there is no obstruction to the vendee in obtaining the registration of such transfer, by taking the prescribed steps, the transfer will be regarded as complete.7

5. Where the company assume to erase transfers from their books on the alleged ground that they are merely colorable, and made for the purpose of injuriously affecting the interest of the company or others, they assume the burden of showing such to be the facts; and the transferees will be entitled to a mandamus to compel the company to restore their names to the registry as the proprietors.8

6. It is competent for the company to maintain a bill in equity against one upon an agreement to accept shares, although no writing has been signed by the defendant according to the statute requiring the acceptance to be in writing. The contract may be enforced, as an agreement to do what the statute requires, and the decree will settle the question whether the defendant or some other one is the lawful holder of the shares in question.9

7. Where stock is allowed to stand in the joint names of two persons, they will be regarded as joint tenants, unless something is shown to the contrary, and the company may treat the survivor as the owner of the whole.10

8. A court will not interfere to compel a joint-stock company to correct their registry by removing one name and inserting another while an action at law is pending in regard to the same matter. Where the registry is altered under a misapprehension as to the genuineness of a transfer it will not have the effect to transfer the shares.12 Specific performance of a contract to

11

7 Stray v. Russell, 5 Jur. N. S. 1295; s. c. affirmed in Exch. Chamb. 6 Id. 168. See also Field v. Lelean, 6 H. & N. 617, where a custom of the stock exchange in regard to a particular class of shares, not to deliver them on contracts of sale until the payment of the price, was held operative.

* Ward v. South Eastern Railw., 6 Jur. N. S. 890.

9N. B. & Canada L. Co. v. Muggeridge, 4 Drew. 686; Bog Lead Co. v. Montague, 10 C. B. N. S. 481; s. c. 8 Jur. N. S. 310.

10 Garrick v. Taylor, 3 Law T. N. S. 460. And this will be so, notwithstanding, by the rules of the bank, there was to be no benefit of survivorship, it appearing to have been the purpose of the deceased to have her share go to the survivor. Garrick v. Taylor, 29 Beav. 79; 7 Jur. N. S. 116, affirmed by Lords Justices, 10 W. R. 49.

11 Harris ex parte, 29 Law J. Exch. 364; s. c. 5 H. & N. 809.

12 Hare v. London & N. W. Railw., 1 Johns. Eng. Ch. 722.

sell shares will be decreed in equity, notwithstanding the constitution of the company provide that no shares shall be transferred except in such mode as the board shall approve, and the board refuse to give its consent to the transfer.13

9. If the company in their notice of allotment annex a condition which they have no power to do, it will be regarded as such a variation of the contract that a court of equity will not interfere to decree specific performance of the original contract. As when the company in such notice require the allottee to sign the deed of settlement on pain of forfeiture of the shares, when the constitution of the company gave no such power.14

10. The learned judge, Lord Chancellor Westbury, here discusses the general questions involved, and concludes, that in general the court will specifically enforce a contract to accept of shares in a joint-stock company. His lordship explains much at length his own views of the true modus operandi in effecting contracts by means of written offers and acceptance, and concludes, very justly, we think, that one who attempts to enforce such a contract must show that the acceptance on his part was prompt, simple, and unqualified; and that where new conditions are made in the acceptance the contract will not be regarded as closed until assent is given by the other party, either expressly or by fair implication, to such conditions.

11. The transfer of shares intended to be recorded on the books of the company should contain nothing but the transfer of the title. And where there are shares in different companies transferred between the same parties at the same time, it will be more convenient to have a separate transfer for each company.15 But as to the mere conveyance of title between the parties, one conveyance is sufficient. And it is held even that two different owners may join in one conveyance to the same person.

13 Poole v. Middleton, 7 Jur. N. S. 1262.

14 Oriental I. Steam Co. v. Briggs, 8 Jur. N. S. 201.

16

15 Lord Campbell, Ch. J., in Reg. v. General Cemetery Co., 6 E. & B. 415, 419; Copeland v. North Eastern R. Co., Id. 277.

16 Wills v. Bridge, 4 Exch. 193.

SECTION III.

Intervening Calls, or Assessments.

1. Vendor must pay calls, if that is requisite | n. 2. Calls paid by vendor after executing to pass title.

2. Generally it is matter of construction, and

inference.

transfer.

§ 34. 1. It has been said, too, that the contractor to transfer stock must see to it that all calls are met, up to the time of the transfer, as in general the charters of such companies, or their by-laws, prohibit the transfer of stock while calls remain unpaid.1 But we have seen that this is a provision for the protection of the * company, and in which they alone. are interested, and which will not ordinarily avoid a sale, between other parties, otherwise valid.

2. And it would seem that the question, upon which party the duty to pay future calls shall rest, is one of construction, in the absence of express stipulation; at all events, one of intention. It may perhaps be safe to say that the sale of stock, in the present tense, ordinarily implies that it is free from incumbrance of any kind, unless there is some exception or qualification in the contract. And that may be the common presumption, in regard to contracts to deliver stock, in future. But in the latter case the presumption is not, by any means, of so conclusive a character as in the former, and sometimes, in such cases, it has been held not incumbent upon the seller to pay intervening calls.2

1 Walford, 256, 257.

2 Shaw v. Rowley, 5 Railw. C. 47. In this case it was held no impediment to the seller's readiness to convey the shares, that he had not paid an intervening call, as he might do it at the moment of executing the transfer, and the court say the call was ultimately to be paid by the purchaser.

In Humble v. Langston, 2 Railw. C. 533, it is decided, that upon the sale and transfer of the shares, where the purchaser's name is not substituted, on the register of the company, for that of the seller, but the stock still standing in his name, he is thereby subjected to the payment of future calls, he cannot recover the money of the purchaser, because there is no implied contract to that effect, resulting from the transaction. This is certainly a most remarkable decision, and

*SECTION IV.

Transfer by Deed in Blank.

1, 2. Blank transfer formerly held invalid in 3. Rule different in America. England.

§ 35. 1. Ordinarily the transfer of stock, or a contract to transfer, is not required to be in any particular form. All that is

it is something of a task to be able to read the opinion of the court, by which this result is reached, with tolerable patience. The conclusion is certainly not fortified either by reason or analogy.

And in the Cheltenham & Great W. Union Railw. Co.. v. Daniel, 2 Railw. C. 728, it is decided, that the purchaser of shares may, by way of estoppel in pais, be made liable for calls, before his name is actually substituted for that of the seller upon the register of shares. If so, both parties are liable for the calls, and the seller, while his name remains upon the register, is the mere surety of the purchaser, as to future calls. And what is a more natural or necessary conclusion in the mind of any one having the common sense of justice, than to imply, that while the purchaser suffers the seller's name to remain upon the register, and liable to the payment of calls, through his neglect, he does impliedly promise to indemnify him against all loss on that account? See Burnett v. Lynch, 5 B. & C. 589.

But the case of Humble v. Langston is reaffirmed in the subsequent case of Sayles v. Blane, 6 Railw. C. 79. These cases can only be accounted for, upon the principle of discouraging blank unregistered transfers, which have the effect to evade the stamp duties. Shelford, 108, and Report on Railw. 1839, No. 517, p. 4.

Since writing the above the late case of Walker v. Bartlett, 36 Eng. L. & Eq. 368, has come to hand, where a blank transfer seems to be regarded as perfectly valid, and that the transfer in this mode does impose upon the vendee the duty of paying calls upon the shares, while they remain his property. We may be allowed to say, that this result of the English decisions, upon this subject, is not altogether without gratification, as the former decisions had so effectually mystified the subject, that it seemed not improbable that the difficulty of comprehending them might very likely be ultimately found with ourselves, rather than at the door of the eminent jurists, who have so long clung to the now acknowledged inconsistency of Humble v. Langston, which pertinacity in error, as a general thing, is far more uncommon in Westminster Hall than with courts of less experience.

Men of the learning and experience of the English judges, generally feel that they can afford to acknowledge their common share of human fallibility, without serious prejudice.

requisite, is, the same as in any other contract, the meeting of the minds of the parties. But in some cases the shares are, by the express requirements of the charter, made transferable only, by deed executed by both parties to the transfer.

2. And in such case it was considered, that a deed executed by the seller, with a blank for the name of the transferee, was no compliance with the statute.1 The opinion of the court seems to rest upon the early cases, in which it is held that the party cannot effectually execute a deed, leaving such important blanks as the name of the grantee, or obligee, while it is considered that less important ones, like the date, etc., may be supplied, after the execution, by permission of the party executing the same. This seems to have been the undoubted rule of the English law, from the authorities cited, in the last case.

3. But it seems to be rather technical than substantial, and to found itself either in the policy of the stamp duties, or the superior force and sacredness of contracts by deed, both of which have little importance in this country. And the prevailing current of American authority, and the practical instincts, and business experience and sense of our people are undoubtedly otherwise.

*

*4. There is no good reason why one should not be as much bound by a deed executed blank, and filled according to his directions, as by a blank acceptance or indorsement, of a bill, or note, and accordingly we find a large number of decisions of the American courts leading in that direction.2

1 Hibblewhite v. M'Morine, 2 Railw. C. 51 ; s. c. 6 M. & W. 200. It is considered that two or more several owners of shares may join in one deed to convey their shares. Wills v. Bridge, 4 Exch. 193; Enthoven v. Hayle, 9 Eng. L. & Eq. 434. See ante, § 34, n. 2.

2 Stahl v. Berger, 10 S. & R. 170; Sigfried v. Levan, 6 Id. 308; Wiley v. Moor, 17 Id. 438; Ogle v. Graham, 2 Penn. R. 132; Woolley v. Constant, 4 Johns. 54, 60; Ex parte Kerwin, 8 Cow. 118; Boardman v. Gore et al., 15 Mass. R. 331.

And the following certainly incline in the same direction. Smith v. Crocker, 5 Mass. R. 538, and the opinion of Parsons, Ch. J.; Hunt v. Adams, 6 Id. 519; Warring v. Williams, 8 Pick. 326; Adams v. Frye, 3 Met. 103; Bank of Commonwealth v. Curry, 2 Dana, 142; Bank v. McChord, 4 Id. 191; Johnson v. Bank of the U. States, 2 B. Monroe, 310; Camden Bank v. Halls, 2 Green, 583; Duncan v. Hodges, 4 M'Cord, 239.