
 The Direct United States Cable Company (Ltd) and Others -v- The Anglo-American Telegraph Company (Ltd) and Others; PC 14-Feb-1877 - [1877] UKPC 5; (1876-77) LR 2 App Cas 394
 
Re Forest of Dean Mining Co (1878) LR 10 Ch 450
1878

Jessel MR
Company
Jessel MR: "Again, directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control, but they are not trustees of a debt due to the company. The company is the creditor, and, as I said before, they are only the managing partners. In my opinion it is extravagant to call them trustees of a debt when it has not been received. You may of course have an actual trust of a debt, as in the case I put before, where trustees have assigned to them a debt to get in, but that is not the case with directors of a company. A director is the managing partner of the concern, and although a debt is due to the concern I do not think it is right to call him a trustee of that debt which remains unpaid, though his liability in respect of it may in certain cases and in some respects be analogous to the liability of a trustee."
1 Citers



 
 Muir -v- City of Glasgow Bank; HL 1878 - (1878) 6 R 392

 
 In Re Horbury Bridge Coal Iron & Waggon Co; CA 1879 - (1879) 11 ChD 109
 
Simm and Others -v- Anglo-American Telegraph Co (1879) 5 QBD 188
1879
CA
Brett LJ, Cotton LJ
Estoppel, Company
A firm which had acted through nominees sought to raise an estoppel as to its status on the company registers. Held: The nominees acquired a "title by estoppel" against the company following the issue by the company of a share certificate to the nominees. But that "title" had been lost by the time the action began and was not available to Burge & Co. No representation was made which they had acted upon. Even if there had been a representation, that firm had not altered their position in any material way.
1 Citers


 
Smith -v- Anderson (1879) 15 ChD 247
1879
CA
Brett LJ
Company
Investors subscribed for shares in telegraph companies which they vested in trustees to manage the investment on certain terms. A question arose whether this arrangement contravened section 4 of the 1862 Act which prohibited the formation of an association consisting of more than 20 persons "for the purpose of carrying on any business that has for its object the acquisition of gain" unless it was registered in accordance with the Act. Held (inter alia) Brett LJ said that the expression "carrying on" implied a repetition of acts and excluded the case of an association formed for doing one particular act which was never to be repeated.
Companies Act 1862 4
1 Citers


 
Re Rica Gold Washing Co [1879] 11 ChD 36
1879


Insolvency, Company
A contributory, when petitioning for the winding up of a company, must plead in his petition and prove by evidence that, if a winding up order is made, there is a contingent surplus of assets in the winding up which will be available for distribution to him.
1 Citers


 
Yates -v- Finn (1880) 13 Ch D 839
1880


Company
After the dissolution of a partnership, it was held right and equitable to divide the profits between the parties in accordance with their contributions to the capital of the partnership.
1 Citers


 
Re Canadian Land Reclaiming and Colonizing Co (1880) 14 ChD 660
1880
CA
Sir George Jessel MR
Company
The court was asked whether two individuals who had been appointed and acted as directors while they were ineligible were directors or other officers liable to a summons for misfeasance. Held: The test was was whether a man who had assumed a position could be allowed to deny in court that he was really entitled to occupy it.
A de facto director owes directors' duties to the company in relation to which he performs those functions.
1 Citers



 
 Attorney-General -v- Great Eastern Railway Co; HL 1880 - (1880) 5 AC 473
 
Attorney General and Another -v- Great Eastern Railway Company [1880] UKHL 2; (1880) 5 App Cas 473
27 May 1880
HL
The Lord Chancellor (Lord Selborne), Lord Blackburn, Lord Watson
Company
Lord Selborne LC said: "the question in this case is whether, under the Acts of Parliament to which your Lordships' attention has been called, the Respondent company is authorized and empowered to let for hire to the Southend Company locomotive power and rolling stock. The company claims to be so entitled. The Master of the Rolls and Lord Justice Baggallay thought that it was not so authorized; but Lords Justices James and Bramwell thought otherwise, and they discharged the order for an injunction which the Master of the Rolls had made. The present appeal ta your Lordships is from that decision.
[ Bailii ]

 
 Caledonian Railway Company -v- North British Railway Company; HL 1881 - (1881) 6 AC 114

 
 Ex parte Moore; 1881 - (1881) 30 WR 123

 
 Redgrave -v- Hurd; CA 1881 - [1881] 20 ChD 1

 
 Chapleo -v- Brunswick Permanent Building Society; 1881 - (1881) 6 QBD 696

 
 Pawsey -v- Armstrong; ChD 1881 - (1881) 18 Ch D 698

 
 Re Exchange Banking Co, Flitcroft's Case; CA 1882 - (1882) 21 Ch D 519
 
Mayor, Constables and Company of the Merchants of the Staple -v- Bank of England (1887) 21 QBD 160
1883

Wills J
Land, Company
The sealing of a deed prima facie imported not only due execution but also delivery. "The affixing the seal is not enough; there must be delivery of the deed also …. Prima facie, putting the seal imports delivery; yet, if it be intended otherwise, it is not so …."
1 Citers


 
Nichols -v- Evens (1883) 22 Ch 611
1883

Fry J
Company

1 Citers


 
Hutton -v- West Cork Rly Co (1883) 23 ChD 654
1883
CA
Bowen LJ
Company
Even though a company's directors may act in good faith for a purpose which is ostensibly within their powers, the court may intervene in exceptional circumstances: "Bona fides cannot be the sole test, otherwise you might have a lunatic conducting the affairs of the company, and paying away its money with both hands in a manner perfectly bona fide yet perfectly irrational."
1 Citers


 
Shaw -v- The Port Phillip and Colonial Gold Mining Company Ltd [1884] 34 QB 103
1884

Steven J
Company
A company secretary was to procure execution of certificates of shares in accordance with prescribed formalities. A certificate was issued and presented by the secretary in favour of a purchaser in the usual form with signature of director and secretary and bearing the company's seal. But the signature of the director appended was, in fact, a forgery made by the secretary. The seal had also been affixed without authority of the board. The purchaser in due course lodged the share certificates as security and executed a transfer in favour of the plaintiff. Both purchaser and plaintiff acted throughout in good faith. The company argued that the signature of the director being forged, the whole document was a nullity. Held. The forgery being by its own employee, the company could not reject the transfers.
Steven J said: "It is said in answer that here the secretary carried out his fraud by means of forgery. It appears to me that this fact does not make any material difference. The defendants' counsel said it did make a difference on the ground, so far as I understand his argument, that nothing can give validity to a forged instrument as against anybody. That does not seem to me to be the case, and I think the authorities cited for the plaintiff are applicable. The company appear in this case to have prescribed certain formalities with regard to the use of the seal and the issue of certificates. The certificate is to be signed by a director and the secretary. In the present case it apparently does comply with those formalities; it is apparently so signed, and it is I stated to be in the usual and authorised form. The company made it the duty of the secretary to procure the preparation, execution, and signature of certificates with the prescribed formalities, and thereupon to issue them to the persons entitle to receive them. They thereby gave the secretary the opportunity of doing what he has done in this case. A person can inform himself whether the certificate comes from the secretary because he gets it from the secretary's office, but I do not see how, according to any practicable course of business, he can go behind the certificate and ascertain for himself such matters as whether the signature of the director is genuine. It appears to me, therefore, that the company have authorised the secretary, and made it his official duty, to act in such a way that his acts amount to a warranty by them of the genuineness of the certificate issued by him. For these reasons I think the question put to us should be answered in favour of the plaintiff."
Matthew J commented: "I am of the same opinion, on the ground that the company is responsible for the fraud committed by its agent while acting within the ordinary scope of his employment. Upon the statements contained in the case I cannot doubt that it was within the scope of their secretary's employment to do what he did here. It is stated to have been the duty of the secretary to procure the execution of the certificate with the prescribed formalities, and to issue it to the person entitled thereto. It is obviously indispensable in the ordinary course of business that the secretary should perform these duties, and it never could have been contemplated that the purchaser of shares should himself ascertain that each of the prescribed formalities had, in fact, been complied with. It seems to me, therefore, that the secretary is held out by the company as their agent to warrant the genuineness of the certificate. It was argued by the counsel for the defendants that the fact that the certificate was a forgery prevented their being liable for the act of their agent, but he failed, as it appeared to me, to establish any difference for this purpose between a fraud carried out by means of forgery and any other fraud. For these reasons I am of the opinion that our judgment should be for the plaintiff."
1 Citers


 
Standing -v- Bowring (1885) 31 Ch 282
1885


Company, Equity
A gift of shares was made, but challenged. Held: Registration of the transfer was actually completed and so the gift was completely constituted.
1 Citers



 
 Helmore -v- Smith; 1886 - (1886) 35 Ch D 436

 
 Trevor -v- Whitworth; 1887 - (1887) 12 App Cas 409

 
 Bouche -v- Sproule; 1887 - (1887) 12 App Cas 385
 
Farrar -v- Farrars Ltd (1888) 40 Ch D 395
1888
CA

Land, Company
The mortgagor of a quarry defaulted, and the mortgagees took possession. They were unable to sell the quarry, but formed a company which bought the quarry at a proper value. The mortgagor sought to set aside the sale. Held: A mortgagee in possession exercises a personal right primarily in his own interests as a mortgagee, The self-dealing rule applies in that a mortgagee cannot exercise the power to sell to himself or to a nominee or to a company of which he is the sole director and shareholder, but he can sell to a company in which he has a significant interest but the onus lies on him to justify the terms of sale. The mortgagees had shown that the sale was made in good faith, and at a proper price; with the consequence that the sale stood.
1 Citers


 
Nanney -v- Morgan (1888) 37 Ch D 346
1888


Company
A deed of transfer of shares did not pass the legal interest to the transferee until it was delivered to the secretary of the company. It was held that the transfer did not take effect until it had been left with the secretary and accepted by him. On the first occasion it was rejected because it was not properly stamped. The transfer had to be properly stamped in order to make the transfer effectual as between the company and the transferee. The legal title to the stock remained with the transferors until then. Accordingly, effectual delivery to the company is required
1 Citers


 
Gourand -v- Edison Gower Bell Telephone Co of Europe Ltd (1888) 57 LJ Ch
1888
ChD
Chitty J
Company, Legal Professions
Shareholders in the defendant company challenged its claim to legal privilege. They argued that when the directors obtained the advice in question, they did so on behalf of the company as a whole, and that they could not, therefore, assert privilege in the advice as against the shareholders. Held: The shareholders were entitled to discovery of the documents in question by analogy with the practice that applied in partnership cases (and those concerning trustees and beneficiaries) where advice had been obtained for the benefit of the partnership or trust estate. The rationale of such cases is that there is no distinction between the interests of the partnership and the individual partners and the trust and its beneficiaries.
1 Citers


 
In Re New Eberhardt Company, Ex parte Menzies (1890) 43 ChD 118
1890

Bowen, Fry LJJ
Contract, Company
The 1677 Statute is complied with if, per Fry LJ: "First, there must be at or before the date of the issue of these shares, a contract; secondly, that contract must be duly made in writing; and thirdly, that contract must be filed with the Registrar. Now, all these things must be done or must be in existence at or before the date of the issue. You cannot have a contract filed before the issue of the shares if it is not a contract till after the issue of the shares." However, the use of a written offer as a note or memorandum of the contract entered into upon its oral acceptance "pushed the literal construction of the Statue of Frauds to a limit beyond which it would perhaps be not easy to go"
Statute of Frauds 1677 4
1 Citers


 
Read -v- Joannon (1890) 25 QBD 300
1890

Wills J, Lord Coleridge CJ
Contract, Company
The court considered the application of the 1878 Act. Held: Where there are a series of Acts dealing with a topic and with similar names, the words "this Act" in expressions such as "in this Act" or "under this Act" must be construed to mean the combined Acts.
Wills J said: "I am of the same opinion; and I agree with my Lord, on consideration, that debentures of an incorporated company are not, and were never intended to be within the operation of the Act of 1878."
Lord Coleridge CJ said: "The question is, whether a debenture of an incorporated company requires registration as a bill of sale. I am of the opinion – and I think it right to say that my opinion does not stand alone, but is supported by that of a judge of much greater authority than myself, whom I have had the opportunity of consulting – that such debentures are not bills of sale, and are not struck at by either of these Acts of Parliament – that they were never within the Act of 1878 and are expressly exempted from the operation of the Act of 1882."
Bills of Sale Act 1878 4 - Bills of Sale Act 1882
1 Citers


 
In re Standard Manufacturing Co [1891] 1 Ch 627
1891
CA

Company, Contract
Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures "issued by any mortgage, loan, or other incorporated company". Nor were debentures bills of sale to which the Act of 1878 applied and company debentures themselves were not within the 1878 Act. The avowed design of the legislature had been to strike at frauds perpetrated upon creditors by secret bills of sale as the preamble to the Bills of Sale Act 1854 made plain: "Whereas 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."
The 1862 Act provided for the registration by companies of the mortgages and charges specifically affecting their property and accordingly company debentures could hardly be described as "secret documents".
The court concluded: "mortgages or charges of any incorporated company for the registration of which a statutory provision had already been made by the Companies Clauses Act 1845 or the Companies Act 1862 are not bills of sale within the Bills of Sale Act 1878."
Bills of Sales Act (1878) Amendment Act 1882 - Bills of Sales Act 1878 - Bills of Sale Act 1854 - Companies Act 1862 - Companies Clauses Act 1845
1 Cites

1 Citers


 
London & Mashonaland Exploration Co Ltd -v- New Mashonaland Exploration Co Ltd [1891] WN 165
1891

Chitty J
Company
There is nothing inherently objectionable in the position of a company director (and chairman) who, without breaching any express restrictive agreement or disclosing any confidential information, becomes engaged, whether personally or as a director of another company, in the same line of business.
1 Citers


 
Knowles -v- Scott [1891] 1 Ch 717; [1891] 60 LJ Ch 284; [1891] 64 LT 135; [1891] WR 523; [1891] 7 TLR 306
1891

Romer J
Insolvency, Professional Negligence, Company
A company's voluntary liquidator is the company's agent and no action lies against for delay him save in the case of misfeasance or wilful misconduct. He is not a trustee for the creditors or contributories of a company in liquidation. Nor does he have liability as a trustee dealing with his cestui que trust. Without proof of misfeasance or wilful misconduct no action will lie against him for a delay in distributing the assets of the company. Romer J said: "In my view a voluntary liquidator is more rightly described as the agent of the company – an agent who has no doubt cast upon him by statute or otherwise special duties . . If this be the true position of a liquidator, and I think at any rate agency more nearly defines his true position than trusteeship, it is clear that he could not as agent be sued by a third party for negligence apart from misfeasance or personal misconduct."
1 Citers


 
Aas -v- Benham [1891] 2 Ch 244
1891
CA
Lindley LJ, Bowen LJ
Company
Benham was a partner in a ship-broking firm which hoped to act in negotiations between the Spanish and Portuguese Governments and ship builders. He had also been approached for advice by a shipbuilding company. He received information while acting for the firm suggesting that it could be reconstituted as a builder of warships and acquire a yard he discovered in Bilbao. He used that information to help write a prospectus for the ship-building company's reconstruction, and made profits for himself as a result of the reconstruction. Held. Mr Benham was not liable to account to his partners. It was no part of the firm's business to advise on corporate reconstructions or to build ships. Even though Mr Benham had learnt of the information whilst on the firm's business, he owed no fiduciary duty to his partners which prevented him from making use of the information as he did.
Lindley LJ said: 'The answer, however, to this claim is short and conclusive. It was no part of the business of H. Clarkson & Co to promote or reconstruct companies, nor to advise them how to improve the management of them. All such matters are quite foreign to the business of H. Clarkson & Co . . He never was in fact acting for his firm in this matter, nor did his partners ever suppose he was, or treat him as so acting. Nor is it true in fact that Mr Benham or the company for which he was acting ever derived any benefit from his connection with the firm of H. Clarkson & Co. It is clear law that every partner must account to the firm for every benefit derived by him without the consent of his co-partners from any transaction concerning the partnership or from any use by him of the partnership property, name or business connection; but the facts of this case do not bring it within this principle. It is equally clear law that if a partner without the consent of his co-partners carries on business of the same nature as, and competing with that of the firm, he must account for and pay over to the firm all the profits made by him in that business, but the facts of this case do not bring it within that principle. Dean v. MacDowell (1878) 8 Ch. D. 345 shews that a partner is not bound to account to his co-partners for profits made by him in carrying on a separate business of his own, unless the case can be brought within one or other of the two principles to which I have alluded, even if he carries on such separate business contrary to one of the partnership articles. As regards the use by a partner of information obtained by him in the course of the transaction of partnership business, or by reason of his connection with the firm, the principle is that if he avails himself of it for any purpose which is within the scope of the partnership business, or of any competing business, the profits of which belong to the firm, he must account to the firm for any benefits which he may have derived from such information, but there is no principle or authority which entitles a firm to benefits derived by a partner from the use of information for purposes which are wholly without the scope of the firm's business, nor does the language of Lord Justice Cotton in Dean v. MacDowell warrant any such notion. By "information which the partnership is entitled to" is meant information which can be used for the purposes of the partnership. It is not the source of the information, but the use to which it is applied, which is important in such matters. To hold that a partner can never derive any personal benefit from information which he obtains as a partner would be manifestly absurd. Suppose a partner to become, in the course of carrying on his business, well acquainted with a particular branch of science or trade, and suppose him to write and publish a book on the subject, could the firm obtain the profits thereby obtained? Obviously not, unless, by publishing the book, he in fact competed with the firm in their own line of business.'
Bowen LJ said: "I think that when Lord Justice Cotton said that a partnership was entitled to the profits which arose out of information obtained by one of the partners as partner, he was speaking of information to which the partnership was entitled in the sense in which they are entitled to property. I think you can only read the sentence in which the expression occurs in that way. It is as follows: "Again, if he makes any profit by the use of any property of the partnership, including, I may say, information which the partnership is entitled to, there the profit is made out of the partnership property". The language, like all Lord Justice Cotton's language, is perfectly precise and neat. He is speaking of information which a partnership is entitled to in such a sense that it is information which is the property of the partnership - that is to say, information the use of which is valuable to them as a partnership, and to the use of which they have a vested interest. " and "As regards the use by a partner of information obtained by him in the course of the transaction of partnership business, or by reason of his connection with the firm, the principle is that if he avails himself of it for any purpose which is within the scope of the partnership business, or of any competing business, the profits of which belong to the firm, he must account to the firm for any benefits which he may have derived from such information, but there is no principle or authority which entitles a firm to benefits derived by a partner from the use of information for purposes which are wholly without the scope of the firm's business, nor does the language of Cotton LJ in Dean v MacDowell warrant any such notion. By 'information which the partnership is entitled to' is meant information which can be used for the purposes of the partnership. It is not the source of the information, but the use to which it is applied, which is important in such matters. To hold that a partner can never derive any personal benefit from information which he obtains as a partner would be manifestly absurd."
1 Citers


 
Re Alabama, New Orleans, Texas and Pacific Junction Railway Company [1891] 1 Ch 213
1891
CA
Fry LJ, Bowen LJ
Company, Insolvency
The question is whether a scheme of arrangement: "was at least so far fair and reasonable, as that an intelligent and honest man, who is a member of that class [to whom the scheme is put], and acting alone in respect of his interest as such a member, might approve of it."
Bowen LJ: "It is in my judgment desirable to call attention to this section, and to the extreme care which ought to be brought to bear upon the holding of meetings under it. It enables a compromise to be forced upon the outside creditors by a majority of the body, or upon a class of the outside creditors by a majority of that class. It would be most unjust to bind creditors or classes of creditors by the decision of three-fourths in value of those who attend a particular meeting, unless you have secured that the meeting shall adequately represent the entire body. But the section makes no provision for that, except by enacting that the meeting is to be held in the manner in which the Court shall direct."
1 Citers


 
Sovereign Life Assurance -v- Dodd [1892] 2 QB 573
1892

Bowen LJ
Company
"What is the proper construction of that statute? It makes the majority of the creditors or of a class of creditors bind the minority: it exercises a most formidable compulsion upon dissentient, or would-be dissentient, creditors; and it therefore requires to be construed with care, so as not to place in the hands of some of the creditors the means and opportunity of forcing dissentients to do that which it is unreasonable to require them to do, or of making a mere jest of the interests of the minority. " and "The word "class" is vague, and to find out what is meant by it we must look at the scope of the section, which is a section enabling the court to order a meeting of a class of creditors to be called. It seems plain that we must give such a meaning to the term "class" as will prevent the section being so worked as to result in confiscation and injustice, that it must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest. "
Joint Stock Companies Arrangement Act 1870
1 Citers


 
In Re Sharpe [1892] 1 Ch 154
1892


Company
The misapplication of company money in the form of ultra vires payments of interest to shareholders was treated as a breach of trust by the directors.
1 Citers


 
English & Scottish Mercantile Investment Co Ltd -v- Brunton [1892] 2 QB 700
1892
CA

Company, Banking
A debenture contained provisions that would normally have created a simple floating charge but which included a restriction on the chargor company from granting any prior charge on the assets in question. The chargor subsequently granted a charge over a fund that was one of those assets. The only issue was whether the chargee of the fund, who was aware of the existence of the debenture, had constructive knowledge of the restriction. Held: He did not, but had the chargee had such knowledge, its security would have ranked after the debenture.
1 Citers


 
In re Ottos Kopje Diamond Mines Ltd [1893] Ch 618
1893
CA
Bowen LJ
Estoppel, Company
Bowen LJ: (referring to Bahia) "The way in which the Court made the company liable was this: they said that in as much as the certificate had been intended to be acted upon, it became a document the truth of which the company could not deny as against the transferee to whom it was intended to be shewn; and, therefore, it precluded the company, as against the transferee, from denying the truth of what the certificate contained; they could not be in any better position than if the statement were true;"
1 Citers



 
 The Balkis Consolidated Co Ltd -v- Tomkinson and Others; HL 1893 - [1893] AC 396

 
 Hunter -v- Dowling; CA 1893 - [1893] 3 Ch 212
 
In re English, Scottish and Australian Chartered Bank [1893] 3 Ch 385
1893

Vaughan Williams J
Company, Insolvency, International
Vaughan Williams J said: "One knows that where there is a liquidation of one concern the general principle is - ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to govern the liquidation; and let the other courts act as ancillary, as far as they can, to the principal liquidation. But although that is so, it has always been held that the desire to assist in the main liquidation - the desire to act as ancillary to the court where the main liquidation is going on - will not ever make the court give up the forensic rules which govern the conduct of its own liquidation."(
1 Citers


 
Davis -v- Davis [1894] 1 ChD 393
1894


Company
Conversion of partnership property
1 Citers


 
Re Lands Allotment Company [1894] 1 Ch 616
1894
CA
Lindley LJ and Kay L JJ
Company, Limitation, Equity
A limited company is not a trustee of its funds, but their beneficial owner. However, the fiduciary character of the duties of its directors mean that they are treated as if they were trustees of those funds of the company which are in their hands or under their control, and if they misapply them they commit a breach of trust.
The court contrasted the conduct of two directors (one of whom, Mr Brock, was also chairman) in determining their responsibility for an ultra vires investment made by the company. Neither was present at the meeting at which the investment had been approved. Attendance at a later meeting at which the minutes of that meeting were confirmed was held to be insufficient to make either director liable. On the other hand statements made by Mr Brock showing he had taken an active part in the decision to make the investment were sufficient to hold him responsible for it. However the other director had been "away on the sea" and "had nothing to do with the transaction at all" which was "past praying for" on his return. In a case of a company director being treated as a trustee within the limitation provisions of ss1(3) and 8(1) of the Trustee Act 1888 in respect of a claim that unauthorised investments had caused loss to the company. The court recognised the trustee-like nature of a director’s duties as very relevant to the statutory limitation periods for actions by beneficiaries against express trustees for breach of trust and for the recovery of trust property, whether those periods are applied directly or by analogy. In consequence of the fiduciary character of their duties the directors of a limited company are treated as if they were trustees of those funds of the company which are in their hands or under their control, and if they misapply them they commit a breach of trust.
Directors are not regarded as trustees merely by virtue of their office; but they are treated as trustees "of money which comes to their hands or which is actually under their control" (per Lindley LJ); or "they are only trustees qua the particular property which is put into their hands or under their control" (per Kay LJ).
Trustee Act 1888 1(3) 8(1)
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 British and American Trustee and Finance Corporation -v- Couper; HL 1894 - [1894] AC 399

 
 Overseers of the Savoy -v- Art Union of London Limited; QBD 1894 - [1894] 2 QB 609
 
Manchester Corporation -v- Furness [1895] 2 QB 539
1895

Lindley LJ
Company
The court placed emphasis on the desirability of upholding bona fide commercial transactions, and the corresponding undesirability of allowing notions of constructive notice to intrude into commercial transactions.
1 Citers


 
Brophy -v- Attorney-General of Manitoba [1895] AC 202
1895
PC
Lord Herschell LC
Company

1 Citers



 
 In re Kingston Cotton Mill (No 2); ChD 1895 - [1896] 1 Ch 331
 
Beaver -v- The Master In Equity of The Supreme Court of Victoria [1895] UKPC 2; [1895] AC 251
29 Jan 1895
PC
Lord Hesrchell LC, Watson, Hobhouse, MacNaghten, Shand LL
Commonwealth, Taxes - Other, Company, Wills and Probate
(Victoria) The Board was asked whether a share in a partnership was subject to etsate duties on the death of the partner.
[ Bailii ]
 
Re Hampshire Land Company [1896] 2 Ch 743
1896

Vaughan Williams J
Agency, Company
A company had borrowed from a building society. The borrowing was not properly authorised by resolution. The court was asked whether whether the knowledge of the company secretary common to both the company and the society, as to the irregularity should be imputed to the society, so as to preclude the society from recovering the loan. Held: The rule of law that information held by an agent in the course of his agency is to be imputed to his principal, has an exception where the agent is committing a fraud on his principal.
Vaughan Williams J said: "The case is very much more like the one which [counsel for the society] had to admit was an exception to the general rule that they sought to lay down, for they admitted that if Wills had been guilty of a fraud, the personal knowledge of Wills of the fraud that had had committed upon the company would not have been knowledge of the society of the facts constituting that fraud; because common sense at once leads one to the conclusion that it would be impossible to infer that the duty, either of giving or receiving notice, will be fulfilled where the common agent is himself guilty of fraud. It seems to me that if you assume here that Mr. Wills was guilty of irregularity – a breach of duty in respect of these transactions – the same inference is to be drawn as if he had been guilty of fraud. I do not know, I am sure, whether he was guilty of actual fraud; but whether his conduct amounted to fraud or to breach of duty, I decline to hold that his knowledge of his own fraud or of his own breach of duty is, under the circumstances, the knowledge of the company."
1 Citers


 
Great Northern Railway Co -v- Cole Co-Operative Society [1896] 1 Ch 187
1896

Vaughan Williams J
Company
A business created under the Industrial and Provident Societies Acts is not a company in any standard legal sense. Vaughan Williams J distinguished Standard Manufacturing on the basis that the Court of Appeal was not excluding companies generally from these Acts of Parliament, but excluding only companies for whom provision had been made for the registration of the mortgages. The question of whether the Bills of Sale Acts applied to other companies where no provision had been made for registration, was deliberately left open.
Bills of Sale Act 1878 6 8
1 Cites

1 Citers



 
 Salomon -v- A Salomon and Company Ltd; HL 16-Nov-1896 - [1897] AC 22; 66 LJCh 35; [1895-99] All ER 33
 
Spokes -v- Grosvenor and West End Railway Terminus Hotel Co Ltd [1897] 2 QB 124
1897
CA
A L Smith LJ, Chitty LJ
Company, Litigation Practice
The court discussed the joinder of the company in a derivative action. A L Smith LJ said: "That in the circumstances of this case the company are necessary parties to the suit I do not doubt, for without the company being made a party to the action it could not proceed" because "the company must be party to the suit in order to be bound by the result of the action and to receive the money received in the action." Also, "‘what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company."
Chitty LJ said: "To such an action as this the company are necessary defendants. The reason is obvious: the wrong alleged is done to the company, and the company must be party to the suit in order to be bound by the result of the action and to receive the money recovered in the action. If the company were not bound they could bring a fresh action for the same cause if the action failed, and there were subsequently a change in the board of directors and in the voting power. Obviously in such action as this is, no specific relief is asked against the company; and obviously, too, what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company. It was argued for the appellants that the company were made a party for the purpose of discovery only, and authorities were cited to shew that when no relief is asked against a party he cannot or ought not to be compelled to make discovery. But this argument and these authorities have no bearing on the present case, where, as already shewn, the action cannot proceed in the absence of the defendant company, and the defendant company are interested in and will be bound by the results".
Companies Act 2006
1 Citers


 
Welton -v- Saffery [1897] AC 29
1897

Lord Davey
Company
Lord Davey said: "Of course, individual shareholders may deal with their own interests by contract in such way as they may think fit. But such contracts, whether made by all or some only of the shareholders, would create personal obligations, or an exceptio personalis against themselves only, and would not become a regulation of the company, or be binding on the transferees of the parties to it, or upon new or non-assenting shareholders."
1 Citers


 
Lagunas Nitrate Co -v- Lagunas Syndicate [1899] 2 Ch 392
1899

Lindley MR
Company
The standard of behaviour expected of a company director was described: "As directors, I am not aware that there is any difference between their legal and their equitable duties. If directors act within their powers, if they act with such care as is reasonably to be expected from them, having regard to their knowledge and experience, and if they act honestly for the benefit of the company they represent, they discharge both their equitable as well as their legal duty to the company. In this case they clearly acted within their powers: they did nothing ultra vires: fraud is not imputed. The inquiry, therefore, is reduced to want of care and bona fides with a view to the interests of the nitrate company. The amount of care to be taken is difficult to define; but it is plain that directors are not liable for all the mistakes they may make, although if they had taken more care they might have avoided them: see Overend, Gurney & Co. v. Gibb. Their negligence must be not the omission to take all possible care; it must be much more blameable than that: it must be in a business sense culpable or gross."
1 Citers


 
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