POLLOCK, C. B.-I am of opinion that the rule ought to be discharged. In Rogers v. Holloway (a), a case not precisely the same as this, but in which the question was as to the power of a Judge to charge stock standing in the names of trustees for the defendant, Tindal, C. J., said: "If we entered into the matter, it appears we should have to settle a complicated question of equity, and that we cannot do." I should have come to the same conclusion without reference to the case of Rogers v. Holloway. The 25 & 26 Vict. c. 89, s. 25, requires every Company under that Act to keep a register of its members; and the 43rd section requires them to keep a register of mortgages; but the 30th section says that "no notice of any trust, expressed, implied or constructive, shall be entered on the register, or be receivable by the registrar." From that we may infer that, although there may be an inquiry as to whether shares are held by a mortgagee, it was never intended that we should enter into the question whether shares are held by the apparent owner as trustee for some other person. As in an ordinary partnership a Court of law must assume that each member of the firm is a partner in his own right, whatever equities there may be in this case we cannot take them into consideration. MARTIN, B.-I am of the same opinion. Although my original impression was against the order, I am now satisfied that it was rightly made, and ought not to be set aside. Looking at the act of parliament, it is plain that the object of the legislature was that the names of all the members of the Company should appear upon the register, that is, that the register should express who were the partners in the Company, without saying whether or not the relation (a) 5 M. & G. 292. 1866. CRAGG v. TAYLOR. 1866. CRAGG V. TAYLOR. EXCHEQUER REPORTS. of trustee and cestui que trust existed. The 30th section says that no notice of any trust shall be entered on the register, or be receivable by the registrar, that is, in substance, that no notice of any trust shall be taken by the managing body. owner. The facts are these.-The real owner of these shares, being unwilling to interfere in the management of the Company, transferred them to the defendant, in order that he might be a director, and support the interest of the real A judgment has been recovered against the transferee of the shares, and it is contended that they cannot be charged with the amount of the judgment debt because the debtor is not the real and beneficial owner of them. It is not necessary to consider whether a Court of equity would permit the real owner of the shares to place a mere nominal person on the register whose poverty, perhaps, may have caused him to be selected; it may be that the legislature never meant that it should be done, but however that may be no injury can arise from this order. The 1 & 2 Vict. c. 110, s. 14, authorizes a Judge of one of the superior Courts to make an order charging stock or shares of or in any public Company standing in the name of a judgment debtor "in his own right" or in the name of a trustee for him. In my opinion the words "in his own right" mean in his own name, not as an executor. Then the section goes. on to say that "such order shall entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment debtor." Therefore all this order does is to give the plaintiff a right to insist in a Court of equity that he is entitled to the same benefit as if the judgment debtor had made the charge. That question could not be raised if we set aside this order. If the judgment creditor would have had any rights under a charge made by the judgment debtor this order enables him to enforce them in a Court of equity; if he would have had no such rights the order does not confer them upon him. I entertain no doubt that the proper course is to let the order stand. CHANNELL, B.-I am also of opinion that the rule ought to be discharged. This is an application to set aside an order of my brother Martin under the 1 & 2 Vict. c. 110 (taken in connection with the 25 & 26 Vict. c. 89), which enables a Judge to charge shares in a public Company standing in the name of a judgment debtor "in his own right," or in the name of a trustee for him. There may be cases which might present some difficulty, but the short ground of my opinion is that these shares are standing in the name of the defendant in a public Company, so as to put it in the power of a Judge to charge them, and therefore primâ facie the charging order is right. The order is sought to be impeached on the ground that the shares were transferred into the name of the defendant by his brother for the purpose of protecting his interest in the Company. But whether the true nature of the transaction is such that the defendant is a trustee and holds the shares for a particular purpose only, and that, being a trustee, he committed a breach of trust by allowing a judgment to be recovered against him, so that the shares became charged, a Court of law cannot take these matters into consideration. I am satisfied that the order was right, although the defendant may be responsible for having caused a charge upon trust property. No proceedings can be taken to have the benefit of the charge until the expiration of six months from the date of the order; so that there is abundant time for any person who claims an equitable interest in these shares to establish his right. I am 1866. CRAGG v. TAYLOR. EXCHEQUER REPORTS. confirmed in this view by the principle of the decision in Rogers v. Holloway, which in my opinion is correct. PIGOTT, B.-I agree with the rest of the Court, and am satisfied that the order of my brother Martin is right. As to whether the relation of trustee and cestui que trust may be created with respect to these shares, I give no opinion: that is a question for a Court of equity to determine. I think the principle laid down by Tindal, C. J., in Rogers v. Holloway governs this case. A doubtful state of facts may arise upon affidavits, and we ought not, by discharging the order, to preclude the parties from trying the question in a Court of equity. Rule discharged. Jan. 17. Where an application is made for shares in a joint stock Company the directors are bound to THE RAMSGATE VICTORIA HOTEL COMPANY, LIMITED, v. MONTEFIore. THE SAME V. GOLDSMID. MONTEFIORE v. THE RAMSGATE VICTORIA HOTEL COMPANY, LIMITED. IN the first of the above actions, the declaration stated that, before suit, to wit, on, &c., the defendant, having then paid to the plaintiffs' bankers the sum of 501., as and by way of a deposit on application of 17. per share on fifty shares in the said Company, in consideration thereof, and within a rea- that the plaintiffs, at the request and on the application of allot them sonable time, otherwise the the defendant, would allot to him fifty shares of 201. each allottee may refuse to accept them, and recover back the deposit, whether or not he has withdrawn his application. Shares applied for on the 8th June were allotted on the 23rd November.—Held, not an allotment within a reasonable time. in the said Ramsgate Victoria Hotel Company, Limited, the defendant agreed to accept such shares, or any smaller number of shares that might be allotted to him, and to pay the deposit and calls thereon, and to sign the articles of association of the Company at such time and in such manner as the directors of the said Company might appoint.-Averments: that before this suit, in pursuance of the said application and request of the defendant, the plaintiffs did allot to the defendant fifty shares of and in the said Ramsgate Victoria Hotel Company, Limited, and the deposit and call payable and agreed by the defendant as aforesaid to be paid on such allotment was and is the sum of 41. per share, amounting to the sum of 2007., of all which the defendant had due notice: Yet the defendant, although often requested so to do, and although all things have happened &c., necessary to entitle the plaintiffs to have and recover the said sum of 2001, being the said deposit and call of 47. per share on allotment of the said fifty shares to the said defendant in the said Company, and to entitle the plaintiff to maintain this action, yet the defendant did not nor would accept the said shares, and did not nor would pay the deposit and call thereon, &c. Pleas (inter alia).-Fifthly: that before the plaintiffs allotted to the defendant any of the said shares, the defendant withdrew his said application for the said shares, and gave notice to the plaintiffs that he withdrew his said application, and that he abandoned and renounced the said agreement, which said notice the plaintiffs received before the making of the said allotment; and the defendant then, as he lawfully might, refused to accept the said shares and to pay the said deposit and calls, which is the breach of agreement complained of. Sixthly. That the plaintiffs did not, within a reasonable time in that behalf, allot to him any of the said shares; 1866. RAMSGATE V. MONTEFIORE. |